Tag: Data Preservation

1
Hamilton v. Oswego Community Unit School District 308 (N.D. Ill. 2022)
2
Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)
3
Fourth Dimension Software v. Der Touristik Deutschland GmbH (N.D. Cal. 2021)
4
America West Bank Members v. State of Utah (D. Utah 2021)
5
Collins v. ControlWorx, LLC (M.D. La. 2021)
6
Manning v. Safelite Fulfillment, Inc. (D.N.J. 2021)
7
Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)
8
Doe v. Purdue University (N.D. Ind. July 2, 2021)
9
FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)
10
Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)

Hamilton v. Oswego Community Unit School District 308 (N.D. Ill. 2022)

Key Insight: Plaintiffs sought a motion for sanctions based on spoliation of evidence based on defendants’ failure to preserve a photograph of their child’s bruise that was taken by the school nurse that led to a call to the DCFS hotline. The court found that defendants did not have a duty to preserve the photograph because it was not reasonably foreseeable the instant litigation would be forthcoming. At the time the nurse deleted the photo there was no indication that plaintiffs were contemplating litigation against the school for anything related to the nurse’s visit or the report to DCFS. As such, there was no duty to preserve the photo. Even if there was a duty to preserve the photo, the court found that plaintiffs were not prejudiced by its deletion.

Nature of Case: Civil Rights

Electronic Data Involved: ESI, Photographs

Case Summary

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

Fourth Dimension Software v. Der Touristik Deutschland GmbH (N.D. Cal. 2021)

Key Insight: Plaintiff moved for sanctions against defendant alleging that it had a duty to preserve usage records for the software at issue in its breach of contract claim. The court found that defendant had a duty to preserve the usage records, it violated the duty by deleting the records, the deletion prejudiced plaintiff and defendant acted with intent to deprive plaintiff of the records’ use. The duty to preserve the records arose before the litigation was filed since (1) plaintiff gave notice to defendant of both license overuse and third-party use claims; (2) the parties proceeded to attempt to negotiate a settlement of the claims for nearly a year; and (3) plaintiff sent a letter in August 2018 stating that it intended to file a complaint. Shortly after receiving notice that plaintiff intended to file suit, defendant destroyed the records, supporting an inference that defendant intentionally destroyed the usage records. The court ordered that an adverse jury instruction would be an appropriate sanction for defendant’s conduct.

Nature of Case: Breach of Contract

Electronic Data Involved: Usage Records

Case Summary

America West Bank Members v. State of Utah (D. Utah 2021)

Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have been responsive if those emails were still available, the identification of documents or categories of documents no longer available, and an explanation as to why other responsive documents were not produced. The court granted plaintiff’s request but found it “strictly limited to the purged former employee email accounts.” No additional depositions were permitted and plaintiff’s fourteen interrogatories on this topic were “neither reasonable nor proportional” to the limited nature of the discovery needed.

Nature of Case: Civil rights

Electronic Data Involved: Email and documents

Case Summary

Collins v. ControlWorx, LLC (M.D. La. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce audio recordings, hard drives, social media posts. Defendants’ Motion was granted. At least a portion of the data that Plaintiff was obligated to produce had been destroyed and/or missing due to a flood. After Plaintiff informed it of us, Defendant agreed to provide Plaintiff with an extension of time to correct his deficient discovery responses. Contingent on time for Plaintiff to allow his deposition to be retaken.

In his Response to Defendant’s Motion, Plaintiff did not assert that he complied with his discovery obligations but rather than production of the information sought was unreasonably cumulative or duplicative. For approximately 18 requests for production, Plaintiff failed to provide a response or objection, and failed to timely supplement his responses.

The Court granted largely Defendant’s Motion to Compel, ordering Plaintiff to respond to its requests for production, and supplement his responses to interrogatories, but also limiting Plaintiff’s responses to documents that would not require disclosure of attorney-client privilege and/or information that was not overly broad. Moreover, the Court ordered Plaintiff to appear for an additional supplemental deposition and also state that electronically stored information relevant to the litigation was actually destroyed (due to flooding) and submit the damaged storage devises for expert inspection. The

respective parties were responsible for their own attorney’s fees and costs regarding the discovery issues.

Nature of Case: Employment Discrimination, Family and Medical Leave Act

Electronic Data Involved: Hard Drives, Audio Recordings, Social Media Posts

Case Summary

Manning v. Safelite Fulfillment, Inc. (D.N.J. 2021)

Key Insight: Defendants filed a motion for spoliation sanctions under FRCP 37(e) based on plaintiff’s deletion of certain Facebook messages and emails. Plaintiff claimed he deleted the messages to free up memory on his mobile phone. The court adopted the magistrate judge’s report and recommendations, finding plaintiff’s failure to preserve certain ESI caused prejudice to defendants warranting relief, but did not conclude that plaintiff did so with an intent to deprive defendants the use of the information in litigation. Plaintiff had an obligation to preserve the ESI; he deleted certain messages after he filed his lawsuit; and took no affirmative measures to preserve the ESI despite a duty to do so. The court allowed the introduction of a jury question on the destruction of some of the ESI evidence but reserved ruling on harsher sanctions.

Nature of Case: Employment discrimination

Electronic Data Involved: Facebook, Email

Case Summary

FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)

Key Insight: Vyera’s company policy was to issue employees iPhones that were backed up through iCloud but one executive, Mithani, whose conduct was central to the government’s antitrust claims, had requested and received a Blackberry as his company phone, which had no systemic back up of text communications. Despite being under an obligation to preserve evidence, the executive confirmed deleting texts on his work and personal mobile phones before and after receiving a hold notice from Vyera, and wiped his work phone upon leaving the company. A forensic expert confirmed no data could be retrieved or restored from the Blackberry. The court concluded Vyera’s conduct constituted spoliation and warranted sanctions as plaintiffs were prejudiced by Vyera’s conduct and the former executive acted intentionally to deprive plaintiffs of discoverable information. The court declined to adopt an adverse inference sanction and instead adopted Vyera’s proposed sanction that it be precluded from calling the former employee to testify in its defense or introducing into evidence documents that he authored.

Nature of Case: Antitrust

Electronic Data Involved: Text messages

Case Summary

Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)

Key Insight: Plaintiffs filed a Motion to Compel to allow them unfettered access to all information located on a server. Defendant objected, claiming that Plaintiffs had no legal right to the server, and information on the server was irrelevant, confidential and/or privileged. The Court found that the request (Motion to Compel) was overbroad and premature, and denied Plaintiffs’ Motion.

Nature of Case:Fraud, Shareholder Suit, Diversity Jurisdiction

Electronic Data Involved: Hard Drive, Server,

Case Summary

Copyright © 2022, K&L Gates LLP. All Rights Reserved.