Tag: Backup Tapes

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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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Javo Beverage Co. Inc. v. California Extraction Ventures, Inc. (S.D. Cal. 2020).
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Incardone v. Royal Caribbean Cruises, Ltd. (S.D. Florida, Miami Division, 2019)
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Tafolla v. County of Suffolk, No. CV-17-4897 (E.D.N.Y. July 8, 2019)
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Equal Employment Opportunity Commission v. Performance Food Grp., No CCB-13-1712 (D. Md. Mar. 6, 2019)
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Stovall v. Brykan Legends, LLC (D. KS, 2019)
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OptoLum v. Cree, Inc., No, 1:17CV687 (M.D.N.C. Dec. 28, 2018)
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The Physicians Alliance Corporation v. Wellcare Health Insurance of Arizona, Inc, et al., No. 3:16-cv-00203-SDD-RLB (M.D. La. Feb. 27, 2018)
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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

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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Equal Employment Opportunity Commission v. Performance Food Grp., No CCB-13-1712 (D. Md. Mar. 6, 2019)

Key Insight: ESI protocol agreed to by parties precluded EEOC from arguing other tapes were spoiled since Defendant complied with protocol.

Nature of Case: Employment Discrimination

Electronic Data Involved: E-mails and Documents regarding employee hotline

Keywords: Spoilation; Agreements between Parties

View Case Opinion

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

View Case Opinion

OptoLum v. Cree, Inc., No, 1:17CV687 (M.D.N.C. Dec. 28, 2018)

Key Insight: Defendant’s email archive system had had issues and was replaced before litigation filed, but servers were kept. Stubbed E-mail attachments were inaccessible. defendant showed attachments were potentially relevant and motion to compel was granted. Costs were to be split since it would be undue burden on plaintiff alone and they had not acted in bad faith.

Nature of Case: Patent Infringement

Electronic Data Involved: Stubbed E-mail Attachments

Keywords: Restoration, undue burden, bad faith, cost shifting

View Case Opinion

The Physicians Alliance Corporation v. Wellcare Health Insurance of Arizona, Inc, et al., No. 3:16-cv-00203-SDD-RLB (M.D. La. Feb. 27, 2018)

Key Insight: Discovery costs must be proportional to the amount in controversy ($20 million in dispute allows for at least $13,000 in discovery costs)

Nature of Case: Contract breach

Electronic Data Involved: Electronic documents/communications

Key Insight: ability to obtain documents, company control

Electronic Data Involved: general ledgers, banking documents, backup tapes

Keywords: sanctions, failure to produce, adverse inference, attorneys’ fees, willful violation, inherent powers, failure to preserve

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