Data Preservation – Page 90 – Electronic Discovery Law

In re Gupta, 263 S.W. 3d 184 (2007)

Dec 01 2007

Key Insight: Appellate court denied petition for writ of mandamus where trial court appropriately ordered ?death penalty sanctions? (struck all pleadings) for defendant?s discovery violations including repeated failure to produce relevant information, repeated production of fraudulent materials, including diskettes and computers, and repeated false representations to the court; plaintiff filed three motions to compel and at least two motions for sanctions resulting in more than $60,000 in fines before imposition of ?death penalty sanctions? by trial court

Nature of Case: Fraudulent inducement, breach of contract, conversion

Electronic Data Involved: Computers, diskettes, ESI

Rodgers v. Lowe’s Home Centers, Inc., 2007 WL 257714 (N.D. Ill. Jan. 30, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff?s motion for ultimate sanction of dismissal based upon defendant’s loss of videotape, since there was no proof of willful or bad faith destruction and marginal relevance of missing videotape was such that plaintiff’s ability to prosecute the case was not meaningfully compromised

Nature of Case: Employment discrimination

Electronic Data Involved: Surveillance videotape showing unpleasant encounter between plaintiff and customer which preceded plaintiff’s termination

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 1989752 (S.D. Ohio July 9, 2007)

Dec 01 2007

Key Insight: After conducting de novo review of the matters raised by defendant’s objections to magistrate judge’s May 22, 2007 order, district court adopted magistrate judge’s recommended sanction (i.e., denying defendant’s motion to dismiss and imposing monetary sanctions) and ordered defendant to file answer to complaint within 10 days

Nature of Case: UCC claims arising from defendant’s Internet-based check service

Electronic Data Involved: Databases

CSI Inv. Partners, II v. Cendant Corp., 507 F. Supp. 2d 384 (S.D.N.Y. 2007)

Dec 01 2007

Key Insight: Where defendant lost highly relevant financial and marketing data during data conversion but did not reveal the fact of the lost evidence until 3-1/2 years after plaintiffs originally requested it, and defendant raised frivolous and vexatious objections to plaintiffs’ requests for production, court found bad faith and ordered defendant to pay $720,000 to plaintiffs, representing 15 percent of plaintiffs? attorneys fees, as sanction for discovery misconduct

Nature of Case: Breach of contract

Electronic Data Involved: Financial and marketing data

Kellogg v. Nike, Inc., 2007 WL 4570871 (D. Neb. Dec. 26, 2007)

Dec 01 2007

Key Insight: Resolving various discovery issues, court found defendants? explanation of document search sufficient and observed that plaintiff could not identify any particular document or category of missing documents based on evidence aside from his own incredulity; court added that, if gaps evolved after defendants’ supplementation of production, plaintiff could revisit the issue

Nature of Case: Patent infringement

Electronic Data Involved: Email and other ESI

Paul v. USIS Commercial Servs., Inc.Slip Copy, 2007 WL 2727222 (D. Colo. Sept. 17, 2007)

Dec 01 2007

Key Insight: Court denied defendant?s post-trial motion for reimbursement of $292,000 incurred to preserve large volume of ESI as demanded by plaintiff at outset of litigation, finding that plaintiffs? demand, while arguably unreasonable, was not so abusive as to warrant sanctions; court noted that, where plaintiff demanded preservation of huge amounts of ESI and parties were not able to agree on narrowed scope of information to be preserved, defendant, ?like all parties, was left to make a reasonable judgment about what information must be preserved?

Nature of Case: Putative class action under Fair Credit Reporting Act

Electronic Data Involved: Information in all databases maintained by defendant, any and all e-mail, and other broad categories of information

McKenna v. Nestle Purina PetCare Co., 2007 WL 433291 (S.D. Ohio Feb. 5, 2007)

Dec 01 2007

Key Insight: Court denied without prejudice plaintiff?s motion for sanctions based upon defendant?s claimed inability to retrieve the contents of plaintiff?s email account, where defendant had identified several older emails at the time of plaintiff?s discharge (to support its termination of plaintiff) but represented in discovery that its employees’ email accounts were overwritten beginning on the eighth day after a message was either sent or received and that no additional emails existed beyond those produced; court suggested that defendant investigate the matter and be prepared, if requested in discovery, to provide a further explanation of the apparent discrepancy between its ability to retrieve emails at the time of plaintiff?s discharge and its current ability to do so

Nature of Case: Wrongful termination, employment discrimination

Electronic Data Involved: Email

Armamburu v. Healthcare Fin. Servs., Inc., 2007 WL 2020181 (E.D.N.Y. July 6, 2007)

Dec 01 2007

Key Insight: Where defendant asserted that certain data was ?dumped? from its computer system on an ?automatic and periodic basis,? but failed to provide a date or time period when such data was deleted or state whether a diligent effort was made to obtain such information in either electronic or paper format, court found that further discovery was necessary before it could determine whether spoliation sanctions were appropriate and ordered defendant to provide information on when alleged ?data dump? occurred, what information was deleted, and whether backup tapes and/or paper records exist that may provide requested information

Nature of Case: Putative class action

Electronic Data Involved: Information pertaining to the number of prospective class members, including their names and addresses

Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 3101248 (D. Nev. Oct. 16, 2007)

Dec 01 2007

Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them

Nature of Case: Infringement litigation

Electronic Data Involved: Servers

Floeter v. City of Orlando, 2007 WL 486633 (M.D. Fla. Feb. 9, 2007)

Dec 01 2007

Key Insight: Court denied motion for spoliation sanctions based on city’s overwriting of backup tapes and failure to preserve computer’s hard drive, where subject computer had been reassigned and its hard drive re-imaged before discovery requests were served, missing evidence was not crucial to plaintiff’s claims, and destruction of the material was not done in bad faith

Nature of Case: Employment discrimination

Electronic Data Involved: Computer hard drive and backup tapes

Tag:Data Preservation