Spoliation – Page 81 – Electronic Discovery Law

Lucas v. Old Navy, LLC, 2009 WL 1172710 (M.D. La. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued she was entitled to a presumption that defendant had constructive notice of the hanger on the floor that allegedly caused her injuries because defendant failed to preserve the surveillance tape which would have proven such notice, but where plaintiff failed to request preservation of the relevant tape and failed to notify defendant of her intent to sue resulting in the loss of the tape from the system after 60 days, and where plaintiff offered no evidence of defendant?s bad faith, court declined to rely on such a presumption and granted defendant?s motion for summary judgment

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance videotape

Elec. Machinery Enters., Inc. v. Hunt. Constr. Group, Inc., 2009 WL 2710266 (Bankr. M.D. Fla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Despite finding defendants ?intentionally destroyed relevant documents at a time when litigation was foreseeable? the court declined to award sanctions where it was not established the documents were ?critical for proving? plaintiff?s case, a prerequisite for such sanctions under Florida law

Nature of Case: Action for breach of contract, spoliation, breach if implied warranties

Electronic Data Involved: Hard copy and ESI

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Stirling Bridge, LLC v. Porter, 2009 WL 125549 (Ariz. Ct. App. May 7, 2009)

Dec 01 2009

Key Insight: No abuse of discretion in granting defendant?s motion for summary judgment on the issue of destruction of evidence where defendant offered uncontroverted evidence that his partner destroyed computers, without defendant?s involvement, because they were ?obsolete? and where plaintiffs failed to ?raise a disputed issue of material fact regarding [defendant?s] responsibility for [his partner?s] destruction of the computer and other electronic evidence?

Nature of Case: Legal malpractice, breach of fiduciary duty, breach of contract, and securities fraud

Electronic Data Involved: Computers (hard drives)

Reeves v. Case W. Univ., 2009 WL 3242049 (N.D. Ohio Sept. 30, 2009)

Dec 01 2009

Key Insight: Where it remained ?entirely unclear? that defendant performed a ?full and thorough search? for responsive ESI, court ordered defendant to perform a ?comprehensive examination of all electronic storage? and to provide certification of the search to plaintiff; as sanction for ?failing to even search for certain evidence,? court prohibited defendant from re-filing its motion for summary judgment as to two of plaintiff?s claims

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Canton v. Kmart Corp., 2009 WL 2058908 (V.I. July 13, 2009)

Dec 01 2009

Key Insight: Court declined to order adverse inference for destruction/loss of surveillance video where plaintiff failed to establish that such a video existed and that defendant therefore had a duty to preserve it; court ordered adverse inference for defendant?s inability to produce photographs upon finding defendant did not take ?reasonable precautions? to preserve the evidence despite knowing that litigation was reasonably foreseeable

State v. Ross, 2009 WL 118958 (Ohio Ct. App. Jan. 20, 2009)

Dec 01 2009

Key Insight: Where transcript of online chat was erased from law enforcement hard drive following ?computer problems? but where there was no evidence of bad faith, appellate court affirmed denial of defendant?s motion for production of the hard drive and reasoned that State could authenticate the printed transcripts by offering testimony from personal knowledge that the document was what it was claimed to be pursuant to ER 901(B)(1) or through the presentation of ?evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result? pursuant to ER 901(B)(9)

Nature of Case: Attemtped unlawful sexual conduct with a minor

Electronic Data Involved: Hard drive, online chat transcripts

Realnetworks, Inc. v. DVD Copy Control Assoc., Inc., 2009 WL 1258970 (N.D. Cal. May 5, 2009)

Dec 01 2009

Key Insight: Where, despite plaintiffs? failure to specify each technology individually, plaintiffs? preservation order was deemed sufficient because the instructions to preserve utilized terminology customarily used within the company to refer a category of technologies, including those at issue, court nonetheless ordered parties to negotiate stipulated Preservation Order going forward; court ordered monetary sanctions for failure to preserve prior employee?s notebook, but declined to order sanctions for plaintiff?s alleged instructions to employees to delete emails absent evidence that employees willfully deleted emails after the preservation order was issued and where one employee at issue testified that emails subject to preservation were not among those deleted and where a second employee at issue deleted emails prior to duty to preserve and subsequently located back up drive with substantial number of non-email documents

Nature of Case: Declaratory judgment

Electronic Data Involved: Email, ESI

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Estrada v. Dehli Cmty. Ctr., 2009 WL 3359194 (Cal. App. Ct. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court imposed terminating sanctions against plaintiff and monetary sanctions upon counsel for egregious discovery abuses; client?s abuses included refusal to produce relevant information despite agreement and/or a court order to do so and willful installation of a new operating system on a computer subject to preservation and production, among other things; counsel?s abuses included delay in responding to discovery, misrepresentations to the court and opposing counsel, and refusal to produce relevant information despite a court order

Nature of Case: Wrongful termination/ sexual harassment

Electronic Data Involved: ESI

Tag:Spoliation