Spoliation – Page 86 – 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

Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D. Tex. Aug. 8, 2008)

Dec 01 2008

Key Insight: For plaintiff?s and its principals? egregious discovery abuses and bad faith conduct, including intentional spoliation of ESI and willful deception and concealment, magistrate judge set out findings of fact and conclusions of law and recommended sanctions in form of adverse inference instruction and monetary sanctions representing all of defendants? fees and costs incurred in connection with sanctions motion; district court overruled plaintiff’s objections and adopted magistrate judge?s rulings

Nature of Case: Breach of fiduciary duty, breach of contract, RICO violations, negligence, gross negligence and injunctive relief

Electronic Data Involved: Hard drives, DVD, various ESI

Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 2008 WL 5063291 (2d Cir. Nov. 24, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to sufficiently establish existence or relevance of emails allegedly spoliated or that defendants alleged abuses resulted from willful misconduct or gross negligence, trial court declined to impose sanctions; court of appeals affirmed

Nature of Case: Breach of contract, promissory estoppel, interference with a contract

Electronic Data Involved: Email

Reino de Espana v. Am. Bureau of Shipping, 2008 WL 3851957 (S.D.N.Y. Aug. 18, 2008)

Dec 01 2008

Key Insight: District court overruled Spain’s objections to Magistrate Judge?s various orders of November 3, 2006, January 25, 2007 and June 6, 2007

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

In re Zurn Pex Plumbing Prod. Liab. Litig., 20008 WL 5104173 (D. Minn. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court compelled production of deponent to answer specifically tailored questions regarding retention of electronically stored documents where plaintiff suspected spoliation due to defendant?s failure to timely issue preservation notices and where inquiry into retention policies would assist in narrowing scope of discoverable electronic materials; court also compelled production of identity of author of relevant email

Nature of Case: Products liability

Electronic Data Involved: Document retention policies, email

Tag:Spoliation