Tag:Spoliation

Key Insight: Where defendant destroyed relevant audio recordings of City Council meetings despite anticipation of litigation but argued that the destruction was allowed under state law (which controlled the relevant retention period for such recordings), among other things, the court found that the tapes had been destroyed ?with a reckless disregard? of the duty to preserve which constituted bad faith and ordered an adverse inference establishing that if the tapes were available, they would have contained evidence favorable to the plaintiff

Nature of Case: Land Use/Zoning

Electronic Data Involved: Recordings of City Council meetings

Key Insight: Where the general manager of the defendant Red Roof Inn claimed to have attempted to preserve video surveillance footage by asking for it to be copied but alleged that she later discovered that the footage was not copied and that the original footage had been automatically recorded over by that time, the court found, ?based on overwhelming evidence of Red Roof?s cavalier attitude toward its discovery obligations,? that defendant?s spoliation was grossly negligent and ordered an adverse inference and that defendant pay plaintiff?s reasonable attorneys? fees and costs associated with the preparation for the motion for sanctions

Nature of Case: Unlawful detention and related claims

Electronic Data Involved: Surveillance footage

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish that the accused spoliator had custody and control of the allegedly spoliated audiotape and where the plaintiff was not prejudiced in light of his receipt of a transcript of the tape

Nature of Case: Witness intimidation, retaliation, defamation or false-light invasion of privacy

Electronic Data Involved: Audio tape

Key Insight: Where plaintiffs alleged that examination of defendant?s laptop and other storage devices revealed evidence of spoliation and filed a motion for default judgment, the court reasoned that the evidence did not support a finding of intentional spoliation or bad faith, that the risk of prejudice to plaintiffs was small, that there was plenty of information for plaintiffs to utilize to pursue their claims, that public policy favored disposition on the merits, and that a less drastic sanction was available (namely a possible adverse inference instruction), and denied plaintiffs? motion; the recommendation of the Magistrate Judge was adopted by the District Court 2011 WL 5975127

Nature of Case: Claim for damages arising from property development

Electronic Data Involved: ESI

Key Insight: Where defendant negligently failed to preserve information that would have revealed whether a FedEx agent delivered packages to the address of the relevant accident on the day in question and where the presence of such a delivery person was disputed by FedEx, the court declined to grant default judgment but ordered an adverse inference establishing that a FedEx agent had delivered a package to the relevant address on the date of the accident

Nature of Case: Injury resulting from being hit by delivery handtruck loaded with boxes

Electronic Data Involved: ESI

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s alleged deletion of relevant ESI upon finding that because plaintiff would not have known of the relevance of information in the identified custodians? custody at the time ESI was lost, there was no duty to preserve and thus no spoliation; as to ESI alleged to have been deleted while a duty to preserve existed, the court denied sanctions absent evidence of relevance or that defendant was prejudiced by the alleged loss

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI, emails

Key Insight: Court denied motion for spoliation sanctions where plaintiff failed to establish the existence of the allegedly spoliated emails and where, if the emails had existed, they would have been automatically deleted prior to the trigger of defendant?s duty to preserve and thus would not have been lost in bad faith; court?s analysis included discussion of trigger of duty to preserve and reasoned that meetings between accused professor and his department head and/or program director regarding alleged unwanted interactions with student did not trigger university?s duty to preserve because there was no evidence to suggest that either the department head or program director should have reasonably anticipated litigation at that time (citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 for proposition that ?Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm wide duty to-preserve.?)

Nature of Case: Wrongful termination

Electronic Data Involved: Emails