Spoliation – Page 82 – Electronic Discovery Law

Golden v. State, 2009 WL 3153262 (Ark. App. Ct. Sept. 30, 2009)

Dec 01 2009

Key Insight: Despite testimony that the methods utilized to copy surveillance tape could reduce the image?s fine detail and the State?s failure to comply with a court order to produce the original of the surveillance tape because it had been lost, the trial court did not err in failing to grant defendant a new trial where a duplicate tape is admissible to the same extent as the original and where there was no evidence of bad faith in the loss of the tape; in so deciding, court also cited testimony that defendant did not objet

Nature of Case: Criminal

Electronic Data Involved: Copy of original surveillance tape

Grochinski v. Schlossberg, 402 B.R. 825 (N.D. Ill. 2009)

Dec 01 2009

Key Insight: U.S. District Court affirmed bankruptcy court?s sanction that facts alleged against defendant would be taken as established and that defendant was prohibited from opposing trustee?s claims against him where forensic evidence indicated that defendant destroyed evidence by installing cleaning software and by installing new operating systems on relevant computers despite his ongoing duty to preserve

Nature of Case: Adversary action alleging fraudulent transfer

Electronic Data Involved: ESI, hard drives

Brookhaven Typesetting Servs., Inc. v. Adobe Sys., Inc., 2009 WL 1515661 (9th Cir. June 1, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where, despite defendant?s destruction of source code and other discovery misbehavior the district court declined to impose an adverse inference sanction upon finding that ?there was no evidence to support a finding that [defendant] acted in bad faith and had intentionally destroyed the earlier versions of the source code,? 9th Circuit declined to disturb the trial court?s decision upon finding the trial court?s decision ?not clearly erroneous?

Nature of Case: Copyright infringement, misappropriation of trade secrets, breach of contract

Electronic Data Involved: Source code

In Re Nat?l Century Fin. Enters., Inc. Fin. Inv. Litig., 2009 WL 2169174 (S.D. Ohio July 16, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part a motion for sanctions based on multiple plaintiffs? alleged delay and spoliation, including a failure to preserve relevant evidence, and ordered sanctions including excluding certain plaintiffs from affirmatively using late produced documents and allowing the moving party to proffer evidence at trial that it believed would give rise to an adverse inference and entitle it to an adverse jury instruction

Nature of Case: Consolidated actions arising from the collapse of National Century Financial Enterprises, Inc.

Electronic Data Involved: ESI

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

Lewis v. Ryan, 2009 WL 3486702 (S.D. Cal. Oct. 23, 2009)

Dec 01 2009

Key Insight: Court adopted recommendation of the magistrate judge to impose an adverse inference and exclude certain evidence as sanction for spoliation where defendants indicated they could not locate information, including ESI, which, according to records retention requirements, should have been in their possession at the time plaintiff propounded his request and thus should have been preserved and produced; court found ?clear and convincing evidence that defendants were ?at fault? for recklessly and negligently allowing the documents to be destroyed

Nature of Case: Civil rights complaint arising from service of pork to Muslim inmate

Electronic Data Involved: Hard copy, ESI

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

Laethem Equip. Co. v. Deere & Co., 2009 WL 3064663 (E.D. Mich. Sept. 21, 2009)

Dec 01 2009

Key Insight: Adopting magistrate?s recommendation, district court judge denied defendant?s motion for sanctions based upon plaintiff?s alleged discovery misconduct, including spoliation and delay, where defendant ?failed to establish that its defenses have been materially prejudiced? and where plaintiff ?refuted to [magistrate?s] satisfaction the contention of defense counsel that they engaged in spoliation of material?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Tag:Spoliation