Spoliation – Page 73 – Electronic Discovery Law

Potenza v. Gonzales, 2010 WL 890959 (N.D.N.Y. Mar. 8, 2010)

Dec 01 2010

Key Insight: Where plaintiffs? counsel admitted he had been in possession of the videotape of plaintiff?s interview with police following his arrest but that despite a diligent search he could not find it and could offer no explanation for why, court found spoliation sanctions were warranted, noting that the second circuit has recognized ?simple negligence? as a sufficiently culpable state of mind, and ordered an adverse inference; court rejected plaintiff?s argument that defendant should be sanctioned for failing to preserve the original despite plaintiff?s request to do so where plaintiff offered no evidence in support of their claim that defendant ever had control of the tape or played a role in its destruction

Nature of Case: Violation of Fourth Amendment right to be free from false arrest, malicious prosecution, and abuse of process

Electronic Data Involved: Videotape of police interview

Chapman v. Gen. Board of Pension & Health Benefits of the United Methodist Church, 2010 WL 2679961 (N.D. Ill. July 6, 2010)

Dec 01 2010

Key Insight: Where defendant failed to specify a form of production in its initial discovery requests and where defendant produced documents in hard copy, court found that no reproduction of electronic documents was required and rejected defendant?s arguments that plaintiff had failed to uphold her discovery obligations

Nature of Case: Violations of American’s with Disabilities Act

Electronic Data Involved: Electronic versions of previously produced hard copy

Maggette v. BL Dev. Corp., 2010 WL 3522798 (N.D. Miss. Sept. 2, 2010)

Dec 01 2010

Key Insight: Where the defendant was warned that failure to uphold discovery obligations would result in severe sanctions and where, with the help of a special master, it was determined that defendant ?repeatedly and knowingly? concealed information from the court and acted in bad faith to prevent the discovery of relevant information, including interfering with counsel?s efforts to identify responsive information, the court ordered dispositive sanctions and found that an agency relationship existed as a matter of law between defendant and the bus company involved in the fatal accident that was the basis for plaintiffs? claims

Nature of Case: Claims arising from fatal bus accident

Electronic Data Involved: ESI

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

Dec 01 2010

Key Insight: Where the original computer seized from defendant was ?destroyed as the result of a miscommunication between divisions of the federal government? (computer was destroyed by the Asset Forfeiture Division working independently of the attorneys handling the criminal case), the District Court did not err in finding that the computer was not destroyed in bad faith and that such destruction did not violate the defendant?s due process rights

Nature of Case: Possession and receipt of child pornography

Electronic Data Involved: Computer/hard drive seized as evidence

In re Oracle Corp. Secs. Litig., 627 F.3d 376 (9th Cir. 2010)

Dec 01 2010

Key Insight: Where as the result of a finding of willful spoliation the district court ordered an adverse inference that established Oracle?s CEO?s knowledge of any material facts that Plaintiffs were able to establish, but where plaintiffs were nonetheless defeated at summary judgment and thereafter appealed the order arguing that the inference should have been sufficient to defeat a challenge to the insufficiency of their prima facie case, the appellate court affirmed the holding of the district court noting that, ?in light of the enormous record developed in this case, the only conceivable benefit of Defendant?s spoliation was the possibility of disclaiming Ellison?s knowledge of any damaging facts underlying the purported fraud? and that the district court?s sanction was ?carefully fashioned to deny Defendants that benefit?

Nature of Case: Securities fraud

Electronic Data Involved: emaisl, ESI

Voom HD Holdings LLC v. Echostar Satellite LLC, No. 600292/08 (N.Y. Sup. Nov. 3, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference for grossly negligent failure to preserve where defendant?s duty to preserve was triggered by its awareness that its decision to terminate an agreement with plaintiff would trigger litigation but where defendant failed to impose a litigation hold until after plaintiff?s complaint was filed and failed to discontinue its automatic deletion of emails which resulted in the loss of relevant emails; court?s analysis included discussion of prior sanctions against defendant for failure to preserve in Broccoli v. Echostar Commc’ns Corp., 229 F.R.D. 506 (D. Md. 2005)

Nature of Case: Breach of contract

Electronic Data Involved: Email

Field Day, LLC v. County of Suffolk, 2010 WL 1286622 (E.D.N.Y. Mar. 25, 2010)

Dec 01 2010

Key Insight: Court declined to find County employees culpable for spoliation of ESI, but ordered monetary sanctions against the County for negligently failing to adequately preserve ESI and declined harsher sanctions where many documents were produced in hard copy and thus the resulting prejudice was unclear; court?s analysis of culpability included recognition that the alleged spoliation occurred in 2003-2004, during a time when the law of preservation of ESI was not fully developed

Nature of Case: Claims arising from denial of mass gathering permit

Electronic Data Involved: ESI

Read v. Teton Springs Golf & Casting Club, LLC, 2010 WL 2697596 (D. Idaho July 6, 2010)

Dec 01 2010

Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored

Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties

Electronic Data Involved: Email, hard drives

Salamey v. Berghuis, 2010 WL 3488692 (E.D. Mich. June 30, 2010)

Dec 01 2010

Key Insight: Where surveillance footage stored on a hard drive was overwritten and lost, it was ?reasonable for the court of appeals to find that the police did not act in bad faith? where the investigator had no reason to believe that extensive review of the footage would be warranted and where there was no evidence that he purposefully erased the footage or allowed it to be rewritten and where the investigator testified he did not know the drive would rewrite itself while unplugged; court stated, ?even if [the investigator] and other police were grossly negligent in thinking that the hard drive would not rewrite itself when unplugged, that does not constitute bad faith?

Nature of Case: Criminal/Armed robbery

Electronic Data Involved: Surveillance footage stored on hard drive

VFI Assoc., LLC v. Lobo Mach. Corp., 2010 WL 4716215 (W.D. Va. Nov. 15, 2010)

Dec 01 2010

Key Insight: For defendant?s knowing refusal to produce responsive data and bad faith alteration of data in an effort to hide relevant evidence, the court declined to impose terminating sanctions but precluded defendants from offering any “defense, evidence, or argument” as to several disputed issues and indicated it willingness to ?take under advisement? additional sanctions, including monetary sanctions, a finding of contempt of court, and a possible adverse inference instruction [on Nov. 22, 2010, a second opinion was issued, identical to the first except that the footnote regarding the court’s consideration of future sanctions discussed only an adverse inference instruction and did not include mention of a finding of contempt or monetary sanctions, 2010 WL 4868110]

Nature of Case: Allegations that business manager accepted kickbacks from equipment supplier

Electronic Data Involved: ESI

Tag:Spoliation