Spoliation – Page 65 – Electronic Discovery Law

Suntrust Mortg., Inc. v. AIG United Guaranty Corp., No. 3:09cv529, 2011 WL 1225989 (E.D. Va. Mar. 29, 2011)

Dec 01 2011

Key Insight: For fraud on the court (attributed to plaintiff as the result of employee?s alteration of emails) and for abuse of the litigation process (resulting from in-house counsel and management?s failure to adequately investigate the existence of other altered emails and subsequent reliance on one such altered email in the filing of their first complaint), court ordered plaintiff to pay attorneys? fees and costs associated with defendant?s sanctions motion but denied the request for additional sanctions, including dismissal, adverse jury instructions, and issue preclusion

Nature of Case: Breach of insurance contract

Electronic Data Involved: Altered emails

F.T.C. v. Asia Pac. Telecom, Inc., No. 10 C 3168, 2011 WL 2110220 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: Court found defendants in contempt and, in the alternative, invoked its inherent authority to sanction where defendants were found to have deactivated a relevant Yahoo! email account in violation of a temporary restraining order which caused the information therein to be permanently lost and where the court found that the deactivation was in bad faith and resulted in prejudice to the plaintiff; court declined to impose default judgment but ordered adverse inferences which substantially eased plaintiff?s ability to establish liability

Nature of Case: Violations of National Do Not Call Registry

Electronic Data Involved: Web based emails

Britton v. Wal-Mart Stores East, L.P., No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)

Dec 01 2011

Key Insight: Where defendant?s employee(s) were found to have allowed the loss of relevant video surveillance tape, despite repeated notification of its relevance and requests for preservation, and to have done so intentionally and in bad faith, court declined to enter default judgment but precluded defendant?s presentation of certain defenses and ordered payment of attorney?s costs and fees related to the motion for sanctions and payment of half of such costs and fees related to a prior motion in which defendant?s dishonesty regarding the existence of the at issue vide resulted in costs to the plaintiffs

Nature of Case: Claims arising from alleged wrongful detention of teens for shoplifting

Electronic Data Involved: Video surveillance

Yelton v. PHI, Inc., 2011 WL 6100445 (E.D. La. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where, following a helicopter crash, defendant hired an engineer to conduct relevant analysis, and where defendant failed to place that engineer under a litigation hold, court found that relevant information was deleted and that the evidence indicated a finding of ?a significant degree of culpability? and ordered an adverse inference and that defendant pay the moving party?s reasonably costs and attorneys? fees related to the spoliation motion

Nature of Case: Claims arising from helicopter crash

Electronic Data Involved: ESI related to engineering analysis

State v. Holiday, No. 1 CA-CR 10-0698, 2011 WL 3819844 (Ariz. App. Ct. Aug. 30, 2011)

Dec 01 2011

Key Insight: Court denied motion to reverse conviction based on state?s failure to preserve evidence despite defendant?s alleged express written request to do so where, because the contents of the audio and visual tapes at issue was unknown, evidence of bad faith was required and where no such evidence was presented; the court indicated: ?The record indicates that the officers were acting in good faith in accordance with their normal practices when the tapes were destroyed.?

Nature of Case: Criminal

Electronic Data Involved: Audio and visual tapes related to arrest, etc.

Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)

Dec 01 2011

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email

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

Tag:Spoliation