Key Insight: spoliation, adverse inference
Nature of Case: breach of fiduciary duty, defamation
Electronic Data Involved: QuickBook files
Keywords: adverse inference, intent to deprive, spoliation, spoliation factors, sanctions
Key Insight: In US litigation, court found no duty to preserve was triggered by Korean Fair Trade Commission?s investigation of price-fixing in Korean markets absent case law establishing such a possibility (i.e., that a foreign investigation of domestic markets could trigger a duty to preserve in the US because litigation could someday be commenced) or any related complaints or lawsuits filed in the US or evidence that the price fixing conspiracy was directed at the US or that the KFTC?s investigation extended to impacts in the United States
Nature of Case: Antitrust
Electronic Data Involved: ESI
Key Insight: Where Plaintiff sought spoliation sanctions for Defendant?s deletion of emails and argued that Defendant intended to keep the at-issue account hidden and deleted emails after it was discovered through another party?s production and that those emails revealed Defendant?s intent to keep the at-issue account hidden and other elements of Plaintiff?s claims, the court found that the deletions were ?intended to deprive Plaintiff of the information? contained within and reasoned that Defendant?s claim that he deleted the emails because of computer performance lacked credibility, but declined to impose default judgment absent a sufficient degree of prejudice and instead ordered that a permissive adverse inference instruction would be given to the jury
Nature of Case: Breach of contract and related claims
Electronic Data Involved: Email
Key Insight: Court affirmed the sanction of default judgment imposed in 2014 by the International Trade Commission for Appellant?s egregious spoliation of evidence in bad faith and in violation of the Administrative Law Judge?s orders (including, among other things, repeatedly overwriting files, backdating a computer?s internal clock to affect metadata, running CCleaner)
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Key Insight: Where Plaintiff lost the phone containing relevant video footage of the incident leading to plaintiff?s arrest when she attended a ?gala? carrying a ?really small purse? and thus had to hand-carry or lay down her phone and where she failed to call the banquet hall to determine if her phone was recovered (although she apparently did call her phone?s service provider and a relevant cab company in furtherance of her recovery efforts), the court declined to find that the loss was intentional and reasoned that the evidence suggested ?at most mere negligence? and that because there was a ?genuine issue of material fact regarding what transpired during the videotaping, the court [could] not find that the lost videotape was likely to favor Defendants? and thus denied the motion for sanctions without prejudice to renewal at trial if ?Defendants could adduce evidence ? that the lost video recording was likely to be favorable to them?; notably, court applied common law spoliation analysis for loss of the phone, recognizing that the common law applied, ?except in cases involving electronically stored information?
Nature of Case: Constitutional claims arising from arrest following alteration with police while Plaintiff recorded police activities
Electronic Data Involved: Lost phone containing video footage of incident leading to arrest
Key Insight: Where Defendant?s use of an internal utility tool on the at-issue server resulted in all of the data thereon being overwritten but where the District Court Judge found ?credible? Defendant?s explanations that he did not believe the hard drives contained relevant information and where the ?unique facts? of the case, namely the focus on Defendant?s TOR Node – which ?routed information for other end users around the world? but did not contain Defendant?s personal data – contributed to the court?s disagreement with the Magistrate Judge?s finding of intent, the court adopted the Magistrate Judge?s finding of spoliation but declined to impose default judgement and instead concluded that an adverse inference was appropriate
Nature of Case: Copyright infringement
Electronic Data Involved: ESI
Key Insight: Court found Plaintiff failed to take reasonable steps to preserve ESI when she turned her phone in to Verizon on August 15, 2016. Defendants claimed text messages on the Plaintiff?s phone could have shown she was acting as a manager and was hence an exempt employee. Defendants discussed their position with Plaintiff?s counsel in June, 2016 and the phone was de-activated two months later. Plaintiff testified she did not know she had to keep the phone to preserve the ESI. The Court found this testimony credible and recommended, pursuant to Rule 37(e)(1) that the ??[C]ourt order measures no greater than necessary to cure the prejudice? and proposed an instruction to the jury that Plaintiff had a duty to maintain potential ESI contained on her phone, but failed to do so and indicated the court could also instruct the jury as to any inference to draw from Plaintiff?s failure to preserve texts on her phone.
Nature of Case: Employment litigation, unpaid overtime
Electronic Data Involved: Text messages
Key Insight: Applying the common law, the court imposed a permissive adverse inference and monetary sanctions for Plaintiff?s spoliation of his cellular phone and its contents where Plaintiff claimed a day before he was scheduled to produce it that he had lost his phone months ago but provided no details regarding the loss or his attempts at preservation or recovery of the phone and where the court concluded that Plaintiff made a ?deliberate choice to withhold [the phone] from production? and that Defendants were prejudiced as a result
Nature of Case: Insurance coverage litigation
Electronic Data Involved: Cellular phone and contents
Key Insight: In this insurance litigation, the district court affirmed an order of the magistrate judge requiring Defendant?s counsel to provide additional information regarding the fate of relevant photographs but, upon review of the declaration submitted, found that it did not adequately address the loss and ordered that a representative of Defendant?s IT personnel be deposed; in concluding that a duty to preserve existed prior to Defendant?s ?final? determination regarding the claim, court reasoned in part that Defendant had asserted attorney client privilege with its outside counsel re: ?coverage issues? prior to its final determination and also noted its decision to require Plaintiff to testify under oath, indicating its skepticism of Plaintiff?s claim, and Defendant?s own request for Plaintiff to submit additional evidence, including any pictures
Nature of Case: Insurance litigation
Electronic Data Involved: Photographs
Key Insight: Where Plaintiff in an employment litigation failed to preserve a potentially relevant Facebook post, deleted her work phone before returning it and failed to preserve information contained on numerous other phones (e.g., because they were lost, etc.), court found that ?Plaintiff cannot be relied on to disclose all relevant communications? and granted motion to allow access to the mirror image of a phone belonging to a former employee and co-worker of the plaintiff and to allow defendant to subpoena the former employee to produce a second phone for inspection and ordered production of Plaintiff?s current work phone, to be reviewed by a Special Master for potentially relevant communications, with the cost of the Special Master to be split between the parties ; court found request for dismissal or an adverse inference was premature
Nature of Case: Employment litigation
Electronic Data Involved: ESI from cellular phones, Facebook
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