Spoliation – Page 97 – Electronic Discovery Law

Lamb v. Maloney, 850 N.Y.S.2d 138 (N.Y. App. Div. 2007)

Dec 01 2007

Key Insight: Trial court did not err in denying without prejudice plaintiff?s motion, based on spoliation of evidence, to strike defendants? answers or preclude defendants? use of office records to support their defenses; however, court did err in not granting alternative relief requested, i.e., compelling additional discovery, including depositions of certain witnesses, production of records, and inspection of computers, since such additional discovery was reasonably calculated to produce relevant and material evidence and defendants failed to demonstrate any prejudice as a result

Nature of Case: Medical malpractice

Electronic Data Involved: Office computer hard drive and information regarding its destruction

LR5-A Ltd. P’ship v. Meadow Creek, LLC, 2007 WL 4248100 (Mass.Super.)

Dec 01 2007

Key Insight: Court declined to enter non-destruction order since it had already advised party’s counsel about possible penalties for spoliation and assumed that the message had been passed along; court further denied request for array of orders compelling party to make extensive searches of electronic documents and to permit forensic computer expert to examine all network servers, desktop and laptop computers, hard drives, backup tapes, and PDAs for responsive documents

Electronic Data Involved: Email

Select Med. Corp. v. Hardaway, 2006 WL 859741 (E.D. Pa. Mar. 24, 2006)

Dec 01 2006

Key Insight: Court denied motion for spoliation inference based upon former employee’s deletion of files on home computer, since plaintiff could not demonstrate any prejudice resulting from alleged spoliation or show that former employee was “at fault” for deleting the files, i.e., that he intended to impair plaintiff’s ability to uncover evidence; employee claimed to have deleted the files to ensure that he no longer had access to plaintiff’s information after he resigned his employment

Nature of Case: Misappropriation of trade secrets, breach of non-competition agreement

Electronic Data Involved: Files on former employee’s home computer

In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060 (N.D. Cal. 2006)

Dec 01 2006

Key Insight: Adverse inference and monetary sanctions warranted, but not default judgment, where defendant acknowledged that its personnel routinely deleted emails without regard to whether the deleted emails were relevant to the litigation, but behavior did not constitute a pattern of deliberately deceptive litigation practices and there was evidence that the actual number of emails lost was small

Nature of Case: Copyright infringement

Electronic Data Involved: Email

Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 1042359 (D. Idaho Apr. 18, 2006)

Dec 01 2006

Key Insight: Court denied parties’ cross-motions for sanctions based upon spoliation; deletion of software files was unauthorized act by an employee of plaintiff 14 months before case was filed and litigation was not yet reasonably foreseeable

Nature of Case: Contract breach and fraud involving leased software

Electronic Data Involved: Software files on computer hard drive

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

Dec 01 2006

Key Insight: In follow up to earlier decision dismissing complaint as sanction for plaintiff’s discovery misconduct, court awarded defendant $35,000 in attorneys’ fees and full costs of $20,472 since forensic computer experts were “particularly necessary to uncover plaintiff’s skulduggery”

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged

Nature of Case: Misappropriation of funds

Electronic Data Involved: Accounting files on hard drive

Goldman v. Healthcare Mgmt. Sys., Inc., 2006 WL 3589065 (W.D. Mich. Dec. 8, 2006)

Dec 01 2006

Key Insight: Court denied motion for sanctions based on spoliation of evidence, concluding that, although defendants may have been negligent in their deletion of lines of source code, the record did not support a finding of bad faith or prejudice

Nature of Case: Unfair competition

Electronic Data Involved: Source code

On Time Aviation, Inc. v. Bombardier Capital, Inc., 2006 WL 2092075 (D. Conn. July 26, 2006)

Dec 01 2006

Key Insight: Court overruled defendants’ objections to magistrate’s discovery rulings, concluding that absence of particular email from production did not mean that expert had intentionally hidden or destroyed it, particularly when expert was not listed as a recipient and testified that he did not recall receiving it

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: Email

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

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