Tag: Data Preservation

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Novit v. Metropolitan School District of Warren Township (S.D. Ind. 2021)
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Manning v. Safelite Fulfillment, Inc. (D.N.J. 2021)
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Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)
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Doe v. Purdue University (N.D. Ind. July 2, 2021)
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Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).
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FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)
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Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)
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Bursztein v. Best Buy (S.D.N.Y. 2021)
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Edwards v. Junior State of Am. Found. (E.D. Tex. 2021)
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Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Novit v. Metropolitan School District of Warren Township (S.D. Ind. 2021)

Key Insight: Plaintiffs filed a motion for sanctions on spoliation related to the video footage from a school bus where plaintiffs’ child suffered injuries. Defendant permitted plaintiffs to view the video of the incident and also produced the footage to plaintiffs in discovery. Plaintiffs later asked for extended video coverage from the date of the incident. Defendant did not have additional video because the bus hard drive had either been looped over, wiped clean, or used for parts. The court noted, “a spoliation sanction is proper only when a party has a duty to preserve evidence because he knew, or should have known, that litigation was imminent, and the movant demonstrates that the evidence was destroyed in bad faith, with the intent to deprive another party of the information’s use in the litigation.” Thus, the court found no evidence to support a blanket accusation of spoliation when defendant preserved the relevant footage, acted reasonably by saving the relevant portion, and placing the bus hard drive back into operation.

Nature of Case: Personal injury, Civil rights

Electronic Data Involved: Video footage

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

Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).

Key Insight: Plaintiff sought a motion for spoliation sanctions based on defendant’s failure to prepare its Rule 30(b)(6) deponent to testify on topics related to ESI preservation and collection, and for spoliation sanctions related to the failure to preserve ESI. The court granted sanctions for defendant’s failure to prepare its 30(b)(6) designee, finding: “The production of an unprepared witness is tantamount to a failure to appear, and warrants the imposition of sanctions.” Defendant offered its head of IT as the corporate designee. He received the deposition notice less than 72 hours before the deposition, spent about 6 hours preparing to testify (approximately 10 minutes per topic), did not review any documents other than his own emails, and did not speak or communicate with other employees to gather information on the topics he was supposed to testify about. The court ordered a second 30(b)(6) deposition, required defendant to pay the reasonable costs and expenses associated with attending the second deposition and fees for plaintiff’s ESI consultant to attend, and awarded fees associated with having to bring the motion to compel. On the issue of failure to preserve ESI evidence, the court concluded it was premature to address this issue until the second 30(b)(6) deposition, which would cover topics relating to defendant’s litigation hold efforts.

Nature of Case: Breach of contract

Electronic Data Involved: ESI business documents and electronic devices

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

Bursztein v. Best Buy (S.D.N.Y. 2021)

Key Insight:

Plaintiff moved to sanction Defendant for failure to comply with discovery obligations and spoliation of evidence in personal injury and premises liability litigation. The discovery requests that led to Plaintiff’s Motion were for video surveillance of, and facilities records and training manuals related to the “slip and fall” incident at issue in the litigation; the Defendant did not fully respond to the requests, and failed to preserve electronically stored information (ESI) relating to the incident.

The Court partially granted Plaintiff’s Motion for Sanctions, allowing Plaintiff to present evidence at trial regarding Plaintiff’s spoliation of the ESI, and awarding attorney’s fees and costs incurred in briefing the Motion. The Court found that the Defendant failed to preserve the surveillance footage as well as entries in its Facilities Request System. Moreover, the Defendant failed to produce the above mentioned facilities records and training manuals.

Nature of Case: Personal Injury, Premises Liability

Electronic Data Involved: Surveillance Video, Facilities Request System (Database)

Case Summary

Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.

The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.

Nature of Case: Employment

Electronic Data Involved: Text Messages, iMessages, Cellular Phone

Case Summary

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