Data Preservation – Page 90 – Electronic Discovery Law

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D. Fla. Oct. 25, 2007)

Dec 01 2007

Key Insight: Where witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Email

In re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007)

Dec 01 2007

Key Insight: As sanction for debtor?s deliberate and intentional use of a wiping software program on computers after learning that court was ordering their production, and because of severe prejudice to trustee and government, court entered partial default judgment against debtor and ordered debtor to turn over all computers, portable storage devices and any backups within 10 days of order, and to execute any waivers or authorizations necessary for trustee and government to obtain assorted financial records; court further ordered that, if debtor did not comply within 10 days, bench warrant would issue for debtor?s apprehension and debtor would be incarcerated until he purged himself of contempt and complied with orders

Nature of Case: Government brought adversary proceeding against Chapter 7 debtor to except his tax debt from discharge and declare various entities his alter ego

Electronic Data Involved: Hard drives, email

Hudson Global Res. Holdings, Inc. v. Hill, 2007 WL 1545678 (W.D. Pa. May 25, 2007)

Dec 01 2007

Key Insight: Granting in part and denying in part plaintiff’s motion for TRO/preliminary injunction, court also ordered counsel to confer and suggest within ten days an agreeable method by which plaintiff, through its computer forensics expert or otherwise, may access and permanently delete or retrieve its information from defendant’s portable external hard drive and personal computer which were in court’s custody

Nature of Case: Plaintiff alleged claims of fraud, breach of fiduciary duty, misappropriation of trade secrets and unfair competition against former employee

Electronic Data Involved: Business data; laptop and portable hard drive

Frees, Inc. v. McMillian, 2007 WL 708593 (E.D. Tenn. Mar. 5, 2007)

Dec 01 2007

Key Insight: Where first tier of discovery showed numerous similarities between certain CAD files, drawing and specifications maintained by the parties, court found that second tier of limited additional discovery was warranted and ordered defendant’s current employer to produce materials relating to four additional projects; court further entered order on parties’ agreement relating to forensic imaging of current employer’s computer servers and desktops at plaintiff’s expense

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Computer files

Gibson v. Ford Motor Co., 2007 WL 2119008 (N.D. Ga. July 19, 2007)

Dec 01 2007

Key Insight: Denying Ford’s request for clarification of January 4, 2007 Order, court nonetheless confirmed that plaintiffs may ask deponent about what materials are available for production, and if materials are not available, why they are not available; “Plaintiffs are not, however, permitted to use the deposition as a surrogate for production of the suspension document, and may not ask questions pertaining to the specific contents or rationale behind the suspension order.”

Nature of Case: Personal injury product liability

Electronic Data Involved: Legal hold notice

Benton v. Dlorah, Inc., 2007 WL 3231431 (D. Kan. Oct. 30, 2007)

Dec 01 2007

Key Insight: Magistrate judge ordered plaintiff to produce responsive emails, and if emails had been deleted, to produce for inspection her computer hard drive from which those emails were sent to allow defendants to use services of computer forensic specialist, if necessary, to retrieve them; request for sanctions denied without prejudice to a further request for a ?negative inference instruction? to be determined by trial judge

Nature of Case: Employment discrimination

Electronic Data Involved: Deleted email, hard drive of plaintiff’s personal computer

In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007)

Dec 01 2007

Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order

Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession

Electronic Data Involved: Email and other ESI

Forrest v. All Cities Mortg. & Fin., Inc., 2007 WL 3026787 (E.D. Wis. Oct. 16, 2007)

Dec 01 2007

Key Insight: In case where defendant was shutting down its business effective November 1, 2007 and plaintiffs argued that shutdown raised possibility of evidence spoliation, court denied plaintiffs? request for order requiring defendant to preserve documents related to lawsuit since plaintiffs offered no evidence that defendant was actually destroying evidence or failing to retain relevant documentation and because defendant?s duty to prevent spoliation of relevant evidence was inherent in judicial process and business shutdown did not impact it

Nature of Case: Putative class action alleging violations of the Fair Credit Reporting Act

Electronic Data Involved: Unspecified evidence

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Tag:Data Preservation