Spoliation – Page 5 – Electronic Discovery Law

WeRide Corp. v. Kun Huang (N.D. Cal., 2020)

Apr 24 2020

Key Insight: Defendant’s failure to suspend document retention policy resulted in loss of evidence and court ordered judgment against Defendant. Plaintiff also showed evidence that USB Drives had been inserted into a shared laptop and files deleted. Defendants actions had made it impossible for Plaintiff to prove case.

Nature of Case: Trade Secrets

Electronic Data Involved: USB Drives inserted into company laptop; Email accounts

Keywords: records retention policy, spoliation, sanctions

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Brittney Gobble Photography, LLC v. Sinclair Broadcast Group, Inc. (D. Md. 2020)

Apr 09 2020

Key Insight: Plaintiff, a professional photographer, filed a motion for spoliation sanctions against the defendant, claiming the deletion of emails were crucial to the claims and defenses in the litigation. The court denied plaintiff’s motion, finding: there is no evidence that the emails at issue actually existed, and an inference that they did not exist; if the emails existed, there is no evidence that the defendant lost or destroyed any emails in order to prevent plaintiff from using them in the litigation; and plaintiff is not prejudiced by the purported loss. Plaintiff never proved that the purported emails existed and to succeed on a spoliation of evidence motion, mere speculation is not enough.

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

Case Summary

Vaks v. Quinlan, et al. (District of Massachusetts, 2020)

Feb 24 2020

Key Insight: plaintiff violated the protective order by filing a pleading attaching confidential documents

Nature of Case: employment discrimintation

Electronic Data Involved: confidential documents protected under the protective order

Keywords: protective order, confidentiality

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Allscripts Healthcare, LLC v. DR/Decision Resources, LLC d/b/a Decision Resources Group (District of Massachusetts, 2020)

Feb 20 2020

Key Insight: enhancement of protective order to ensure heightened confidentiality of one document.

Nature of Case: breach of contract and false and misleading statements

Electronic Data Involved: confidentiality of proprietary aggregate data product

Keywords: protective order, heightened confidentiality

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Nevis v. Rideout Memorial Hospital, et al. (E.D. Cal. 2020).

Feb 06 2020

Key Insight: At the start of litigation, Plaintiff sent a preservation letter to Defendant(s). Subsequently, a Defendant requested Plaintiff produce records and screenshots of text messages from his phone for the month of the incident that was the basis of the litigation. Plaintiffs produced several screenshots of text messages, but was unable to provide the requested phone records. During a subsequent deposition, Plaintiff claimed that he still had the phone.

Additional Defendants subsequently requested a digital download of all information on the phone. However, in response Plaintiff claimed that he no longer possessed the phone. Defendants responded with a Motion for Terminating Sanctions on the basis of spoliation of evidence.

Utilizing a five-part test for imposing sanctions adopted by the Ninth Circuit, the Court found that none of the factors were in favor of sanctions in the litigation. Defendants’ Motion for Terminating Sanctions was denied.

Nature of Case: Personal Injury

Electronic Data Involved: Cell Phone Data, Cell Phone Data Image, Text Messages, Phone Records

Case Summary

Nevis v. Rideout Memorial Hospital, et al. (Eastern District of California, 2020)

Feb 06 2020

Key Insight: Plaintiff was made aware that he had to preserve his phone records and text records and than failed to do so

Nature of Case: personal injury and liability

Electronic Data Involved: plaintiff’s cell phone and text messages

Keywords: spoliation, text messages, phone records, cell phone, preservation

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Digital Mentor, Inc. v. Ovivo USA, LLC (W.D. Wash. 2020)

Feb 04 2020

Key Insight: The communications with Plaintiff’s consultant were not privileged because the consultant was not a “functional employee.” There is no evidence that the consultant had “information about the company that would assist the company’s attorneys in rendering legal advice.” Additionally, there was no evidence that consultant’s communications with counsel were primarily of a legal nature rather than a business one.

Defendant’s request for sanctions was premature. Rule 37 sanctions are only allowed against a party for disobeys a court issued discovery order. Additionally, no evidence was presented in support of Defendant’s spoliation theory other than a failure to produce documents to its subpoena. Without evidence regarding what was destroyed, when it occurred, the extent of Plaintiff’s involvement, and resulting prejudice, sanctions are inappropriate.

Nature of Case: Trademark Infringement, Breach of Contract

Electronic Data Involved: Email

Case Summary

Digital Mentor, Inc. v. Ovivo USA, LLC (Western District of Washington, 2020)

Feb 04 2020

Key Insight: Failure to produce; Sanctions; Proportionality

Nature of Case: Trademark & Copyright infringement

Electronic Data Involved: Hard copy; correspondence; email

Keywords: “Functional employee”; Consultant; Third-party communications; Privilege; Spoliation; Unfair prejudice; Attorney’s fees and costs; Proportionality; Access/Resources;

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Nguyen v. Costco Wholesale Corporation (S.D. Fla 2020)

Jan 27 2020

Key Insight: Defendant had no duty to preserve the allegedly spoliated video for the almost two years before the filing of the lawsuit because there was no indication Plaintiffs intended to pursue litigation. Plaintiffs failed to present evidence indicating the allegedly spoliated video was relevant to this litigation which would trigger a duty to take reasonable steps to preserve it. No sanctions are warranted.

Nature of Case: Slip and Fall Liability, Personal Injury

Electronic Data Involved: Surveillance Video

Case Summary

Mannion, et al. v. Ameri-Can Freight Systems Incorporated, et al. (district of AZ, 2020)

Jan 27 2020

Key Insight: whether the issue of spoliation could be brought before the jury to decide if evidence was withheld and if that was justified

Nature of Case: personal injury, motor vehicle

Electronic Data Involved: Log books of defendant

Keywords: spoliation, jury instruction, question of law/fact

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