Spoliation – Page 31 – Electronic Discovery Law

Botey v. Green, No. 3:12-CV-01520, 2016 WL 1337665 (M.D. Pa. April 4, 2016)

Dec 01 2016

Key Insight: In this case, the court granted in part Plaintiff?s motion for sanctions where ESI was automatically destroyed despite a duty to preserve as the result of Defendant?s employees? failure to forward Plaintiff?s notice of litigation and request for preservation to corporate headquarters. Declining to impose an adverse inference, the court ordered that Defendants would not be allowed to rely on the destroyed records or other evidence designed to show their contents.

Nature of Case: Claims arising from traffic accident

Electronic Data Involved: ESI

Muhammad v. Mathena, No. 7:14cv00529, 2016 WL 8116155 (W.D. Va. Dec. 12, 2016)

Dec 01 2016

Key Insight: Prison employees? failure to preserve surveillance footage of inmate altercation despite notice of the obligation to do so was negligent; negligence imputed to other employees named as Defendants in Eighth Amendment claim where, despite the lack of a conventional agency relationship, the negligent/spoliating non-parties were not merely ?disinterested third parties? but rather were employees of the institution(s) responsible for preserving evidence in prisoner litigation and where requiring a conventional agency relationship would ?present a dilemma in the context of prison litigation .. where responsibility for preserving evidence may be spread out among multiple officials within an institute and where the institutions themselves are typically immune from suit?; as sanction, court forbade Defendants from putting on evidence related to Plaintiff?s disciplinary charges and conviction or the actual contents of the video and indicated it would instruct the jury that Plaintiff had requested the footage be preserved and it was not and that ?the jurors should not assume that the lack of corroborating objective evidence? undermined Plaintiff?s ?version of events surrounding the fight?

Nature of Case: Pro se Eighth Amendment Claims (prison litigation)

Electronic Data Involved: Surveillance footage

Whitesell Corp. v. Electrolux Home Prods., Inc., NO. CV 103-50, 2016 WL 1317673 (S.D. Ga. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where promised emails were not produced but Defendant ultimately produced all documents relevant to the alleged spoliation, including ?preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches,? and also submitted a representative for an extensive Rule 30(b)(6) deposition, the court found Plaintiff?s request to compel production of ?every privileged document described as concerning data collection?[wa]s overly broad, unduly burdensome and ha[d] not been shown to relate to the issue at the forefront of this entire exercise?the missing Leon emails? despite acknowledging that ?otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.?

Electronic Data Involved: Information related to preservation efforts, etc. where Plainitff alleged spoliation by Defendant and sought to compel production of privileged information

Feist v Paxfire, Inc., No. 11-CV-5436 (LGS) (RLE), 2016 WL 4540830 (S.D.N.Y. Aug. 29, 2016)

Dec 01 2016

Key Insight: Where Plaintiff?s internet browsing history was highly relevant to her claims and to establish damages but was lost as the result of her computer crashing and the use of a cleaning program after the duty to preserve arose, the court did not conclude that Plaintiff acted intentionally to deprive Defendant of the information (citing a lack of evidence to dispute Plaintiff?s claim that she regularly cleaned her hard drives prior to litigation) but did find that sanctions were warranted to cure prejudice and indicated that the court would ?presume that the absence of any cookies is unfavorable to Feist in that she cannot attribute a specific number of redirections to Paxfire? and precluded Feist from arguing in favor of statutory damages for specific internet searches or proffering evidence of specific violations

Nature of Case: Wiretap Act violations

Electronic Data Involved: Internet history

Friedman v. Philadelphia Parking Auth., No. 14-6071, 2016 WL 6247470 (E.D. Pa. Mar. 10, 2016)

Dec 01 2016

Key Insight: Where Defendant failed to preserve relevant evidence for reasons including its failure to timely issue a litigation hold following receipt of a letter threatening litigation and its lack of understanding related to the migration of its data to a new archival system resulting in the loss of ESI (e.g., Defendant was notified of but failed to address an ?over limit folder problem? related to two custodians, failed to confirm that data had successfully migrated before instructing employees to delete information ,etc.) but where Defendant undertook SUBSTANTIAL efforts to address its discovery defects and Plaintiff was unable to identify any specific information that was lost (where much was received from third parties or eventually produced as a result of Defendant?s remedial efforts) or to establish an intent to deprive, the court declined to impose sanctions pursuant to recently amended Rule 37(e); instead, pursuant to Rule 37(a) the court ordered Defendant to reimburse Plaintiff?s reasonable attorney?s fees and expenses necessary to prepare and file their motion for sanctions; regarding Defendant?s lack of a document retention policies and potential loss of data before implementation of its archive after its duty to preserve was triggered, the court indicated that prejudice was ?speculative? but invited a motion from Plaintiff for ?evidentiary rulings? if desired

Learning Care Grp. v. Armetta, No. 3:13-cv-1540 (VAB), 2016 WL 4191251 (D. Conn. June 17, 2016)

Dec 01 2016

Key Insight: Where Defendant destroyed laptop of departed employee (a ?key point of contact? for Plaintiffs in their relationship with Defendant) in accordance with its usual course of business despite a duty to preserve, court found that the information lost was relevant and that prejudice resulted, but found that Defendant was merely negligent and that awarding attorneys? fees and costs was an appropriate sanction (not default judgment or an adverse inference as had been requested); court declined to consider the newly amended rules of procedure where the parties first raised the issue in September 2015, before the application of the new rules

Electronic Data Involved: Contents of laptop of departed employee

Hausman v. Holland Am. Line-U.S.A., No. CV13-0937 BJR, 2015 WL 51273 (W.D. Wash. Jan. 5, 2016)

Dec 01 2016

Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial

Nature of Case: Personal injury

Electronic Data Involved: Emails

Lexpath Techs. Holdings, Inc., N0. 13-cv-5379-PGS-LHG, 2016 WL 4544344 (D.N.J. Aug. 30, 2016)

Dec 01 2016

Key Insight: Where Defendant used CCleaner on his work laptop and failed to produce three thumb drives, court concluded that the relevance prong of its analysis was satisfied (noting Plaintiff?s lack of credibility), that there was a duty to preserve, and that information was actually suppressed or withheld and, citing Rule 37(e,) imposed a presumptive adverse inference upon the determination that the loss was intentional, based on the timing of the spoliation (shortly following receipt of a cease and desist letter, including Plaintiff?s potential claims), among other things

Nature of Case: Claims arising from employee’s departure and start of competing business

Electronic Data Involved: ESI

J&JB Timberlands, LLC v. Woolsey Energy II, LLC, No. 14-cv-01318-SMY-PMF, 2016 WL 4006671 (S.D. Ill. Apr. 28, 2016)

Dec 01 2016

Key Insight: Although the court found that Defendants breached their duty to preserve certain emails by (1) failing to take reasonable steps to preserve Kelley?s emails, (2) misrepresenting the manner in which the data was lost, (3) misrepresenting that the lost data could not be recovered, and (3) using the laptop in May and August, 2015, the court also found the breach was not intentional and that Plaintiff was only ?minimally harmed? and eventually able to obtain the missing information and thus declined to strike Defendants? pleadings but ordered that Defendants should compensate Plaintiff for the reasonable attorneys? fees and expenses incurred in obtaining the email

Electronic Data Involved: Emails

Stinson v. City of New York, No. 10 Civ. 4228(RWS), 2016 WL 54684 (S.D.N.Y. Jan. 5, 2016)

Dec 01 2016

Key Insight: Court found Defendants? discovery failures, including failing to implement a litigation hold for three years, failing to adequately communicate the hold, and failure to ensure compliance with the litigation hold were grossly negligent and imposed a permissive adverse inference as a sanction; court?s analysis included the admonition that ?the reasonableness or unreasonableness of one party?s demands does not determine the scope of the other party?s obligation to preserve documents?

Nature of Case: Class action civil rights

Electronic Data Involved: ESI: email, text messages, har copy

Tag:Spoliation