Spoliation – Page 45 – Electronic Discovery Law

Tedeschi v. Kason Credit Corp, No. 3:10CV00612 DJS, 2014 WL 1491173 (D. Conn. Apr. 15, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for adverse inference based on defendant’s failure to preserve printouts from its computer system, finding that defendant did not have a duty to preserve printouts so long as the electronic files themselves were preserved

Nature of Case: Claims under Fair Debt Collection Practices Act

Electronic Data Involved: Printed fact sheets that showed collection activity maintained on defendant’s computer system

Lewis v. Bay Inds., Inc., No. 12-C-1204, 2014 WL 4925483 (E.D. Wis. Sep. 30, 2014)

Dec 01 2014

Key Insight: Where defendant had taken “extraordinary step” of handing over to plaintiff’s computer expert a mirror image copy of the company’s email server so that expert could conduct his own search, and none of the mostly irrelevant emails retrieved by expert provided support for plaintiff?s claims, and plaintiff failed to offer convincing evidence that defendant violated an order of the court or intentionally destroyed or concealed relevant evidence, court rejected plaintiff?s motion for spoliation sanctions and ultimately granted summary judgment in favor of defendant, dismissing all of plaintiff?s claims

Nature of Case: Unlawful retaliation and wrongful discharge claims

Electronic Data Involved: Email

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13-cv-00825 (AJT/TCB), 2014 WL 1681694 (E.D. Va. Apr. 24, 2014)

Dec 01 2014

Key Insight: Court ordered dismissal of Plaintiff?s claims with prejudice and payment of Defendant?s attorney?s fees and costs incurred for numerous discovery motions and forensic inspection of Plaintiff?s electronic devices for Plaintiff?s bad faith spoliation including defiance of the court?s discovery orders by refusing to submit certain devices and accounts for forensic inspection and by refusing to produce certain information and the destruction of ESI by wiping both his iPhone and Blackberry device, among other things

Nature of Case: Employment litigation (harassment, retaliation)

Electronic Data Involved: ESI, forensic inspection of devices (iPhone, Blackberry)and accounts

Dewhurst v. Century Aluminum Co., No. 2:09-1546, 2014 WL 555164 (S.D. W. Va. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence

Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits

Electronic Data Involved: E-mail and other ESI

Riley v. City of Prescott, No. CV-11-08123-PCT-JAT, 2014 WL 641632 (D. Ariz. Feb. 19, 2014)

Dec 01 2014

Key Insight: Court applied five-part test to deny plaintiff’s motion for claim-dispositive sanctions but would allow reasonable attorneys’ fees and adverse inference instruction where city failed to suspend its 45-day retention policy for city employee email and defendant mayor apparently destroyed or failed to preserve relevant email in his private Gmail account, as numerous emails on which the mayor or his assistant were senders or recipients were discovered from third party sources, e.g., Google, Inc., but none were included in defendants’ production

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685 (N.D.N.Y. Jan. 13, 2014)

Dec 01 2014

Key Insight: District court adopted magistrate judge?s recommendation (at 2013 WL 6992130) that plaintiff?s motion for adverse inference instruction be granted as sanction for defendant?s grossly negligent failure to preserve internal emails in violation of its own retention policy; court deferred ruling on the language of the jury instruction until the filing of pretrial memoranda so as to consider proposed jury instructions as a whole

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Internal emails

Fog Cap Acceptance, Inc. v. Verizon Bus. Network Servs., Inc., No. 3:11-CV-724-PK, 2014 WL 6064217 (D. Or. Nov. 12, 2014)

Dec 01 2014

Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot

Nature of Case: Breach of contract, negligence, and violations of bailment

Electronic Data Involved: Source code, hard drives

Pac. Packaging Prods., Inc. v. Barenboim, No. MICV200904320, 2014 WL 2766735 (Mass. Super. Ct. Jan 31, 2014)

Dec 01 2014

Key Insight: After ten days of hearings on Plaintiff?s Emergency Motion for Judgment on All Claims Based upon Defendants? Fraud Upon the Court, court found that defendants violated preservation order and deliberately ignored preliminary injunction requiring defendants to turn over all written or digital materials taken from or generated by plaintiff, or derived in whole or in part from documents generated by plaintiff, that contain customer lists, pricing information or similar information, and not to retain copies of such materials, and that defendants spoliated evidence and committed a fraud upon the court; appropriate sanction was the entry of default against defendants, dismissal of the defendants? counterclaims, and an order requiring defendants to compensate plaintiff for attorneys? fees and costs incurred in litigating the motion; parties to submit memoranda describing their views regarding the extent of the default established and the future course of the litigation

Nature of Case: Distributer sued former employees who formed competing company

Electronic Data Involved: Computers, laptops, hard drives and other electronic storage devices

United States v. Town of Colorado City, No. 3:12-cv-8123-HRH, 2014 WL 3724232 (D. Ariz. July 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions as plaintiff offered only “some slight evidence” that city acted with a culpable state of mind, most of the evidence did not support a conclusion that the city intentionally destroyed evidence, and any prejudice that plaintiff would suffer from not having the two dispatch calls was minimal

Nature of Case: Discrimination

Electronic Data Involved: Recordings of dispatch calls, police reports, officer meeting minutes

Tag:Spoliation