Spoliation – Page 81 – Electronic Discovery Law

N.H. Ball Bearings, Inc. v. Jackson, 969 A.2d 351 (N.H. 2009)

Dec 01 2009

Key Insight: Where evidence indicated high probability of spoliation by defendant including deleting data and running disk defragmenter and disk cleanup functions, among other things, but where evidence also indicated potential spoliation of ESI by plaintiff because of its failure to preserve the last accessed date of certain files, trial court gave adverse inference instruction to jury allowing finding of spoliation by either side and appellate court affirmed; appellate court also affirmed trial court?s denial of plaintiff?s request to access up to 250 hard drives for imaging upon finding the request ?too broad and burdensome? especially in light of trial court?s grant of access to plaintiff, upon narrowing its request, to back up tapes and specifically relevant hard drives

Nature of Case: Breach of confidentiality agreement

Electronic Data Involved: ESI

Veit v. Burlington N. Santa Fe Corp., 207 P.3d 1282 (Wash. Ct. App. 2009)

Dec 01 2009

Key Insight: Appellate court declined to find abuse of discretion in trial court?s refusal to give a spoliation instruction regarding a missing event recorder where defendant offered a satisfactory explanation for the loss of data, namely, that the data on the event recorder was downloaded to a laptop, that the data was not properly recorded and so the faulty tape was destroyed to prevent its re-use, and that the laptop containing the data was later stolen

Nature of Case: Personal injury arising from train/car collision

Electronic Data Involved: Event recorder data

Chirdo v. Mineral Techs., Inc., 2009 WL 2195135 (E.D. Pa. July 23, 2009)

Dec 01 2009

Key Insight: Court denied motion for spoliation sanctions for alleged destruction of emails where the emails were destroyed pursuant to defendant?s document retention policy five months prior to defendant?s receipt of plaintiff?s EEOC charge at a time when there was no duty to preserve and where plaintiff only vaguely alleged the contents of the documents and their relevance; human resources representative?s comment that plaintiff?s review was ?evidence in support of any future litigation? did not trigger duty to preserve because ?that is the primary purpose for the retention of human resource records? and because she did not know that the time of the statement that plaintiff would be terminated, let alone file a lawsuit

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Paylan v. St. Mary?s Hosp. Corp., 983 A.2d 56 (Conn. App. Ct. 2009)

Dec 01 2009

Key Insight: Where trial court precluded plaintiff from presenting evidence of a court order requiring defendant to preserve the relevant hard drive but expressly allowed the presentation of evidence concerning the destruction of the hard drive and deferred ruling on the whether to give an adverse inference instruction, and where plaintiff failed to present evidence of defendant?s intentional destruction of the hard drive, a necessary element when seeking an adverse inference, court of appeals ruled trial court?s preclusion of evidence of the order was error, but that the error was harmless, and affirmed the judgment of the trial court

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive

Moore v. Am. Family Mut. Ins. Co., 2009 WL 886848 (D. Ariz. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where defendants recreated documents sought by plaintiff using raw data after destroying copies of the original document pursuant to its document retention policy and where plaintiff offered no evidence to ?reasonably question? such a practice or that any data was destroyed in anticipation of litigation, court found insufficient evidence to support an adverse inference

Nature of Case: Breach of contract claims arising from denial of insurance claim

Electronic Data Involved: Original declaration sheet

White v. Fuji Photo Film, USA, Inc., 209 WL 1528546 (S.D.N.Y. June 1, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s motion for adverse inference arising from former employer?s destruction of her work computer where plaintiff failed to indicate that the computer contained relevant information and thus employer did not have notice sufficient to raise a duty to preserve and where plaintiff failed to establish that the lost information was relevant to the action

Nature of Case: Wrongful termination

Electronic Data Involved: Plaintiff’s former work computer

Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 WL 2431926 (C.D. Cal. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where court found defendant had perjured himself, including making untrue statements about the existence of relevant evidence, had willfully disobeyed the court?s order to produce ?substantial documents,? and had knowingly and intentionally either destroyed or ordered destroyed relevant electronically stored information, court ordered adverse inference and monetary sanctions

Nature of Case: Lawsuit arising from defendant’s breach of contract and defendant’s undereporting of revenue and underpayment of taxes

Electronic Data Involved: ESI, hard copy

Carolina Materials, LLC v. Continental Cas. Co., 2009 WL 4611519 (W.D.N.C. Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production

Nature of Case: Insurance contract dispute

Electronic Data Involved: ESI on relevant computers and servers

Superior Prod. P?ship d/b/a PBSI v. Gordon Auto Body Parts Co, Ltd, 2009 WL 690603 (S.D. Ohio Mar. 12, 2009)

Dec 01 2009

Key Insight: Acknowledging the reasonableness of plaintiff?s suspicion that information may have been lost in light of defendants? failure to immediately institute a litigation hold and in light of their admitted failure to immediately search all potentially relevant sources of responsive material, court nonetheless denied plaintiff?s motion for sanctions where plaintiff failed to present evidence that any relevant information had actually been lost or destroyed as a result of defendants? failures and in light of defendants? remedial efforts, including conducting additional searches and notifying employees of the litigation hold

Nature of Case: Predatory pricing

Electronic Data Involved: Email, ESI

Continental Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 1098461 (S.D. Fla. Apr. 22, 2009)

Dec 01 2009

Key Insight: Where defendant accessed relevant files after being placed on notice of litigation and thus spoliated metadata, but where defendant?s testimony regarding her lack of knowledge that accessing the files would destroy metadata was credible and where plaintiffs failed to meet their burden of showing bad faith, plaintiffs? motion for adverse inference was denied

Nature of Case: Violations of Computer Fraud and Abuse Act, breach of restrictive covenant contracts, tortious interference with customer relationships, among others

Electronic Data Involved: Metadata

Tag:Spoliation