Spoliation – Page 74 – Electronic Discovery Law

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

Dec 01 2010

Key Insight: For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was ?at a minimum? negligent and indicated that an adverse inference would be crafted after all the evidence had been received. For ?prolonged delay? in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000

Nature of Case: Breach of contract, breach of implied covenant of good faith and fair dealing

Electronic Data Involved: Data on laptops, emails

Whited v. Motorists Mutual Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010)

Dec 01 2010

Key Insight: For plaintiff?s willful and bad faith violations of the court?s orders which resulted in prejudice to the defendants, including unexplained delays in production and intentional deletion of files on computers which the court had ordered no one to use, and where the court had previously warned that failure to comply could result in dismissal, court ordered dismissal of plaintiff?s claims

Nature of Case: Cross claims arising from insurance payments for home health care

Electronic Data Involved: ESI

Union Pump Co. v. Centrifugal Tech., Inc., 2010 WL 186616 (5th Cir. Dec. 16, 2010)

Dec 01 2010

Key Insight: Noting the need to wield a court?s inherent power to impose sanctions with ?great restraint?, the appellate court found the trial court did not abuse its discretion in declining to impose attorney?s fees as an additional sanction for defendant?s spoliation where the court provided an adverse inference instruction to the jury and where the trial court found the jury?s verdict provided ?adequate compensation? for plaintiff?s claims; appellate court noted plaintiff?s failure to renew its request for fees based on spoliation following the jury?s verdict

Nature of Case: Misappropriation of trade secrets, unfair competition

Electronic Data Involved: ESI, hard drives, backup tapes

Ahroner v. Israel Discount Bank of New York, 913 N.Y.S.2d 181 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Court upheld grant of adverse inference for intentional or grossly negligent destruction of a hard drive ordered to be produced for inspection and noted that because the destruction was intentional or grossly negligent, the court?s inference as to the erased emails? relevance was proper

Electronic Data Involved: Contents of hard drive

Victor v. R.M. Lawler, 2010 WL 521118 (M.D. Pa. Feb. 9, 2010)

Dec 01 2010

Key Insight: Court deferred judgment regarding motion for spoliation sanctions for missing video surveillance tapes of the relevant ?cell extraction? pending defendant?s production of prison policies regarding the proper preservation of such video where the court regarded the ?question of spoliation? to be ?closely intertwined with the issue of whether the defendants followed their own operations procedures in preserving evidence?

Nature of Case: Prisoner’s civil rights lawsuit

Electronic Data Involved: Video surveillance tape

Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? motion to compel forensic imaging of defendants? computers and electronic media devices by court-appointed, neutral forensic examiner upon showing that defendants likely misappropriated proprietary information from plaintiff, that at least one defendant breached his duty to preserve by discarding a relevant laptop, and where there was a ?sufficient nexus? between plaintiffs? claims and its need obtain the requested forensic images; court split cost 80% to defendant 20% to plaintiff citing defendant?s ?culpability in necessitating the expense? and set out the imaging protocol to be employed by an agreed upon expert

Nature of Case: Computer Fraud and Abuse Act

Electronic Data Involved: Forensic image of hard drives, electronic media devices

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Hare v. Opryland Hospitality, LLC, 2010 WL 3719915 (D. Md. Sept. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s alleged destruction of ?full and complete surveillance video? of the relevant incident but failed to establish that defendant had the burden to preserve any video aside from the portion produced or that any other relevant footage existed and was deleted and where plaintiff failed to establish the ?requisite state of mind?, the court denied plaintiff?s motion for sanctions

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance footage

Cruz v. G-Town Partners, L.P., 2010 WL 5297161 (Del. Super. Ct. Dec 3, 2010)

Dec 01 2010

Key Insight: Court denied motion for adverse inference for defendant?s ?inadequately explained, perhaps even suspect? inability to produce photographs of the alleged accident scene (the bathroom of plaintiff?s apartment) where plaintiff ?did not exhaust every available mechanism to obtain these photographs? (by failing to obtain a forensic analysis of the computers alleged to have stored the photos, for example) and where the facts underlying the absence of the photos were ?sufficiently equivocal and incomplete to defeat plaintiff?s claim of entitlement to an adverse inference? and where the probative value of the photos was ?speculative at best?; court?s denial of adverse inference resulted in denial of application of Res Ipsa Loquitur and thus the entry of summary judgment in favor of defendants

Nature of Case: Personal Injury

Electronic Data Involved: Photographs stored electronically and sent via email

U.S. Bank Nat?l Assoc. v. Parker, 2010 WL 559135 (E.D. Mo. Feb. 10, 2010)

Dec 01 2010

Key Insight: Considering both the ?good cause? standard and the ?preliminary injunction-style analysis? court determined plaintiff was not entitled to expedited discovery to conduct forensic examination of defendant?s cell phone, PDA, and personal computer where defendant assured the court the relevant data would be preserved and where plaintiff failed to show the potential for spoliation or resulting prejudice

Nature of Case: Breach of a Confidentiality and Non-Solicitation Agreement, tortious interference with Plaintiff’s relationships with its clients and misappropriation of Plaintiff’s trade secrets

Electronic Data Involved: ESI

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