Spoliation – Page 19 – Electronic Discovery Law

Charles v. City of New York, No. 12-CV-6180 (SLT)(SMG), 2017 WL 530460 (E.D.N.Y., Feb. 8, 2017)

Dec 01 2017

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

Moody v. CSX Transp., —-F.Supp.3d—, No. 07-CV-6398P, 2017 WL 4173358 (W.D.N.Y. Sept. 21, 2017)

Dec 01 2017

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

Camicia v. Cooley, No. 74048-2-I, 2017 WL 679988 (Wash. Ct. App. Feb. 21, 2017)

Dec 01 2017

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)

Dallas Buyers Club LLC v. Huszar, No. 3:15?cv?907?AC, 2017 WL 481469 (D. Or. Feb. 6, 2017)

Dec 01 2017

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

View Case Opinion

Barcroft Media, Ltd. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017)

Dec 01 2017

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

View Case Opinion

Air Prods. & Chems., Inc v. Wiesemann, No. 14-1425-SLR, 2017 WL 758417 (D. Del. Feb. 2, 2017)

Dec 01 2017

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

Blasi v. United Debt Servs. LLC, No. 2:14-cv-83, 2017 WL 2255525 (S.D. Ohio May 23, 2017)

Dec 01 2017

Key Insight: For a defendant?s spoliation and failure to participate in litigation, the court struck the defendant?s motion to dismiss for lack of personal jurisdiction and eventually also awarded default judgment and attorneys fees to the plaintiff; addressing whether to also sanction Defendant?s counsel for failing to prevent the spoliation, the court reasoned that ?it seems obvious that the party requesting sanctions has at least an initial burden of proof with respect to not only whether sanctionable conduct has occurred, but also with respect to whether the misbehaving party?s attorney may have been involved? and found Plaintiff?s assertions and evidence of such involvement ?too thin?

Electronic Data Involved: ESI

Montgomery v. Iron Rooster-Annapolis, LLC, No. RDB-16-3760, 2017 WL 1902699 (D. Md. May 9, 2017)

Dec 01 2017

Key Insight: Court found Plaintiff failed to take reasonable steps to preserve ESI when she turned her phone in to Verizon on August 15, 2016. Defendants claimed text messages on the Plaintiff?s phone could have shown she was acting as a manager and was hence an exempt employee. Defendants discussed their position with Plaintiff?s counsel in June, 2016 and the phone was de-activated two months later. Plaintiff testified she did not know she had to keep the phone to preserve the ESI. The Court found this testimony credible and recommended, pursuant to Rule 37(e)(1) that the ??[C]ourt order measures no greater than necessary to cure the prejudice? and proposed an instruction to the jury that Plaintiff had a duty to maintain potential ESI contained on her phone, but failed to do so and indicated the court could also instruct the jury as to any inference to draw from Plaintiff?s failure to preserve texts on her phone.

Nature of Case: Employment litigation, unpaid overtime

Electronic Data Involved: Text messages

TLS Mgmt. & Mktg. Servs. LLC v Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 1155743 (D.P.R. Mar. 27, 2017)

Dec 01 2017

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

Brown v. Certain Underwriters at Llyods, London, No. 16-cv-02737, 2017 WL 2536419 (E.D. Pa. June 12, 2017)

Dec 01 2017

Key Insight: Applying the common law, the court imposed a permissive adverse inference and monetary sanctions for Plaintiff?s spoliation of his cellular phone and its contents where Plaintiff claimed a day before he was scheduled to produce it that he had lost his phone months ago but provided no details regarding the loss or his attempts at preservation or recovery of the phone and where the court concluded that Plaintiff made a ?deliberate choice to withhold [the phone] from production? and that Defendants were prejudiced as a result

Nature of Case: Insurance coverage litigation

Electronic Data Involved: Cellular phone and contents

Tag:Spoliation