Deleted Data – Page 6 – Electronic Discovery Law

Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)

Dec 01 2012

Key Insight: Where defendant?s litigation specialist initially asserted that no responsive emails were uncovered but later testified that she had recently been told of a possible repository of archived emails and that search efforts there were ongoing and already had uncovered several relevant emails, Circuit court found no abuse of discretion in District Court?s refusal to impose an adverse inference which requires a showing of bad faith noting that the litigation specialist?s ?initial lack of knowledge? was ?carelessness at most? and further reasoning that the admission that relevant emails had been discovered was a further indication that the defendant was not acting in bad faith

Nature of Case: Fraud, breach of contract and similar claims related to plaintiff’s mortgage

Electronic Data Involved: Emails

Io Group, Inc. v. GLBT, Ltd., No. C-10-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

Dec 01 2011

Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Escamilla v. SMS Holdings Corp., No. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21, 2011)

Dec 01 2011

Key Insight: Court affirmed Magistrate Judge?s order requiring defendant to submit his computers for forensic examination, at his own expense, where defendant reinstalled an operating system less than two weeks after plaintiff filed a motion to compel and where, because of the loss of data, plaintiff was therefore prejudiced to an unknown extent?bad faith was not required for such an order; court affirmed order requiring corporate defendant to search hard drives of key employees, the image of a file and print server, and backup tapes dating back five years where the search was not overly broad and where defendant did not establish undue burden?despite its exorbitant estimate regarding backup tapes?in light of the large disparity between estimates from both parties, and where the court noted that much of the costs could have been avoided had SMS fulfilled its preservation duties and not converted to a less accessible format

Nature of Case: Employment litigation – sexual harassment

Electronic Data Involved: ESI

Melendres v. Arpaio, No. CV-07-2513-PHX-GMS, 2011 WL 6740709 (D. Ariz. Dec. 23, 2011)

Dec 01 2011

Key Insight: Court granted motion for sanctions and imposed permissive adverse inferences as to two categories of information which the court found had been intentionally shredded and/or deleted despite a duty to preserve

Nature of Case: Civil rights class action

Electronic Data Involved: Emails, ESI

Melendres v. Arpaio, 2010 WL 582189 (D. Ariz. Feb. 12, 2010) (Unpublished)

Dec 01 2010

Key Insight: Where defendant?s failure to communicate plaintiff?s preservation request and failure to implement a litigation hold resulted in the destruction of data, court ordered adverse inference related to the destruction of a particular category of evidence but delayed the imposition of sanctions for the destruction of email where efforts to retrieve those emails from backup systems were ongoing and ordered defendant to submit an explanation of their retrieval efforts with specific topics to be addressed

Nature of Case: Class action

Electronic Data Involved: Emails, hardcopy evidence

Pitney Bowes Gov. Solutions, Inc. v. United States, 94 Fed. Cl. 1 (Fed. Cl. 2010)

Dec 01 2010

Key Insight: Where, despite the destruction of relevant ESI, defendant was able to restore the relevant documents from backup tapes and produce them, but where the metadata was different such that the author of the documents was listed as one person rather than the many who had actually authored them, the court accepted the explanation that the author reflected in restored documents had received each document as an email attachment and saved those documents to her hard drive, thus changing the metadata, and further found that plaintiff made no showing that the documents were otherwise modified and denied the motion for sanctions

Nature of Case: Bid Protest

Electronic Data Involved: ESI

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

Dec 01 2010

Key Insight: For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was ?at a minimum? negligent and indicated that an adverse inference would be crafted after all the evidence had been received. For ?prolonged delay? in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000

Nature of Case: Breach of contract, breach of implied covenant of good faith and fair dealing

Electronic Data Involved: Data on laptops, emails

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Kaufman v. Am. Express Travel Related Servs. Co., Inc., 2010 WL 3365921 (N.D. Ill. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendant admitted that information regarding potential class members had been deleted pursuant to its regular information management practice and indicated that some (but not all) information could be retrieved from backup tapes, the court acknowledged defendant?s duty to preserve but reasoned the culpability for such deletions was ?somewhat lessened? because no one had requested that defendant alter is retention policies and because the deletions occurred ?pursuant to the regular operation? of those policies and determined that no conclusions could be reached on the record provided but that ?the court may consider imposing a remedy in any findings regarding the fairness of settlement?

Nature of Case: Class action challenging certain fees assessed on American Express-issued gift cards

Electronic Data Involved: Customer-identifying information

Coburn v. PN II, Inc., 2010 WL 3895764 (D. Nev. Sept. 30, 2010)

Dec 01 2010

Key Insight: Where forensic investigation of plaintiff?s home computer revealed use of CCleaner only days before the investigation was scheduled, court denied motion for sanctions where the evidence indicated it was unlikely that relevant documents were destroyed and where in light of plaintiff?s denial that she ran or directed someone else to run CCleaner, there was not clear and convincing evidence of a violation of the court?s Forensics Order; court denied sanctions despite existence of thousands of ?non-standard? files containing keyword hits which indicated files that had been deleted where plaintiff presented evidence that such files could have been created in the normal use of the computer and where the relevance of the files could not be established for purposes of a spoliation analysis; court denied sanctions for plaintiff?s deletion of emails from her work account where the emails were saved to her personal computer and produced and where defendant?s protests that more emails should have been produced were insufficient to establish intentional spoliation; for plaintiff?s admitted and intentional destruction of audio tapes, the court imposed a $1500 monetary sanction

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

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