Tag: Backup Media Recycling

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Bolding v. Banner Bank (W.D. Wash. 2020)
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Bolding v. Banner Bank (W.D. Wash. May 22, 2020)
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Cruz v. G-Star Inc., No. 17 Civ. 7685 (PGG) (S.D.N.Y. Sept. 30, 2019)
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Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).
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Incardone v. Royal Caribbean Cruises, Ltd. (S.D. Florida, Miami Division, 2019)
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4DD Holdings, LLC. v. USA (US Court of Federal Claims, 2019)
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Stovall v. Brykan Legends, LLC (D. KS, 2019)
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Franklin v. Howard Brown Health Ctr., No. 17 C 8376 (N.D. Ill. Oct. 4, 2018)
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Hernandez, et al. v. City of Houston, No. 4:16-CV-3577 (S.D. Tex. Aug. 30, 2018)
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Washington v. Wal-Mart (5:16-cv-01403-EEF-MLH) (W.D. La., 2018)

Bolding v. Banner Bank (W.D. Wash. 2020)

Key Insight: The plaintiffs, current and former mortgage/residential loan officers of defendant, filed a motion for spoliation sanctions and entry of default judgment against defendant based on the failure to preserve and intentional destruction of email accounts and calendar data. The court found: (1) the ESI was relevant to the claims in the lawsuit; (2) defendant breached its duties by intentionally destroying ESI after learning that employees had accused defendant of not paying overtime and after being threatened with a lawsuit, and even after the lawsuit was filed and formal requests for production were received, it paid to order the destruction of additional backup tapes; and (3) the evidence is irretrievably lost. The court declined to enter a default judgment, concluding “[t]he availability of less drastic sanctions that have the ability to mitigate the damage caused by defendant’s egregious destruction of evidence is a powerful factor that militates against imposing dispositive sanctions.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Email and calendar accounts

Case Summary

Bolding v. Banner Bank (W.D. Wash. May 22, 2020)

Key Insight: Defendant deleted backup tapes after litigation hold notice issued. Spoliation occurred, but no default judgment

Nature of Case: class-action employment

Electronic Data Involved: Backup tapes

Keywords: sanctions, backup tapes, destruction

View Case Opinion

Cruz v. G-Star Inc., No. 17 Civ. 7685 (PGG) (S.D.N.Y. Sept. 30, 2019)

Key Insight: Plaintiff never articulated claims that would make reasonable person believe lawsuit was likely. No duty to preserve had yet attached when Plaintiff when to HR.

Nature of Case: Discrimination

Electronic Data Involved: emails and SAP account

Keywords: Imminent litigation; adverse inference

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Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).

Key Insight: Both sides moved for spoliation sanctions. Court was troubled by failure to suspend automatic deletion and loss of personal cell phone, but imposed no sanctions.

Nature of Case: Employee Termination/Discrimination

Electronic Data Involved: cell phones, company computer, notebooks

Keywords: spoliation; sanctions; automatic deletion

View Case Opinion

Incardone v. Royal Caribbean Cruises, Ltd. (S.D. Florida, Miami Division, 2019)

Key Insight: The duty to preserve should be proportional and reasonable, not perfect and absolute.

Nature of Case: Rule 37(e) analysis of the defendant’s actions

Electronic Data Involved: Video Clips, CCTV and VDR

Keywords: Preserve, camera, viewable, “recorded continuously”, CCTV, RCCL

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4DD Holdings, LLC. v. USA (US Court of Federal Claims, 2019)

Key Insight: whether the government intentionally acted in a way that destroyed evidence

Nature of Case: copyright infringement

Electronic Data Involved: TETRA healthcare data federation software, hard drives, digital information

Keywords: spoliation, reasonable steps to preserve, decommissioning

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Stovall v. Brykan Legends, LLC (D. KS, 2019)

Key Insight: video surveillance showing incident on which part of complaint is based could not be found by D, P motions for sanction for spoliation of evidence.

Nature of Case: employment discrimination, sexual harassment, workers compensation

Electronic Data Involved: Video surveillance

Keywords: spoliation, sanctions, preservation, surveillance, harassment, employment discrimination, bad faith

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Franklin v. Howard Brown Health Ctr., No. 17 C 8376 (N.D. Ill. Oct. 4, 2018)

Key Insight: ineffective litigation hold, failure to preserve electronic evidence

Nature of Case: workplace harassment and discrimination

Electronic Data Involved: emails, text messages, instant messages

Keywords: instant messages, faulty and failed litigation hold, the defendant “bollixed its litigation hold”

View Case Opinion

Washington v. Wal-Mart (5:16-cv-01403-EEF-MLH) (W.D. La., 2018)

Key Insight: Retention policy; Summary Judgment; Adverse inference; Spoliation

Nature of Case: Slip and Fall

Electronic Data Involved: ESI; Security video; Correspondence

Keywords: Retention policy; Summary Judgment; Adverse inference; Spoliation; Bad Faith

View Case Opinion

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