Author - kgates

West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)

In this case, the court granted Defendants’ motion to exclude “Plaintiff’s use of any argument or evidence of alleged spoliation” where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s “old computer” and to hire a third party to search for and recover relevant emails and documents from the same.  Thus, the court found that Plaintiff failed to establish prejudice.

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Cook v. Tarbert Logging, Inc., —P.3d—, 2015 WL 5771329 (Wash. Ct. App. Oct. 1, 2015)

In this case, Plaintiffs failed to preserve the pickup truck involved in the at-issue accident, including the airbag control monitor (ACM), despite first allowing their own expert to inspect it.  To address the loss, Plaintiffs’ expert was precluded from testifying as to his opinion regarding the drivers’ speed and ultimately was not called as a witness.  Defendants were allowed to present evidence regarding Plaintiffs’ failure to preserve and to inform the jury of the expert’s inspection.  This created the false inference that the expert’s conclusions were unfavorable to the plaintiffs, which the plaintiffs were not permitted to rebut (the expert had in fact concluded that Plaintiff had been travelling at a “slower and safer speed” than the defendant at the time of the accident).  On appeal, the court determined that the trial court “erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”  The court also concluded that the trial court abused its discretion by allowing Defendants to tell the jury about the expert and his inspection without also allowing rebuttal from the plaintiffs.  Accordingly, the court reversed the case in part and remanded for a new trial.

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You v. Japan, No. C 15-03257 WHA, 2015 WL 5542539 (N.D. Cal. Sept. 16, 2015)

In this case, the court entered an order requiring preservation, including “interdiction of any document-destruction programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material.”  In the course of its business, one defendant, the publisher of a daily newspaper, employed a proprietary application “used for laying out each edition of the newspaper.”  The application retained a “back catalog” of 90 days.  In response to the court’s order, the defendant alleged that retention of the application’s contents for longer than 90 days could “slow down the system or cause it to crash” and that although it could install a new storage system, it would cost $18 million and could take up to eight months.  Accordingly Defendant sought permission to employ certain search terms to be run across the application twice monthly to identify articles to be preserved.  Defendant alleged that it had “already run several searches using [the proposed] terms and found they yielded duplicative results,” but indicated it would use the terms “out of an abundance of caution.”  Defendant further explained that because the proposal “would not cease ‘all ongoing erasures of electronically-stored material,’” it sought court approval for its proposed method.

Plaintiffs opposed the proposal and argued that it could lead to the destruction of “evidence of [Defendant’s] state of mind in selecting and editing its articles” which could be relevant to Plaintiffs’ claims of defamation and intentional infliction of emotional distress.  Plaintiffs also identified an additional search term that the defendant had not proposed.

With the addition of Plaintiffs’ proposed term, the court found Defendant’s proposal “sufficiently broad” to identify and preserve potentially relevant articles and granted permission for Defendant’s proposed preservation protocol.

A copy of the court’s order is available here.