Spoliation – Page 77 – Electronic Discovery Law

State v. Huggett, 783 N.W.2d 675 (Wis. App. Ct. 2010)

Dec 01 2010

Key Insight: Where police confiscated cell phones from the defendant and a key witness which contained highly relevant and exculpatory messages but failed to preserve them, court reasoned that ?[b]y creating an expectation of preservation [in the mind of the defendant], the State became responsible for ensuring that it occurred? and that its failure to do so deprived the defendant of due process such that dismissal with prejudice was appropriate

Nature of Case: Charges arising from shooting of intruder, allegedly in self defense

Electronic Data Involved: Voice mail and text messages on cell phones

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Grey v. Kirkland & Ellis, LLP, 2010 WL 3526478 (N.D. Ill. Sept. 2, 2010)

Dec 01 2010

Key Insight: Where plaintiffs offered nothing more than speculation regarding defendants? alleged intentional or grossly negligent spoliation of metadata and where defendant asserted that before destroying the server at issue, the information thereon was migrated and no metadata was knowingly changed, the court declined ?to infer from the absence of metadata that such evidence would have been favorable to Plaintiff?s claims?

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic records of phone calls, metadata

Prins v. Dir. of Revenue, 333 S.W.3d 17 (Mo. Ct. App. 2010)

Dec 01 2010

Key Insight: Where the trial court granted spoliation sanctions despite failing to find that the loss was intentional or in bad faith (where the officer failed to preserve the relevant video footage as the result of failing to mark the right ?checkbox? in the system) and where Missouri law requires ?evidence of intentional destruction? or ?evidence that the spoliator destroyed the evidence ?under circumstances manifesting fraud, deceit, or bad faith?, the appellate court reversed the judgment of the trial court and remanded for a new hearing

Nature of Case: DUI

Electronic Data Involved: Video footage of defendant’s stop and arrest

State v. Dewitt, 2010 WL 5550243 (Ohio App. Ct. Dec. 29, 2010)

Dec 01 2010

Key Insight: Court overruled defendant?s assignment of error and found no violation of defendant?s due process rights resulting from the loss of a portion of the video surveillance footage of his traffic stop where defendant presented no evidence of bad faith in the destruction or loss, where defendant failed to seek a preservation order to prevent its destruction, and where defendant offered only speculation as to the exculpatory nature of the missing portions of video

Nature of Case: Criminal

Electronic Data Involved: Surveillance footage

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

Tag:Spoliation