FRCP 37(e) Safe Harbor (prior to Dec. 1, 2015)

Liadis v. Suburban Mobility Authority for Regional Transportation (Mich. Ct. App. January 28, 2021)

Jan 28 2021

Key Insight: The trial court ordered plaintiff to produce her laptops to defendant’s computer forensic expert. In the days prior to turning over the laptops, about 41,000 unidentified files were deleted by a computer program called “CCleaner.” Defendant moved to dismiss plaintiff’s complaint based on spoliation and discovery violations and the trial court denied defendant’s motion. The Court of Appeals agreed with the trial court and found that plaintiff did not intentionally destroy evidence and it was unlikely that any evidence was in fact lost. Both sides’ forensic experts found the CCleaner was installed before the complaint was filed and was set to run automatically. The court was open to a lesser sanction than dismissal such as an adverse jury instruction should defendant request one.

Nature of Case: Personal Injury

Electronic Data Involved: Laptop files

Case Summary

Equal Employment Opportunity Commission v. Performance Food Grp., No CCB-13-1712 (D. Md. Mar. 6, 2019)

Mar 06 2019

Key Insight: ESI protocol agreed to by parties precluded EEOC from arguing other tapes were spoiled since Defendant complied with protocol.

Nature of Case: Employment Discrimination

Electronic Data Involved: E-mails and Documents regarding employee hotline

Keywords: Spoilation; Agreements between Parties

View Case Opinion

Epac Technologies, Inc. v. HarperCollins Christian Publishing, Inc., f/k/a Thomas Nelson, Inc., No. 3:12-cv-00463 (M.D. Tenn. March 29, 2018)

Dec 01 2018

Key Insight: Gross negligence does not necessarily prove intent on loss of electronic documents

Nature of Case: Contract

Electronic Data Involved: Warehouse data, e-mails

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Ball v. George Washington Univ., No. 17-cv-0507 (DLF) (D.D.C. Sept. 27, 2018)

Sep 27 2018

Key Insight: spoliation, failure to preserve ESI

Nature of Case: wrongful termination, negligence, violation of rights

Electronic Data Involved: surveillance footage, video footage

Keywords: surveillance footage, permanent storage, automatic overwrite, download

View Case Opinion

American Honda v. Thygesen (S.Ct. Okla., 2018)

Feb 13 2018

Key Insight: Safe harbor, since it was destroyed long before the suit was filed or foreseeable

Nature of Case: Products liability

Electronic Data Involved: ESI design information

Keywords: Spoliation sanctions

Identified State Rule(s): 12 O.S. 2011 ? 3237(G)

Dotson, et al. v. Edmonson, et al., No. 16-15371 (E.D. La. Jan. 22, 2018)

Jan 22 2018

Key Insight: Defendants turned in employer owned/funded cell phones a month after litigation filed; was not spoilation and no sanctions given

Nature of Case: Civil Rights Violation

Electronic Data Involved: Cell Phone Records

Keywords: spoilation, duty of preservation

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IBM Corp. v. Naganayagam, No. 15 Civ. 7991 (NSR) (S.D.N.Y., 2017)

Nov 21 2017

Key Insight: spoliation sanctions

Nature of Case: breach of contract

Electronic Data Involved: e-mails, electronic document

Keywords: spoliation, adverse inference, intent to deprive, 37(e)(2), prejudice 37(e)(1)

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Rhoda v. Rhoda (S.D.N.Y., 2017)

Oct 03 2017

Key Insight: which version of FRCP 37(e) should be applied where the issue was raised before the new version became effected but the motion was filed, whether after its effective date?

Nature of Case: employment

Electronic Data Involved: email

Keywords: adverse instruction, intent to deprive, duty to preserve, culpability, web hosting, relevance, prejudice

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Zamora v. Stellar Management Group, Inc. (W.D. Mo., 2017)

Apr 11 2017

Key Insight: Can the court order additional discovery if a party destroys evidence? Is a prejudice ruling required in a destruction of evidence case?

Nature of Case: Retaliation and discharge

Electronic Data Involved: text messages, emails, social media messages

Keywords: Prejudice, Destruction of evidence, Social media, Text messages

View Case Opinion

D.O.H. v. Lake Cent. Sch. Corp., No. 2:11?cv?430, 2015 WL 736419 (N.D. Ind. Feb. 20, 2015)

Dec 01 2015

Key Insight: Finding plaintiff responsible for his prior counsel?s deficient Facebook production, saying he ?voluntarily chose his prior counsel and cannot avoid the consequences for his attorney?s discovery failures? and also responsible for his current counsel?s deficient Twitter production, district court granted Motion for Sanctions filed by defendants in part and ordered plaintiff to produce the entirety of his Twitter profile with redactions for privilege and relevance and to produce a log for any social networking information withheld and to pay the reasonable expenses and attorney?s fees associate with the discovery dispute.

Nature of Case: Civil Rights

Electronic Data Involved: Social media postings

Tag:FRCP 37(e) Safe Harbor (prior to Dec. 1, 2015)