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: 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 Plaintiff lost the phone containing relevant video footage of the incident leading to plaintiff?s arrest when she attended a ?gala? carrying a ?really small purse? and thus had to hand-carry or lay down her phone and where she failed to call the banquet hall to determine if her phone was recovered (although she apparently did call her phone?s service provider and a relevant cab company in furtherance of her recovery efforts), the court declined to find that the loss was intentional and reasoned that the evidence suggested ?at most mere negligence? and that because there was a ?genuine issue of material fact regarding what transpired during the videotaping, the court [could] not find that the lost videotape was likely to favor Defendants? and thus denied the motion for sanctions without prejudice to renewal at trial if ?Defendants could adduce evidence ? that the lost video recording was likely to be favorable to them?; notably, court applied common law spoliation analysis for loss of the phone, recognizing that the common law applied, ?except in cases involving electronically stored information?
Nature of Case: Constitutional claims arising from arrest following alteration with police while Plaintiff recorded police activities
Electronic Data Involved: Lost phone containing video footage of incident leading to arrest
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: Where Defendant destroyed potentially relevant tort-claim records pursuant to its record retention schedule during pending litigation among other discovery abuses and where the trial court therefore ordered monetary sanctions for the discovery violations and indicated that it would consider a spoliation instruction, the appellate court concluded that the trial court?s record did not support a finding that ?the City destroyed the evidence in bad faith, knew that the evidence was important to the pending litigation, or had the duty to preserve the evidence? and thus, it was not clear that spoliation had occurred; error was harmless where $10,000 fine was not based on a finding of spoliation
Nature of Case: Tort (bicycling accident)
Key Insight: Where Defendant?s use of an internal utility tool on the at-issue server resulted in all of the data thereon being overwritten but where the District Court Judge found ?credible? Defendant?s explanations that he did not believe the hard drives contained relevant information and where the ?unique facts? of the case, namely the focus on Defendant?s TOR Node – which ?routed information for other end users around the world? but did not contain Defendant?s personal data – contributed to the court?s disagreement with the Magistrate Judge?s finding of intent, the court adopted the Magistrate Judge?s finding of spoliation but declined to impose default judgement and instead concluded that an adverse inference was appropriate
Nature of Case: Copyright infringement
Electronic Data Involved: ESI
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
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
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