Spoliation – Page 38 – Electronic Discovery Law

In re Delta/AirTran Baggage Fee Antitrust Litig., No. 1:09-md-2089-TCB, 2015 WL 4635729 (N.D. Ga. Aug. 3, 2015)

Dec 01 2015

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

Malibu Media v. Ricupero, No. 2:14?cv?821 2015, 2015 WL 4273463 (S.D. Ohio July 14, 2015)

Dec 01 2015

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

Bruno v. Bozzuto?s, Inc., No. 3:09-CV-00874, 2015 WL 5098952 (M.D. Pa. Aug. 31, 2015)

Dec 01 2015

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

Scott v. Moniz, No. 3:14-CV-5684-RJB, 2015 WL 38223705 (W.D. Wash. June 19, 2015)

Dec 01 2015

Key Insight: Failure to preserve emails after defaulting to regular document retention policies based on mistaken belief that Plaintiff had not appealed the dismissal of her case was ?at least negligent,? but court continued motion subject to renoting when discovery was complete to allow for an evaluation of prejudice

Nature of Case: Employment litigation

Electronic Data Involved: Emails

AJ Holding Grp. v. IP Holdings, 129 A.D.3d 504 (N.Y. App. Div. 2015)

Dec 01 2015

Nature of Case: Breach of Contract

Electronic Data Involved: Email

Moulton v. Bane, No. 14-cv-265-JD, 2015 WL 7776892 (S.D.N.H. Dec. 2, 2015)

Dec 01 2015

Key Insight: Where Defendant unintentionally lost text messages when his service provider failed to transfer those text messages to his new phone?despite his request to transfer ?everything??and where the texts were later recovered by a forensic analysist, court declined to impose ?punitive sanctions? and ordered Defendant to pay the cost of retrieving the messages

Electronic Data Involved: Text messages (WhatsApp)

Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)

Dec 01 2015

Key Insight: Magistrate Judge concluded that absent evidence of a special relationship or circumstance that imposed a duty to preserve evidence, a third party did not have an obligation to preserve evidence before it was served with a subpoena, even though it was aware of potential litigation against a party with whom it had a close working relationship. Where the non-party was ordered to search for and produce all responsive information but limited its search to its ShareFile and failed to adequately investigate whether responsive information existed on its computers and other devices, the Magistrate judge reasoned that compliance required more than ?simply asking current employees if they have responsive documents? and concluded that third party?s mere survey of current employees (omitting an employee with a difficult personality) as to whether they had responsive emails without an attempt to search or forensically image any devices in its custody failed to satisfy the Discovery Order?s request to make ?all reasonable efforts to search? for potentially relevant documents, violating Rule 45(g).

Electronic Data Involved: ESI

Fid. Nat?l Title Ins. Co. v. Captiva Lake Invs., L.L.C., No. 4:10?CV?1890 (CEJ), 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)

Dec 01 2015

Key Insight: Where inspection by court-appointed specialist revealed that plaintiff deleted emails, failed to institute a litigation hold, and delayed completing a comprehensive search of its electronic files, events which defendant and the court would not have known about but for the inspection, the court said plaintiff was subject to sanctions for failing to secure relevant emails and for prejudicial delay in production of discoverable material and that the court would instruct jurors that they may, but are not required to, assume the contents of deleted emails would have been adverse to the plaintiff, but the court would also allow for plaintiff to put on rebuttal evidence showing ?an innocent explanation of its conduct.? Additionally, the court ordered plaintiff to pay one-half of the reasonable costs of the inspection and to pay defendant?s reasonable attorneys? fees associated with bringing the sanctions motion.

Nature of Case: Insurance Coverage Dispute

Electronic Data Involved: ESI, database contents

Ballard v. Williams, No. 3:10-cv-01456, 2015 WL 179071 (M.D. Pa. Jan. 14, 2015)

Dec 01 2015

Key Insight: Where surveillance footage of hallway in which alleged assault occurred was overwritten, the court reasoned there was no indication that the evidence was intentionally lost or destroyed, that the named defendants were not responsible for the video system, and that defendant was not ?materially prejudiced? because he could still testify as to what happened and therefore denied the motion for sanctions

Nature of Case: Alleged assault by prison officers and related claims

Electronic Data Involved: Surveillance video

F & J Samame, Inc. v. Arco Iris Ice Cream, SA?13?CV?365?XR, 2015 WL 4068575 (W.D. Tex. Jul. 2, 2015)

Dec 01 2015

Key Insight: Court granted in part plaintiff?s motion for attorneys? fees, where defendant had used software to wipe a PC and a laptop, deleting and overwriting more than 62,000 files, and violated a court order, and stalled the discovery process. Court denied in part plaintiff?s motion for sanctions, however, instead granting leave for new depositions, saying that while its order ?does not address the loss of evidence that may establish willful infringement,? the alleged infringing materials ?are available for the jury to assess whether infringement has incurred or not.?

Nature of Case: Trade dress and Trademark infringement

Electronic Data Involved: Email and ESI on hard drive

Tag:Spoliation