Deleted Data – Page 4 – Electronic Discovery Law

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

Oleksy v. Gen. Elec. Co., No. 6 C 1245, 2014 WL 3820352 (N.D. Ill. Aug. 1, 2014)

Dec 01 2014

Key Insight: Where, at time complaint was filed, defendant should have reasonably foreseen that files created by its accused process would be material to the parties’ claims, yet defendant continued to overwrite its files per its standard practice instead of saving the files either manually or automatically, court denied plaintiff’s request for adverse inference instruction but ordered defendant to reconstitute or recreate three complete sequences of old computer code at its own cost

Nature of Case: Patent infringement

Electronic Data Involved: Computer code

First Senior Fin. Group LLC v. ?Watchdog,? No. 12-cv-1247, 2014 WL 1327584 (E.D. Pa. Apr. 3, 2014)

Dec 01 2014

Key Insight: Court applied four-part test to determine that defendant acted intentionally and in bad faith to suppress or withhold relevant evidence, but because the prejudice to plaintiffs resulting from the spoliation appeared minimal and plaintiffs did not present any arguments as to how the spoliation prejudiced the ultimate merits of their case, court would only require defendant to pay the cost of the independent computer forensics expert and attorneys’ fees associated with plaintiffs’ motion for spoliation sanctions; court denied all other relief and sanctions sought by plaintiffs

Nature of Case: Defamation, tortious interference with business relationships, civil conspiracy, violations of the Lanham Act

Electronic Data Involved: ESI, computer hard drive

Lewis v. Bay Inds., Inc., No. 12-C-1204, 2014 WL 4925483 (E.D. Wis. Sep. 30, 2014)

Dec 01 2014

Key Insight: Where defendant had taken “extraordinary step” of handing over to plaintiff’s computer expert a mirror image copy of the company’s email server so that expert could conduct his own search, and none of the mostly irrelevant emails retrieved by expert provided support for plaintiff?s claims, and plaintiff failed to offer convincing evidence that defendant violated an order of the court or intentionally destroyed or concealed relevant evidence, court rejected plaintiff?s motion for spoliation sanctions and ultimately granted summary judgment in favor of defendant, dismissing all of plaintiff?s claims

Nature of Case: Unlawful retaliation and wrongful discharge claims

Electronic Data Involved: Email

Fog Cap Acceptance, Inc. v. Verizon Bus. Network Servs., Inc., No. 3:11-CV-724-PK, 2014 WL 6064217 (D. Or. Nov. 12, 2014)

Dec 01 2014

Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot

Nature of Case: Breach of contract, negligence, and violations of bailment

Electronic Data Involved: Source code, hard drives

Bailey v. Scoutware, LLC, No. 12-10281, 2014 WL 1118372 (E.D. Mich. Mar. 21, 2014)

Dec 01 2014

Key Insight: Because defendant was able to examine the subject cell phone with its expert, court ruled that plaintiff should also have the ability to examine the phone to determine if additional relevant text or voicemail messages exist or if there is evidence that text or voicemail messages were deleted, and ordered defendant to produce the current and old cell phones to plaintiff’s expert; court deferred ruling on other requested sanctions as premature and found that neither side was entitled to attorneys’ fees in connection with the motion

Nature of Case: Michigan Whistleblower Protection Act and breach of contract

Electronic Data Involved: Text messages and voicemail messages on cell phone of plaintiff’s former co-worker

Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)

Dec 01 2014

Key Insight: Where plaintiff ran software to permanently erase all information on his computer then drilled a hole in his hard drive and threw it away, and completely erased and reformatted all data on recording device, and most of recordings produced by plaintiff had been edited, all at a time when plaintiff knew he had an obligation to preserve evidence, court found that plaintiff engaged in willful spoliation of highly relevant evidence, that plaintiff acted in bad faith, that defendants were severely prejudiced by the loss of evidence, that less drastic sanctions would not sufficiently compensate for plaintiff’s widespread destruction of evidence and that, given the extensive spoliation of relevant evidence by plaintiff, it would not be possible to fairly evaluate the case on the merits; court concluded that dismissal was the only appropriate sanction

Nature of Case: Retaliation and wrongful termination

Electronic Data Involved: Plaintiff’s personal computer, email, recordings made by plaintiff of his interactions with other employees

Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)

Dec 01 2014

Key Insight: Where defendant put ESI at issue by stating that plaintiff was fired, in part, for improper, personal use of the city’s computers, ESI relating to computer usage by plaintiff and certain others was relevant and city should have placed litigation hold on plaintiff’s immediate coworkers, those holding similar positions within the city, and the identified “key players”; court ordered city to bear the cost of forensic restoration

Nature of Case: Wrongful termination

Electronic Data Involved: E-mail, internet usage logs, and other ESI

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Dec 01 2014

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

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