Key Insight: Spoliation sanctions for missing insurance photos premature before clarifying deposition from party
Nature of Case: insurance coverage litigation
Electronic Data Involved: photos
Keywords: amended declaration inadequate, IT protocol
Key Insight: Sanctions under rule 37(e) must show actual prejudice, not merely theoretical.
Nature of Case: Wrongful death
Electronic Data Involved: Prison video
Keywords: Spoliation sanctions, actual prejudice, failure to preserve, adverse inference
Key Insight: The loss of surveillance video was unrelated to defendant’s liability, so spoliation determination was unnecessary
Nature of Case: 8th Amendment
Electronic Data Involved: video
Keywords: failure to preserve ESI,
Key Insight: ESI “willfully discarded or deleted”
Nature of Case: Alleged violations of the electronic Communications Privacy Act against defendants accused of stealing plaintiff’s clients and confidential information.
Electronic Data Involved: defendant’s iPhone, laptop and external hard drive
Keywords: adverse-inference instruction, forensic examination of a flash drive.
Key Insight: When ESI is recovered, it is not lost, and thus no spoliation. Further, there is no evidence that the delay was prejudicial.
Nature of Case: Workplace injury
Electronic Data Involved: an e-mail
Keywords: Spoliation sanctions, recovered ESI, prejudice
Key Insight: Inherent authority was used by the court to find a spoliation violation in failing to keep records as legally required. FRCP Rule 37(e) not cited, but the outcome would likely have been the same.
Nature of Case: Negligence
Electronic Data Involved: Maintenance logs and records
Keywords: Spoliation, sanctions, adverse inference
Key Insight: Security footage was overwritten before notice of lawsuit, so no spoliation; no intent to deprive found.
Nature of Case: Prisoner civil rights
Electronic Data Involved: Security video footage, audio recording, medical records
Keywords: video footage, deleted footage, spoliation sanctions
Key Insight: Despite rule 37(e), the court ordered sanctions for negligent failure to preserve. The court ruled that since rule 37(b) did not apply without a discovery order, the court may issue sanctions under its inherent power. Relevance is proportional to burden on party seeking the adverse inference.
Nature of Case: Workplace discrimination
Electronic Data Involved: email records
Keywords: sanctions, spoliation, adverse inference
Key Insight: Plaintiff reset iPhone, shortly before sending to vendor for forensic examination. Previous sanctions had not proven to deter this activity and recommended dismissal of case.
Nature of Case: Wrongful Termination
Electronic Data Involved: iPhone Records
Keywords: spoliation; destruction; sanctions
Key Insight: Boeing deleted Pemco ESI from a high level employee and removed 2 CD’s containing Pemco ESI.Court concluded Boeing acted with intent and ordered an adverse inference instruction for the jury if it goes to trial and ordered Boeing to pay attorney’s fees and costs.
Nature of Case: contract dispute/MOA termination
Electronic Data Involved: deleted electronic records; 2 missing CDs with ESI
Keywords: spoliation, deletion, prejudice, adverse inference
Copyright © 2022, K&L Gates LLP. All Rights Reserved.