Key Insight: defendants took no steps to save a copy of the footage, and it was overwritten after 30 days elapsed.
Nature of Case: Death by negligence and deliberate indifference
Electronic Data Involved: surveillance camera footage
Keywords: surveillance camera footage, defendant sheriff, anticipation of litigation
Key Insight: Duty of preservation is not enforceable for foreign company investigated by foreign government with no lawsuits filed in USA
Nature of Case: antitrust
Electronic Data Involved: deleted electronic records
Keywords: duty of preservation foreign, foreign government investigation preserve
Key Insight: failure to review backup tapes, attorney’s fees
Nature of Case: contract dispute
Electronic Data Involved: email, backup tapes
Keywords: destruction of laptop, key employee, prejudice, duty to preserve, adverse inference, retention policy
Key Insight: necessity of preservation order
Nature of Case: misappropriation of trade secrets
Electronic Data Involved: laptop, mobile phone, email
Keywords: email providers, deleted emails, significant concerns, threats to preservation, capability to preserve, irreparable harm, ex parte, seizure order, expedited discovery
Key Insight: Addressing loss of cellular phone(a tangible thing) belonging to officer involved in off-duty traffic accident despite a letter from plaintiff specifically requesting preservation and providing notice of imminent litigation, court found the city was at least grossly negligent in its failure to preserve and that Plaintiff was prejudiced as a result but fell short of finding that the loss was the result of bad faith and ordered production of documents previously withheld under claim of privilege and that the jury would be instructed that it may make ?any inference they believe appropriate in light of the spoliation?
Nature of Case: Traffic accident
Electronic Data Involved: Cellular Phone
Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?
Nature of Case: Housing discrimination
Electronic Data Involved: facebook (social media / social network)
Key Insight: Where Defendant destroyed laptop of departed employee (a ?key point of contact? for Plaintiffs in their relationship with Defendant) in accordance with its usual course of business despite a duty to preserve, court found that the information lost was relevant and that prejudice resulted, but found that Defendant was merely negligent and that awarding attorneys? fees and costs was an appropriate sanction (not default judgment or an adverse inference as had been requested); court declined to consider the newly amended rules of procedure where the parties first raised the issue in September 2015, before the application of the new rules
Electronic Data Involved: Contents of laptop of departed employee
Key Insight: Where trial court granted a motion for spoliation sanctions and struck all of Defendant?s pleadings and ordered an adverse inference instruction, court of appeals took up the petition for a writ of mandamus and, addressing the standards for spoliation sanctions in detail, upheld the trial court?s finding that a duty to preserve the at-issue video showing the circumstances surrounding the underlying industrial accident arose from the date of the incident in light of the facts and circumstances of the case and that Defendant breached that duty to preserve through ?willful blindness? by failing to prevent the automatic overwriting of the video despite viewing the video, allowing Plaintiff to view the video while in the hospital, and relying on the video to reconstruct the accident and conduct ?experiments?; regarding the sanctions imposed, the appellate court concluded that the adverse inference was appropriate because of the direct relationship between the loss and the instruction and where the instruction was not excessive in light of the unique nature of the evidence; court granted petition, however, as to order to strike pleadings
Nature of Case: Industrial accident resulting in injuries
Electronic Data Involved: Video of underlying accident
Key Insight: Where third party refused to preserve potentially relevant evidence absent a court order and maintained a retention policy that would result in the automatic deletion of the at-issue information, court granted in part Plaintiff?s motion to compel preservation (finding that the requested scope of preservation appeared overly broad) but declined to compel forensic imaging
Nature of Case: Telephone Consumer Protection Act
Electronic Data Involved: Fax transmission reports and other ESI identifying fax numbers that received advertisements
Key Insight: Assessing motion for sanctions, court found that Plaintiff established Defendants? duty to preserve (preservation requests were sent to all defendants) and that ESI was lost but found that further discovery was needed to address whether two of four ?predicate elements? of Rule 37(e) were met, namely whether reasonable steps were taken to preserve and whether the lost ESI could be restored or replaced through additional discovery, reasoning that ?[a]bsent sufficient proof that reasonable steps were not taken, KMBS is not entitled to relief under 37(e), even if it is shown that the ESI was lost. Sanctions are not automatic? and that ?[f]urther, a party cannot be sanctioned where the ability exists to restore or replace the ESI from other sources.?
Electronic Data Involved: ESI
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