Key Insight: spoliation, intent to deprive
Nature of Case: Title VII Sex Discrimination
Electronic Data Involved: e-mail
Keywords: sanctions, bad faith, intent to deprive, 37(e)(2), curative measures, 37(e)(1)
Key Insight: Spoliation rule jury instruction for destruction of physical object inappropriate because no intention or bad faith present.
Nature of Case: Landlord Tenant Dispute over CO levels from furnace
Electronic Data Involved: No ESI, application of FRCP 37(e) for guidance
Keywords: ESI spoliation instructions, intentional loss or bad faith, application of FRCP 37(e) in state court
Key Insight: spoliation, adverse inference
Nature of Case: breach of fiduciary duty, defamation
Electronic Data Involved: QuickBook files
Keywords: adverse inference, intent to deprive, spoliation, spoliation factors, sanctions
Key Insight: Party failed to take reasonable steps to preserve ESI, but since plaintiff never made a proportionate measure request to cure the prejudice, and since defendant made good faith attempts to provide access, no spoliation is found.
Nature of Case: breach of fiduciary duty, defamation, trademark
Electronic Data Involved: QuickBook files in digital form + other documents
Keywords: spoliation sanctions, good faith attempt, proportionate measure
Key Insight: delayed legal hold and missing metadata caused prejudice; sanctions imposed such that plaintiffs may not use the date in a document to prove document creation date and defendant may offer archived websites from the internet into evidence
Nature of Case: defamation, libel
Electronic Data Involved: websites, emails, metadata
Keywords: metadata, legal hold, spoliation of websites
Key Insight: Lack of prejudice or evidence of intent to deprive. Denied motion for dispositive sanctions under Rule 37(e). No evidence that higher quality recordings actually existed and were not preserved.
Nature of Case: Excessive force used during security screening
Electronic Data Involved: closed circuit video recordings
Keywords: preserve video recording, excessive force at the security screening.
Key Insight: Lost ESI claim failed because there was no proof anything was lost and there was no clear duty to preserve.
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: archived email, facebook posts
Keywords: spoliation, lost ESI, duty to preserve
Key Insight: Where Plaintiff sought spoliation sanctions for Defendant?s deletion of emails and argued that Defendant intended to keep the at-issue account hidden and deleted emails after it was discovered through another party?s production and that those emails revealed Defendant?s intent to keep the at-issue account hidden and other elements of Plaintiff?s claims, the court found that the deletions were ?intended to deprive Plaintiff of the information? contained within and reasoned that Defendant?s claim that he deleted the emails because of computer performance lacked credibility, but declined to impose default judgment absent a sufficient degree of prejudice and instead ordered that a permissive adverse inference instruction would be given to the jury
Nature of Case: Breach of contract and related claims
Electronic Data Involved: Email
Key Insight: Court found Plaintiff failed to take reasonable steps to preserve ESI when she turned her phone in to Verizon on August 15, 2016. Defendants claimed text messages on the Plaintiff?s phone could have shown she was acting as a manager and was hence an exempt employee. Defendants discussed their position with Plaintiff?s counsel in June, 2016 and the phone was de-activated two months later. Plaintiff testified she did not know she had to keep the phone to preserve the ESI. The Court found this testimony credible and recommended, pursuant to Rule 37(e)(1) that the ??[C]ourt order measures no greater than necessary to cure the prejudice? and proposed an instruction to the jury that Plaintiff had a duty to maintain potential ESI contained on her phone, but failed to do so and indicated the court could also instruct the jury as to any inference to draw from Plaintiff?s failure to preserve texts on her phone.
Nature of Case: Employment litigation, unpaid overtime
Electronic Data Involved: Text messages
Key Insight: Court denied motion for spoliation sanctions where Defendants ?failed to clear the threshold issue of showing that relevant evidence was lost or destroyed? or, in the case of the alleged spoliation of ESI of one former employee, where defendants failed to show that the emails could not be replaced through additional discovery in light of the production of some of the employee?s emails from other computers
Electronic Data Involved: ESI
Copyright © 2022, K&L Gates LLP. All Rights Reserved.