Spoliation – Page 47 – Electronic Discovery Law

Alter v. Rocky Pt. Sch. Dist., No. 13-1100 (JS)(AKT), 2014 WL 4966119 (E.D.N.Y. Sep. 30, 2014)

Dec 01 2014

Key Insight: Notwithstanding court?s finding that defendants lost materials due to their negligence in failing to: (1) institute a litigation hold until more than two years after plaintiff filed her notice of claim, (2) discuss a litigation hold with named individual defendants and other key players, (3) preserve all ESI regarding plaintiff from named individual defendants and all key custodians in separate backup tapes or in some other medium, or (4) preserve work-related ESI utilized by key players on their personal computers or other devices, court declined to impose spoliation sanctions as it found no intent on the part of defendants to spoliate material evidence and plaintiff failed to meet burden of showing with some degree of factual detail that lost materials were relevant or helpful in prosecuting her claim; court further denied plaintiff?s request for appointment of independent forensic computer expert, but did impose $1,500 sanction against school district and its counsel given that court found merit to some of plaintiff?s arguments

Nature of Case: Workplace discrimination claims

Electronic Data Involved: ESI, emails

First Mariner Bank v. Resolution Law Group, P.C., No. MJG-12-1133, 2014 WL 1652550 (D. Md. Apr. 22, 2014)

Dec 01 2014

Key Insight: Recounting history of defendants? discovery misconduct, prior motions and orders, and finding that defendants? spoliation of evidence stored on individual defendant’s laptop computer and smartphone was willful and in bad faith and caused significant prejudice to plaintiff by eliminating the only identified source of defendants? business records, magistrate judge recommended that extreme sanction of judgment by default as to liability on all counts of the amended complaint be entered against defendants; magistrate further recommended that, pursuant to FRCP 55(b)(2), an evidentiary hearing be held to give plaintiff the opportunity to prove damages

Nature of Case: False advertising, unfair competition and defamation

Electronic Data Involved: ESI stored on laptop and smartphone

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317-EJD (HRL), 2014 WL 580290 (N.D. Cal. Feb. 13, 2014)

Dec 01 2014

Key Insight: Litigation was reasonably foreseeable so as to trigger a duty to preserve evidence when plaintiff first acquired patents with an eye toward litigation, although company was analyzing defendant’s technology and openly discussing litigation months earlier; however, because plaintiff waited 11 days after filing suit to implement a legal hold and there was evidence that potentially relevant emails were deleted, court imposed monetary sanctions instead of the more severe sanctions requested given absence of substantial prejudice to defendant and fact that plaintiff’s conscious disregard of its duty to preserve was motivated by cost-saving

Nature of Case: Patent infringement

Electronic Data Involved: E-mails

McCann v. Kennedy Univ. Hosp., Inc., Civil No. 12-1535 (JBS/JS), 2014 WL 282693 (D.N.J. Jan. 24, 2014)

Dec 01 2014

Key Insight: Applying Third Circuit’s four-factor test for evaluating spoliation claims, court denied plaintiff’s motion for sanctions, finding that plaintiff failed to establish that defendant acted in bad faith by allowing the tapes to be automatically taped over as a matter of routine, since there was no evidence that defendant’s employees knew or anticipated that plaintiff’s claims would require the retention and production of emergency room lobby videotape footage from the night plaintiff was treated

Nature of Case: Emergency Medical Treatment and Labor Act claims

Electronic Data Involved: Security videotapes of emergency room lobby

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Dec 01 2014

Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop; text messages and other ESI on mobile phone

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

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