Spoliation – Page 94 – Electronic Discovery Law

Hunts Point Realty Corp. v. Pacifico, 2007 WL 2304859 (N.Y. Sup. July 24, 2007)

Dec 01 2007

Key Insight: Although court concluded that plaintiff had not adequately proven damages under any theory and thus damage award was zero, court found that defendant’s “unabashed flaunting of this Court’s preservation order” in failing to preserve emails resulted in additional work by plaintiffs’ counsel and the court, and as sanction, court awarded attorneys’ fees and costs for all work done by counsel related to defendant’s failure to preserve email

Nature of Case: Breach of contract

Electronic Data Involved: Email

Motown Record Co. v. DePietro, 2007 WL 1725604 (E.D. Pa. June 11, 2007)

Dec 01 2007

Key Insight: Finding that defendant had destroyed her computer and modem equipment with knowledge of her duty to preserve relevant evidence and in an attempt to protect herself from plaintiffs’ claims, court declined to enter default judgment and would instead: (1) preclude her from offering certain evidence and arguments at trial, and (2) give an adverse inference instruction to the jury

Nature of Case: Copyright infringement

Electronic Data Involved: Individual defendant’s computer and cable modem

Rodgers v. Lowe’s Home Centers, Inc., 2007 WL 257714 (N.D. Ill. Jan. 30, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff?s motion for ultimate sanction of dismissal based upon defendant’s loss of videotape, since there was no proof of willful or bad faith destruction and marginal relevance of missing videotape was such that plaintiff’s ability to prosecute the case was not meaningfully compromised

Nature of Case: Employment discrimination

Electronic Data Involved: Surveillance videotape showing unpleasant encounter between plaintiff and customer which preceded plaintiff’s termination

Armamburu v. Healthcare Fin. Servs., Inc., 2007 WL 2020181 (E.D.N.Y. July 6, 2007)

Dec 01 2007

Key Insight: Where defendant asserted that certain data was ?dumped? from its computer system on an ?automatic and periodic basis,? but failed to provide a date or time period when such data was deleted or state whether a diligent effort was made to obtain such information in either electronic or paper format, court found that further discovery was necessary before it could determine whether spoliation sanctions were appropriate and ordered defendant to provide information on when alleged ?data dump? occurred, what information was deleted, and whether backup tapes and/or paper records exist that may provide requested information

Nature of Case: Putative class action

Electronic Data Involved: Information pertaining to the number of prospective class members, including their names and addresses

APC Filtration, Inc. v. Becker, 2007 WL 4569721 (N.D. Ill. Dec. 21, 2007)

Dec 01 2007

Key Insight: Court approved plaintiff’s fee petition and awarded $79,606 in attorneys’ fees and $19,856 in expenses, for a total of $99,462, as sanction for defendant’s intentional destruction of laptop computer

Nature of Case: Misappropriation of trade secrets and breach of employment contract

Electronic Data Involved: Computer

Williams v. ACS Consultant Co., Inc., 2007 WL 2822777 (E.D. Mich. Sept. 26, 2007)

Dec 01 2007

Key Insight: Although spoliation was shown based on individual plaintiff’s failure to return laptop to defendant for approximately seven months after court first ordered him to do so, destruction of files and other information and use of file-deletion and free-space wiping products on laptop, court denied motion to dismiss complaint as spoliation sanction because prejudice to defendant was not established — three months of discovery remained and it was not clear that defendant would not be able to obtain much of the evidence sought

Nature of Case: Racial discrimination, retaliation, hostile work environment and wrongful termination

Electronic Data Involved: Employer-issued laptop

Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)

Dec 01 2007

Key Insight: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives

Hendricks v. Smartvideo Techs., Inc., 2007 WL 220160 (M.D. Fla. Jan. 26, 2007)

Dec 01 2007

Key Insight: Court denied defense motion for dismissal based on plaintiff’s failure to preserve laptop’s hard drive, since there was no evidence that plaintiff’s conduct was intentional or in bad faith — plaintiff explained that hard drive was replaced after laptop crashed and before defendant’s discovery requests were received

Nature of Case: Breach of contract

Electronic Data Involved: Laptop hard drive

Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 2007 WL 1932917 (E.D.N.Y. July 3, 2007)

Dec 01 2007

Key Insight: Court denied motion for spoliation sanctions where moving party did not proffer ?a scintilla of evidence? that allegedly missing emails ever existed in the first place but simply speculated that they may have existed, and even assuming arguendo that such emails did exist, moving party could not establish any of the three required elements of spoliation, i.e., 1) that the party with control over the evidence had a duty to preserve it when it was lost or destroyed; 2) that the evidence was lost or destroyed with a ?culpable state of mind?; and 3) that the evidence was relevant

Nature of Case: Breach of contract and violation of the New York State Franchised Motor Vehicle Dealer Act

Electronic Data Involved: Email

Hsieh v. Nicholson, 2007 WL 2438315 (N.D. Cal. Aug. 23, 2007)

Dec 01 2007

Key Insight: Finding any request for spoliation sanctions unwarranted, court denied plaintiff’s motion to compel production of emails where defendant made adequate showing that, after reasonable search and inquiry, he was unable to locate requested emails, plaintiff submitted no contrary evidence, and plaintiff identified no flaws in defendant’s search methods

Nature of Case: Employment discrimination

Electronic Data Involved: Email plaintiff claimed was sent in 2000

Tag:Spoliation