Data Preservation – Page 94 – Electronic Discovery Law

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006)

Dec 01 2006

Key Insight: In follow-up to earlier decision awarding sanctions for discovery failings (Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)), court awarded Phoenix its attorney’s fees and costs associated with bringing the motion for sanctions in the amount of $45,162, to be paid equally by the SRC Defendants and their law firm; court further ruled that the SRC Defendants’ share ?may not be borne by their insurance carriers?

Nature of Case: Investment company sued former advisor for breach of fiduciary duty, common law fraud, and negligent misrepresentation

Electronic Data Involved: Computer hard drives and servers

Buskey v. Boston Market Corp., 2006 WL 2527826 (E.D.N.Y. Aug. 14, 2006)

Dec 01 2006

Key Insight: Defendants’ failure to produce accident report amounted to spoliation of evidence and provided additional ground for denying defense motion for summary judgment

Nature of Case: Slip and fall personal injury

Electronic Data Involved: Accident report prepared by defendant

PML N. Am., LLC v. Hartford Underwriters Ins. Co., 2006 WL 3759914 (E.D. Mich. Dec. 20, 2006)

Dec 01 2006

Key Insight: Where one defendant failed to comply with court’s orders regarding forensic inspection and copying of hard drives, and there was evidence of data spoliation and physical tampering with computer hardware, court concluded that default judgment was appropriate sanction and also ordered the defendant to pay the reasonable attorney fees and costs that its misbehavior caused plaintiff to incur

Nature of Case: Insurance fraud, insurance coverage

Electronic Data Involved: Various hard drives and backup drives

Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335 (M.D. La. 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions but not adverse inference instruction where defendant negligently failed to implement adequate litigation hold and preserve electronic evidence, but evidence was insufficient to show defendant acted in bad faith or with culpable state of mind or that plaintiff had suffered any prejudice

Nature of Case: Environmental litigation

Electronic Data Involved: Email and backup tapes

Ryan v. Staten Island Univ. Hosp., 2006 WL 3497875 (E.D.N.Y. Dec. 5, 2006)

Dec 01 2006

Key Insight: Where defendant failed to timely disclose that it was withholding certain information from production and defense counsel made representations several times to plaintiff and to court that she had provided full and complete discovery, court: (1) granted motion to compel production of database in hard copy and in electronic form with specific redactions noted and included in revised privilege log; (2) extended discovery cut-off date; and (3) awarded sanctions solely against defense counsel (and not client) for costs of motion

Nature of Case: Fraud and medical malpractice

Electronic Data Involved: Database

Durdin v. Kuryakyn Holdings, Inc., 2006 WL 6040466 (W.D. Wis. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where defendant never attempted to preserve email related to disputed products, did not impose email preservation directive and did not suspend policy of destroying all email after 30 days, but asserted that no relevant email was destroyed because its employees never exchanged emails on topics relevant to lawsuit, court declined to enter default judgment absent stronger proof of bad faith intent and reserved decision on adverse inference instruction; court would allow parties to explore with witnesses at trial whether they exchanged and then destroyed relevant email

Nature of Case: Patent infringement

Electronic Data Involved: Email

Arista Records, LLC v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006)

Dec 01 2006

Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive

Kimbrough v. City of Cocoa, 2006 WL 3500873 (M.D. Fla. Dec. 4, 2006)

Dec 01 2006

Key Insight: Court denied plaintiffs’ motion for spoliation sanctions based upon defendant’s failure to produce complete copy of particular monthly medical report where plaintiffs failed to show that duty to preserve attached to the report, or that report was crucial to their claims, and there was no evidence of bad faith, especially since defendant had gone to “extraordinary lengths” to attempt to retrieve a copy of the complete report

Nature of Case: Civil rights, excessive force

Electronic Data Involved: Monthly medical report

Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Preservation order not warranted under three-part balancing test, but defendants would be required to treat Document Retention Questionnaire and supplemental letter inquiries regarding electronic document maintenance and retention as interrogatories and provide substantive responses since plaintiff provided ample basis and deposition was no substitute; magistrate also ordered production of electronic records in native file format since defendant had not provided any substantive basis for objection

Nature of Case: Defamation, tortious interference with prospective economic advantage and civil conspiracy

Electronic Data Involved: Email and other electronic records

Quinby v. WestLB AG, 245 F.R.D. 94 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Court applied Zubulake factors and granted in part defendant?s motion to shift costs, holding that defendant was entitled to recover 30 percent of the costs of restoring and searching backup tapes for responsive emails of one former employee, stating: “[I]f a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data.”

Nature of Case: Gender discrimination

Electronic Data Involved: Email stored on backup tapes

Tag:Data Preservation