Spoliation – Page 83 – Electronic Discovery Law

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

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

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

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

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

Mintel Int?l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D. Ill Apr. 17, 2009)

Dec 01 2009

Key Insight: District Court found Magistrate Judge?s decisions denying plaintiff?s motions to compel third-party?s production of forensic image of its computer systems or a report from those systems ?were neither clearly erroneous or contrary to law? where Magistrate denied the motions in light of plaintiffs lack of diligence, contradictory opinions from experts, and factual evidence indicating a minimal amount of relevant data on third-party?s system and where Magistrate was therefore within the scope of her discretion

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: ESI, forensic image of hard drive

Panos v. Timco Engine Ctr., Inc., 2009 WL 1658416 (N.C. Ct. App. June 16, 2009)

Dec 01 2009

Key Insight: Appellate court affirmed trial court?s grant of summary judgment to plaintiff despite defendant?s accusations of spoliation and request for an adverse inference instruction where precedent established that the imposition of an adverse inference was permissive and not mandatory and that it was improper to base the grant or denial of summary judgment on evidence of spoliation, among other principles of law, and where defendant failed to identify any information destroyed by plaintiff that could support it?s claims and presented no independent evidence in support of its claims or alleged damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

Tag:Spoliation