Spoliation – Page 40 – Electronic Discovery Law

HMS Holdings Corp. v. Arendt, NO. A754/2014, 2015 WL 2403099 (N.Y. Sup. Ct. May 19, 2015)

Dec 01 2015

Key Insight: For one defendant?s repeated use of a cleaning software (?Disk Utility? and its ?Secure Erase Free Space? function) to delete files and loss of a relevant hard drive without an adequate explanation and for another defendant?s loss of relevant ESI, including her intentional deletion of information from the desktop registry and her disposal of her cell phone (which she notably was unaware had been automatically backed up each time it was connected to her computer), ongoing deletion of text messages (on her new phone), and misrepresentations about when the old phone was discarded, the court found that a mandatory adverse inference was warranted and rejected Defendants? argument that the court should decline to employ the adverse inference at the preliminary injunction state, reasoning that the objective of promoting fairness was best served by ?employing an adverse inference at all relevant states of the litigation?; court also ordered defendants to pay Plaintiff?s attorneys fees without seeking reimbursement from their new employer and indicated its intention to forward its decision to the NY Bar in light of one defendant?s status as an attorney

Nature of Case: Misappropriation of trade secrets, breach of “post-employment covenants”

Electronic Data Involved: ESI, hard drive, text messages (iphone)

Henry v. Abbott Labs., No. 2:12-cv-841, 2015 WL 5729344 (S.D. Ohio Sept. 30, 2015)

Dec 01 2015

Key Insight: Despite duty to preserve personnel records created by regulation (29 CFR ? 1602.14), court found no ?regulatory violation? in the destruction of documents subject to preservation until a ?final disposition? of the action where documents were destroyed following Plaintiff?s failure to appeal the dismissal of her case; court also found that even if Defendant had an ongoing duty to preserve (because the case was eventually reinstated upon Plaintiff?s motion for relief from the dismissal), there was no evidence of requisite culpability where Defendant reasonably believed (as did the court) that the case had been ?finally adjudicated;? the court also questioned the relevance of the at-issue documents

Nature of Case: Employment discrimination

Electronic Data Involved: ESI: personnel evaluations, surveys related to promotion

Nuvasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB), 2015 WL 4479147 (S.D. Cal. July 22, 2015)

Dec 01 2015

Key Insight: For Defendant?s failure to preserve its employees? text messages, court imposed an adverse inference.

Electronic Data Involved: Text messages

Advantor Sys. Corp. v. DRS Technical Servs., Inc., No. 6:14-cv-533-Orl-31DAB, 2015 WL 403308 (M.D. Fla. Jan. 28, 2015)

Dec 01 2015

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

Charvat v. Valente, No. 12 CV 5746, 2015 WL 4037776 (N.D. Ill. July 1, 2015)

Dec 01 2015

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

United States v. Vaugh, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 11, 2015)

Dec 01 2015

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

DeCastro v. Kavadia, —F.R.D.—, 2015 WL 4619914 (S.D.N.Y. July 6, 2015)

Dec 01 2015

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

Pinkney v. Winn-Dixie Stores, Inc., No. CV214-075, 2015 WL 171236 (S.D. Ga Jan. 13, 2015)

Dec 01 2015

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

Spotted Horse v. BNSF Ry. Co., 350 P.3d 52 (Mont. 2015)

Dec 01 2015

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

Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Dec 01 2014

Key Insight: Mandatory adverse inference instruction was not warranted by former Chairman’s admitted deletion of e-mails after his retirement despite written document preservation instruction from corporate counsel at the outset of litigation, as defendants did not have requisite culpable state of mind and there was insufficient evidence of relevance or prejudice; instead, permissive adverse inference instruction was appropriate

Nature of Case: Securities class action

Electronic Data Involved: E-mails of defendant Celestica’s former Chairman of the Board

Tag:Spoliation