Key Insight: Sanctions under rule 37(e) must show actual prejudice, not merely theoretical.
Nature of Case: Wrongful death
Electronic Data Involved: Prison video
Keywords: Spoliation sanctions, actual prejudice, failure to preserve, adverse inference
Key Insight: ESI “willfully discarded or deleted”
Nature of Case: Alleged violations of the electronic Communications Privacy Act against defendants accused of stealing plaintiff’s clients and confidential information.
Electronic Data Involved: defendant’s iPhone, laptop and external hard drive
Keywords: adverse-inference instruction, forensic examination of a flash drive.
Key Insight: Is expedited discovery warranted, and how extensive can Twitch seek discovery on the bot company. Are the non-respnding defendants’ financial informations avle to be discovered?
Nature of Case: Trademark, Contract, unfair competition, cybersquatting
Electronic Data Involved: financial/billing information
Keywords: Immediate discovery, video games, internet, third party discovery
Key Insight: The loss of surveillance video was unrelated to defendant’s liability, so spoliation determination was unnecessary
Nature of Case: 8th Amendment
Electronic Data Involved: video
Keywords: failure to preserve ESI,
Key Insight: Inherent authority was used by the court to find a spoliation violation in failing to keep records as legally required. FRCP Rule 37(e) not cited, but the outcome would likely have been the same.
Nature of Case: Negligence
Electronic Data Involved: Maintenance logs and records
Keywords: Spoliation, sanctions, adverse inference
Key Insight: When ESI is recovered, it is not lost, and thus no spoliation. Further, there is no evidence that the delay was prejudicial.
Nature of Case: Workplace injury
Electronic Data Involved: an e-mail
Keywords: Spoliation sanctions, recovered ESI, prejudice
ILWU-PMA Welfare Plan Bd. of Trs. v. Connecticut Gen. Life. Ins. Co., No. C 15-02965 WHA, 2017 WL 345988 (N.D. Cal. Jan. 24, 2017)
In this case, ESI was lost when Defendant’s parent company sold another of its companies—on whose servers Defendant’s ESI was inexplicably stored—resulting in the transfer of that company’s servers and the ESI thereon to the third-party buyer. Concluding that Defendant failed to take reasonable steps to preserve the at-issue data, the court rejected Defendant’s argument that clauses in the sale agreement providing for “reasonable access to business information” including for “litigation purposes” and requiring the parties to retain information until the sixth anniversary of the agreement and not to destroy such information without notifying the other party were sufficient, particularly where despite such clauses, the information was not, in fact, available. While the court concluded that additional information was required to proceed with a full Rule 37(e) analysis, it reopened discovery and ordered monetary sanctions to address the prejudice already established.
Key Insight: Security footage was overwritten before notice of lawsuit, so no spoliation; no intent to deprive found.
Nature of Case: Prisoner civil rights
Electronic Data Involved: Security video footage, audio recording, medical records
Keywords: video footage, deleted footage, spoliation sanctions
Key Insight: Despite rule 37(e), the court ordered sanctions for negligent failure to preserve. The court ruled that since rule 37(b) did not apply without a discovery order, the court may issue sanctions under its inherent power. Relevance is proportional to burden on party seeking the adverse inference.
Nature of Case: Workplace discrimination
Electronic Data Involved: email records
Keywords: sanctions, spoliation, adverse inference
Key Insight: Plaintiff reset iPhone, shortly before sending to vendor for forensic examination. Previous sanctions had not proven to deter this activity and recommended dismissal of case.
Nature of Case: Wrongful Termination
Electronic Data Involved: iPhone Records
Keywords: spoliation; destruction; sanctions
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