Spoliation – Page 39 – Electronic Discovery Law

H.M. Elecs., Inc. v. R.F. Techs., Inc., No. 12cv28840-BAS-MDD, 2015 WL 4714908 (S.D. cal. Aug. 7, 2015)

Dec 01 2015

Key Insight: For multiple discovery violations by Defendant and counsel, including improper certification of discovery responses pursuant to Rule 26(g), failure to issue a litigation hold or appropriately supervise discovery, and intentional deletion of responsive materials and delayed production, the court imposed multiple discovery sanctions, including attorneys? fees and costs, issue sanctions, and an adverse inference; notably, the court indicated sanctions would have been imposed under New Rule 37(e), because the court found that the at-issue ESI was lost with the intent to deprive Plaintiff of the information?s use in the litigation; Update: Compensatory sanctions vacated by District Court upon determination that parties? settlement mooted the issue of compensatory sanctions (—F.Supp.3d—, 2016 WL 1267385 (S.D. Cal. Mar. 15, 2016))

Nature of Case: Trademark infringement, false designation of origin, trade dress infringement, trade libel, unfair competition and interference with prospective economic advantage

Electronic Data Involved: ESI

Superior Performers Inc. v. Meaike, No. 1:13CV1149, 2015 WL 471429 (M.D.N.C. Feb. 4, 2015)

Dec 01 2015

Key Insight: Where Plaintiff?s agent deleted an original voicemail from his phone by way of a factory reset but had produced a copy and also claimed to have transferred the voicemail to his new phone and where Defendants sought sanctions and argued that the deletion would prevent them from showing the voicemail was fabricated, as they suspected, the court declined to impose sanctions for the alleged fabrication, despite evidence the presentation of evidence that could lead to that conclusion, but did order that Plaintiff be prevented from using the voicemail at trial as a sanction for spoliation, reasoning that although the voicemail was not on one of Plaintiff?s phones (but rather on its agent?s), it ?likely? had a duty to preserve the evidence and that Plaintiff did not attempt to provide access to the phone or provide notice of the voicemail?s possible destruction

Nature of Case: Enforcement of Restrictive Covenants

Electronic Data Involved: Voicemail

S.E.C. v. CKB168 Holdings, Ltd., No. 13-CV-5584 (RRM), 2015 WL 4872553 (E.D.N.Y. Jan. 7, 2015)

Dec 01 2015

Key Insight: Rejecting defendants? explanation that their failure to preserve was the result of a vendor?s refusal to continue assistance for the reason of non-payment, the court found that defendants? had a duty to preserve the information stored on the corporate server that began ?well before the vendor stopped providing services? and reasoned that it was defendants? obligation to ?take ?all necessary steps to guarantee that relevant data was both preserved and produced,?? and also found that defendants were ?at a minimum grossly negligent? for failing to preserve relevant evidence where there was no evidence of efforts to preserve a readable copy of the corporate server nor evidence that they sought modification of the freeze on their assets in able to make payments to the vendor; magistrate judge recommended sanction of an adverse inference

Nature of Case: Securities and Exchange Commission investigation (SEC)

Electronic Data Involved: Contents of corporate server / “back office data”

Bruno v. Bozutto?s, Inc., No. 3:09-cv-874, 2015 WL 7294464 (M.D. Pa. Nov. 19, 2015)

Dec 01 2015

Key Insight: Where Plaintiff? spoliation of financial information forced experts to rely upon ?unverified secondhand data,? court found the reports ?exhibit[ed] neither sufficient reliability nor the requisite fit required for admission in federal practice? and granted Defendant?s motion to exclude

Nature of Case: Breach of contract, promissory estoppel

Electronic Data Involved: Financial information (ESI, hard copy)

Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

Dec 01 2015

Key Insight: Plaintiffs in this collective action sought spoliation sanctions for Defendants? failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc. Defendants objected to the motion on the grounds that ?all of their books, records and computers were seized? pursuant to the court?s order in a different case and that there was no time to make any copies or back ups. Accordingly, the court reasoned that Defendants had not destroyed their records and found that ?[u]nder the specific circumstances of this case ? Defendants did not have an obligation to copy their books and records before complying with the court?s order.? Plaintiffs? motion for sanctions was denied.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Employment records (payroll, W-2s etc.)

Flanders v. Dzugan, No. 12-1481, 2015 WL 5022734 (W.D. Pa. Aug. 24, 2015)

Dec 01 2015

Key Insight: Court declined to impose sanctions, despite Defendant?s failure to issue a litigation hold, where Plaintiff could not show that evidence was actually lost or destroyed and where, although the court acknowledged that Defendant?s record keeping appeared ?slipshod,? Plaintiff could not show bad faith (?in no case in the Third Circuit cited by Plaintiff, or found by this Court, has a court granted a spoliation inference on nothing more than a failure to institute a litigation hold?)

Nature of Case: [A]lleged constitutional violations arising out of the building permit approval process

Electronic Data Involved: ESI, email

Evans v. Quintiles Transnational Corp., No. 4:13-cv-00987-RBH, 2015 WL 9455580 (D.S.C. Dec. 23, 2015)

Dec 01 2015

Key Insight: Reasoning that the ?issues of whether the alleged computer file ever existed and, if it did, whether and when Quintiles should have reasonably known that the evidence may be relevant to the anticipated litigation, and whether Quintiles willfully lost or destroyed the computer file rests on credibility determinations that this Court is not in a position make at this stage? and noting the ?disputed facts at issue,? the court indicated its inclination to ?to provide the jury with appropriate guidelines and instructions so that they, after hearing all of the evidence, can resolve any credibility questions and make a determination, first, as to whether the alleged computer file even existed on Plaintiff?s computer, whether and when Quintiles should have reasonably known that the evidence may be relevant to anticipated litigations, and, if so, whether Quintiles willfully lost or destroyed the file? and invited the parties to submit proposed jury instructions

Nature of Case: Wrongful Termination

Electronic Data Involved: Contents of laptop

Cableview Commc?ns of Jacksonville, Inc. v. Time Warner Cable Se., LLC, 3:13-cv-306-J-34JRK, 2015 WL 12838175 (M.D. Fla. May 4, 2015)

Dec 01 2015

Key Insight: The Court denied Plaintiff?s Motion to Compel Production of Documents. Plaintiff sought Defendant?s tax returns and document retention policies. Plaintiff entered into an agreement with Defendant in 2004 to provide cable television installation services. In 2010 Defendant tendered a workplace injury claim to Plaintiff for indemnification. Plaintiff?s insurance carrier denied coverage and the claim was left unpaid. In 2012, Plaintiff informed Defendant that it was being acquired by another company. One day before the closing of the transaction, Defendant contacted the acquiring company and made repayment for the workplace injury claim ?a condition to assent to assignment? of the agreement. Plaintiff alleged tortious interference and sought Defendant?s tax returns to demonstrate its ability to pay punitive damages. Plaintiff further alleged spoliation claiming there were missing emails and sought documents regarding Defendant?s document retention policies. The Court denied Plaintiff?s Motion holding that the request for punitive damages cannot form the basis for financial worth discovery since Plaintiff failed to make a reasonable showing of tortious interference. Further, there was no spoliation given that Defendant located and produced the emails in question and so Defendant?s document retention policies were not relevant.

Nature of Case: Workplace injury claim

Electronic Data Involved: Emails, ESI

Bruno?s v. Bozzuto?s, No. 3:09-CV-00874, 2015 WL 1862990 (M.D. Pa. Apr. 23, 2015)

Dec 01 2015

Key Insight: Where plaintiffs intentionally destroyed all paper and electronic copies of relevant financial information despite a duty to preserve citing the burden of storage, the court found that the destruction was in bad faith, but that the prejudice was minimal where other sources of evidence provided sufficient information to support Defendant?s defenses and thus ordered an adverse inference at trial; where one plaintiff was a Certified Public Accountant, court considered her professional capacity when considering the willfulness of the destruction, noting that it ?strains credulity? that an accountant would throw away all financial documents because of ?storage space?

Nature of Case: Breach of Contract

Electronic Data Involved: ESI (financial data)

Clientron Corp. Devon IT, Inc., —F. Supp. 3d—, No. 13-5634, 2015 WL 5093084 (E.D. Pa. Aug. 28, 2015)

Dec 01 2015

Key Insight: For Defendants? discovery violations, including failure to adequately search for responsive evidence, failure to designate a 30(b)(6) representative for deposition, and admitted deletion of emails despite a duty to preserve, the court found that sanctions were warranted and imposed serious sanctions, including monetary sanctions, exclusion of evidence, and ?enforcing the judgement of the Taiwanese court? against Defendant, where Defendant?s litigation misbehavior may have rendered Plaintiff unable to prove its contractual claim in court

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

Tag:Spoliation