Spoliation – Page 83 – Electronic Discovery Law

Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009)

Dec 01 2009

Key Insight: Where plaintiff made a preliminary showing of spoliation, including testimonial evidence from defendant?s 30(b)(6) deponent that no one talked to her about creating a litigation hold policy and deposition testimony from defendant?s witness that he didn?t save anything, court ordered the production of defendants litigation hold letters (with information unrelated to the litigation hold redacted); court reasoned that ?if defendants deleted emails that should have been preserved, this was a relevant factor for the court to consider when it decided whether it was prohibitively burdensome or expensive for the Defendants to retrieve its archived emails.?

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Litigation hold letter

Koninklijke Philips Electronics, N.V. v. KXD Tech., Inc., 2009 WL 3059090 (9th Cir. Sept. 24, 2009) (Unpublished)

Dec 01 2009

Key Insight: District court did not abuse discretion in ordering default judgment where court found defendant deliberately destroyed computer servers, and with it certain ESI that had been requested by the plaintiff, where such destruction demonstrated the necessary ?willfulness, bad faith and fault? to support such a sanction, where the prejudice caused by the failure to produce the ESI was ?not excused? by the fact that plaintiff already possessed some of the destroyed documents, and where less severe sanctions were previously awarded and defendant had been warned of the possibility of stricter sanctions in future

Nature of Case: Infringement litigation

Electronic Data Involved: ESI stored on server

Paradise v. Al Copeland Invs., Inc., 22 So.3d 1018 (La. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court abused its discretion in ordering an adverse presumption in favor of plainitff for defendant?s loss of relevant computer evidence by discarding a hard drive after it crashed where defendant offered a reasonable explanation for the loss; court?s reasoning also relied upon evidence that the communications sought by plaintiff were available from an alternative source

Nature of Case: Class action for violation of Telephone Consumer Protection Act

Electronic Data Involved: Hard drive

Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel upon finding that defendant ?did not timely comply with its discovery obligations? including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney?s fees

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: ESI

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.

Nature of Case: Failure to accomodate

Electronic Data Involved: Email

Dilts v. Maxim Crane Works, L.P., 2009 WL 3161362 (E.D. Ky. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where defendants failed to record data stored on crane?s computer following death of two construction workers, but where plaintiffs offered no evidence to support their allegations that the data was manually destroyed or that the failure to photograph the display was unreasonable and where defendants presented evidence that data could not be downloaded from the crane?s computer and plaintiff failed to request the information downloaded in the first place, court declined plaintiffs motion for spoliation sanctions

Nature of Case: Negligence resulting in death

Electronic Data Involved: ESI stored on crane’s internal computer

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

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

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

Tango Transp., LLC v. Transp. Int. Pool, Inc., 2009 WL 3254882 (W.D. La. Oct. 8, 2009)

Dec 01 2009

Key Insight: Where defendant established plaintiff?s breach of its duty to preserve emails by failing to timely issue litigation hold notices to all ?key players? but failed to establish defendants? bad faith or the relevance of the lost messages, court declined to impose adverse inference sanctions but ordered monetary sanctions, including defendant?s attorneys fees associated with the motion

Nature of Case: Contract dispute

Electronic Data Involved: Emails, other ESI

Tag:Spoliation