Key Insight: sanctions requested for failure to preserve video footage
Nature of Case: civil rights case
Electronic Data Involved: cellphone video footage
Keywords: spoliation, prejudice
Key Insight: Interrogatories asking for evidence proving or disproving engagement in interstate commerce are improper due to requesting conclusions of law.
Nature of Case: fair labor standards act violations
Keywords: interstate commerce
Key Insight: Measures to cure prejudice should be no greater than necessary, but if a party acts with intent to deprive, the court may presume unfavorability, issue an adverse inference, or dismiss and enter a default. You must raise your spoliation motions before summary judgment is ruled on.
Nature of Case: Unlawful termination
Electronic Data Involved: relevant electronic communications and documents
Keywords: prejudice, spoliation, intent to deprive, adverse influence
Key Insight: ordered to produce original emails between parties with metadata not versions forwarded to law office
Nature of Case: breach of contract
Electronic Data Involved: emails and metadata
Keywords: farm sale, email metadata
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).
Key Insight: whether billing temporary contract attorneys at the firm’s standard rates is excessive to award attorney fees
Nature of Case: Securities action
Electronic Data Involved: n/a
Keywords: attorney fees, lodestar, temporary associates
Key Insight: Defendants request for social media posts was too broad and needed to be even more specifically directed to claims in case.
Nature of Case: personal injury
Electronic Data Involved: Social Media Posts
Keywords: social media; scope
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.
Key Insight: what sanction for failure to preserve evidence
Nature of Case: false arrest and malicious prosecution
Electronic Data Involved: digital video
Keywords: adverse inference, intent
Key Insight: Applying 5th Circuit common law (but acknowledging the outcome of the motion would not change under recently-amended Rule 37(e)), the court declined to impose sanctions for the destruction of relevant documents pursuant to Defendant?s document retention policy at a time when there was no duty to preserve and, in its discussion of bad faith, noted that the court ?does ?not draw an inference of bad faith when documents are destroyed under a routine policy??
Nature of Case: Product liability
Electronic Data Involved: ESI, including committee minutes and product testing documents
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