Key Insight: Where Defendant unintentionally lost text messages when his service provider failed to transfer those text messages to his new phone?despite his request to transfer ?everything??and where the texts were later recovered by a forensic analysist, court declined to impose ?punitive sanctions? and ordered Defendant to pay the cost of retrieving the messages
Electronic Data Involved: Text messages (WhatsApp)
Key Insight: Where hard copy closing file itself was destroyed, but defendants electronically preserved the closing file in two different storage systems, FileStor and SureClose, appellate court found that trial court acted within its discretion when it denied plaintiff?s motion for spoliation sanctions
Nature of Case: Real estate dispute
Electronic Data Involved: Closing file, title commitment
Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)
Nature of Case: Personal injury (train/car collision)
Electronic Data Involved: Original hard drive containing video footage
Key Insight: Court ordered dismissal of Plaintiff?s claims with prejudice and payment of Defendant?s attorney?s fees and costs incurred for numerous discovery motions and forensic inspection of Plaintiff?s electronic devices for Plaintiff?s bad faith spoliation including defiance of the court?s discovery orders by refusing to submit certain devices and accounts for forensic inspection and by refusing to produce certain information and the destruction of ESI by wiping both his iPhone and Blackberry device, among other things
Nature of Case: Employment litigation (harassment, retaliation)
Electronic Data Involved: ESI, forensic inspection of devices (iPhone, Blackberry)and accounts
Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence
Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits
Electronic Data Involved: E-mail and other ESI
Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods
Nature of Case: Employment discrimination
Electronic Data Involved: Laptop; text messages and other ESI on mobile phone
Key Insight: Where defendants cooperated with Vermont Department of Liquor Control investigation and with their insurer and supplied records to the apparent satisfaction of both, and produced facially complete 62-page check detail, but failed to preserve the original ESI after filing for bankruptcy and closing business, court denied plaintiffs’ motion for an adverse inference instruction since failure to preserve was not deliberate or in bad faith and plaintiffs’ claimed prejudice was based on conjecture; however, because plaintiffs were prejudiced to the extent they could not explore possibility of fabrication or tampering with printout of check details, court would allow evidence of destruction of ESI in its original format to be admitted at trial
Nature of Case: Dram Shop Act and common law claims alleging that defendants’ sale of beer to individual caused head-on collision between individual’s vehicle and plaintiffs’ vehicle
Electronic Data Involved: ESI on restaurant’s computers in its original format
Key Insight: Notwithstanding that litigation hold was not put into place until more than four years after complaint was filed, court denied plaintiff?s motion for spoliation sanctions where there was no evidence that defendant deleted any documents or evidence, or acted with an intent to conceal or destroy evidence, there was no evidence that defendant routinely exchanged email correspondence about plaintiff with others, and the vigorous work of plaintiff?s appointed counsel led to only one responsive email being produced; plaintiff would be allowed to question defendant at trial about her failure to timely impose a litigation hold and about other matters related to plaintiff?s assertion that she must have had relevant email communications that no longer exist
Nature of Case: Pro se prisoner civil rights claims
Electronic Data Involved: Emails
Key Insight: Court found that defendant was negligent in failing to preserve or to make diligent efforts to retrieve surveillance video, but that loss of video did not fatally deprive plaintiff of means to prosecute his action given that witness who viewed the videotape and grocery store worker who unpacked boxes near accident location were available to testify, and accident report and medical response reports provided plaintiff with ability to prove proximate cause of accident; trial court would fashion appropriate negative inference charge against defendant based upon its failure to preserve the videotape and defendant would be precluded from offering testimony at trial to contradict plaintiff’s claim of adequate notice or that defendant created the condition which caused plaintiff to slip and fall
Nature of Case: Slip and fall accident at supermarket
Electronic Data Involved: Surveillance video
Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees
Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act
Electronic Data Involved: ESI on plaintiff’s computer hard drive
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