Spoliation – Page 48 – Electronic Discovery Law

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

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

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

Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)

Dec 01 2014

Key Insight: Where plaintiff ran software to permanently erase all information on his computer then drilled a hole in his hard drive and threw it away, and completely erased and reformatted all data on recording device, and most of recordings produced by plaintiff had been edited, all at a time when plaintiff knew he had an obligation to preserve evidence, court found that plaintiff engaged in willful spoliation of highly relevant evidence, that plaintiff acted in bad faith, that defendants were severely prejudiced by the loss of evidence, that less drastic sanctions would not sufficiently compensate for plaintiff’s widespread destruction of evidence and that, given the extensive spoliation of relevant evidence by plaintiff, it would not be possible to fairly evaluate the case on the merits; court concluded that dismissal was the only appropriate sanction

Nature of Case: Retaliation and wrongful termination

Electronic Data Involved: Plaintiff’s personal computer, email, recordings made by plaintiff of his interactions with other employees

Savage v. City of Lewisburg, No. 1:10?0120, 2014 WL 6827329 (M.D. Tenn. Dec. 3, 2014 )

Dec 01 2014

Key Insight: District court said that where Defendant was under a duty to preserve audio recordings and should have taken steps to prevent their destruction; and where Defendant refused to produce payroll and promotion data ordered by the court; and where Defendant had not produced documents ordered by the court; Plaintiff would be permitted to argue adverse inferences to the jury and file an affidavit of reasonable costs and attorneys? fees in bringing its sanctions motion.

Nature of Case: Employment Discrimination

Electronic Data Involved: Audio recordings, payroll and promotion data, documents

Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2014 WL 439785 (S.D. W. Va. Feb 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs’ request for reasonable costs incurred in bringing the motion as plaintiffs demonstrated that Ethicon’s negligent loss of relevant evidence unduly complicated plaintiffs’ discovery and case preparation and unnecessarily increased the costs of litigation, but denied request for more serious spoliation sanctions since loss of evidence was not willful or deliberate and plaintiffs could not show irreparable prejudice; magistrate recommended that district judge allow plaintiffs the opportunity to introduce evidence regarding Ethicon’s loss of relevant documents on a case-by-case basis, and when appropriate, tender an adverse inference instruction

Nature of Case: Product liability

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Samuel v. United Corp., No. ST-12-CV-457, 2014 WL 2608839 (V.I. Super. Ct. May 21, 2014)

Dec 01 2014

Key Insight: Court declined to allow an adverse inference instruction as sanction for defendant’s alleged destruction of critical video footage that preceded her fall, and reiterated prior guidance from the Supreme Court of the Virgin Islands: “[U]pon reasonably foreseeable notice that evidence may be relevant to discovery, it is certainly not within the discretion of a store manager [or security officer] to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation, even where surveillance video does not clearly show the cause of the accident”; court commented that routinely preserving only a minute and a half of footage prior to an accident teeters on the edge of being unreasonable, and recommended preservation of at least five minutes of surveillance footage of the area prior to the accident

Nature of Case: Slip-and-fall

Electronic Data Involved: Surveillance video footage

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