Data Preservation – Page 23 – Electronic Discovery Law

Ferrara Bros. Bldg. Materials Corp. v. FMC Constr. LLC, 54 Misc.3d 529 (N.Y. Sup. Ct. 2016)

Dec 01 2016

Key Insight: Plaintiff, arguing Defendant?s contract was backdated, moved for sanctions after Defendant discarded computers (2 years after the action commenced) containing native information and system metadata for the contract at issue. The contract?s creation date was at issue in this case and Defendant had not indicated that it preserved the metadata before discarding the computers (which was not a regular or automatic event but rather a ?curiously fortuitous occurrence?). In considering sanctions, the court concluded that Defendant?s submission of an affidavit indicating that the computers were replaced and discarded did not ?rebut the presumption that Casa was negligent, even grossly negligent? and found that a negative inference at trial would be ?sufficient to strike a balance between the need to ameliorate any prejudice related from the destruction of the computer system, and the absence of demonstrable willfulness ??

Nature of Case: Breach of contract

Electronic Data Involved: Metadata

Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)

Dec 01 2016

Key Insight: Where Defendant explained that certain emails were not produced because he lost access to the account which subsequently expired and thus the emails were not in his possession custody or control, the court concluded that the duty to preserve was triggered prior to the expiration of the account by the filing of a separate lawsuit involving the same at-issue property in which the parties to this case were codefendants and explained in footnote that it could locate no case law limiting the duty to preserve to an adversary as opposed to all parties to litigation and noted that the duty to preserve ?may carry over to subsequent lawsuits involving the same subject matter?; finding the spoliation was prejudicial but not intentional, the court ordered the jury be informed of the failure to preserve, but not instructed to presume anything about the content of the emails

Nature of Case: Breach of Settlement Agreement

Electronic Data Involved: e-mail

Friedman v. Philadelphia Parking Auth., No. 14-6071, 2016 WL 6247470 (E.D. Pa. Mar. 10, 2016)

Dec 01 2016

Key Insight: Where Defendant failed to preserve relevant evidence for reasons including its failure to timely issue a litigation hold following receipt of a letter threatening litigation and its lack of understanding related to the migration of its data to a new archival system resulting in the loss of ESI (e.g., Defendant was notified of but failed to address an ?over limit folder problem? related to two custodians, failed to confirm that data had successfully migrated before instructing employees to delete information ,etc.) but where Defendant undertook SUBSTANTIAL efforts to address its discovery defects and Plaintiff was unable to identify any specific information that was lost (where much was received from third parties or eventually produced as a result of Defendant?s remedial efforts) or to establish an intent to deprive, the court declined to impose sanctions pursuant to recently amended Rule 37(e); instead, pursuant to Rule 37(a) the court ordered Defendant to reimburse Plaintiff?s reasonable attorney?s fees and expenses necessary to prepare and file their motion for sanctions; regarding Defendant?s lack of a document retention policies and potential loss of data before implementation of its archive after its duty to preserve was triggered, the court indicated that prejudice was ?speculative? but invited a motion from Plaintiff for ?evidentiary rulings? if desired

Prezio Health, Inc. v. John Schenk & Spectrum Surgical Instruments, Inc., No. 3:13 CV 1463 (WWE), 2016 WL 111406 (D. Conn. Jan. 11, 2016)

Dec 01 2016

Key Insight: Where individual Defendant informed his family that litigation related emails were to be preserved, but where at least three of eight ordered to be produced were lost, perhaps when Defendant?s wife transferred her emails to a new App, court found Defendant?s effort was ?grossly deficient? noting that defense counsel and Defendant had failed to impress upon the family the significance of the emails; addressing question of an appropriate sanction, Court cited Residential Funding Corp, 306 F.3d 99 (2d Cir. 2002), and ordered a ?permissive adverse inference? and payment of Plaintiff?s attorney?s fees and costs incurred in pursuing the issue

Electronic Data Involved: Emails from account used by multiple family members

Core Labs. LP v. Spectrum Tracer Servs., LLC, No. CIV-11-1157-M, 2016 WL 879324 (W.D. Okla. Mar. 7, 2016)

Dec 01 2016

Key Insight: Where emails were lost in Defendant?s transition from one service provider to another, despite efforts to preserve, the court found that Plaintiff was prejudiced by the loss and found that a presumptive adverse inference was appropriate but declined to impose sanctions for Defendant?s deletion of ?personal? files prior to production of a hard drive for forensic analysis where the court found such deletion ?reasonable? and also declined to impose sanctions for the wiping of an at-issue computer where the court found no bad faith in light of the alleged ?computer problems? that the wipe was intended to address and Defendant?s claim that ?anything that needed to be kept? was exported first; notably court?s analysis included specific recognition of newly amended Rule 37(e) but also recognized a common law standard requiring only prejudice to impose a spoliation sanction

Electronic Data Involved: Emails, computer files, contents of hard drive

Whitesell Corp. v. Electrolux Home Prods., Inc., NO. CV 103-50, 2016 WL 1317673 (S.D. Ga. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where promised emails were not produced but Defendant ultimately produced all documents relevant to the alleged spoliation, including ?preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches,? and also submitted a representative for an extensive Rule 30(b)(6) deposition, the court found Plaintiff?s request to compel production of ?every privileged document described as concerning data collection?[wa]s overly broad, unduly burdensome and ha[d] not been shown to relate to the issue at the forefront of this entire exercise?the missing Leon emails? despite acknowledging that ?otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.?

Electronic Data Involved: Information related to preservation efforts, etc. where Plainitff alleged spoliation by Defendant and sought to compel production of privileged information

Learning Care Grp. v. Armetta, No. 3:13-cv-1540 (VAB), 2016 WL 4191251 (D. Conn. June 17, 2016)

Dec 01 2016

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

Konica Minolta Bus. Sols., U.S.A., Inc. v. Lowery Corp., No. 15-cv-11253, 2016 WL 4537847 (Aug. 31, 2016)

Dec 01 2016

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

Orchestratehr, Inc. v. Trombetta, —F. Supp. 3d—, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016)

Dec 01 2016

Key Insight: Where Defendant admitted to deleting emails while aware of potential litigation but claimed he thought the emails were backed up and that he never deleted anything from Plaintiff?s server, the court called the evidence ?troubling? but declined to impose spoliation sanctions because the evidence of bad faith was insufficient, citing in pat Defendant?s own equivocation for why he deleted the emails and his admitted practice of deleting emails in the ordinary course of business and the fact that the emails he admitted to forwarding to a personal account and then deleting were eventually produced

Electronic Data Involved: Email

Keim v. ADF Midatlantic LLC, No. 12-CV-80577-MARRA/MATTHEWMAN, 2016 WL 7048835 (S.D. Fla. Dec. 5, 2016)

Dec 01 2016

Key Insight: Defendant brought a motion for sanctions under Fed. R. Civ. P 37(e)(1) alleging Plaintiff failed to preserve text messages on his cell phone. The text messages at issue were dated in February and March of 2011, while Plaintiff admitted that he anticipated bringing suit on or before October 1, 2011. In his deposition, Plaintiff testified that ?he deletes most of his text messages and does not ?keep them around that long,?? and after carefully reviewing Plaintiff?s deposition transcript, it was ?clear to the court that Plaintiff is utterly confused and uncertain of anything related to the existence or deletion of the February to March 2011 text messages.? The court found that (i) it was possible that the text messages at issue were deleted before a duty to preserve arose; (ii) the ESI was not ?lost because a party failed to take reasonable steps to preserve it;? and (iii) the evidence could not be discovered from other sources. Defendant?s motion for sanctions was denied.

Electronic Data Involved: Text messages

Tag:Data Preservation