Spoliation – Page 65 – Electronic Discovery Law

Medeva Pharma Suisse A.G. v. Roxane Labs., Inc., 2011 WL 310697 (D.N.J. Jan. 28, 2011)

Dec 01 2011

Key Insight: Despite acknowledging defendant?s failure to implement a litigation hold until at least 5 years after it first anticipated litigation, the court denied plaintiff?s motion for sanctions where the quantity and quality of the documents produced by defendant established that relevant information was ?diligently preserved? pursuant to defendant?s document retention policy and where plaintiff failed to establish that it had been prejudiced or that its ability to effectively prepare for trial had been impeded

Nature of Case: Hatch-Waxman patent infringement

Electronic Data Involved: ESI, emails

Surowiec v. Capital Title Agency, Inc., No. CV-09-2153-PHX-DGC, 2011 WL 1671925 (D. Ariz. May 4, 2011)

Dec 01 2011

Key Insight: Highlighting that a party?s duty of preservation is owed to the court and not to a potential plaintiff, court found that defendant was grossly negligent in its failure to issue a litigation hold or take other efforts to ensure preservation of relevant evidence and ordered an adverse inference; court also found that defendant acted ?willfully in failing to timely and adequately respond to the document requests? where defendant?s search terms were not ?calculated to capture? relevant documents and where a court ordered (re)search resulted in production of thousands of documents only three days before the close of discovery and ordered defendant to reimburse plaintiff for expenses incurred as a result of the misconduct and for the reasonable attorney?s fees spent to challenge the misconduct, prepare for additional depositions, and bring the instant motion for sanctions; court?s opinion specifically declined to hold that a lack of written litigation hold was negligence per se

Nature of Case: Breach of contract, breach of fiduciary duty, etc. related to purchase of condominium

Electronic Data Involved: Emails, ESI

Io Group, Inc. v. GLBT, Ltd., No. C-10-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

Dec 01 2011

Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Viramontes v. U.S. Bancorp, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011)

Dec 01 2011

Key Insight: Court rejected plaintiff?s assertion that her January 22, 2009 letter to human resources put defendants on notice of its duty to preserve where the letter complained about her manager but did not threaten litigation and instead suggested ?a non-litigious resolution,? where plaintiff testified that she had no intention of suing at the time she sent the letter, where plaintiff waited over ten months after sending the letter to bring the instant litigation, and where the manager?s testimony that he thought the letter could give rise to legal ramifications was not sufficient to trigger the corporation?s duty to preserve

Nature of Case: Failure to accomodate, retaliation in violation of ADA

Electronic Data Involved: Emails

State Farm Mut. Auto. Ins. Co. v. Grafman, 274 F.R.D. 442 (E.D.N.Y. 2011)

Dec 01 2011

Key Insight: For defendants? discovery abuses, including spoliation or withholding of audio tapes of wiretapped conversations despite a court order to produce them; destruction of relevant hard drives and refusal to authorize release of copies of those drives from a third-party; and failure to produce other relevant evidence, court found that plaintiff had been prejudiced and ordered default sanctions

Nature of Case: Claims arising from fraudulent scheme to recover insurance reimbursements

Electronic Data Involved: Audio tapes, hard drives

Miller v. Four Winds Int. Corp., No. 2:10-cv-00254-CWD, 2011 WL 5080032 (D. Idaho Oct. 25, 2011)

Dec 01 2011

Key Insight: Where plaintiff testified in deposition that she had saved relevant voice messages two years prior and that they were still available but later indicated that the messages were lost as a result of water damage to her phone and the passage of time (her service carrier indicated the messages were automatically deleted after a certain time), the court found that because she had previously indicated that the messages were available and because there was no evidence presented of when the messages became inaccessible, spoliation had occurred; court indicated an adverse inference ?may be appropriate? but withheld a final determination until it could consider the evidence offered at trial

Nature of Case: Product liability

Electronic Data Involved: Voicemail

Cook v. Olathe Health Sys., Inc., 2011 WL 346089 (D. Kan. Feb. 2, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions where plaintiff was unable to establish that the relevant hard drives were destroyed after the duty to preserve arose and where plaintiff was unable to establish that the in-car video at issue ever existed or was destroyed after the duty to preserve arose in light of defendants? testimony that because of a ?recorder malfunctioned? no video existed

Nature of Case: Civil claims arising from alleged mistreatment upon arrest

Electronic Data Involved: Four hard drives, officer’s in-car video

Cacace v. Meyer Mktg. (Macau Commercial Offshore) Co., No. 06 Civ. 2938(KMK)(GAY), 2011 WL 1833338 (S.D.N.Y. May 12, 2011)

Dec 01 2011

Key Insight: Court found duty to preserve arose upon defendant?s consultation with counsel regarding possible infringement on plaintiff?s patent but abated upon the parties? successful negotiation of licensing agreement; court found that defendant had no control and thus no obligation to preserve certain documents from an employee of a Hong-Kong based affiliate; regarding an email folder accidentally deleted following inadvertent ?exposure? to automated purge function, court declined to find the loss was a result of negligence and found that plaintiff failed to establish the relevance of information lost and declined to impose sanctions

Nature of Case: Patent infringement

Electronic Data Involved: ESI, emails

Felman Prod., Inc. v. Indus. Risk. Insurers, No. 3:09-0481, 2011 WL 4547012 (S.D.W. Va. Sept. 29, 2011)

Dec 01 2011

Key Insight: For egregious discovery violations, including attempting to conceal relevant custodians, failure to issue litigation holds, spoliation, delay, and lack of candor, the court granted in part defendants? motion for terminating sanctions and dismissed plaintiff?s claim for business interruption losses?the claim most affected by the discovery abuse; court declined to dismiss all claims where, despite the discovery violations, defendants? were not sufficiently prejudiced to support terminating sanctions, but found an adverse inference instruction to be ?an adequate remedy?

Nature of Case: Complaint seeking payment of insurance claims; counterclaim for fraud

Electronic Data Involved: ESI

Ashton v. Knight Transp., Inc., No. 3:09-CV-0759-B, 2011 WL 734282 (N.D. Tex. Feb. 22, 2011)

Dec 01 2011

Key Insight: Where, in a case arising from a fatal accident, the court determined that defendants? failure to preserve the tires of the involved truck and Qualcomm messages between the driver and the truck company was in bad faith and where that failure resulted in prejudice to the plaintiff, the court ordered that defendants? pleadings and defenses to liability be struck and, ?because defendants? misconduct led to the late discovery of a potential claim for punitive damages,? granted plaintiff leave to file an amended her complaint to add such a claim

Nature of Case: Hit and run

Electronic Data Involved: Qualcomm messages (“email type messages”)

Tag:Spoliation