Tag: Backup Tapes

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Bolding v. Banner Bank (W.D. Wash. May 22, 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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The Physicians Alliance Corporation v. Wellcare Health Insurance of Arizona, Inc, Et Al. (Middle District of Louisana, 2018)
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Yoe v. Crescent Sock (E.D. Tenn. , 2017)

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

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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

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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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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

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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)

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

The Physicians Alliance Corporation v. Wellcare Health Insurance of Arizona, Inc, Et Al. (Middle District of Louisana, 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

Keywords: Backup tapes, proportionality, catastrophic failure

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Yoe v. Crescent Sock (E.D. Tenn. , 2017)

Key Insight: was there a duty to preserve, were reasonable steps taken to avoid loss of data, can lost data be restored or replaced, was other party prejudiced by loss

Nature of Case: employment law, intellectual property

Electronic Data Involved: unknown

Keywords: spoliation, intent to deprive, relevance of data, measures no greater than necessary to cure the prejudice

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