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
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
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
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
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
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
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
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
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
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
Copyright © 2022, K&L Gates LLP. All Rights Reserved.