Spoliation – Page 62 – Electronic Discovery Law

Estate of Carlock v. Williamson, No. 08-3075, 2012 WL 3878595 (C.D. Ill. Sept. 6, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions and for appointment of special master absent evidence that allegedly relevant audio and video were lost in bad faith and where, despite ?concern? over loss of emails resulting from failure to timely suspend automatic deletions, the court ?[did] not find that relevant evidence was destroyed? and further indicated doubt that relevant emails existed; court further found that failure to suspend automatic deletions was merely negligent and not in bad faith; as to unsearched hard drives, court noted that the parties had already expended a large amount of time and money searching for relevant deleted evidence to no avail and that in light of doubts that relevant email ever existed, there was ?nothing to gain by searching those hard drives?

Nature of Case: Death of inmate while incarcerated

Electronic Data Involved: Audio, video, emails, hard drives

Anderson v. Otis Elevator Co., No. 11-10200, 2012 WL 5493383 (E.D. Mich. Nov. 13, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation without prejudice where plaintiffs ?demonstrated only a suspicion of prejudice and have not been able to establish bad faith conduct on the part of the Defendant?

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email, metadata related to excel spreadsheet

Blount v. Tate, No. 7:11CV00091, 2012 WL 4341053 (W.D. Va. Aug 24, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s allegations of spoliation for defendants? loss of potentially relevant video footage, court declined to impose sanctions because it could not find that defendants had the necessary culpable mind reasoning that 1) defendants? production of other relevant video footage of the same event and another, similar event, contradicted plaintiff?s claims that defendants feared the video would cause them to lose the lawsuit, 2) that ?digital information can be destroyed or hopelessly misplaced in a data base at the touch of a button, without warning or recourse, and the prison?s system for preserving footage included three transition points when a technician?s inadvertent error could have destroyed or misplaced the? relevant footage, and 3) that the footage of the incident involving the plaintiff was not the only footage lost, suggesting that ?the event causing that loss was not intended to harm [Plaintiff?s] case?

Nature of Case: Eight Amendment violations, excessive force

Electronic Data Involved: Camcorder footage

FTC v. Lights of America, Inc., No. SACV 10-1333 (JVS) (MLGx), 2012 WL 695008 (C.D. Cal. Jan. 20, 2012)

Dec 01 2012

Key Insight: Court held plaintiff was not obligated to issue a litigation hold at the beginning of its full-phase investigation or upon the issuance of a CID because litigation was not reasonably foreseeable at those times, noting that the duty to preserve attaches when litigation is probable, which means ?more than a possibility?; court declined to order sanctions related to plaintiff?s auto-delete policy where the policy called for the preservation of relevant ESI and the deletion of duplicates and indicated that even if the policy resulted in the inadvertent loss of email, there was no evidence of bad faith, and cited Rule 37(e) re: safe harbor; court declined to impose sanctions for failure to issue a litigation hold over documents not in the plaintiff?s possession or control

Nature of Case: Government investigation

Electronic Data Involved: ESI

Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012)

Dec 01 2012

Key Insight: Where evidence indicated that defendant?s responses to discovery were incomplete, court ordered defendant to ?proceed with the forensic search of their computer systems using protocols agreed upon by the parties? but declined to compel defendant to bear the cost of the examination until final costs were known; defendant was also ordered to institute a litigation hold where defendant?s deposition testimony established that none had previously been issued

Nature of Case: Malpractice

Electronic Data Involved: ESI

Genon Mid-Atlantic, LLC v. Stone & Webster, Inc., —F.R.D.—, 2012 WL 1414070 (S.D.N.Y. Apr. 20, 2012)

Dec 01 2012

Key Insight: Magistrate Judge found that plaintiff had ?practical ability? to obtain documents from third-party consultant, and thus ?control? of the documents for purposes of discovery, but declined to impose sanctions, despite finding that plaintiff had failed to issue a litigation hold letter and to ensure that its consultant?s records were being preserved, where investigation revealed that limited responsive documents were recovered from the consultant?s backup tapes and that only one was never produced and thus, plaintiff and its consultant had rebutted the suggestion that defendant was prejudiced; affirmed by District Court 2012 WL 1849101

Nature of Case: claims arising from construction contract

Electronic Data Involved: ESI

Borwick v. T-Mobil West Corp., No. 11-cv-01683-LTB-MEH, 2012 WL 3984745 (D. Colo. Sept. 11, 2012)

Dec 01 2012

Key Insight: Where defendant converted relevant audio files to .wav format and destroyed the originals pursuant to its document retention policy, the court declined to enter spoliation sanctions because the record did not establish bad faith reasoning (1) that defendant had provided an adequate explanation for plaintiff?s concern about gaps in the recordings, (2) that plaintiff should have requested the files in native format (which she did not) and that had she done so, defendant would have been on notice to preserve relevant files in their original format, and (3) the files were discarded pursuant to an established document retention policy; regarding bad faith, court stated, ?Only the bad faith loss or destruction of evidence will support either a judgment in favor of Plaintiff or the kind of adverse inference that Plaintiff seeks, i.e., that production of the original i360 recordings would have been unfavorable to Defendant?

Nature of Case: Employment discrimination

Electronic Data Involved: Audio files converted from original format

Dokho v. Jablonowski, No. 306082, 2012 WL 5853754 (Mich. Ct. App. Nov. 15, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not err in failing to grant Plaintiff?s request for an adverse presumption for insurance company?s failure to preserve a relevant file that was instead purged pursuant to the company?s document retention policy where Plaintiff provided no evidence of fraudulent conduct or intentional destruction; court further noted that Plaintiff failed to explain how the failure to provide an adverse inference (a lesser sanction than an adverse presumption) altered the court?s ?summary disposition analysis? reasoning that the court was already required to consider the evidence in the light most favorable to the non-moving party

Nature of Case: Claims arising from a slip and fall involving questions related to insurance coverage

Electronic Data Involved: Underwriting file

Vanliner Ins. Co. v. ABF Freight Syst., Inc., No. 5:11-cv-122-Oc-10TBS, 2012 WL 750743 (M.D. Fla. Mar. 8, 2012)

Dec 01 2012

Key Insight: Finding that the alleged spoliator had no notice of the potential relevance of the allegedly spoliated data and that the information?namely maintenance records?was available elsewhere, court concluded that he moving party failed to establish that the data at issue was ?crucial? to its case and denied motion for sanctions

Nature of Case: Claims arising from auto accident

Electronic Data Involved: Engine related data from Electronic Control Module (e.g., the speed of the tractor/trailer, the rotation of RPMs of the engine)

915 Broadway Assocs. LLC v. Paul, Hastings Janofsky & Walker, LLP, No. 403124/08, 2012 WL 593075 (N.Y. Sup. Ct. Feb. 16, 2012)

Dec 01 2012

Key Insight: For egregious spoliation, including intentional deletions by key custodians, plaintiff?s failure to investigate storage practices or to ensure preservation, several custodians? failure to suspend auto-delete functions associated with their files, failure to suspend destruction of backup tapes, and replacement of relevant servers, the court ordered dismissal of plaintiff?s claims

Nature of Case: Legal malpractice

Electronic Data Involved: ESI

Tag:Spoliation