Spoliation – Page 92 – Electronic Discovery Law

CSI Inv. Partners, II v. Cendant Corp., 507 F. Supp. 2d 384 (S.D.N.Y. 2007)

Dec 01 2007

Key Insight: Where defendant lost highly relevant financial and marketing data during data conversion but did not reveal the fact of the lost evidence until 3-1/2 years after plaintiffs originally requested it, and defendant raised frivolous and vexatious objections to plaintiffs’ requests for production, court found bad faith and ordered defendant to pay $720,000 to plaintiffs, representing 15 percent of plaintiffs? attorneys fees, as sanction for discovery misconduct

Nature of Case: Breach of contract

Electronic Data Involved: Financial and marketing data

Forrest v. All Cities Mortg. & Fin., Inc., 2007 WL 3026787 (E.D. Wis. Oct. 16, 2007)

Dec 01 2007

Key Insight: In case where defendant was shutting down its business effective November 1, 2007 and plaintiffs argued that shutdown raised possibility of evidence spoliation, court denied plaintiffs? request for order requiring defendant to preserve documents related to lawsuit since plaintiffs offered no evidence that defendant was actually destroying evidence or failing to retain relevant documentation and because defendant?s duty to prevent spoliation of relevant evidence was inherent in judicial process and business shutdown did not impact it

Nature of Case: Putative class action alleging violations of the Fair Credit Reporting Act

Electronic Data Involved: Unspecified evidence

Woodburn Const. Co. v. Encon Pacific, LLC, 2007 WL 1287845 (W.D. Wash. Apr. 30, 2007)

Dec 01 2007

Key Insight: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion

Nature of Case: Construction litigation

Electronic Data Involved: ESI

Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 3101248 (D. Nev. Oct. 16, 2007)

Dec 01 2007

Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them

Nature of Case: Infringement litigation

Electronic Data Involved: Servers

Paris Bus. Prods., Inc. v. Genisis Techs., LLC, 2007 WL 3125184 (D.N.J. Oct. 24, 2007)

Dec 01 2007

Key Insight: Where plaintiff submitted photographs of defendant?s computers showing that hard drive from one computer had been tampered with and that hard drives for other computers were missing altogether, and defendants did not oppose substance of sanctions motion, court found that plaintiff had established the four requirements necessary for spoliation inference: (1) evidence in question was within the party’s control; (2) there was actual suppression or withholding of the evidence; (3) evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that evidence would later be discoverable

Nature of Case: Fraud, breach of contract, unjust enrichment

Electronic Data Involved: Hard drives

Glass v. Beer, 2007 WL 1456059 (E.D. Cal. May 17, 2007)

Dec 01 2007

Key Insight: Where defendants submitted evidence under penalty of perjury explaining reasons why they were able to locate only two of the four requested videotapes despite three searches, and defendant submitted no evidence that defendants had tampered with evidence, that the tape was intentionally destroyed, or that defendants were lying, court denied motion to compel and for sanctions

Nature of Case: State prisoner asserted civil rights claims claiming use of excessive force

Electronic Data Involved: Videotapes

Citizens for Consumers v. Abbott Labs., 2007 WL 7293758 (D. Mass. Mar. 14, 2007)

Dec 01 2007

Key Insight: Where plaintiff Nevada admitted its negligence in failing to institute a litigation hold which resulted in the loss of information (which the court stated was ?the same as destroying them?) and where the loss was prejudicial to the defendants because of their inability to discovery ?marginalia or annotations? or introduce Nevada?s copies of the documents, among other things, the court granted defendants? request to establish certain facts for purposes of the litigation

Nature of Case: Claims that defendants defrauded Nevada by manipulating average wholesale prices of prescription drugs

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

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