Spoliation – Page 50 – Electronic Discovery Law

Stewart v. Nucor Corp., No. 3:13-cv-0057-KGB, 2014 WL 12611316 (E.D. Ark. Dec. 8, 2014)

Dec 01 2014

Key Insight: Defendant moved to strike Plaintiffs answer, enter default judgement and give an adverse inference jury instruction as sanctions for alleged spoliation of video footage. The court held that destruction of the footage was prejudicial to Plaintiff, being the only recording of the accident. Defendant did not have an official retention policy and indicated the video at issue was overwritten ?within weeks of the accident through routine system operation.? However the court did not find Defendant acted in bad faith, and thus denied with prejudice Plaintiff?s motion to strike Defendant?s answer and enter default judgement. The court denied without prejudice Plaintiff?s request to strike the affirmative defense asserting Plaintiff?s fault as well as the request to prohibit Defendant from mentioning the tape/contents/employee statements regarding the tape during trial. Plaintiff may file a motion in limine to further pursue exclusion of evidence.

Electronic Data Involved: Video footage

Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)

Dec 01 2014

Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)

Nature of Case: Personal injury (train/car collision)

Electronic Data Involved: Original hard drive containing video footage

Miller v. Fed. Express Corp., No. 49A02-1307-PL-619, 2014 WL 1318698 (Ind. Ct. App. Apr. 3, 2014)

Dec 01 2014

Key Insight: Although there may have remained a genuine issue of material fact concerning spoliation based on employer’s failure to preserve contents of employee?s computer or make a complete archival backup of the contents when the computer was replaced, summary judgment in favor of the employers was properly granted since the employers were immune from the claims under Section 230(c) of the federal Communications Decency Act as providers of an interactive computer service (i.e., company network and access to internet)

Nature of Case: Individual alleged defamation and intentional infliction of emotional distress against employers of authors of anonymous comments posted regarding online article

Electronic Data Involved: Comments posted regarding online article; contents of computer used by author of comments

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

Sentis Group, Inc. v. Shell Oil Co., 763 F.3d 919 (8th Cir. 2014)

Dec 01 2014

Key Insight: Eight Circuit found no abuse of discretion where, for a second time, after remand, trial court concluded that dismissal of complaint was appropriate sanction for plaintiff?s ?consistently evasive and deceptive conduct,? as the record was now adequately set forth and supported the trial court?s judgment regarding the questions of bad faith, plaintiffs? control over accountant witness who disappeared, and the intentional (versus negligent) nature of the ongoing and systematic suppression of evidence by plaintiffs

Nature of Case: Contract and fraud claims

Electronic Data Involved: Financial records maintained on plaintiffs’ accountant’s computer; computers

Flagstar Bank, FSB v. Walker, No. 05-13-00724-CV, 2014 WL 6065713 (Tex. App. Nov. 14, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion in denying plaintiff’s request for adverse inference instruction as sanction for defendant?s inability to produce additional communications – which defendant had explained were not available because defendant had replaced its servers and had not backed-up the data – because there was no proof that defendant intentionally concealed evidence or that the spoliation irreparably deprived plaintiff of any meaningful ability to present its claims

Nature of Case: Claims arising from misappropriation of over $8 million in load proceeds designated to fund a series of residential loan transactions

Electronic Data Involved: Email

Black Diamond Mining Co. v. Genser, No. 12-125-ART, 2014 WL 3611329 (E.D. Ky. July 22, 2014)

Dec 01 2014

Key Insight: Court addressed motion for sanctions and found that accused spoliators had acted intentionally and/or negligently, but not in bad faith; court found that sanctions were ?unwarranted? for the negligent loss of certain email attachments because of defendant?s failure to ?access documents in an archive while gathering the original emails?- even despite finding that defendant acted with a ?culpable state of mind? – where plaintiff failed to produce any evidence of the attachments? relevance (court noted that defendant did not ?actively delete the attachments? but rather its agents ?forgot to take steps to preserve the documents before they were deleted from the archive?); for individual actors? negligent and intentional failures to preserve ESI and hard copy documents, the court found that the ?test of relevance [was] satisfied? and imposed a permissive adverse inference, but declined to order reimbursement of the Trustee?s fees or the costs of bringing the motion

Electronic Data Involved: Email attachments, ESI, hard copy

Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893(JA)(AKT), 2013 WL 1339548 (E.D.N.Y. Mar. 29, 2013)

Dec 01 2013

Key Insight: Court found attorney?s duty to preserve was triggered upon receipt of correspondence terminating her representation but withheld judgment on issue of spoliation until hearing could be held

Nature of Case: Legal Malpractice

Electronic Data Involved: ESI, computers

Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-cv-1081, 2013 WL 1196606 (S.D. Ohio)

Dec 01 2013

Key Insight: Where Defendant indicated that historical data was unavailable because it had been stored on magnetic tapes that could only be accessed with outdated technology that had been disassembled (VAX computer) and that the tapes had degraded and the information could not be retrieved, the court granted Plaintiff?s motion to compel discovery related to the ?failure to preserve or the destruction? of the at-issue data and ordered Defendant to produce a 30(b)(6) designee and to produce all relevant documents related to the ?preservation, failure to preserve and/or destruction? of the historical data and technology

Nature of Case: Groundwater contamination

Electronic Data Involved: Magnetic tapes, VAX computer

Oracle USA, Inc. v. Rimini Street, Inc., No. 2:10-cv-00106-LRH PAL, 2013 WL 1292685 (D. Nev. Mar. 29, 2013)

Dec 01 2013

Key Insight: Court imposed spoliation sanctions, including an adverse inference, for defendant?s deletion of a ?software library? despite a duty to preserve

Nature of Case: Copyright infringement

Electronic Data Involved: Software library

Tag:Spoliation