Tag:FRCP 37(e) Preservation (effective Dec. 1, 2015)

Key Insight: For an individual defendant?s admitted disposal of his laptop and deletion of the contents of his external drive after transferring the contents to a thumb drive despite Plaintiff?s request to preserve and pending litigation, the court reasoned that Plaintiff ?plausibly suggests? that the laptop and hard drive ?might have? contained relevant ESI based on Defendant?s admitted accessing and copying of confidential files and imposed sanctions, including an adverse inference and an order for Defendants to permit and pay for examination of the at-issue external drive, but the court declined to impose sanctions for the individual defendant?s loss of his cellphone ?based on the current state of the evidentiary record? where Plaintiff failed to proffer evidence sufficient to suggest that the loss was not inadvertent or to clarify the approximate time of the loss

Electronic Data Involved: Laptop, ESI, cellular phone

Key Insight: Court found Defendant?s failure to preserve a vehicle?s Electronic Control Module (ECM) data after it was aware of a severe accident, contrary to the Defendant?s ?normal practice,? constituted spoliation. Court denied Plaintiffs? motion for a negative inference under Fed. R. Civ. P. 37 (e) as the Plaintiffs were able to reconstruct the accident and vehicle?s speed from other sources and that the failure to preserve was not intentional based on the defendants? plausible, though erroneous, understanding that the data was overridden by the removal of the damaged vehicle from the scene. Court found a jury instruction that ECM data was not preserved and allowing both parties to present evidence and argument at trial regarding defendant?s failure to preserve the data to be a sufficiently effective sanction.

Nature of Case: Personal injury (auto accident)

Electronic Data Involved: Electronic Control Module (ECM)

Key Insight: Where event data recorder information saved on a laptop computer (1) was transferred to a central repository (?the Vault?) without validation and later found to be unreadable and (2) the original files were destroyed, without validating the files in the Vault, with the laptop after a hardware malfunction, court granted plaintiff?s motion for an adverse inference but declined to strike defendants? answer. Court found defendants? failure to review and validate file uploads to the central repository for over 4 years after the accident ?unfathomable? and concluded that ?their failure to access the files uploaded to the Vault for the four-year period before 2010 conflicted with their duties under the Federal Rules of Civil Procedure.? Court found defendants? actions unreasonable and without credible explanation and therefore sufficient to support a finding that defendants acted with the intent to deprive plaintiff of evidence.

Nature of Case: Personal injury (railway accident)

Electronic Data Involved: Event Data Recorder Files

Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.

Nature of Case: Intellectual Property infringement

Electronic Data Involved: Images, Webpages

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