Backup Media Recycling – Page 5 – Electronic Discovery Law

United States v. Fetter, No. 3:10 CR 411, 2011 WL 1060301 (N.D. Ohio Feb. 18, 2011)

Dec 01 2011

Key Insight: Where video of defendant?s alleged destruction of evidence while in a holding cell was automatically recorded over pursuant to the department?s standard policy and was not preserved because none of the officers involved in the investigation realized the images from cameras in the cells were recorded (as opposed to merely ?stream[ed]? to allow observation), court found no bad faith and thus no violation of due process arising from destruction of ?potentially useful? evidence (as opposed to exculpatory evidence)

Nature of Case: Criminal (sex trafficking)

Electronic Data Involved: Video of defendant while in holding cell

Miller v. City of Plymouth, No. 2:09-CV-205 JVB, 2011 WL 1458419 (N.D. Ind. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court upheld ruling that defendants did not destroy video evidence thereby warranting sanctions where plaintiff sought police recordings starting in 2004, but where no retention policy existed during that time period except officers? discretion to retain recording and many of the requested recordings had been recorded over long before plaintiffs? traffic stop; where the relevant officer was not asked to save tape of certain traffic stops until 2010; where plaintiffs? accusations of spoliation assumed that relevant video existed and ?overlooked the significant trouble Defendants have experienced in operating and maintaining their digital systems;? and where defendants had no control over the fact that the systems hard drive recorded over old data

Nature of Case: Claims arising from traffic stop

Electronic Data Involved: Video

United States v. Univ. Health Servs., Inc., No. 1:07cv000054, 2011 WL 2559552 (W.D. Va. June 28, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s failure to preserve video surveillance tape where the parties initially agreed that the tapes for the thirty days preceding the subpoena need not be saved, thus creating the understanding that tape recycling could proceed as usual, and where, as a result of this agreement, defendants could not be said to have failed to preserve in bad faith; court also declined to infer spoliation absent evidence that additional, relevant ESI existed that had not been produced

Nature of Case: Violation of False Claims Act and The VA Fraud Against Taxpayers Act

Electronic Data Involved: Video surveillance tape

Britton v. Wal-Mart Stores East, L.P., No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)

Dec 01 2011

Key Insight: Where defendant?s employee(s) were found to have allowed the loss of relevant video surveillance tape, despite repeated notification of its relevance and requests for preservation, and to have done so intentionally and in bad faith, court declined to enter default judgment but precluded defendant?s presentation of certain defenses and ordered payment of attorney?s costs and fees related to the motion for sanctions and payment of half of such costs and fees related to a prior motion in which defendant?s dishonesty regarding the existence of the at issue vide resulted in costs to the plaintiffs

Nature of Case: Claims arising from alleged wrongful detention of teens for shoplifting

Electronic Data Involved: Video surveillance

English v. Wal-Mart Stores, Inc., No. 3:10-cv-00080-ECR-VPC, 2011 WL 3496092 (D. Nev. Aug. 10, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for loss of surveillance tape where duty to preserve arose upon request for the evidence-three months after the fall occurred- and where plaintiff did not show that defendant destroyed or lost the video and photographs with ?culpable intent or in a negligent and possibly reckless manner after Defendant?s duty to preserve the evidence arose.?

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

Makeen v. Comcast of Colo. X, LLC, 2011 WL 93728 (D. Colo. Jan. 11, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s loss of server logs where the court determined that the logs were of minimal relevance to plaintiff?s claims and where the logs ?rolled over? in the usual course of business prior to the trigger of defendant?s duty to preserve

Nature of Case: Violation of FMLA and ADA, employment discrimination, intentional infliction of emotional distress

Electronic Data Involved: Server logs

United States v. Gravely, 2011 WL 112468 (E.D. Ky. Jan. 13, 2011)

Dec 01 2011

Key Insight: Bureau of Prison?s failure to preserve video footage of hallway outside cell in which the alleged murder of an inmate occurred did not violate the defendant?s constitutional rights where the defendant failed to establish that the footage was materially exculpatory and where the court found the failure to preserve was grossly negligent but not in bad faith

Nature of Case: Defendant charged with murdering another inmate

Electronic Data Involved: Video

Salamey v. Berghuis, 2010 WL 3488692 (E.D. Mich. June 30, 2010)

Dec 01 2010

Key Insight: Where surveillance footage stored on a hard drive was overwritten and lost, it was ?reasonable for the court of appeals to find that the police did not act in bad faith? where the investigator had no reason to believe that extensive review of the footage would be warranted and where there was no evidence that he purposefully erased the footage or allowed it to be rewritten and where the investigator testified he did not know the drive would rewrite itself while unplugged; court stated, ?even if [the investigator] and other police were grossly negligent in thinking that the hard drive would not rewrite itself when unplugged, that does not constitute bad faith?

Nature of Case: Criminal/Armed robbery

Electronic Data Involved: Surveillance footage stored on hard drive

Kaufman v. Am. Express Travel Related Servs. Co., Inc., 2010 WL 3365921 (N.D. Ill. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendant admitted that information regarding potential class members had been deleted pursuant to its regular information management practice and indicated that some (but not all) information could be retrieved from backup tapes, the court acknowledged defendant?s duty to preserve but reasoned the culpability for such deletions was ?somewhat lessened? because no one had requested that defendant alter is retention policies and because the deletions occurred ?pursuant to the regular operation? of those policies and determined that no conclusions could be reached on the record provided but that ?the court may consider imposing a remedy in any findings regarding the fairness of settlement?

Nature of Case: Class action challenging certain fees assessed on American Express-issued gift cards

Electronic Data Involved: Customer-identifying information

Tag:Backup Media Recycling