Spoliation – Page 84 – Electronic Discovery Law

In re Krause, 2009 WL 5064348 (D. Kan. Dec. 16, 2009)

Dec 01 2009

Key Insight: On appeal, court upheld sanctions for intentional spoliation and other misconduct, including seizure of debtor?s passport and partial summary judgment, where such sanctions were within the discretion of the court and warranted by debtor?s behavior

Nature of Case: Government brought adversary proceeding against Chapter 7 debtor to except his tax debt from discharge and declare various entities his alter ego

Electronic Data Involved: Hard drives, email

Nutramax Labs. Inc. v. Theodosakis, 2009 WL 2778388 (D. Md. June 8, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for summary judgment and permitted additional discovery by plaintiffs as sanction for defendants? spoliation of its website where defendant removed relevant language from the site after learning of plaintiffs? lawsuit; addressing defendants argument that because plaintiff was able to preserve a copy of the site before the language was removed, there was no prejudice, the court indicated that defendants? ?questionable conduct? suggested that ?there may be other evidence relevant to this summary judgment that has yet to surface? and denied defendants? motion and allowed additional discovery ?to level the evidentiary playing field and to sanction defendants? improper conduct?

Nature of Case: Patent infringement

Electronic Data Involved: Website

Triton Constr. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115 (Del. Ch. May, 18, 2009)

Dec 01 2009

Key Insight: Finding that defendant should have expected litigation upon his resignation to accept employment with a competitor, court found that defendant ?intentionally, or at a minimum recklessly destroyed or failed to preserve evidence? by installing wiping software to target specific files for overwriting, by deleting thousands of files and folders as well as emails, and by failing to produce his home computer or portable thumb drive without adequate explanation; court allowed adverse inference that missing information would have supported plaintiff?s position ?on any issue to which that information was relevant?

Nature of Case: Breach of fiduciary duty by working simultaneously for direct competitor

Electronic Data Involved: Email, ESI

Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s objections to defendants? production in pdf format ?without merit? where plaintiff failed to specify the preferred format of production and where absent such specification ?pdf format?is presumptively a ?reasonably useable form?? and similarly dismissed plaintiff?s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff?s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Consol. Edison CO. of NY, Inc. & Subsidiaries v. U.S., 2009 WL 3418533 (Fed. Cl. Oct. 21, 2009)

Dec 01 2009

Key Insight: In very long and complicated tax litigation, court found no spoliation absent a duty to preserve where, at the time the data was lost due to migration to a new email system, plaintiffs were involved in routine audit and administrative procedures likely to resolve the relevant dispute and thus had no reason to believe litigation would necessarily ensue (?Indeed, not every dispute with the IRS leads to litigation or ?anticipates? litigation); where counsel provided contradictory statements as to whether litigation was anticipated such that a duty to preserve would have arisen, court determined counsel was essentially unreliable and thus relied on ?other testimony or exhibits? and relied on counsel?s testimony only ?sparingly, when it was uncontested?

Nature of Case: Tax litigation

Electronic Data Involved: Emails

Brown v. Coleman, 2009 WL 2877602 (S.D.N.Y. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where expert witness destroyed relevant surgical logs and resisted production of alternative evidence upon the objection that a review of all patient files would be unduly burdensome, court denied motion to compel production of the logs but ordered that as a sanction for spoliation, the expert would not be allowed to testify as to the number of fat grafting procedures he had performed, and would have to be qualified as an expert based on other information

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical records

Jacob v. City of N.Y., 2009 WL 383752 (E.D.N.Y. Feb. 6, 2009)

Dec 01 2009

Key Insight: Court denied motion for fees and costs related to 30(b)(6) deposition despite acknowledgment that deposition was unnecessary but for city?s delay in locating copies of 911 tapes following original?s destruction by NYPD; court indicated familiarity with NYPD?s destruction of 911 tapes and, while recognizing unique concerns such as storage space, nonetheless indicated the need to balance that concern with the value of tape recorded evidence; court urged city?s counsel to consider measures to ensure preservation of tapes once litigation is anticipated

Nature of Case: Constitutional violations

Electronic Data Involved: 911 call tapes

Innis Arden Golf Club v. Pitney Bowes, Inc., 257 F.R.D. 334 (D. Conn. 2009)

Dec 01 2009

Key Insight: Where consulting firm retained by plaintiff destroyed soil samples and related electronic data absent implementation of a litigation hold and where plaintiff was obligated to preserve such evidence in light of the possibility of litigation and its knowledge of the evidence?s relevance to that litigation, court attributed the consulting firm?s destruction of the samples and data to plaintiff based upon ?the close ties? between them and imposed a sanction precluding the admission of evidence based on the destroyed evidence; court found that defendant?s failure to conduct its own testing upon notice of impending remediation to the relevant property did not constitute a disclaimer of defendant?s interest in plaintiff?s pre-remediation soil samples, especially where remediation destroyed defendant?s ability to verify plaintiff?s testing results or conduct additional tests and where defendant was not aware that the existing data in plaintiff?s possession would be destroyed

Nature of Case: Cost recovery action

Electronic Data Involved: Soil samples and related electronic data

Telequest Int?l Corp. v. Dedicated Business Sys., Inc., 2009 WL 690996 (D.N.J. Mar. 11, 2009)

Dec 01 2009

Key Insight: Where forensic examination of defendant?s hard drive revealed the deletion of electronic evidence using wiping software and where at the time of the deletion defendant was subject to a duty to preserve, court declined to impose default judgment but ordered an adverse inference and monetary sanctions in an amount to be determined

Nature of Case: Claims of fraud, misappropriation of confidential and proprietary information, breach of fiduciary duties, and breach of contract

Electronic Data Involved: ESI, contents of hard drive

MRT, Inc. v. Vounckx, 299 S.W.3d 500 (Tex. Ct. App. 2009)

Dec 01 2009

Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve

Nature of Case: Misrepresentations and fraudulent inducement

Electronic Data Involved: Backup tapes

Tag:Spoliation