FRCP 37(e) Safe Harbor (prior to Dec. 1, 2015) – Page 3

Miller v. City of Plymouth, No. 2:09-CV-205 JVB, 2011 WL 1458419 (N.D. Ind. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court upheld ruling that defendants did not destroy video evidence thereby warranting sanctions where plaintiff sought police recordings starting in 2004, but where no retention policy existed during that time period except officers? discretion to retain recording and many of the requested recordings had been recorded over long before plaintiffs? traffic stop; where the relevant officer was not asked to save tape of certain traffic stops until 2010; where plaintiffs? accusations of spoliation assumed that relevant video existed and ?overlooked the significant trouble Defendants have experienced in operating and maintaining their digital systems;? and where defendants had no control over the fact that the systems hard drive recorded over old data

Nature of Case: Claims arising from traffic stop

Electronic Data Involved: Video

Streit v. Elec. Mobility Controls, LLC, 2010 WL 4687797 (S.D. Ind. Nov. 9, 2010)

Dec 01 2010

Key Insight: Where defendant?s multiple attempts at starting plaintiff?s car following the underlying accident resulted in multiple ?blocks? of data being overwritten, the court denied sanctions absent evidence that the loss was intentional (where the imposition of sanctions required a showing of bad faith) and because the relevant ?event? data was also recorded in alternative source that was fully preserved and plaintiff offered no evidence that the relevant data was recorded only to the lost data blocks and not the available alternative source

Nature of Case: Personal injury/product liability

Electronic Data Involved: Black box data from automobile

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)

Dec 01 2008

Key Insight: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms

Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests

Electronic Data Involved: Hard copy and electronic files

Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)

Dec 01 2008

Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop hard drive, USB Thumb-Drive

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Oklahoma, ex rel. Edmondson, 2007 WL 1498973 (N.D. Okla. May 17, 2007)

Dec 01 2007

Key Insight: Where court had invited motion to address e-discovery issues in order to assure that e-discovery issues were moving foward, court granted motion and directed parties to the Guidelines for the Discovery of ESI for the District of Kansas to serve as guidance pendng enactment by the court of its own local rules and/or guidelines; court further noted that, although no formal preservation order had been entered, the duty to preserve evidence including ESI arises as soon as a party is aware the documentation may be relevant; court further warned parties to be “very cautious” in relying upon the safe harbor provision of new FRCP 37(e)

Nature of Case: Nuisance and CERCLA claims against owners of poultry growing operations

Electronic Data Involved: ESI

Escobar v. City of Houston, 2007 WL 2900581 (S.D. Tex. Sept. 29, 2007)

Dec 01 2007

Key Insight: Adverse-inference instruction not warranted where there was no showing that relevant electronic communications were destroyed or that destruction occurred in bad faith; officers involved in the shooting were not likely to have used email to communicate about the event in the day after it occurred, and, under HPD’s document retention and destruction policy, electronic communications records were routinely destroyed within ninety days

Nature of Case: Wrongful death action based on shooting death of 14-year-old boy by police officer

Electronic Data Involved: Records of Houston Police Department electronic communications in the 24 hours after victim’s death

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