Spoliation – Page 55 – Electronic Discovery Law

Reinsdorf v. Sketchers U.S.A.,Inc., — F. Supp. 2d —,2013 WL 3878685 (C.D. Cal. July 19, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought sanctions for alleged spoliation of documents from Defendant?s media share website but where the court found that many of the at-issue documents were not relevant and therefore were not subject to preservation and that the deletion of ?arguably relevant documents? was ?at most negligent,? the court found that Plaintiff was not prejudiced and denied his request for forensic examination of Defendant?s servers and an evidentiary hearing and also declined to re-open discovery; court?s analysis noted that the federal rules do not require perfection, but rather that a responding party conducts an objectively reasonable search for responsive materials

Nature of Case: Copyright infringement

Electronic Data Involved: ESI stored on Media share website

Int?l Bus. Machs. Corp. v. BGC Partners, Inc., No. 10 Civ. 128(PAC), 2013 WL 1775373 (S.D.N.Y. Apr. 25, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s failure to collect information regarding its utilization of the at-issue software, the court refused to grant spoliation sanctions upon finding that defendant did not have an obligation to compile information related to its use of the at-issue software where such information was not typically collected in the usual course of business and where parties are only required to produce documents that exist and have no obligation to create documents to support their adversary?s theory of the case; where plaintiff sought spoliation sanctions for defendant?s migration from the at-issue software to another, the court declined to impose sanctions citing the fact that plaintiff had itself instructed defendant to destroy all copies of the at-issue software and that plaintiff failed to present any evidence that it had requested defendant halt its migration prior to filing a motion for sanctions

Electronic Data Involved: ESI

Slovin v. Target Corp., No. 12 CV 863(HB), 2013 WL 840865 (S.D.N.Y. Mar. 7, 2013)

Dec 01 2013

Key Insight: Court found Target was at least grossly negligent for failing to preserve all portions of relevant surveillance footage (capturing Plaintiff?s fall and the surrounding circumstances) and thus imposed an adverse inference and monetary sanctions, but declined to strike Target?s answer or preclude use of the at-issue video excerpts and photographs

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Surveillance footage

Research Found. of State Univ. of N.Y. v. Nektar Therapeutics, No. 1:09-cv-1292 (GLS/CFH0, 2013 WL 2145652 (N.D.N.Y. May 15, 2013)

Dec 01 2013

Key Insight: Court denied defendant?s motion for an adverse inference and monetary sanctions related to its allegations of spoliation where the court ?did not agree? that plaintiff was ?grossly negligent? noting that plaintiff ?had in place ? a comprehensive standard document preservation policy, issued both verbal and written litigation hold notices, preserved backup tapes of emails from before commencement, and confirmed that no custodian had deleted any documents related to this matter? and where, the court determined that ?[w]hile there may have been some shortcomings in [plaintiff?s] document retention protocol, it was, at most, negligent? and that the ?discretionary presumption articulated in Residential Funding Corp [306 F.3d 99] d[id] not apply in any event?; court further declared that the spoliation motion failed ?on the ?inability [of Nektar] to adduce evidence suggesting the existence, let alone destruction , of relevant documents.?

Nature of Case: Breach of contract and related claims

Electronic Data Involved: ESI

Bradford Techs., Inc. v. NCV Software.com, No. C 11-04621 EDL, 2013 WL 4033840 (N.D. Cal. Aug. 6, 2013)

Dec 01 2013

Key Insight: Where Plaintiff was previously sanctioned for violating the stipulated protective order when Plaintiff?s President viewed Defendant?s source code; where Plaintiff?s president later deleted evidence related to his violation of the stipulated protective order despite a duty to preserve (arising from Defendant?s requests for preservation and two court orders requiring the same), made no effort to preserve the other contents of his laptop, and made ?inconsistent representations to the court?; and where a second employee claimed he was not notified of his preservation obligations and thus wiped the contents of his laptop (at a ?suspicious? time), including a relevant power point, the court declined to impose terminating sanctions absent a showing of prejudice and upon its determination that the orders requiring preservation were arguably ambiguous (?insofar as they required Plaintiff to preserve evidence while at the same time ordering Plaintiff to return discs and delete source code, as Defendants requested?) but did order a monetary award of reasonable expenses that the defendants incurred in taking expedited discovery regarding the source code violation and indicated that ?[t]he court may well allow? Plaintiff?s President?s credibility to be impeached at trial regarding his violation of the protective order

Nature of Case: Breach of contract, misappropriation of trade secrets

Electronic Data Involved: ESI, contents of laptop(s)

Keenan v. Int?l Assoc. of Machinists & Aerospace Workers, No. 2:10-cv-277-GZS, 2013 WL 1314302 (D. Me. Mar. 28, 2013)

Dec 01 2013

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s disposal of personal computer that allegedly crashed where the evidence indicated no bad faith (plaintiff admitted that disposal of the computer was an error due to his own ignorance) and where defendants prejudice was limited in light of other evidence and their ability to explore plaintiff?s truthfulness regarding his assertions that he filed a timely appeal (a copy of which was allegedly lost when the computer crashed and was disposed of) at trial; although court declined to exclude evidence (the requested sanction) it left open the possibility that other sanctions may be imposed ?at a later stage?

Electronic Data Involved: Personal Computer

United States ex rel King v. DSE Inc., No. 8:08-CV-2416-T-23EAJ, 2013 WL 610531 (M.D. Fla. Jan. 17, 2013)

Dec 01 2013

Key Insight: Where Relator withheld production of video diaries admittedly containing information damaging to his case and subsequently claimed the video was lost as the result of a burglary, court found overwhelming evidence of bad faith and that defendants had been prejudiced and thus dismissed Relator?s claims

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Video diaries recorded by Relator

Swift Transp. Co. of Arizona, LLC v. Angulo, —F.3d—, 2013 WL 2928094 (8th Cir. June 17, 2013)

Dec 01 2013

Key Insight: Trial court did not abuse discretion in giving a spoliation instruction for a party?s failure to preserve satellite tracking information relevant to the whereabouts of its drivers at the time of the at-issue crash, where trial court was ?abundantly clear? that it believed the destruction was intentional, even if it did not specifically say ?bad faith? and where the victim/plaintiff was prejudiced by the failure to preserve; although the sanctioned party did produce a print out alleged to reflect the relevant satellite information, questions regarding the party?s veracity led the court to mistrust the accuracy of the document which contributed to the imposition of sanctions

Nature of Case: Malpractice related to underlying case involving automobile accident and resulting injuries

Electronic Data Involved: Satellite tracking data

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

Tag:Spoliation