Spoliation – Page 54 – Electronic Discovery Law

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

Anderson v. Sullivan, No. 1:07-cv-111-SJM, 2013 WL 4455602 (W.D. Pa. Aug. 16, 2013)

Dec 01 2013

Key Insight: After granting summary judgment in favor of all defendants, court retained ancillary jurisdiction to adjudicate plaintiff?s motion for spoliation sanctions; court conducted seven-day evidentiary hearing on the motion, ultimately rejecting plaintiff’s various claims of spoliation

Nature of Case: Pennsylvania Whistleblower Act claims

Electronic Data Involved: Email, computer hard drives

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

Shawback v. Wells Fargo Bank N.A., No. 3:11-cv-00243 JWS, 2013 WL 3306078 (D. Alaska July 1, 2013)

Dec 01 2013

Key Insight: Where Defendant sought spoliation sanctions for Plaintiff?s failure to preserve communications and other evidence related to her job search (related to her mitigation of damages) and where Plaintiff?s counsel explained that many of the job-seeking activities were undertaken electronically and did not result in emails to be preserved, the court reasoned that Plaintiff?s degree of fault with respect to the online services was ?not large,? that allowing her to testify that she ?periodically? reviewed job lists and ?sometimes? clicked on the links was not ?seriously prejudicial,? and that the sanctions sought were disproportional and thus ordered that Plaintiff could not testify regarding specific job inquiries absent documentation of that inquiry and that she could not testify that she applied for one-hundred or more jobs, but indicated that Plaintiff would be allowed to testify that she looked at jobs periodically and sometimes clicked on the links and to testify regarding job applications for which she provided documentation

Nature of Case: Employment discrimination

Electronic Data Involved: Data related to online job searching

Tag:Spoliation