Spoliation – Page 70 – Electronic Discovery Law

United States v. Fetter, No. 3:10 CR 411, 2011 WL 1060301 (N.D. Ohio Feb. 18, 2011)

Dec 01 2011

Key Insight: Where video of defendant?s alleged destruction of evidence while in a holding cell was automatically recorded over pursuant to the department?s standard policy and was not preserved because none of the officers involved in the investigation realized the images from cameras in the cells were recorded (as opposed to merely ?stream[ed]? to allow observation), court found no bad faith and thus no violation of due process arising from destruction of ?potentially useful? evidence (as opposed to exculpatory evidence)

Nature of Case: Criminal (sex trafficking)

Electronic Data Involved: Video of defendant while in holding cell

State v. McNeil, 708 S.E.2d 590 (Ga. Ct. App. 2011)

Dec 01 2011

Key Insight: Dismissal of trial for destruction of video tape of defendant?s traffic stop was reversed where appellate court concluded the lost tape did not rise to the level of constitutional materiality and was instead ?at best potentially exculpatory? and where there was no evidence that the tape was destroyed in bad faith

Nature of Case: Criminal possession

Electronic Data Involved: Videotape of traffic stop

Chen v. LW Restaurant, Inc., No. 10 CV 200 (ARR), 2011 WL 3420433 (E.D.N.Y. Aug. 3, 2011)

Dec 01 2011

Key Insight: Court imposed sanctions, including preclusion of evidence/witnesses, an adverse inference instruction (upon plaintiffs? request) and payment of attorney?s costs and fees for defendant?s discovery violations, including repeated failure to produce evidence despite court orders, and ?loss? of a flash drive and its contents under circumstances which supported a finding of gross negligence or intentional spoliation; court invited plaintiffs to seek sanctions against defense counsel, too, for counsel?s egregious violations of his duties, including failure to issue a litigation hold, failure to be candid regarding the loss of evidence, and failure to ensure compliance with client?s discovery obligations, among others

Nature of Case: Employment litigation (wages)

Electronic Data Involved: Flash drive containing original payroll records for purpose of analyzing metadata

Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011)

Dec 01 2011

Key Insight: Where ?severe spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith,? the circuit court affirmed the lower court?s denial of plaintiff?s motion for spoliation sanctions where there was no evidence that the accused party intentionally destroyed the relevant video tape ?or acted with bad faith or gross negligence in respect to it?

Nature of Case: False arrest, defamation

Electronic Data Involved: Videotape

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

Tag:Spoliation