Spoliation – Page 58 – Electronic Discovery Law

Cytec Carbon Fibers LLC v. Hopkins, No. 2:11-0217-RMG-BM, 2012 WL 6044778 (D.S.C. Oct. 22, 2012)

Dec 01 2012

Key Insight: Where defendant lost relevant text messages while trying to transfer them to from his phone to his computer during the time when he had an obligation to preserve them, court found that the loss was negligent?a level of culpability sufficient to impose sanctions?and that a reasonable factfinder could conclude that the messages would have supported Plaintiff?s claims and found that ?an adverse inference instruction is the most appropriate sanction to be imposed?

Nature of Case: Fraud, RICO, unfair trade practices and related claims

Electronic Data Involved: Text messages

Firestone v. Hawker Beechcraft Int. Serv. Co., No. 10-1404-JWL, 2012 WL 899270 (D. Kan. Mar. 16, 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion for sanctions resulting from plaintiff?s alleged spoliation of a number of USB devices allegedly attached to plaintiff?s work laptop where defendant failed to establish: 1) that plaintiff was responsible for attaching the devices, 2) that plaintiff removed or copied any proprietary information, or 3) that plaintiff then destroyed the devices while under a duty to preserve them

Nature of Case: Breach of employment contract

Electronic Data Involved: USB devices

Oyebade v. Boston Scientific Corp., No. 1:11-cv-0968-JMS-DML, 2012 WL 4020971 (S.D. Ind. Sept. 12, 2012)

Dec 01 2012

Key Insight: For a ?pattern of discovery misconduct, including the spoliation of evidence? (an audio tape of a meeting with HR), the court imposed an adverse inference and ordered the jury be instructed that Plaintiff destroyed the audio recording ?under circumstances that suggest that the contents ? would not be helpful in proving his claims? and further ordered that Plaintiff would not be allowed to present evidence regarding the meeting with HR, that the jury be instructed to accept defendant?s evidence about the meeting, and that defendant was entitled to its attorneys fees and expenses incurred in seeking redress for the spoliation

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tape of meeting with HR

Lab. Corp. of Am. v. United States, —Fed. Cl.—, 2012 WL 6861487 (Fed. Cl. Dec. 21, 2012)

Dec 01 2012

Key Insight: Where plaintiff sought sanctions for defendant?s automatic purge of contents from a relevant website following closure of bidding process, court found defendant was on notice of obligation to preserve by virtue of Federal Acquisition Regulations requiring preservation of ?all the contract documents associated with procurement,? that the United States had been negligent in failing to preserve the information, and that plaintiff was prejudiced and, focusing on the need to impose the least harsh sanction, ordered that defendant would be prohibited from relying upon any secondary evidence regarding what Plaintiff saw on the relevant website (the question of what Plaintiff saw on the website and therefore what Plaintiff knew was a major issue in the case)

Nature of Case: Pre-award bid protest

Electronic Data Involved: Contents of website used to submit bids

Danny Lynn Elec. V. Veolia Es Solid Waste, No. 2:09CV192-MHT, 2012 WL 786843 (M.D. Ala. Mar. 9, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation sanctions where it was unclear that any spoliation had even occurred in light of defendants? backup system, where the court concluded that defendants had not acted in bad faith (but had instead ?expended great effort to insure that plaintiffs receive information from both their live and archived email system ??), and where the degree of prejudice was minimal (assuming spoliation occurred) in light of the significant other discovery that was produced

Electronic Data Involved: Email

Stanfill v. Talton, No. 5:10-CV-255(MTT), 2012 WL 1035385 (M.D. Ga. Mar. 29, 2012)

Dec 01 2012

Key Insight: Where defendant preserved only portions of a relevant video tape and allowed the remainder to be recorded over, court denied motion for spoliation sanctions because plaintiff did not establish that a duty to preserve existed or, if it did, that it was owed to the plaintiff and because the level of culpability with which the video was lost did not support a spoliation sanction in the 11th circuit

Nature of Case: Claims arising from death of defendant in jail

Electronic Data Involved: Video surveillance

Biselli v Cnty. of Ventura, No. CV 09-08694 CAS (EX), 2012 WL 2061688 (C.D. Cal. June 4, 2012)

Dec 01 2012

Key Insight: Where defendant had an obligation to preserve relevant video and in fact ?acknowledged? plaintiff?s request to preserve the video by objecting to it, court held that defendant had an obligation to preserve the requested evidence ?including a duty to deactivate any automatic purging policy? that defendant claimed resulted in the loss and ordered an adverse inference at trial with the potential for additional sanctions to be imposed later

Nature of Case: Claims resulting from suicide of inmate

Electronic Data Involved: surveillance video

EEOC v. New Breed Logistics, No. 10-2696 STA/TMP, 2012 WL 4361449 (W.D. Tenn. Sept. 25, 2012)

Dec 01 2012

Key Insight: Upon Plaintiff?s motion for spoliation sanctions, court recognized two relevant trigger dates, the second of which expanded the initial scope of preservation, and found that Defendant was negligent in its failure to preserve relevant emails but declined to impose an adverse inference and instead ordered Defendant to bear the cost of restoring 33 backup tapes to determine if relevant information was contained thereon

Nature of Case: Sexual harassment

Electronic Data Involved: Emails

Simon Prop. Gourp, Inc. v. Lauria, No. 6:11-cv-01598-Orl-31KRS, 2012 WL 6859404 (M.D. Fla. Dec. 13, 2012)

Dec 01 2012

Key Insight: Where Defendant threw laptop containing relevant evidence into the river following specific notice of her obligation to preserve and admitted her intent to destroy evidence, the court recommended entry of default judgment and that Defendant be required to pay Plaintiff?s reasonably attorneys? fees and costs incurred as a result of the spoliation

Nature of Case: Fraud

Electronic Data Involved: Laptop

Colgate-Palmolive Co. v. Tandem Indus., 485 Fed. Appx. 516 (3d Cir. 2012)

Dec 01 2012

Key Insight: Considering Defendant?s argument for an adverse inference where his former employer failed to produce his former work laptop and files, the court noted that the ?undisputed evidence show[ed] that Colgate destroyed the data on the laptop shortly after Flower?s retirement,? and concluded that: ?When data is destroyed pursuant to normal recordkeeping practices (and in particular when it is destroyed in relation to a major event like an employee?s retirement), no adverse inference is warranted.?

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Laptop and its files

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