Archive: March 2017

1
Estate of Vallina v. County of Teller Sheriff?s Office (D. Colo., 2017)
2
TLS Mgmt. and Mktg. Services v. Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 115743 (D. P.R. March 27, 2017)
3
Twitch Interactive, Inc. v. Johnston (N.D. Cal., 2017)
4
Horn v. Tuscola County (Eastern District Michigan, Southern Division, 2017)
5
Harmon v. United States (D. Idaho, 2017)
6
Crow v. Cosmo Specialty Fiber (W.D. Wash., 2017)
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Sanctions Imposed for Loss of ESI Transferred in Sale of Business
8
Belanus v. Dutton (D. Mont., 2017)
9
Nunnally v. District of Columbia, No. 08-1464 (PLF), 2017 Wl 1080900 (D.D.C. Mar. 22, 2017)
10
Coyne v. Los Alamos National Security, LLC et al., No. 15-0054 (D.N.M. Mar. 21, 2017)

Estate of Vallina v. County of Teller Sheriff?s Office (D. Colo., 2017)

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

View Case Opinion

TLS Mgmt. and Mktg. Services v. Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 115743 (D. P.R. March 27, 2017)

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.

View Case Opinion

Twitch Interactive, Inc. v. Johnston (N.D. Cal., 2017)

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

View Case Opinion

Horn v. Tuscola County (Eastern District Michigan, Southern Division, 2017)

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,

View Case Opinion

Harmon v. United States (D. Idaho, 2017)

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

View Case Opinion

Crow v. Cosmo Specialty Fiber (W.D. Wash., 2017)

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

View Case Opinion

Sanctions Imposed for Loss of ESI Transferred in Sale of Business

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.

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Belanus v. Dutton (D. Mont., 2017)

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

View Case Opinion

Nunnally v. District of Columbia, No. 08-1464 (PLF), 2017 Wl 1080900 (D.D.C. Mar. 22, 2017)

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

View Case Opinion

Coyne v. Los Alamos National Security, LLC et al., No. 15-0054 (D.N.M. Mar. 21, 2017)

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

View Case Opinion

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