Key Insight: Duty of preservation is not enforceable for foreign company investigated by foreign government with no lawsuits filed in USA
Nature of Case: antitrust
Electronic Data Involved: deleted electronic records
Keywords: duty of preservation foreign, foreign government investigation preserve
Key Insight: failure to review backup tapes, attorney’s fees
Nature of Case: contract dispute
Electronic Data Involved: email, backup tapes
Keywords: destruction of laptop, key employee, prejudice, duty to preserve, adverse inference, retention policy
Key Insight: FRCP 37(e) not used, discretionary powers used instead. Litigation after a police shooting should be anticipated. Failures all around with the destruction of evidence lead to an adverse inference.
Nature of Case: Wrongful death (excessive police force)
Electronic Data Involved: Audio recordings
Keywords: excessive force, marijuana, knife, child protective services, metadata, shell game
Key Insight: Although the deletion was intentional, the plaintiff was not unduly prejudiced, as there is sufficient other evidence. Therefore, not sanctions other than attorney’s fees for the motion.
Nature of Case: Contract
Electronic Data Involved: email
Keywords: Spoliation sanction, prejudice, intentional
Key Insight: No spoliation because employees were merely unaware/untrained on surveillance system and didn’t intentionally withhold evidence
Nature of Case: wrongful death, slip and fall
Electronic Data Involved: video surveillance
Keywords: Rule 37 ignored, no culpable state of mind, unaware of surveillance
Key Insight: Spoliation
Nature of Case: Plea Agreement – Conspiracy, Obstruction of Justice, Entry of Goods by False Statement
Electronic Data Involved: USB drives, hard drives
Keywords: instruction to destroy documents, late notice of DOJ litigation hold, failure to preserve backup disks, instruction to store documents on removable media rather than network drives
Key Insight: being negligent and irresponsible in maintaining information and knowing of the obligation to preserve the integrity of the information are not sufficient to show an intent to deprive
Nature of Case: improper termination
Electronic Data Involved: ESI concerning arrival and departure times
Keywords: Spoliation sanctions, intent to deprive, obligation to preserve, adverse inference
Key Insight: sanctions requested for failure to preserve video footage
Nature of Case: civil rights case
Electronic Data Involved: cellphone video footage
Keywords: spoliation, prejudice
Key Insight: Measures to cure prejudice should be no greater than necessary, but if a party acts with intent to deprive, the court may presume unfavorability, issue an adverse inference, or dismiss and enter a default. You must raise your spoliation motions before summary judgment is ruled on.
Nature of Case: Unlawful termination
Electronic Data Involved: relevant electronic communications and documents
Keywords: prejudice, spoliation, intent to deprive, adverse influence
Key Insight: what sanction for failure to preserve evidence
Nature of Case: false arrest and malicious prosecution
Electronic Data Involved: digital video
Keywords: adverse inference, intent
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