Data Preservation – Page 14 – Electronic Discovery Law

Brown v. Albertsons, LLC, 2:16-cv-01991-JAD-PAL, 2017 WL 1957571 (D. Nev. May 10, 2017)

Dec 01 2017

Key Insight: In response to Plaintiff?s Motion for Spoliation Sanctions, the Court engaged in an analysis of four types of available sanctions: Evidentiary, Monetary, Dispositive and Adverse Inference Instructions. The Plaintiff argued the Defendant intentionally destroyed evidence in the form of an incident report, a surveillance video and correspondence between Defendant and a third-party claims adjuster. The Court found that information from the incident report and the lost emails with the claims adjuster were available elsewhere and that the loss of the video surveillance was due to a system-wide outage that affected several stores. The Court found no evidence that Defendant acted intentionally or recklessly and denied Plaintiff?s request for Dispositive Sanctions but instead imposed lesser Evidentiary Sanctions by allowing the Plaintiff to introduce evidence that the incident report was lost or destroyed, that the Defendant failed to preserve the third-party communications and that Defendant?s video system failed to record the incident.

Nature of Case: Slip and Fall

Electronic Data Involved: ESI, including video

Agility Pub. Warehousing Co. v. Dep?t of Defense, 14-1064 (JDB), 2017 WL 1214424 (D.D.C. Mar. 30, 2017)

Dec 01 2017

Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established

Nature of Case: APA Action related to Touhy request

Electronic Data Involved: Email

Teal v. Jones, No. 2015-CA-00259-COA, 2017 WL 58824 (Miss. Ct. App. Jan. 3, 2017)

Dec 01 2017

Key Insight: Spoliation instructions to jury were erroneous and the case was reversed and remanded for a new trial. No evidence of spoliation was presented at trial and hence spoliation instructions were improper. The Court also went on to discuss the spoliation evidence since it could arise in a new trial. The Court found no spoliation with regard to the deleted emails since Plaintiff?s deletion of emails occurred before she could have anticipated a lawsuit. The Court found that the disposal of Plaintiff?s laptop and sale of her desktop might be spoliation of evidence if there is reason to believe the deleted emails could be recovered from either computer?s hard drive. If Defendant can present evidence that the emails could have been recovered then the court may grant her an instruction on spoliation.

Nature of Case: Alienation of affections

Electronic Data Involved: Emails, hard drives

Basra v. Ecklund Logistics, Inc., 8:16CV83, 2017 WL 1207482 (D. Neb., March 31, 2017)

Dec 01 2017

Key Insight: Plaintiff?s spouse was killed in a tractor-trailer accident when he collided with another tractor-trailer driven by Defendant?s employee. Plaintiff claimed Defendant destroyed or failed to preserve relevant documents in anticipation of litigation and requested sanctions in the form of an adverse inference instruction to the jury. The Court found Plaintiffs did not establish Defendant intentionally destroyed evidence with a desire to suppress the truth. Some of the information did not exist, some was purged per standard practice and much of the material requested by Plaintiffs was provided to them from other sources. The Court denied Plaintiff?s motion with respect to its claim for spoliation. Plaintiffs also requested attorney?s fees and costs as a sanction for Defendant?s failure to produce certain documents. Defendants inadvertently omitted its 2012 income statement but produced those from four other years. The Court held that sanctions were not warranted.

Nature of Case: Tort (Tractor-trailer accident)

Electronic Data Involved: ESI including Driver logs, Qualcomm data, PeopleNet server data

Barry v. Big M Transp. Inc., No 1:16-cv-00167-JEO, 2017 WL 3980549 (N.D. Ala. Sept. 11, 2017)

Dec 01 2017

Key Insight: Court found Defendant?s failure to preserve a vehicle?s Electronic Control Module (ECM) data after it was aware of a severe accident, contrary to the Defendant?s ?normal practice,? constituted spoliation. Court denied Plaintiffs? motion for a negative inference under Fed. R. Civ. P. 37 (e) as the Plaintiffs were able to reconstruct the accident and vehicle?s speed from other sources and that the failure to preserve was not intentional based on the defendants? plausible, though erroneous, understanding that the data was overridden by the removal of the damaged vehicle from the scene. Court found a jury instruction that ECM data was not preserved and allowing both parties to present evidence and argument at trial regarding defendant?s failure to preserve the data to be a sufficiently effective sanction.

Nature of Case: Personal injury (auto accident)

Electronic Data Involved: Electronic Control Module (ECM)

Moody v. CSX Transp., —-F.Supp.3d—, No. 07-CV-6398P, 2017 WL 4173358 (W.D.N.Y. Sept. 21, 2017)

Dec 01 2017

Key Insight: Where event data recorder information saved on a laptop computer (1) was transferred to a central repository (?the Vault?) without validation and later found to be unreadable and (2) the original files were destroyed, without validating the files in the Vault, with the laptop after a hardware malfunction, court granted plaintiff?s motion for an adverse inference but declined to strike defendants? answer. Court found defendants? failure to review and validate file uploads to the central repository for over 4 years after the accident ?unfathomable? and concluded that ?their failure to access the files uploaded to the Vault for the four-year period before 2010 conflicted with their duties under the Federal Rules of Civil Procedure.? Court found defendants? actions unreasonable and without credible explanation and therefore sufficient to support a finding that defendants acted with the intent to deprive plaintiff of evidence.

Nature of Case: Personal injury (railway accident)

Electronic Data Involved: Event Data Recorder Files

Barcroft Media, Ltd. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017)

Dec 01 2017

Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.

Nature of Case: Intellectual Property infringement

Electronic Data Involved: Images, Webpages

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Camicia v. Cooley, No. 74048-2-I, 2017 WL 679988 (Wash. Ct. App. Feb. 21, 2017)

Dec 01 2017

Key Insight: Where Defendant destroyed potentially relevant tort-claim records pursuant to its record retention schedule during pending litigation among other discovery abuses and where the trial court therefore ordered monetary sanctions for the discovery violations and indicated that it would consider a spoliation instruction, the appellate court concluded that the trial court?s record did not support a finding that ?the City destroyed the evidence in bad faith, knew that the evidence was important to the pending litigation, or had the duty to preserve the evidence? and thus, it was not clear that spoliation had occurred; error was harmless where $10,000 fine was not based on a finding of spoliation

Nature of Case: Tort (bicycling accident)

Air Prods. & Chems., Inc v. Wiesemann, No. 14-1425-SLR, 2017 WL 758417 (D. Del. Feb. 2, 2017)

Dec 01 2017

Key Insight: Court denied motion for spoliation sanctions where Defendants ?failed to clear the threshold issue of showing that relevant evidence was lost or destroyed? or, in the case of the alleged spoliation of ESI of one former employee, where defendants failed to show that the emails could not be replaced through additional discovery in light of the production of some of the employee?s emails from other computers

Electronic Data Involved: ESI

Blasi v. United Debt Servs. LLC, No. 2:14-cv-83, 2017 WL 2255525 (S.D. Ohio May 23, 2017)

Dec 01 2017

Key Insight: For a defendant?s spoliation and failure to participate in litigation, the court struck the defendant?s motion to dismiss for lack of personal jurisdiction and eventually also awarded default judgment and attorneys fees to the plaintiff; addressing whether to also sanction Defendant?s counsel for failing to prevent the spoliation, the court reasoned that ?it seems obvious that the party requesting sanctions has at least an initial burden of proof with respect to not only whether sanctionable conduct has occurred, but also with respect to whether the misbehaving party?s attorney may have been involved? and found Plaintiff?s assertions and evidence of such involvement ?too thin?

Electronic Data Involved: ESI

Tag:Data Preservation