Spoliation – Page 87 – Electronic Discovery Law

Ingoglia v. Barnes & Noble Coll. Booksellers, Inc., 852 N.Y.S.2d 337 (N.Y. App. Div. 2008)

Dec 01 2008

Key Insight: Appellate court reversed trial court?s denial of motion to dismiss complaint as sanction for spoliation, and granted motion to dismiss, where defendant’s expert found that numerous files, images, and folders, as well as some history of the plaintiff’s internet usage had been deleted between date defendant demanded inspection of plaintiff’s computer and date of inspection, and evidence showed that defendant suffered severe prejudice

Nature of Case: Defamation

Electronic Data Involved: Files on plaintiff’s home computer

Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to establish relevance of comment that was posted by individual defendant on Dattallegro?s web log (?blog?) but was later made unavailable for public access, and defendants had represented to court that they intended to meet their discovery obligations and would meet and confer with plaintiff to define scope of parties’ preservation obligations and protocols, court rejected plaintiff?s claim that defendants had destroyed relevant evidence and denied motion for preservation order

Nature of Case: Patent infringement

Electronic Data Involved: Web log comment

Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D.N.Y. 2008)

Dec 01 2008

Key Insight: Pursuant to its inherent equitable authority, where plaintiff accessed one defendant?s personal email accounts without authorization and attempted to use emails therein during litigation and where such activity would be a violation of The Stored Communications Act, court precluded plaintiffs? use of those emails for all but impeachment purposes; where plaintiffs initially produced wrongfully obtained emails with their print dates obscured but defendants later gained access to original form, court declined to impose spoliation sanctions

Nature of Case: Breach of fiduciary duties, trademark infringement

Electronic Data Involved: Emails

Meccatech, Inc. v. Kiser, 2008 WL 6010937 (D. Neb. Apr. 2, 2008)

Dec 01 2008

Key Insight: Where the court found that defendants had ?intentionally destroyed or withheld? ESI, including by deleting relevant evidence or attempting to discard a relevant hard drive (which was instead saved by the technician defendant told to discard it), and where the destruction resulted in prejudice to the plaintiff, the court ordered default judgment against defendant and other evidentiary sanctions

Electronic Data Involved: ESI

Tse v. UBS Fin. Servs., Inc., 2008 WL 463719 (S.D.N.Y. Feb. 19, 2008)

Dec 01 2008

Key Insight: Plaintiff’s grossly negligent failure to produce laptop computer earlier in litigation reflected blatant disregard of her discovery obligations; court granted post-trial motion for sanctions and awarded defendant its fees and costs for: drafting pre-trial spoliation motion concerning plaintiff?s laptop; addressing plaintiff’s last-minute discovery of laptop; submissions to court regarding data retrieval issues and how defendant?s pretrial spoliation motion was affected; and drafting a new motion for sanctions based on plaintiff’s misconduct with respect to laptop and prejudice to defendant

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop

Whitney v. JetBlue Airways Corp., 2008 WL 2156324 (E.D.N.Y. Apr. 29, 2008)

Dec 01 2008

Key Insight: Where handwritten IIR was included with numerous other similar documents and destroyed en masse by airline under document retention policy, court found that, although there was a ?disturbing amount of carelessness on defendant’s part? in its retention and production of the IIRs, plaintiff had not demonstrated that handwritten IIR would have been favorable to her case or that she was prejudiced by its absence; accordingly, court declined to impose any spoliation sanctions but awarded plaintiff her fees and costs in connection with motion

Nature of Case: Airline passenger allegedly injured by another passenger sued airline claiming negligent failure to protect and gross negligence

Electronic Data Involved: Original handwritten ?Inflight Irregularity Report? and conflicting electronic versions of same

Nucor Corp. v. Bell, 2008 WL 4442571 (D.S.C. Jan. 11, 2008)

Dec 01 2008

Key Insight: Where parties submitted competing expert testimony in support of and in opposition to plaintiff’s motion for spoliation sanctions, court also considered and ruled upon parties’ cross-motions to exclude their opponent’s computer forensics expert under FRE 702 and Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993)

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop and USB flash-drive device

Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 2008 WL 5111894 (E.D. Mich. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiffs admitted to deletion of electronic data after failing to disable auto-delete function but where deletion was not intentional and where defendants failed to show more than a suspicion of prejudice, court declined to issue order for plaintiffs to show cause why sanctions should not be imposed; court issued warning to plaintiffs that any future loss of data, whether negligent or otherwise, was ?not acceptable? and ordered measures taken against further deletion

Nature of Case: Price fixing

Electronic Data Involved: ESI, email

Option One Mortg. Corp. v. Universal Mortg. Group, Inc., 2008 WL 6928158 (D.S.C. Aug. 27, 2008)

Dec 01 2008

Key Insight: Despite indicating concern regarding the cross-claim plaintiff?s deletion of employees? emails after firing them for inappropriate accounting, the court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to identify evidence indicating that the emails would have contained relevant evidence and where fact discovery had been closed for more than a year and plaintiff ?appear[ed] to have presented what it view[ed] as a quite complete theory of the case using the voluminous evidence? available to it

Electronic Data Involved: Emails of fired employees

Ogin v. Ahmed, 563 F.Supp.2d 539 (M.D. Pa. 2008)

Dec 01 2008

Key Insight: Where driver?s logs were relevant to plaintiff?s claims and defendants had notice of litigation and request to preserve them, but unilaterally determined that logs more than eight days prior to accident were irrelevant and destroyed them in the ?ordinary course of business,? court found that defendants actually suppressed and withheld driver’s logs and that adverse inference instruction was least severe and most appropriate sanction warranted under circumstances; court criticized defendants for not identifying date of destruction, individual responsible for such destruction, or time frame for such destruction pursuant to their retention policy and noted that defendants had not attached their retention policy as an exhibit to any filing or described any details of their retention policy

Nature of Case: Personal injury claims stemming from vehicle accident involving commercial tractor trailer and Jeep Wrangler

Electronic Data Involved: Computerized driver’s logs

Tag:Spoliation