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
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
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
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
Key Insight: Where a senior executive deleted massive amounts of email and instructed others to do the same despite a duty to preserve and the company?s issuance of a litigation hold, the court indicated that the company?s efforts did not absolve it of all responsibility for the failures of a member of its senior management (and noted the company?s own bad conduct in litigating the deletion issue, including its initial refusal to disclose the identity of its forensic expert) and concluded that reasonable steps were not taken to preserve and found that the deletions were in bad faith and prejudicial to the Plaintiff and imposed sanctions including monetary sanctions in the form of reasonable fees and costs, punitive sanctions in the amount of $3 million and a permissive adverse inference
Nature of Case: Antitrust
Electronic Data Involved: email
Key Insight: Assessing motion for sanctions, court found that Plaintiff established Defendants? duty to preserve (preservation requests were sent to all defendants) and that ESI was lost but found that further discovery was needed to address whether two of four ?predicate elements? of Rule 37(e) were met, namely whether reasonable steps were taken to preserve and whether the lost ESI could be restored or replaced through additional discovery, reasoning that ?[a]bsent sufficient proof that reasonable steps were not taken, KMBS is not entitled to relief under 37(e), even if it is shown that the ESI was lost. Sanctions are not automatic? and that ?[f]urther, a party cannot be sanctioned where the ability exists to restore or replace the ESI from other sources.?
Electronic Data Involved: ESI
Key Insight: Sanctions imposed after defendant’s failure to preserve relevant ESI after receiving a preservation letter from plaintiff.
Nature of Case: Wrongful death.
Electronic Data Involved: ESI work orders and related paper records.
Keywords: Defendant acted with gross negligence, but without intent to deprive the plaintiff of the information’s use in the litigation.
Key Insight: imperfect and slow, gradual production not sanctioned
Nature of Case: disability discrimination, failure to accommodate, retaliation, ? 1983 violations, and wrongful termination in violation of public policy
Electronic Data Involved: emails
Keywords: flawed retention policies,
Key Insight: no adverse inference for inadvertent destruction of evidence
Nature of Case: Fair Debt Collection Practices Act (FDCPA)
Electronic Data Involved: ledgers
Keywords: condo association
Key Insight: sanctions affirmed for discovery violations including using data wiping software to delete files
Nature of Case: repossession
Electronic Data Involved: deleted electronic records
Keywords: earth moving equipment repossession, deleted computer files, data wiping
Identified State Rule(s): Minnesota Rule of Civil Procedure 60.02
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