Tag:Data Preservation

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Toftely v. Qwest Communications Corp., 2003 WL 1908022 (Minn. Ct. App. Apr. 22, 2003) (Unpublished)
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Comcast of Ill. X, LLC v. Till, 293 F. Supp. 2d 936 (E.D. Wis. 2003)
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Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)
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Pueblo of Laguna v. United States, 60 Fed.Cl. 133 (2004)
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In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000)
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R.S. Creative, Inc. v. Creative Cotton, Ltd., 89 Cal. Rptr. 2d 353 (Cal. Ct. App. 1999)
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Computer Assoc. Int?l v. Am. Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990)
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MasterCard Int’l v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004)
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QZO, Inc. v. Moyer, 594 S.E.2d 541(S.C. Ct. App. 2004)
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ABC Health Servs., Inc. v. IBM Corp., 158 F.R.D. 180 (S.D. Ga. 1994)

Toftely v. Qwest Communications Corp., 2003 WL 1908022 (Minn. Ct. App. Apr. 22, 2003) (Unpublished)

Key Insight: Qwest general counsel sent urgent/confidential email to managers notifying them of “legal hold” related to pending SEC investigation and advising about the need to preserve certain categories of documents. The email contained a hidden “tracer” that gave notice whenever someone forwarded the email outside the Qwest network. Qwest discharged all employees who forwarded the email to outsiders on grounds of employment misconduct; subsequent denial of unemployment benefits was affirmed.

Nature of Case: Discharged employee appealed denial of unemployment benefits

Electronic Data Involved: Email containing tracer

Comcast of Ill. X, LLC v. Till, 293 F. Supp. 2d 936 (E.D. Wis. 2003)

Key Insight: Court granted plaintiff’s ex parte motion for expedited discovery and for preservation order; defendant ordered not to destroy or remove any books and records, including those stored electronically

Nature of Case: Cable TV provider sued party alleged to have sold illegal decoders

Electronic Data Involved: Email and business records stored on computer

Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)

Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it

Nature of Case: Drug products liability

Electronic Data Involved: Discoverable information in paper or electronic format

Pueblo of Laguna v. United States, 60 Fed.Cl. 133 (2004)

Key Insight: Government’s past evidentiary failures in other similar litigation appeared to be so pervasive and systematic as to provide ample support for issuance of a document preservation order in this case

Nature of Case: Tribe sued government for mismanagement of trust accounts

Electronic Data Involved: Documents stored in various media related to parties’ claims

In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000)

Key Insight: Plaintiffs allowed to serve appropriately-worded subpoenas on certain third parties for limited purpose of giving notice of action and placing them under duty to preserve relevant evidence

Nature of Case: Securities fraud

Electronic Data Involved: Unspecified electronic data of third parties

R.S. Creative, Inc. v. Creative Cotton, Ltd., 89 Cal. Rptr. 2d 353 (Cal. Ct. App. 1999)

Key Insight: Trial court properly imposed terminating sanctions against plaintiff for egregious discovery abuses, including the deletion of files from hard drives after plaintiff had stipulated that computers and diskettes would not be operated or touched until defendants’ computer expert could examine them

Nature of Case: Breach of contract

Electronic Data Involved: Hard drive, computer files

Computer Assoc. Int?l v. Am. Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990)

Key Insight: Defendant’s duty to preserve source code arose no later than service of complaint, and its subsequent destruction of source code warranted default judgment on issue of liability; even assuming that maintenance of only a single, updated version of source code was, in other circumstances, a bona fide business practice, any destruction of versions of the code after service of complaint could not be excused as a bona fide business practice

Nature of Case: Copyright infringement, unfair competition, breach of computer software agreement

Electronic Data Involved: Source code

MasterCard Int’l v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004)

Key Insight: Finding no bad faith in defendant’s failure to preserve email since defendants simply persevered in their normal document retention practices, court nonetheless ruled that plaintiff would be allowed to prove the facts reflecting the non-retention of email and argue to the trier of fact that this destruction of evidence, in addition to other proof offered at trial, warranted certain inferences

Nature of Case: Trademark infringement

Electronic Data Involved: Email

QZO, Inc. v. Moyer, 594 S.E.2d 541(S.C. Ct. App. 2004)

Key Insight: No abuse of discretion for trial court to strike defendant’s answer and enter judgment for plaintiff on issue of liability, where defendant reformatted computer’s hard drive, effectively erasing any information the computer may have contained, a day before surrendering it for court-ordered inspection

Nature of Case: Dispute between former business partners

Electronic Data Involved: Laptop

ABC Health Servs., Inc. v. IBM Corp., 158 F.R.D. 180 (S.D. Ga. 1994)

Key Insight: Court denied plaintiff?s motion to dismiss IBM’s counterclaims as sanction for deletion of computer files, since erasure was done before suit was filed and did not amount to willful or bad faith disregard of discovery order or discovery request; court indicated that a jury instruction regarding destruction of documents may be an appropriate lesser sanction

Nature of Case: Breach of contract for development of software

Electronic Data Involved: Computer files containing both project-related documents and purely personal documents

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