Spoliation – Page 86 – Electronic Discovery Law

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

Diabetes Ctrs. of Am., Inc. v. Healthpia Am., Inc., 2008 WL 336382 (S.D. Tex. Feb. 5, 2008)

Dec 01 2008

Key Insight: Where court found that defendants may not have taken adequate steps to preserve emails through a backup process but followed the company’s standard procedures, and if anything, there was negligence derived from lax electronic document maintenance procedures, and that plaintiff?s counsel, at most, may have been lax in that inadequate direction and oversight was given to associate to guide her search for relevant and responsive emails, court concluded that, while all parties were remiss in fulfilling their discovery obligations, there was no evidence of ?bad faith? on the part of either party to warrant an instruction on spoliation and denied parties’ competing sanctions motions

Nature of Case: Breach of contract

Electronic Data Involved: Emails, laptops

Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008)

Dec 01 2008

Key Insight: Remanding case for new trial on other grounds, appellate court noted that trial court may have committed an error of law, in analyzing plaintiff?s request for adverse inference instruction as sanction for government?s failure to preserve email, by equating the intentional conduct necessary for such an instruction with bad faith; appellate court would leave it to trial court to consider request for adverse inference instruction on remand, but observed that (even absent a court order) the duty to preserve material evidence arises not only during litigation but also extends to that period before litigation when party reasonably should know that evidence may be relevant to anticipated litigation

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Email

Oldenkamp v. United Am. Ins. Co., 2008 WL 4682226 (N.D. Okla. Oct. 21, 2008)

Dec 01 2008

Key Insight: Court denied motion to compel where plaintiff failed to offer any evidence that requested emails existed and where defendant offered sworn testimony that all responsive document had been produced; court also denied plaintiffs? motion for spoliation sanctions where plaintiff offered no evidence that allegedly spoliated materials existed; where defendant indicated its inability to locate a particular document but produced audio tapes detailing the contents, court declined to impose sanctions because plaintiffs offered no evidence of defendant?s intentional destruction of evidence and because plaintiffs suffered no prejudice in light of alternative source for requested information

Nature of Case: Litigation concerning insurance company’s denial of benefits

Electronic Data Involved: Email, ESI

Sharp v. City of Palatka, 2008 WL 89762 (M.D. Fla. Jan. 8, 2008)

Dec 01 2008

Key Insight: No adverse inference warranted for alleged spoliation of audio recordings, since plaintiff failed to establish first element that recordings ever existed; however, plaintiff would be free to elicit testimony concerning the alleged recordings at trial

Nature of Case: Employment litigation

Electronic Data Involved: Audio recordings of two conversations

Tag:Spoliation