Spoliation – Page 63 – Electronic Discovery Law

Burgess v. Fischer, No. 3:10-cv-00024, 2012 WL 3811863 (S.D. Ohio Sept. 4, 2012)

Dec 01 2012

Key Insight: Court granted defendants? motion for summary judgment as to plaintiff?s claim of spoliation related to video footage of the alleged excessive force where the tape was destroyed pursuant to the jail?s document retention policy after five days and plaintiff?s case was not filed for almost one year and where the court indicated there was no evidence that defendants knew litigation was probable; court did note in footnote, however, that five days is a short retention time and that ?a prudent jail would keep the video of a takedown incident for a longer period of time?

Nature of Case: Claims of excessive force against police officers

Electronic Data Involved: Video surveillance footage

Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)

Dec 01 2012

Key Insight: Where defendant?s litigation specialist initially asserted that no responsive emails were uncovered but later testified that she had recently been told of a possible repository of archived emails and that search efforts there were ongoing and already had uncovered several relevant emails, Circuit court found no abuse of discretion in District Court?s refusal to impose an adverse inference which requires a showing of bad faith noting that the litigation specialist?s ?initial lack of knowledge? was ?carelessness at most? and further reasoning that the admission that relevant emails had been discovered was a further indication that the defendant was not acting in bad faith

Nature of Case: Fraud, breach of contract and similar claims related to plaintiff’s mortgage

Electronic Data Involved: Emails

Sloan Valve Co. v. Zurn Indus., Inc., No. 10-cv-204, 2012 WL 1886353 (N.D. Ill. May 23, 2012)

Dec 01 2012

Key Insight: Finding defendants? search efforts inadequate, court ordered discovery re-opened and that defendant conduct specific additional discovery, including additional searches on specific repositories, and provide specific information regarding how its search efforts were conducted and by whom; the court also provided a good discussion of preservation obligations, but ultimately concluded that additional information was necessary to make a determination regarding the reasonableness of defendants efforts; ultimately, court declined to impose drastic sanctions, but ordered additional discovery and that defendants pay monetary sanctions (attorneys? fees and cost)

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Bruno v. Bozzuto?s, Inc., 850 F. Supp. 2d 462 (M.D. Pa. Feb. 6, 2012)

Dec 01 2012

Key Insight: Where plaintiffs destroyed paper copies of records that were also maintained in electronic format (by a third party) despite anticipation of litigation, court ordered discovery reopened for the purpose of allowing plaintiff to take the necessary action to acquire the electronic records and to provide them to defendant at their own cost and indicated that if the records were no longer in the third party?s possession, the court would ?reconsider its ruling? where the absence of those records would result in a greater degree of prejudice to the defendant

Nature of Case: Breach of contract

Electronic Data Involved: Electronic copies of hard copy records that had been destroyed

Banks v. Enova Fin., No. 10 C 4060, 2012 WL 5995729 (N.D. Ill. Nov. 30, 2012)

Dec 01 2012

Key Insight: Magistrate Judge did not act contrary to law by ordering that, as a sanction for grossly negligent spoliation of audio tapes pursuant to Defendant?s retention policy, there would be a presumption of a factual dispute at the summary judgment state as to whether Plaintiff hung up on a customer and that if the case proceeded to trial, the court should instruct the jury with a ?spoliation charge? ?not an adverse inference?which would allow but not require the jury to presume that the lost evidence was relevant and favorable to the innocent party; District Court acknowledged that bad faith was necessary to impose an adverse inference, but found that this was not an adverse inference and was therefore within the court?s discretion

Nature of Case: wrongful termination

Electronic Data Involved: Audio tapes of relevant phone calls

Tabon v. Univ. of Pennsylvania Health Sys. No. 10-cv-2781, 2012 WL 2953216 (E.D. Pa. July 20, 2012)

Dec 01 2012

Key Insight: Court declined to impose spoliation sanctions absent evidence of bad faith

Nature of Case: Employment Discrimination

Electronic Data Involved: Investigation file, original medical records, “comments section” of medical records from computer system

Larkin v. Trinity Lighting, Inc., No. 3:10cv109-TSL-MTP, 2011 WL 1496248 (D. Miss. Apr. 20, 2011)

Dec 01 2011

Key Insight: Where questions remained as to whether plaintiff deleted files from his work laptop in bad faith before returning it, whether defendant suffered any prejudice as a result and whether the information sought to be forensically retrieved was likely to be of any substantial benefit, court denied defendant?s motion to compel restoration of the laptop at plaintiff?s expense, but concluded that defendant could retrieve the information at its own costs if it so chose

Nature of Case: Claims alleging failure to pay bonus payment

Electronic Data Involved: ESI

English v. Wal-Mart Stores, Inc., No. 3:10-cv-00080-ECR-VPC, 2011 WL 3496092 (D. Nev. Aug. 10, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for loss of surveillance tape where duty to preserve arose upon request for the evidence-three months after the fall occurred- and where plaintiff did not show that defendant destroyed or lost the video and photographs with ?culpable intent or in a negligent and possibly reckless manner after Defendant?s duty to preserve the evidence arose.?

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance

Veolia Transp. Servs. v. Evanson, No. CV-10-01392-PHX-NVW, 2011 WL 5909917 (D. Ariz. Nov. 28, 2011)

Dec 01 2011

Key Insight: Where, prior to being named a party to the action, defendant failed to preserve ESI (including failing to pay a vendor for imaging her hard drive, which resulted in the vendor’s destruction of the image) despite the receipt of two subpoenas, where the court found the spoliation to be at least willful, and where the circumstances surrounding the spoliation permitted an inference that the information destroyed was highly relevant to the litigation, court found an entry of default was appropriate and set a hearing to determine the appropriate damages

Nature of Case: Tortious interference with a contract, breach of contract, defamation, etc. arising from anonymous emails sent to several parties

Electronic Data Involved: ESI, hard drive

Denim N. Amer. Holdings, LLC v. Swift Textiles LLC, 816 F. Supp. 2d (M.D. Ga. 2011)

Dec 01 2011

Key Insight: Despite noting that it was ?undisputed? that plaintiffs? witnesses did not modify their practice of ?deleting most emails within a short time of receiving them? even after they reasonably anticipated litigation, the court declined to impose an adverse inference where the record supported a finding that the witnesses ?destroyed the emails in the ordinary course of business unmotivated by any bad faith.?

Nature of Case: Fraudulent inducement, breach of fiduciary duty

Electronic Data Involved: Emails

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