Key Insight: For Defendant?s failure to preserve its employees? text messages, court imposed an adverse inference.
Electronic Data Involved: Text messages
Key Insight: The Magistrate Judge denied Advantor?s motion for sanctions against DRS for intentional bad faith spoliation of evidence, finding that sanctions were not warranted because there was no showing that the destroyed evidence was critical to litigate the case issues. DRS had a duty to preserve the contents of a laptop that was used by an employee who was hired away from Advantor and subsequently fired by DRS after receiving notice from Advantor that litigation was reasonably anticipated. Despite having a duty to preserve the contents of the laptop, DRS reformatted the laptop and erased files that were potentially proprietary to Advantor and in violation of their Nondisclosure Agreement. However, Advantor failed to show that the files contained relevant information critical to the case or that DRS was aware the files were on the laptop. Despite the unexplained reformatting of the laptop, sanctions were not granted.
Nature of Case: Employment
Electronic Data Involved: Hard Drive
Key Insight: Court declined to impose sanctions for loss of former employees? ESI where ESI was deleted pursuant to ?established document retention policy? absent any evidence of bad faith
Nature of Case: Prohibited Telemarketing
Electronic Data Involved: ESI
Key Insight: In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government?s failure to preserve text messages relevant to its investigation. Upon examination of the facts, including the Government?s acknowledged failure to preserve certain texts and constantly changing explanations surrounding that failure as well as the ?different level of diligence? applied to different text messages (care was taken to preserve messages belonging to a cooperating witness), the court determined sanctions were warranted. Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgement until trial regarding the propriety of an adverse inference instruction.
Nature of Case: Criminal
Electronic Data Involved: Text messages
Key Insight: For defendant?s intentional deletion of emails using cleaning software and misrepresentations intended to cover up the same as well as defendant?s failure to produce documents over which he was found to maintain control and misrepresentations related to the same, the magistrate judge recommended a permissive adverse inference and that defendant and counsel, who ?exacerbated? the effects of defendant?s misconduct through incomplete or misleading representations to the court, be jointly and severally liable for plaintiff?s attorneys fees and costs incurred in bringing the motion for sanctions; district court rejected objections to the recommendations and adopted them in full
Electronic Data Involved: Emails, ESI
Key Insight: Plaintiff moved for spoliation sanctions after Defendant stated in deposition they took accident scene photographs, but did not provide the photographs and stated all accident photographs had been provided. Plaintiff claimed Defendant?s sole possession was circumstantial evidence Defendant acted affirmatively in destroying the photographs. However, Court would not infer bad faith because it was possible ?the photographs were lost or destroyed haphazardly,? and concluded circumstantial evidence cannot prove bad faith ?without any evidence that the loss or destruction of the photographs was, or could only be, due to a deliberate, intentional act of Defendant or its agent.?
Nature of Case: Personal Injury
Electronic Data Involved: Photographs of slip and fall scene
Key Insight: Where district court abused its discretion when it declined to impose a meaningful sanction on railroad for allowing destruction of accident scene video footage during its pre-litigation investigation, the Court remanded for a new trial and ordered the district court to fashion a sanction that would satisfy the remedial and deterrent goals of sanctions for the spoliation of evidence, but the Court also said that district court?s refusal to grant injured machinist?s request for a default judgment as an evidentiary sanction for spoliation was not an abuse of discretion because it was not possible to know if the destruction was intentional or inadvertent
Nature of Case: Workplace injury
Electronic Data Involved: Digital video surveillance recording
Key Insight: Where Special Master declined to recommend spoliation sanctions but recommended $1,855,255.09 in monetary sanctions ?to compensate Plaintiffs for the additional time and expenses that they have incurred as a result of Delta?s failure to comply with discovery obligations,? including Defendant?s delayed identification and production of relevant evidence (including backup tapes and other ESI), the District Court agreed that monetary sanctions were appropriate but found that a higher amount was warranted and thus increased the monetary sanctions to $2,718,795.05
Nature of Case: Antitrust (Bag fees)
Electronic Data Involved: ESI, backup tapes
Key Insight: Court denied motion for sanctions where plaintiff?s failure to preserve emails, and its failure to implement any uniform or centralized plan to preserve data or the various devices used by the key players in the transaction, demonstrated gross negligence which gave rise to a rebuttable presumption that the spoliated documents were relevant, but plaintiff rebutted the presumption by demonstrating that the defenses available to defendant all necessarily turned on communications to or with them, not plaintiff?s internal communications.
Nature of Case: Copyright infringement
Electronic Data Involved: Computer hard drive
Key Insight: On motion for reconsideration of three discovery orders, the court found no error in the lower court?s determination that Plaintiff?s admitted contemplation of litigation was sufficient to trigger her obligation to preserve, noting the lower court?s reliance on case law that ?the knowledge of a potential ? claim is deemed sufficient to impose a duty to preserve evidence?; court indicated that evidence contradicting Plaintiff?s claim that a third party still maintained the at-issue records was sufficient to allow the court to revisit the issue and to find that plaintiff acted in bad faith and also noted that in the Third Circuit, bad faith was not required to impose an adverse inference; addressing prejudice, court dismissed the proposition that Defendant?s access to at-issue evidence years earlier was sufficient to undercut any prejudice, noting that Defendant?s experts had not had access to the evidence; court found no clear error in the imposition of monetary sanctions for spoliation of evidence prior to trial
Electronic Data Involved: ESI
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