Spoliation – Page 91 – Electronic Discovery Law

St. Tammany Parish Hosp. Serv. Dist. v. Travelers Prop. Cas. Co. of Am., 2008 WL 728948 (E.D. La. Mar. 17, 2008)

Dec 01 2008

Key Insight: Where plaintiff explained that earlier drafts of expert?s report were not ?destroyed,? but that expert merely saved different ?iterations? of report within same file on his computer until report was complete, and where there was no indication that drafts of report were edited or ?ghost-written? to support a predetermined outcome, court denied defense motion for spoliation sanctions

Nature of Case: Insurance coverage

Electronic Data Involved: Prior drafts of expert’s report

Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution

Nature of Case: Wrongful termination, discrimination

Electronic Data Involved: Laptop

Jones v. Jones, 995 So.2d 706 (Miss. 2008)

Dec 01 2008

Key Insight: Where party admitted to deliberate destruction of personal computer and was thus unable to produce it in response to discovery requests and where party also admitted to perjury, Supreme Court held chancellor abused his discretion in failing to impose sanctions pursuant to his obligation to ?consider sanctions that are severe enough to deter other from pursuing similar action? and remanded for reconsideration accordingly

Nature of Case: Divorce

Electronic Data Involved: Computer

Leist v. GHG Corp., 2008 WL 183330 (S.D. Tex. Jan. 18, 2008)

Dec 01 2008

Key Insight: Where plaintiff alleged that former supervisor wrote memos concerning plaintiff?s alleged deficiencies after plaintiff complained about co-employee?s racist comments, that she never saw the memos and did not sign them as was normal practice with disciplinary memos, and defendant had not preserved hard drive of supervisor?s computer, court did not grant adverse inference as to contents of hard drive but found a material question of fact as to plaintiff?s retaliation claim, and denied defendant’s motion for summary judgment on retaliation claim

Nature of Case: Wrongful termination and retaliation claims

Electronic Data Involved: Hard drive, metadata

Law Offices of Ben C. Martin LLP v. Sweet, 2008 WL 2045477 (N.D. Tex. Mar. 19, 2008)

Dec 01 2008

Key Insight: Where neutral expert could not testify, based on forensic search of Sweet?s computer, that Sweet or someone at his direction had intentionally destroyed subject email, and it appeared that most of expert?s report went beyond scope of his duties as neutral expert and was irrelevant to any issues in case, magistrate judge recommended that plaintiffs? motion for spoliation sanctions be denied and that certain portions of expert?s report be stricken; Report and Recommendation adopted by district court, 2008 WL 2130574 (N.D. Tex. Apr. 23, 2008)

Nature of Case: Dispute over fee owed to Martin and his firm as a result of settlement and verdict in medical malpractice case

Electronic Data Involved: Email sent by Martin via his Blackberry to Sweet confirming the terms of fee arrangement

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2008 WL 4786671 (N.D. Cal. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendants failed to establish custodians? possession of relevant emails beyond speculation or vague assertions, and where responding party already produced ?voluminous amounts of email,? court declined to compel production of emails from either custodian

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: Emails

Fharmacy Records v. Nassar, 572 F. Supp. 2d 869 (E.D. Mich. 2008)

Dec 01 2008

Key Insight: Court declined to reconsider dismissal of plaintiffs? case as sanction for ?campaign of fraud? that included intentionally wiping data, ?losing? original CDs and tape recordings, and misrepresentations to the court where the court found plaintiff?s behavior willful and prejudicial and where lesser sanctions would not have sufficed and where plaintiffs? alleged ?new evidence? was also ?suspect?; dismissal affirmed on appeal (2010 WL 2294538)

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D. Fla. Oct. 25, 2007)

Dec 01 2007

Key Insight: Where witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Email

In re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007)

Dec 01 2007

Key Insight: As sanction for debtor?s deliberate and intentional use of a wiping software program on computers after learning that court was ordering their production, and because of severe prejudice to trustee and government, court entered partial default judgment against debtor and ordered debtor to turn over all computers, portable storage devices and any backups within 10 days of order, and to execute any waivers or authorizations necessary for trustee and government to obtain assorted financial records; court further ordered that, if debtor did not comply within 10 days, bench warrant would issue for debtor?s apprehension and debtor would be incarcerated until he purged himself of contempt and complied with orders

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

Tenet Healthsystem Desert, Inc. v. Fortis Ins. Co., Inc., 520 F. Supp. 2d 1184 C.D. Cal. 2007)

Dec 01 2007

Key Insight: Granting defendant’s motion for summary judgment, court drew adverse inference from plaintiff’s loss of records, “i.e., that the records from Mr. Wyatt’s May, 2002 hospital visit are unfavorable to Plaintiff and, therefore, suggest Mr. Wyatt had a pre-existing condition during the October and December, 2002 medical treatment,” as an appropriate sanction due to the prejudice their loss caused defendant in the litigation

Nature of Case: Medical provider sued insurer for failure to pay for services provided to insured

Electronic Data Involved: Medical records relating to insured’s earlier emergency room visit

Tag:Spoliation