Archive: December 2016

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Sanctions Imposed for Failure to Preserve Call Recordings
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“Close” Question of Intentional Spoliation Sent to the Jury

Sanctions Imposed for Failure to Preserve Call Recordings

Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016)

In this case, Plaintiff was sanctioned pursuant to Rule 37(e), as amended on December 1, 2015, for its failure to preserve relevant customer call recordings.

Plaintiff alleged that Defendant had “illegally ‘poached’” its customers and defamed the plaintiff. Defendant, in turn, alleged tortious interference with its contractual relationships and defamation by the plaintiff.  In the course of discovery, Plaintiff produced approximately 150 customer call recordings (out of “thousands”) that were “generally favorable” to it but, when asked, was unable to produce any others and claimed that the recordings were lost, apparently as the result of the “normal operation of a data retention policy.”  Defendant sought sanctions pursuant to amended Rule 37(e).

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“Close” Question of Intentional Spoliation Sent to the Jury

Cahill v. Dart, No. 13-cv-361, 2016 WL 7034139 (N.D. Ill. Dec. 2, 2016)

Following Plaintiff’s arrest for driving on a suspended license, an officer claimed he observed Plaintiff dropping a small package of cocaine while at a “County lockup” and charged him with felony possession.  Although defense counsel acted quickly to ensure preservation of surveillance video that Plaintiff believed would prove his innocence (because he claimed that he did not drop the package), only a portion of the video—which began after the package was on the floor—was available. After the charges were eventually dismissed, Plaintiff brought the present lawsuit and moved for sanctions.  The magistrate judge found that the failure to preserve was grossly negligent and caused substantial prejudice and recommended that Defendants be barred from making arguments or presenting evidence that the lost portion of the tape showed Plaintiff dropping the cocaine, but would allow testimony from one officer that he saw it happen.  Plaintiff objected.  Thereafter, the District Court adopted the recommendations of the magistrate judge, with modifications, concluding that the jury should be informed that the video was missing because of Defendants’ failure to fulfill their duty to preserve.  The court also ordered that Plaintiff would be allowed to argue that the destruction was intentional and that the jury would be instructed that IF they agreed, they must presume that the lost evidence was unfavorable to the defendants.

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