Spoliation – Page 52 – Electronic Discovery Law

SJS Distribution Sys., Inc. v. Sam?s East, Inc., No. 11 CV 1229(WFK)(RML), 2013 WL 5596010 (E.D.N.Y. Oct. 11, 2013)

Dec 01 2013

Key Insight: For Plaintiff?s failure to preserve potentially relevant emails and other ESI (including the failure to issue a litigation hold) despite its duty to preserve (which was triggered upon its discovery of alleged packaging discrepancies in diaper shipments delivered by the defendant), the court declined to preclude Plaintiff from offering certain evidence, noting the lack of bad faith, but ordered an adverse inference stating that Plaintiff negligently deleted relevant emails that would have been favorable to the defendant and for Plaintiff to pay Defendant?s attorney?s fees and costs associated with the motion for sanctions

Nature of Case: Claims related to packaging discrepancies in diapers delivered to Plaintiff that were intended for resale

Electronic Data Involved: ESI, email

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

Hallmark Cards, Inc. v. Murley, —F.3d—, 2013 WL 149817 (8th Cir. Jan 15, 2013)

Dec 01 2013

Key Insight: Circuit court pronounced prospective rule that a district court must issue explicit findings of bad faith and prejudice prior to delivering an adverse inference instruction but found district court?s failure to do so in the present case was harmless error and that the Defendant was not entitled to a new trial

Nature of Case: Breach of contract

Stirling v. St. Louis Cnty. Police Dept., No. 4:11CV01932, 2013 WL 2244638 (E.D. Mo. May 21, 2013)

Dec 01 2013

Key Insight: Where an individual defendant?s emails were deleted pursuant to the county?s ?routine system updates? and were therefore unavailable when requested, the court clarified that the duty to preserve arises ?when the party has notice that the evidence is relevant to litigation?most commonly when suit has already been filed ?? and NOT when a request is served and ordered defendants to search all available sources where the emails may still exist, including backup files, and to file a notice with the court advising it of such sources and that defendants must show cause why they should not be required to retrieve and produce such documents

Electronic Data Involved: Email

Cartwright v. Scheels All Sports, Inc., —P.3d—, 2013 WL 3007776 (Mont. June 18, 2013)

Dec 01 2013

Key Insight: Trial court did not err in failing to sanction Defendant for destruction of Plaintiff?s emails and other data following his termination where Plaintiff failed to make any showing of ?an attempt to conceal evidence or bad faith? and where the emails were discarded pursuant to a ?pre-existing and routine practice? before Defendant had knowledge of potential litigation (pending administrative proceeding for unemployment benefits did not put Defendant on notice that Plaintiff?s files would become relevant to a civil proceeding)

Nature of Case: Wrongful discharge

Electronic Data Involved: Emails and other data on work computer

Brown v. West Corp., No. 8:11CV284, 2013 WL 6263632 (D. Neb. Dec. 4, 2013)

Dec 01 2013

Key Insight: Court denied motion for spoliation sanctions related to automatic deletion of email backups where no email from the time of Plaintiff?s separation from the defendant existed on that system because of the passage of time and where the automatic deletions did not affect any emails saved on individual employees? computers – who had been instructed to preserve relevant information; court also declined to impose sanctions for the destruction of files on former employees? computers where Defendant claimed the computers contained no relevant information that had not already been produced and where the repurposing of the computers was apparently undertaken in good faith; upholding magistrate judge?s prior discovery orders, court noted the magistrate judge?s recognition that although some of the custodians from which plaintiff sought discovery may have relevant information, ?a few pointed questions in a deposition were less burdensome than grasping at the periphery by reviewing thousands or tens of thousands of e-mails in the hope of discovering a limited number of interactions that might, together, indicate something about whether discrimination played a role in the actions at the center of this case?

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, email, computer files of former employees

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-CV-127 (LEK/DEP), 2013 WL 6992130 (N.D.N.Y. June 6, 2013)

Dec 01 2013

Key Insight: Failure to institute litigation hold, which resulted in automatic deletion of relevant e-mails as part of defendant’s system-wide upgrade, and defendant’s excessive delay in disclosing such facts, constituted gross negligence; magistrate judge recommended that plaintiff’s motion for sanctions be granted and that trial court issue and adverse inference instruction regarding the destroyed e-mails and award plaintiff its costs in bringing the motion

Nature of Case: Insurance coverage dispute

Electronic Data Involved: E-mail

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

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