Spoliation – Page 19 – Electronic Discovery Law

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

Storey v. Effingham Cnty., No. CV 415-149, 2017 WL 2623775 (S.D. Ga. June 16, 2017)

Dec 01 2017

Key Insight: For Defendants? negligent (or even reckless) failure to preserve relevant video footage following Plaintiff?s release from jail despite the ?distinct possibility? of litigation in light of the injuries Plaintiff suffered while in custody and his specific threats to sue, the court imposed sanctions to redress the prejudice to Plaintiff and ordered that the court would tell the jury that the video was not preserved and that the parties could present evidence and argument regarding that failure for the jury?s consideration

Electronic Data Involved: Surveillance footage from jail

Keathley v. Grange Ins. Co. of Mich., 15-cv-11888, 2017 WL 1173767 (E.D.Mich., Mar. 30, 2017)

Dec 01 2017

Key Insight: In this insurance litigation, the district court affirmed an order of the magistrate judge requiring Defendant?s counsel to provide additional information regarding the fate of relevant photographs but, upon review of the declaration submitted, found that it did not adequately address the loss and ordered that a representative of Defendant?s IT personnel be deposed; in concluding that a duty to preserve existed prior to Defendant?s ?final? determination regarding the claim, court reasoned in part that Defendant had asserted attorney client privilege with its outside counsel re: ?coverage issues? prior to its final determination and also noted its decision to require Plaintiff to testify under oath, indicating its skepticism of Plaintiff?s claim, and Defendant?s own request for Plaintiff to submit additional evidence, including any pictures

Nature of Case: Insurance litigation

Electronic Data Involved: Photographs

Zamora v. Stellar Mgmt. Grp., Inc. , 3:16-05028-CV-RK, 2017 WL 1362688 (W.D. Mo., Mar. 11, 2017)

Dec 01 2017

Key Insight: Where Plaintiff in an employment litigation failed to preserve a potentially relevant Facebook post, deleted her work phone before returning it and failed to preserve information contained on numerous other phones (e.g., because they were lost, etc.), court found that ?Plaintiff cannot be relied on to disclose all relevant communications? and granted motion to allow access to the mirror image of a phone belonging to a former employee and co-worker of the plaintiff and to allow defendant to subpoena the former employee to produce a second phone for inspection and ordered production of Plaintiff?s current work phone, to be reviewed by a Special Master for potentially relevant communications, with the cost of the Special Master to be split between the parties ; court found request for dismissal or an adverse inference was premature

Nature of Case: Employment litigation

Electronic Data Involved: ESI from cellular phones, Facebook

Brown v. Albertsons, LLC, 2:16-cv-01991-JAD-PAL, 2017 WL 1957571 (D. Nev. May 10, 2017)

Dec 01 2017

Key Insight: In response to Plaintiff?s Motion for Spoliation Sanctions, the Court engaged in an analysis of four types of available sanctions: Evidentiary, Monetary, Dispositive and Adverse Inference Instructions. The Plaintiff argued the Defendant intentionally destroyed evidence in the form of an incident report, a surveillance video and correspondence between Defendant and a third-party claims adjuster. The Court found that information from the incident report and the lost emails with the claims adjuster were available elsewhere and that the loss of the video surveillance was due to a system-wide outage that affected several stores. The Court found no evidence that Defendant acted intentionally or recklessly and denied Plaintiff?s request for Dispositive Sanctions but instead imposed lesser Evidentiary Sanctions by allowing the Plaintiff to introduce evidence that the incident report was lost or destroyed, that the Defendant failed to preserve the third-party communications and that Defendant?s video system failed to record the incident.

Nature of Case: Slip and Fall

Electronic Data Involved: ESI, including video

Agility Pub. Warehousing Co. v. Dep?t of Defense, 14-1064 (JDB), 2017 WL 1214424 (D.D.C. Mar. 30, 2017)

Dec 01 2017

Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established

Nature of Case: APA Action related to Touhy request

Electronic Data Involved: Email

Rockman Co. (USA), Inc. v. Nong Shim Co., Ltd., No. 13-cv-04115-WHO, 2017 WL 275405 (N.D. Cal. Jan. 19, 2017)

Dec 01 2017

Key Insight: In US litigation, court found no duty to preserve was triggered by Korean Fair Trade Commission?s investigation of price-fixing in Korean markets absent case law establishing such a possibility (i.e., that a foreign investigation of domestic markets could trigger a duty to preserve in the US because litigation could someday be commenced) or any related complaints or lawsuits filed in the US or evidence that the price fixing conspiracy was directed at the US or that the KFTC?s investigation extended to impacts in the United States

Nature of Case: Antitrust

Electronic Data Involved: ESI

Tag:Spoliation