Spoliation – Page 51 – Electronic Discovery Law

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5745855 (S.D.N.Y. Oct. 23, 2013)

Dec 01 2013

Key Insight: Although court found that U.S. Bank was grossly negligent in failing to institute a litigation hold until eight months after its duty to preserve arose, court denied spoliation sanctions as there was no evidence of bad faith but positive evidence of good faith, and U.S. Bank presented persuasive evidence that no relevant documents were destroyed; court further ruled that litigation hold that U.S. Bank finally did impose was reasonable, as custodians were guided by both business people and counsel as to what to retain and counsel monitored compliance, gathering and reviewing relevant emails in the legal hold folders, substantive emails and attachments were printed out and retained separately and not subject to autodeletion policy

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Harry Weiss, Inc. v. Moskowitz, — N.Y.S.2d —, 2013 WL 2341806 (N.Y. App. Ct. May 30, 2013)

Dec 01 2013

Key Insight: Sanction precluding plaintiff from presenting evidence or testimony in opposition to defendant?s defenses and counterclaims affirmed where plaintiff failed for two years to reveal that relevant ESI had been lost after it was allegedly printed; claimed that the relevant computer was ?broken? and had been discarded when defendant sought a forensic examination; and failed to issue a litigation hold; appellate court rejected contention that the disposal did not prejudice defendant because the files had been printed where that claim was contradicted at deposition and where hard copy did not contain metadata

Electronic Data Involved: ESI, hard drive/computer

Lutalo v. Nat?l R.R. Passenger Corp., No. 11-cv-00974-REB-KLM, 2013 WL 1294125 (D. Colo. Mar. 28, 2013)

Dec 01 2013

Key Insight: In a case arising from a train passenger?s complaints regarding Plaintiff?s telephone conversation which the passenger found threatening and which resulted in Plaintiff?s arrest, the court found that the plaintiff had a duty to preserve the relevant cellular phone and that Defendants were prejudiced by its loss but declined to impose an adverse inference instruction for merely negligent spoliation (inadvertent loss) and instead barred Plaintiff from introducing evidence related to who he was talking to or what was said and allowed Defendants to present evidence regarding Plaintiff?s failure to preserve and argue ?whatever inference they hope the jury will draw?

Nature of Case: Claims arising from arrest where charges were later dismissed

Electronic Data Involved: Cellular phone

Flagg v. City of Detroit, 715 F.3d 165 (6th Cit. 2013)

Dec 01 2013

Key Insight: Citing a court?s discretion in determining the strength of any adverse inference to be applied and noting that such a decision is determined on a case by case basis, the appellate court held that the District Court did not abuse its discretion in imposing a permissive rather than a non-rebuttable adverse inference for the defendants? bad faith spoliation of email

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

Moore v. Citgo Refining & Chemicals Co., 735 F.3d 309 (5th Cir. Nov. 12, 2013)

Dec 01 2013

Key Insight: No abuse of discretion in dismissal of 17 plaintiffs who violated two court orders to preserve where willfulness was inferred from their disregard of the courts orders, where the failure to seek clarification weighed against any claimed confusion, where the evidence lost was unique and where no lesser sanction would have sufficed (plaintiffs were warned of the possibility of dismissal before it was imposed); no abuse of discretion for dismissal of four additional plaintiffs for failure to preserve emails despite an explicit court order

Nature of Case: FLSA (employment)

Electronic Data Involved: ESI, emails, handwritten notes

Rodgers v. Rose Party Functions Corp., No. 10-CV-4780 (MKB), 2013 WL 6002375 (E.D.N.Y. Nov. 12, 2013)

Dec 01 2013

Key Insight: Defendants? duty to preserve video recording of plaintiff?s accident arose well within the two-week period before the video was erased per defendant’s document retention policies, as defendant should have anticipated litigation when defendant?s security personnel arranged for plaintiff to be taken by ambulance to a hospital for treatment of injuries sustained when she slipped, and if not then, the duty ?certainly arose? when plaintiff called defendant?s office manager and it became clear that plaintiff was seeking compensation for her injuries from defendant?s insurer; finding that video recording would have been relevant, court determined that an adverse inference instruction advising the jurors that they may infer that the video recording would have corroborated plaintiff?s allegations and rebutted defendants? assertions would suffice to restore plaintiff to the position she would have been had the recording been preserved

Nature of Case: Slip and fall

Electronic Data Involved: Video footage capturing plaintiff’s fall in stairwell

Lifetouch Nat?l School Studios, Inc. v. Moss-Williams, No. C10-05297, 2013 WL 11235928 (N.D. Cal. Oct. 15, 2013)

Dec 01 2013

Key Insight: Where a former employee (defendant) admitted prior possession of a thumb drive containing Plaintiff?s data (her prior employer) and that she had connected the thumb drive to her new employer?s computers (who is also a defendant) but where she claimed that she had not transferred any of Plaintiff?s information, that she could not recall the computer she connected to, and that she destroyed the drive before her duty to preserve arose, court reasoned that there was a ?sufficient nexus between the defendant?s computers and the alleged misappropriation of trade secrets to warrant forensic imaging of the computers? (over 60 in number) but, applying the cost-shifting analysis from Zubulake v. UBS Warburg LLC 217 FRD 309 (SDNY 2003), found that in light of the ?broad scope of the request, the cost of production, the resource disparity of the parties? and defendant?s repeated assertion that the information did not exist, cost shifting was appropriate; court indicated it ?may reconsider? cost allocation if the expert determined that information from the thumb drive was transferred to defendant?s computer

Nature of Case: Trade secrets

Electronic Data Involved: ESI of former employer

Fairview Ritz Corp. v. Borough of Fairview, No. 09-875 (JLL), 2013 WL 5435060 (D.N.J. Sept. 27, 2013)

Dec 01 2013

Key Insight: Upon motion for reconsideration based on Plaintiff?s location and production of a document previously found to have been spoliated, court found that an adverse inference and monetary sanctions predicated on the finding of spoliation were no longer appropriate but ordered Plaintiff?s counsel to show cause why monetary sanctions should not be imposed for the delay and Defendants? protracted efforts to procure the document?s production

Electronic Data Involved: Single document (ESI)

Gordon v. Dreamworks Animation SKG, Inc., No. 1:11-10255-JLT, 2013 WL 1292520 (D. Mass. Mar. 28, 2013)

Dec 01 2013

Key Insight: Court ordered spoliation sanctions for Plaintiff?s intentional destruction of materials related to his claim of copyright infringement at a time when he had a duty to preserve as evidenced by his actions to ?preserve? his work with the copyright office before the release of the allegedly infringing film (Kung Fu Panda) and his consultation with counsel; sanctions excluded evidence of Plaintiff?s 2008 copyright registration which was created with and relied upon evidence that had been destroyed

Nature of Case: Copyright Infringement

Electronic Data Involved: Hard copy documents, computer equipment and contents

Dombrowski v. Lumpkin Cnty., No. 2:11-CV-276-RWS-JCF, 2013 WL 2099137 (N.D. Ga. Mar. 21, 2013)

Dec 01 2013

Key Insight: Court declined to impose adverse inference for Defendant?s alleged failure to issue a litigation hold where Plaintiff failed to establish bad faith and failed to establish that ?critical or crucial evidence was destroyed??addressing the presence of bad faith, court noted that Defendants? email practices, i.e., that the individual defendant frequently deleted his emails and that once placed in the trash, they were automatically deleted after two weeks, resulted in Plaintiff?s claims gaining ?little traction? in light of Fed. R. Civ. P. 37(e); court declined to impose adverse inference for the alleged destruction of ?unidentified documents? where plaintiff ?failed to carry her burden of showing bad faith? and also failed to establish that she had ?suffered prejudice as a result of the missing documents?

Nature of Case: Employment discrimination; defamation; intentional infliction of emotional distress

Electronic Data Involved: Emails, ESI

Tag:Spoliation