Spoliation – Page 28 – Electronic Discovery Law

Shawe v. Elting (Delaware, 2017)

Feb 13 2017

Key Insight: Even if documents are recovered from deletion, sanctions may still be proper, sanctions are proper when failing to adhere to litigation holds, sanctions based on perjury are not criminal charges of perjury, extreme bad-faith litigation allows for cost shifting of attorney’s fees

Nature of Case: Litigation misconduct

Electronic Data Involved: Electronic files

Keywords: 7 million, sanctions, unusually deplorable, perjury, bizarre, rat droppings

Identified State Rule(s): “American Rule”

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Charles v. City of New York (E.D. N.Y., 2017)

Feb 08 2017

Key Insight: Court ruled that it could not be inferred from mere negligence that the recording would be favorable to defendants. Other sources of information/discovery were available as well. An application of Rule 37(e) would make no difference (the rule was not cited).

Nature of Case: Civil rights

Electronic Data Involved: Deleted cell phone video

Keywords: spoliation, sanctions, adverse inference

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Patrick v. Tractor Supply, Co., No. 16-10755, 2017 WL 396301 (E.D. La. Jan. 30, 2017)

Jan 30 2017

Key Insight: Trial court exercises discretion to impose sanctions (no Rule 37(e) used), no bad faith found when requesting footage of the incident where footage surrounding the incident was deleted due to normal retention policies (negligence at best)

Nature of Case: Personal injury (slip and fall)

Electronic Data Involved: Store video footage

Keywords: slip and fall, constructive notice, cable wire, summary judgment

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Regeneron Pharmaceuticals v. Merus (Fed. Cir., 2017)

Jan 27 2017

Key Insight: The court inferred from plaintiff’s improper discovery conduct, hiding documents, privilege problems, etc, into the main case as evidence that the plaintiffs were untrustworthy.

Nature of Case: Patent infringement

Electronic Data Involved: Multiple types of scientific documents, charts, business papers, etc.

Keywords: Spoliation, privilege log, uncooperative discovery, inequitable conduct, litigation misconduct

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Wali Muhammad v. Mathena, No. 7:14CV00529, 2017 WL 3955225 (W.D. Va. Jan. 27, 2017)

Jan 27 2017

Key Insight: intentional destruction of surveillance camera footage

Nature of Case: prisoner civil rights action

Electronic Data Involved: surveillance camera footage

Keywords: spoliation

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Martinz v. Salazar (District of New Mexico, 2017)

Jan 26 2017

Key Insight: Even with a litigation hold, if a party would have made no efforts to obtain a serial number, bad faith is not found. Sloppy paperwork may be considered gross negligence in a totality of the circumstances. Rule 37(e) was not used.

Nature of Case: Excessive police force

Electronic Data Involved: Electronic data (Taser usage records)

Keywords: taser, cartridge, serial number, spoliation

Morrison v. Veale, M.D., No. 3:14-cv-1020-TFM, 2017 WL 372980 (M.D. Ala. Jan. 25, 2017)

Jan 25 2017

Key Insight: Spoliation of evidence via a mobile device. Case filed prior to new Rule 37(e) enactment, so, rule does not apply.

Nature of Case: Fair Labor Standards Act violation

Electronic Data Involved: e-mail account records

Keywords: “old” bad faith analysis, misdirection and deception, 2-step verification.

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Rife v. Okla. Dept. of Public Safety (10th Circuit Court of Appeals, 2017)

Jan 23 2017

Key Insight: Without using FRCP 37(e), bad faith is still an importance factor for spoliation

Nature of Case: Failure to provide medical care (deliberate indifference)

Electronic Data Involved: Video footage

Keywords: deliberate indifference, spoliation sanctions

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Jenkins v. Woody, 2017 WL 362475, 3:15cv355 (E.D. Va, 2017)

Jan 21 2017

Key Insight: defendants took no steps to save a copy of the footage, and it was overwritten after 30 days elapsed.

Nature of Case: Death by negligence and deliberate indifference

Electronic Data Involved: surveillance camera footage

Keywords: surveillance camera footage, defendant sheriff, anticipation of litigation

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Tag:Spoliation