Spoliation – Page 71 – Electronic Discovery Law

Whitby v. Chertoff, 2010 WL 431974 (M.D. Ga. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for sanctions for a myriad of alleged violations, including failure to preserve emails and failure to adequately search for responsive ESI, where plaintiff failed to offer sufficient evidence of such violations and where the court found defendant?s search was reasonable; court ordered defendant to show cause why it failed to produce emails from certain supervisors in response to the court?s prior order where plaintiff offered evidence that such emails existed

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email

Azevedo v. City of Fresno, 2010 WL 2353526 (E.D. Cal. June 9, 2010)

Dec 01 2010

Key Insight: Where two years following the relevant altercation the taser used on plaintiff was sent to the manufacturer for repair, deemed irreparable, and was destroyed without preserving the data contained thereon, the court ruled the spoliation was negligent and declined to impose dispositive sanctions or evidence preclusion, but, noting it was ?troubled? by the data?s destruction, granted permission for plaintiff to file a motion in limine addressing the propriety of a rebuttable inference instruction regarding the spoliation

Nature of Case: Claims arising from detention and arrest of plaintiff which resulted in plaintiff being tasered and injured

Electronic Data Involved: Taser data

Johnson v. Metro. Gov. of Nashville, 2010 WL 3342211 (M.D. Tenn. Aug. 24, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion for default judgment or an adverse inference where, despite finding that the alleged spoliator had intentionally deleted data in violation of his statutory duty to preserve, the court was presented with no evidence of bad faith in the data?s destruction and nothing more than speculation as to the data?s relevance

Nature of Case: Employment discrimination

Electronic Data Involved: Employment records subject to retention by statute

People v. Jobe, 2010 WL 4106708 (Cal. App. Ct. Oct. 20, 2010)

Dec 01 2010

Key Insight: Trial court did not err by refusing to dismiss based on prosecutions failure to preserve potentially exculpatory video surveillance tape where the tape was never in the possession of the State but rather remained in the possession of the market and where the exculpatory value of the video was not apparent, and thus there was no evidence of bad faith

Nature of Case: Attempted robbery

Electronic Data Involved: Video surveillance footage

Oce N. Am., Inc. v. Brazeau, 2010 WL 5033310 (N.D. Ill. Mar. 18, 2010)

Dec 01 2010

Key Insight: Court rejected objections to the Magistrate Judge?s recommendation that plaintiff?s motion for a preliminary injunction be denied and, addressing plaintiff?s assertions that an evidentiary gap regarding defendant?s alleged misappropriation of information could be filled by adverse inference resulting from defendant?s failure to preserve instant messages, declined to impose such an inference where defendant mistakenly believe that the messages were automatically preserved and, upon learning otherwise, made changes to preserve going forward and thus plaintiffs were unable to show a culpable state of mind and where the alleged spoliation caused little harm in light of the availability of other evidence

Nature of Case: Breach of non-competition agreement

Electronic Data Involved: Instant messages

Partminer Worldwide, Inc. v. Siliconexpert Techs., Inc., No. 09-cv-00586-MSK-MJW, 2011 WL 587971 (D. Colo. Feb. 9, 2010)

Dec 01 2010

Key Insight: District Court declined to adopt recommendation for spoliation sanctions arising from defendant?s alleged bad faith destruction of a relevant email where the email was produced after the recommendation was made and thus ameliorated the need for finding of spoliation; in light of deficiencies revealed in defendants? search for responsive materials, court adopted recommendation that a forensic search of defendants? hard drives be undertaken, but reduced the scope of that search from all employees to those who ?received directly or indirectly, the customer information? at issue

Nature of Case: Claims arising from former employee?s alleged sharing of confidential information

Electronic Data Involved: Email

Melendres v. Arpaio, 2010 WL 582189 (D. Ariz. Feb. 12, 2010) (Unpublished)

Dec 01 2010

Key Insight: Where defendant?s failure to communicate plaintiff?s preservation request and failure to implement a litigation hold resulted in the destruction of data, court ordered adverse inference related to the destruction of a particular category of evidence but delayed the imposition of sanctions for the destruction of email where efforts to retrieve those emails from backup systems were ongoing and ordered defendant to submit an explanation of their retrieval efforts with specific topics to be addressed

Nature of Case: Class action

Electronic Data Involved: Emails, hardcopy evidence

United States v. Laurent, 2010 WL 2404419 (1st Cir. June 17, 2010):

Dec 01 2010

Key Insight: For the erasure of relevant surveillance tape pursuant to department practice, the trial court properly denied defendant?s request for dismissal absent evidence of destruction in bad faith because the evidence was not exculpatory but rather ?potentially useful?; for the delayed disclosure of the existence and subsequent destruction of the tape, trial court properly denied request for sanctions absent a showing of prejudice; trial court properly denied request for an adverse inference absent evidence of bad faith

Nature of Case: Criminal drug charges

Electronic Data Involved: Video surveillance tape

Cencast Servs., LP v. United States, 2010 WL 3488806 (Fed. Cl. Ct. Sept. 3, 2010)

Dec 01 2010

Key Insight: Where data was lost as the result of the theft of a laptop and where hard copy documents were accidentally shredded despite efforts to preserve them safely, the court denied plaintiffs? motion for an adverse inference where defendant was ?at most? negligent and an adverse inference would be ?disproportionate to the offense?, where evidence was presented that indicated the requested presumption arising from the adverse inference was untrue, and where plaintiffs failed to demonstrate significant prejudice as the result of the loss

Nature of Case: Tax related claims

Electronic Data Involved: Contents of laptop, hard copy

Oto Software, Inc. v. Highwall Techs., LLC, 2010 WL 3842434 (D. Colo. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion for sanctions where defendant Highwall breached its obligation to preserve information related to the underlying royalty dispute following receipt of a letter which triggered the duty to preserve and ordered that discovery be re-opened and that defendant Highwall bear the costs but also found that the duty to preserve documents related to the development of allegedly infringing software was not triggered until the filing of the complaint and that no spoliation had occurred; court found purchaser of Highwall?s assets during pendency of the royalty dispute had no duty to preserve where the software at issue was excluded from purchaser?s acquisition

Nature of Case: Royalty dispute, copyright infringement

Electronic Data Involved: ESI

Tag:Spoliation