Tag:Spoliation

Key Insight: Where Defendant reinstalled the operating system on his personal laptop two days after his first deposition (where he was informed a request for ESI would be forthcoming) claiming that he did so to ensure that he did not possess Plaintiff?s proprietary information, and where Defendant had previously deleted the information on a relevant flash drive, the court found Defendant had acted intentionally and that Plaintiff had been prejudiced by the loss and ordered an adverse inference allowing, but not requiring, the jury to infer that the deleted information was unfavorable to Defendant and also ordered Defendant to pay Plaintiff?s attorneys? fees and costs connected with bringing the motion for sanctions; court acknowledged applicability of agency law in determining whether to impose sanctions against a party for spoliation by its employees but declined to do so in the present case

Nature of Case: Breach of non-compete, misappropriation of trade secrets

Electronic Data Involved: ESI

Key Insight: Addressing plaintiff?s motion for sanctions court laid out relevant law of spoliation and found that defendants had a duty to preserve relevant evidence but declined to impose sanctions where plaintiff failed to establish that allegedly spoliated emails were relevant; where plaintiff failed to establish that additional SERT video existed or was relevant to his claims; and where plaintiff failed to establish prejudice from unproduced booking video, particularly where he presented conflicting assertions regarding its relevance (where he at once moved to preclude presentation of evidence related to the underlying offense or arrest and sought sanctions for the booking video?s spoliation)

Electronic Data Involved: Emails, video

Key Insight: Where court found no evidence that defendant had instituted any litigation hold or any evidence surrounding its collection efforts and where defendant failed to preserve potentially relevant hard drives despite the knowledge that the emails potentially contained thereon could not be retrieved from the company?s backup tapes, the court found that defendant had acted with gross negligence and imposed monetary sanctions but declined to impose more severe sanctions where there was no evidence of ?bad faith or egregious gross negligence? or that plaintiff had been prejudiced by the loss

Nature of Case: Breach of contract and various tort claims

Electronic Data Involved: ESI, hard drives

Key Insight: Where defendant?s breached their duty to preserve by discarding a hard drive belonging to defendant in the midst of discovery and where their ?story? of what happened to the drive (including claims that it was taken to the Apple Store for repairs) did not ?add up?, the district court found the magistrate judge?s failure to find that defendant?s acted in bad faith ?clearly erroneous? and that a finding of bad faith would allow prejudice to be presumed such that allowing but not requiring the jury draw a negative inference was ?insufficient;? as a sanction, the district court ordered that defendants obtain all relevant emails from their email service providers and precluded defendants from using as evidence any of the documents culled from the drive ?before they destroyed it?

Electronic Data Involved: Hard drive

Key Insight: Where defendant claimed infringement based on alleged testing of defendant?s devices but claimed that no testing documentation was created and where, upon a neutral third party?s examination of the relevant devices, it was revealed that two key logs were missing expected messages and reflected abnormal device behaviors that plaintiff was unable to explain, the court held that defendant was prejudiced by plaintiff?s failure to protect and preserve the logs and the resulting inability to verify purported testing and thus ordered that all evidence of plaintiff?s testing of the devices would be precluded from introduction to the record or other use and ordered plaintiff to pay defendant?s expenses associated with the sanctions motion

Nature of Case: Patent infringement

Electronic Data Involved: Log messages, evidence of testing

Key Insight: Where plaintiff recycled the at-issue computer after being notified that Allstate disputed the effective date of her cancellation (which may have been discernible from examination of the computer) but before it was formally requested in discovery (almost two years later), court questioned whether a lay person would have known to keep her computer because of potential litigation when the computer was not the subject of her claim and declined to dismiss her claims but indicated that it would entertain further motions practice on the issue closer to trial

Nature of Case: Breach of contract, bad faith

Electronic Data Involved: Personal Computer