Tag:Spoliation

Key Insight: Where Plaintiffs argued that Defendant?s document and preservation efforts were inadequate and briefed ?at long length several document production errors, general complications and litigation hold mishandling,? including incorrect volume estimates of documents produced by search terms, date discrepancies in metadata, and corrupt emails (among others) the court noted that Plaintiffs had not obtained a court order against Defendant or attempted to show that it acted in bad faith and found that the allegations did not rise to a level justifying appointment of an outside third party ediscovery auditor, but granted Plaintiffs? motion for depositions of certain document custodians regarding document production issues; court denied motion to require Defendant to recover all documents deleted by certain custodians, including from backup tapes, where the court found that Defendant ?carried out its duty to preserve documents in a manner commensurate with the likely scope and role of [Defendant?s] participation in future litigation? and noted that reasonable efforts do not require the preservation of ?every single scrap of paper?

Nature of Case: Antitrust

Electronic Data Involved: ESI

Key Insight: Court denied Plaintiff?s motion for an adverse inference for Defendant?s deletion of the ESI belonging to a former employee where despite a general duty to preserve, the defendant ?could not have reasonably known? of the potential relevance of the at-issue ESI; where the disposal of ESI was pursuant to a routine deletion policy and other communications from the at-issue employee were produced from other custodians ?which suggests that Cisco did not act with a conscious disregard;? and where the relevance of the documents was tentative and the court was ?hard-pressed? to find that Plaintiff was prejudiced by the loss

Nature of Case: Claims related to software development and licensing agreement

Electronic Data Involved: ESI belonging to former employee

Key Insight: Where Toyota conducted inspection of relevant Event Data Recorder without providing plaintiffs the opportunity to be present but where there was no showing of actual alteration or deletion of relevant data, court declined to impose terminating sanctions and ordered a cautionary instruction be given to the jury; court also credited plaintiff?s evidence regarding a dispute surrounding the location of a plastic piece in plaintiffs? engine, which was allegedly moved by Toyota representatives during their inspection, and ordered an evidentiary instruction stating that the Toyota representatives testimony regarding the plastic piece should be regarded with ?greater caution? than that of other witnesses

Nature of Case: Personal injury/product liability

Electronic Data Involved: Event Data Recorder data and plastic piece in engine

Key Insight: Court granted motion for sanctions and ordered an adverse inference for trial where defendant was grossly negligent in its destruction of relevant emails (as proven by Plaintiff?s receipt of relevant emails from third parties that should have been in defendant?s possession, for example, and defendant?s failure to dispute the existence of certain emails which were relevant to plaintiff?s claims but which were not produced); court found defendant was ?at least negligent? in its failure to preserve (and later found that defendant was grossly negligent) where the city had no formal email retention policy and instead relied on its employees to determine what to save: ?Because the City has effectively conceded that it had a duty to preserve the e-mails in question, its failure to maintain a formal e-mail retention policy was at least negligent.?

Nature of Case: Violation of constitutionally protected property rights based on Stop Work Order

Electronic Data Involved: ESI

Key Insight: Noting that the ?offending party?s degree of fault and the corresponding prejudice suffered by the non-offending party? were the ?most important? factors for consideration when determining whether to impose sanctions, court denied request for spoliation sanctions where the information Plaintiff alleged was spoliated was not relevant to the issues in the case, where Plaintiff merely speculated that the lost information would support his case, and where Plaintiff could have obtained the information from third parties but chose not to

Nature of Case: Defamation

Electronic Data Involved: Hard drives containing certain allegedly relevant communications

Key Insight: Denying plaintiffs? motion for sanctions the court distinguished the cases of Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009), found the defendant had not acted in bad faith, and rejected plaintiffs assertions that the duty to preserve arose from obligations to maintain information pursuant to corporate policy or an obligation to the government; noting that most relevant documents were from the 1990?s, the court also acknowledged that even where a preservation obligation exists, the passage of time can result in the inadvertent destruction or misplacement of evidence and the fading of human memories

Electronic Data Involved: Unspecified in opinion

Key Insight: Where video surveillance tape was destroyed in contravention of duty to preserve, the court nonetheless denied plaintiff?s motion for sanctions (an adverse inference) where it determined that there was no prejudice to plaintiff because defendants identified the three officers/employees who processed plaintiff on the night of the allegedly wrongful arrest and because defendants conceded that the initial booking processes indicated that plaintiff was not the person sought by the relevant warrant

Nature of Case: Violation of civil rights (wrongful arrest) and related claims

Electronic Data Involved: Video surveillance