Spoliation – Page 68 – Electronic Discovery Law

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”)

United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011)

Dec 01 2011

Key Insight: Where detective preserved transcripts of internet chats by copying them into Word documents saved onto CD and verifying that they were identical to the original transcripts rather than preserving the original transcript on a department hard drive for purposes of saving space, defendant?s due process rights were not denied by destruction of the original transcript absent evidence that they would ?significantly contribute to his defense? and were lost as a result of bad faith; transcripts in Word documents were properly admitted in light of detective?s testimony that he participated in the chats and that the transcripts were accurate; transcripts did not violate best evidence rule absent evidence that originals were destroyed in bad faith; admission of transcripts did not violate rule of completeness; district court did not err in denying request for jury instruction on spoliation and destruction of evidence where there was no evidence that portions of chat were destroyed (because detective testified he saved conversations in their entirety) and no showing prejudice

Nature of Case: Crimnal charges related to attempt to coerce minor to engage in sezual activity

Electronic Data Involved: Chat transcripts

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

JFB Hart Coatings, Inc. v. AM Gen., LLC, 764 F.Supp.2d 974 (N.D. Ill. 2011)

Dec 01 2011

Key Insight: Court found it ?more likely than not? that plaintiff?s fabrication of an exhibit was in bad faith and necessitated sanctions and ordered an evidentiary hearing where evidence revealed that plaintiff had significantly altered evidence and subsequently provided misleading information to opposing counsel and the court regarding the same

Electronic Data Involved: Fabricated evidence

In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299 (N.D. Ga. 2011)

Dec 01 2011

Key Insight: Providing significant analysis of the issue of spoliation, court denied plaintiff?s motion for sanctions for defendant?s alleged failure to adequately preserve evidence where government?s investigation did not trigger a duty to preserve evidence as to the class action plaintiffs in this case and thus, no duty to preserve existed for purposes of the spoliation analysis; court also found that even where duty to preserve existed, plaintiffs also failed to establish prejudice resulting from the alleged failure to preserve and that defendant acted in bad faith by failing to prevent the loss of ESI pursuant to defendant?s usual document retention policies and the automatic functions of its server

Nature of Case: Class action related to alleged collusion in implementation baggage fees

Electronic Data Involved: Emails, ESI

AMG Nat?l Trust Bank v. Ries, No. 06-CV-3061, 2011 WL 2912874 (E.D. Pa. July 21, 2011)

Dec 01 2011

Key Insight: Court granted motion for spoliation sanctions for defendant?s deletion of relevant computer files and ordered an adverse inference and payment of plaintiff?s attorney?s costs and fees but, because the extent of the prejudice could not be determined, indicated that the language of the inference would be withheld until defendant paid for a forensic examination of his computer to determine what, if any, evidence could be recovered and thus the extent of the prejudice suffered by the plaintiff

Nature of Case: Breach of employment contract, breach of fiduciary duties, and violation of Uniform Trade Secrets Act

Electronic Data Involved: ESI

Escamilla v. SMS Holdings Corp., No. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21, 2011)

Dec 01 2011

Key Insight: Court affirmed Magistrate Judge?s order requiring defendant to submit his computers for forensic examination, at his own expense, where defendant reinstalled an operating system less than two weeks after plaintiff filed a motion to compel and where, because of the loss of data, plaintiff was therefore prejudiced to an unknown extent?bad faith was not required for such an order; court affirmed order requiring corporate defendant to search hard drives of key employees, the image of a file and print server, and backup tapes dating back five years where the search was not overly broad and where defendant did not establish undue burden?despite its exorbitant estimate regarding backup tapes?in light of the large disparity between estimates from both parties, and where the court noted that much of the costs could have been avoided had SMS fulfilled its preservation duties and not converted to a less accessible format

Nature of Case: Employment litigation – sexual harassment

Electronic Data Involved: ESI

Mikhlyn v. Bove, No. 08-CV-3367 (ARR) (RER), 2011 WL 4529619 (E.D.N.Y. Aug. 3, 2011); Mikylyn v. Bove, No. 08-CV-3367 (ARR) (RER), 2011 WL 4529613 (E.D.N.Y. Sept. 28, 2011)

Dec 01 2011

Key Insight: Upon reconsideration of prior order awarding sanctions against defendants, court found that additional evidence indicated culpability on the part of defense counsel that justified joint and several liability for sanctions; defendants? discovery violations included willful failure to produce certain documents and the destruction of other ESI; counsels? discovery failures included defense counsels? failure to adequately communicate with opposing counsel resulting in court intervention and failure to comply with court orders; as sanction, court ordered defendants and counsel to pay specifically delineated portions of plaintiffs? attorneys? fees and costs

Nature of Case: trademark infringement, unfair competition, and related claims

Electronic Data Involved: ESI

Velocity Press Inc. v. Key Bank, N.A., No. 2:09-CV-520 TS, 2011 WL 1584720 (D. Utah April 26, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for sanctions where at-issue emails were deleted prior to when defendant?s duty to preserve attached; court?s analysis included consideration of when duty to preserve arose and found that some communications from plaintiff may have ?hinted at potential claims to certain employees? but did not ?directly threaten litigation? and that the duty to preserve was triggered later, upon receipt of the summons and complaint

Electronic Data Involved: Emails, ESI

Tag:Spoliation