Spoliation – Page 32 – Electronic Discovery Law

Bagley v. Yale Univ., No. 3:13-CV-1890 (CSH), 2016 WL 7407707 (D. Conn. Dec. 22, 2016)

Dec 01 2016

Key Insight: Court granted Plaintiff?s motion to compel production of litigation hold notices and related responses to a survey regarding recipients? computer use where, despite the absence of specific evidence of spoliation or a pending spoliation motion, the delayed (9-11 months) and rolling issuance of litigation holds was described by the court as ?leisurely, to an extent making it impossible to dismiss as frivolous [Plaintiff?s] suggestion that she might move for a spoliation sanction? and where the court reasoned that Plaintiff was ?entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim? [sic]; regarding assertions that the hold notices were privileged, the court reasoned that ?the predominant purpose of the communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do?; court?s analysis included identification of six ?decisive questions? relevant to ?spoliation cases involving litigation hold notices? including, when the duty to preserve arose, whether litigation holds were issued, when they were issued, what they said, how recipients responded and what further action was taken beyond the litigation holds to preserve evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Litigation Hold notices and survey to recipients regarding computer use

Ferrara Bros. Bldg. Materials Corp. v. FMC Constr. LLC, 54 Misc.3d 529 (N.Y. Sup. Ct. 2016)

Dec 01 2016

Key Insight: Plaintiff, arguing Defendant?s contract was backdated, moved for sanctions after Defendant discarded computers (2 years after the action commenced) containing native information and system metadata for the contract at issue. The contract?s creation date was at issue in this case and Defendant had not indicated that it preserved the metadata before discarding the computers (which was not a regular or automatic event but rather a ?curiously fortuitous occurrence?). In considering sanctions, the court concluded that Defendant?s submission of an affidavit indicating that the computers were replaced and discarded did not ?rebut the presumption that Casa was negligent, even grossly negligent? and found that a negative inference at trial would be ?sufficient to strike a balance between the need to ameliorate any prejudice related from the destruction of the computer system, and the absence of demonstrable willfulness ??

Nature of Case: Breach of contract

Electronic Data Involved: Metadata

Accurso v. Infra-Red Servs., Inc., —F. Supp. 3d.—, 2016 WL 930686 (E.D. Pa. Mar. 11, 2016)

Dec 01 2016

Key Insight: Court denied motion for a negative inference for Plaintiff?s alleged deletion of emails evidencing Plaintiff?s intention of taking business from Defendants where Defendants provided no basis for the court to conclude: 1) that there was ?actual suppression or destruction of evidence, let alone that [Plaintiff] was responsible,? 2) that the evidence was not obtainable from other sources, or 3) that Defendant acted with the requisite intent to deprive under Fed. R. Civ. P. 37(e)

Nature of Case: Claims and counterclaims include: violations of Employee Polygraph Protection Act, breach of contract, intentional interference with contract, fraud, misappropriation of trade secrets

Electronic Data Involved: Emails

Virtual Studios, Inc. v. Stanton Carpet, Corp., No. 4:15-CV-0070, 2016 WL 5339601 (N.D. Ga. June 23, 2016)

Dec 01 2016

Key Insight: Where the court acknowledged that after a duty to preserve arose in 2009 Plaintiff ?did little, if anything, to prevent the loss of emails,? including failing to instruct employees to retain relevant documents and emails and failing to backup emails stored on employees individual hard drives, but where Defendant failed to establish bad faith or an intent to deprive, the court declined to impose an adverse inference or other serious sanctions pursuant to Rule 37(e)(2) but, upon finding that the loss of emails was prejudicial to Defendant (where the parties offered competing narratives regarding whether Defendant was informed regarding Plaintiff?s limitations on the use of its images), ordered that the defendant ?may introduce evidence concerning the loss of the e-mails and may make an argument to the jury concerning the effect of the loss of the e-mails?

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

O?Berry v. Turner, Nos. 7-15-CV-00064-HL, 7:15:CV-00075-HL, 2016 WL 1700403 (M.D. Ga. Apr. 27, 2016)

Dec 01 2016

Key Insight: Where custodian printed single paper copy of relevant driver?s log and PeopleNet data to be maintained in the usual course of business, did nothing more upon receipt of a request for preservation and ultimately misplaced the envelope in which the information was maintained despite claiming to have done ?everything in his power to preserve evidence,? the court found that Defendant filed to take reasonable steps to preserve the data and acted with the intent to deprive Plaintiffs of the information in litigation, reasoning that it was ?simply irresponsible? to print a single paper copy for preservation and noting Defendant?s lack of a document preservation policy and the failure of counsel to contact the at-issue custodian for approximately two and one half years following receipt of the request to preserve, among other things: ?All of these facts, when considered together, lead the Court to conclude that the loss of the at-issue ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior can only lead to one conclusion?that ADM and Archer Daniel Midlands Company acted with the intent to deprive ??

Nature of Case: Automobile accident

Electronic Data Involved: Driver’s log, PeopleNet data

Glob. Materials Techs., Inc. v. Dazheng Metal Fibre Co. Ltd., No. 12 CV 1851, 2016 WL 4765689 (N.D. Ill. Sept. 13, 2016)

Dec 01 2016

Key Insight: Where the court concluded that Defendants deliberately failed to preserve evidence ?in order to prevent [Plaintiff] from obtaining the evidence and using it against defendants in litigation? (e.g., by liquidating computers and delaying accessing an email account until emails were deleted by the provider) and lied to the court and to the plaintiff (?Defendants were not merely dilatory or misleading in their litigation tactics; they were affirmatively deceitful?), the court reasoned that while an adverse inference or prohibition on introducing certain evidence may ?level the playing field? it would not sufficiently punish Defendants for their dishonesty, and therefore imposed default judgment as to liability (damages remained to be proven); court?s analysis noted that under Fed. R. Civ. P. 37(e)(2) a specific finding of prejudice is not required where the finding of intent supports the inference that the missing information was unfavorable to the party who destroyed it

Nature of Case: Trade secrets

Electronic Data Involved: Computers, emails

Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368 (D. Conn. Apr. 29, 2016)

Dec 01 2016

Key Insight: Addressing question of spoliation related to surveillance video of prison assaults, court concluded that ?traditional? spoliation analysis (as opposed to analysis pursuant to newly amended FRCP 37(e))

Nature of Case: Claims arising from assault in prison

Electronic Data Involved: Surveillance video

Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?

Nature of Case: Housing discrimination

Electronic Data Involved: facebook (social media / social network)

Browder v. City of Albuquerque, —F.Supp.3d—, 2016 WL 3397659 (D.N.M. May 9, 2016)

Dec 01 2016

Key Insight: Addressing loss of cellular phone(a tangible thing) belonging to officer involved in off-duty traffic accident despite a letter from plaintiff specifically requesting preservation and providing notice of imminent litigation, court found the city was at least grossly negligent in its failure to preserve and that Plaintiff was prejudiced as a result but fell short of finding that the loss was the result of bad faith and ordered production of documents previously withheld under claim of privilege and that the jury would be instructed that it may make ?any inference they believe appropriate in light of the spoliation?

Nature of Case: Traffic accident

Electronic Data Involved: Cellular Phone

Orologio of Short Hills Inc. v Swatch Grp. (U.S.) Inc., 653 Fed. Appx. 134 (3rd Cir. 2016)

Dec 01 2016

Key Insight: Court affirmed District Court?s denial of Plaintiff?s motion to strike Defendant?s answer and issue sanctions on alleged spoliation, absent a finding that the hard-copy tapes at issue were destroyed in bad faith. The evidence in the record indicated the tapes were destroyed for the sole reason that the Defendant did not wish to pay a storage fee for the tapes; there was no reference to the litigation in the emails regarding the destruction.

Nature of Case: Alleged violations of Robinson Patman Act and NJ Franchise Practices Act

Electronic Data Involved: Hard-copy tapes containing “tagged television commercials”

Tag:Spoliation