Tag: Data Preservation

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Brown v. SSA Atlantic (S.D. Ga. 2021)
2
Mahboob v. Educational Credit Management Corp. (S.D. Cal. 2021)
3
Optrics Inc. v. Barracuda Networks, Inc. (N.D. Cal. Feb. 4, 2021)
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Liadis v. Suburban Mobility Authority for Regional Transportation (Mich. Ct. App. January 28, 2021)
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DR Distributors v. 21 Century Smoking, Inc. (N.D. Ill. 2021)
6
Marine Depot, Int’l, Inc. v. James River Grp., Inc. (S.D. Fla. Dec. 30, 2020)
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Milke v. City of Phoenix (D. Ariz. 2020)
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Charlestown Capital Advisors, LLC v. Acero Junction, Inc. (S.D.N.Y. Sept. 30, 2020)
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Integrated Communications & Technologies v.Hewlett-Packard Financial Services Company (D. Mass. Aug. 13, 2020)
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Alsadi v. Intel Corporation (D. Ariz. 2020)

Brown v. SSA Atlantic (S.D. Ga. 2021)

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Mahboob v. Educational Credit Management Corp. (S.D. Cal. 2021)

Key Insight: Plaintiff brought a (potential) class action lawsuit against Defendant for invasion of privacy based on Defendant recording phone calls without the consent of the other party. After bringing the suit, Plaintiff discovered that the call data and recordings had been deleted. Plaintiff filed a Motion for Sanctions against Defendant were both forms of ESI based on intentional spoliation of evidence.

Defendant had placed a legal hold on requested data but also failed to suspend its data retention policies. Plaintiff’s Motion for Sanctions regarding deleted call data was purportedly delayed by Plaintiff because the litigation was stayed for approximately two years while an appeal was pending. The Court found that Plaintiff’s Motion for Sanctions regarding the deleted call data was untimely, and therefore, denied it on such grounds.

The Court partially granted and denied Plaintiff’s Motion for Sanctions regarding the deleted call recordings, finding that Defendant should not have deleted the call recordings, but did not do so intentionally. Plaintiff was awarded attorney’s fees for having brought the Motion, but the Court declined to impose a sanction of a jury instruction regarding spoliation because the call recordings per se were not relevant to proving Plaintiff’s case.

Nature of Case: Invasion of Privacy

Electronic Data Involved: Phone Calls, Phone Call Data

Case Summary

Optrics Inc. v. Barracuda Networks, Inc. (N.D. Cal. Feb. 4, 2021)

Key Insight: The Plaintiff in litigation over claims of trademark infringement, unfair competition and breach of contract failed to preserve and destroyed discoverable electronic data, and similarly, failed to prepare for 30(b)(6) depositions. Moreover, there were repeated delays (and time extensions) in Plaintiff responding to Defendant’s discovery requests. In doing so, the Plaintiff repeatedly disobeyed discovery orders issued by the Court.

The litigation settled while discovery was pending. The Defendant moved for sanctions against the Plaintiff for its conduct in discovery, and the Court, pursuant to FRCP 37(b), awarded sanctions against Plaintiff and its counsel, jointly and severally. Plaintiff’s former counsel subsequently claimed that it should not be held liable for the sanctions because it was unable to control the conduct of its client in responding to discovery order(s) and requests.

Nature of Case: Intellectual Property, Trademark Infringement, Contracts, Unfair Competition

Electronic Data Involved: Email, Electronic Files, Hard Drives.

Case Summary

Liadis v. Suburban Mobility Authority for Regional Transportation (Mich. Ct. App. January 28, 2021)

Key Insight: The trial court ordered plaintiff to produce her laptops to defendant’s computer forensic expert. In the days prior to turning over the laptops, about 41,000 unidentified files were deleted by a computer program called “CCleaner.” Defendant moved to dismiss plaintiff’s complaint based on spoliation and discovery violations and the trial court denied defendant’s motion. The Court of Appeals agreed with the trial court and found that plaintiff did not intentionally destroy evidence and it was unlikely that any evidence was in fact lost. Both sides’ forensic experts found the CCleaner was installed before the complaint was filed and was set to run automatically. The court was open to a lesser sanction than dismissal such as an adverse jury instruction should defendant request one.

Nature of Case: Personal Injury

Electronic Data Involved: Laptop files

Case Summary

DR Distributors v. 21 Century Smoking, Inc. (N.D. Ill. 2021)

Key Insight: The court granted plaintiff’s motion for sanctions but declined to find “intent to deprive” under Rule 37(e), instead applying Rule 26(g) for failing “to make a reasonable investigation to ensure that [defendant] provided all available responsive information and documents.” The court issued sanctions and curative measures under Rules 37(a), 37(b), 37(c) and 37(e)(1). This 256-page sanctions opinion arises from ESI issues beginning at the outset of protracted litigation involving infringement claims over similar trademarks for e-cigarettes. Defendants and their counsel were sanctioned for multiple failures to preserve and collect ESI, including: failure to preserve messages from web-based email and chat applications; failure to turn off auto-delete functions on messages; defense counsel’s failure to follow-up with written hold instructions to preserve relevant ESI and take steps to collect messages from web-based applications; defense counsel’s failure to perform custodial interviews to identify likely sources of ESI; defense counsel’s failure to understand that relevant emails may be found in both corporate and personal email and mistakenly believed that data within the web applications would be saved to corporate hard drives; failure to disclose the existence of relevant ESI; defense counsel offered false testimony about the existence of ESI; and defense counsel’s failure to supervise defendants in self-collected ESI.

Nature of Case: Trademark infringement (Lanham Act)

Electronic Data Involved: Email, Instant messages

Case Summary

Marine Depot, Int’l, Inc. v. James River Grp., Inc. (S.D. Fla. Dec. 30, 2020)

Key Insight: Defendant asked the court to compel plaintiff to search its computers and servers for responsive documents and contended certain documents should exist and have not yet been produced. The court noted “Rule 34 is silent as to how a party must locate these responsive documents, and the measures a party must take in conducting its search.” Further, defendants offered no case law that would require plaintiff to search a location it had no reason to believe responsive documents would be located. Absent any factual basis to believe that additional search of plaintiff’s server is necessary or to rebut plaintiff’s sworn testimony that there are no relevant, non-duplicative documents stored there that have not already been produced, no further search was ordered and sanctions were not appropriate.

Nature of Case: Breach of contract

Electronic Data Involved: Email

Case Summary

Milke v. City of Phoenix (D. Ariz. 2020)

Key Insight: The court dismissed plaintiff’s civil rights action based on spoliation of physical and ESI evidence, and for failure to submit complete and accurate discovery responses. The court previously sanctioned plaintiff for spoliation of evidence and determined that lesser sanctions short of dismissal could not cure the prejudice to defendant. Plaintiff, her agents, and her counsel failed to preserve website and social media sites and took affirmative steps on multiple occasions to destroy the evidence after litigation became reasonably foreseeable.

Nature of Case: Civil Rights Act

Electronic Data Involved: Social media and websites

Case Summary

Charlestown Capital Advisors, LLC v. Acero Junction, Inc. (S.D.N.Y. Sept. 30, 2020)

Key Insight: Sanctions against Defendants were warranted. Defendants had a duty to preserve relevant ESI at the time of their deletion which occurred a year into the litigation. Defendants failed to take reasonable steps to preserve relevant ESI. Defendants failed to suspend their routine document retention/destruction policy, Defendants’ counsel failed to oversee or play a role in preserving or attempting to reconstruct relevant ESI until 5 months after their deletion, and Defendants’ restoration attempts were inadequate.

Nature of Case: Breach of Contract

Electronic Data Involved: Email

Case Summary

Integrated Communications & Technologies v.Hewlett-Packard Financial Services Company (D. Mass. Aug. 13, 2020)

Key Insight: Spoliation had occurred, but no default judgment issued. Evidence regarding destruction was allowed, no testimony from plaintiffs regarding unpreserved ESI and adverse inference instruction.

Nature of Case: Breach of Contract

Electronic Data Involved: Emails and Computers

Keywords: adverse inference, sanctions

View Case Opinion

Alsadi v. Intel Corporation (D. Ariz. 2020)

Key Insight: The meaning of ESI is expansive, includes any type of information stored electronically, and is not limited to data stored on a computer system. Rule 37(e), not inherent authority, is the legal standard for determining whether and what sanctions are appropriate for the loss of discoverable ESI. A negative inference sanction with only be imposed if the spoliating party intentionally lost or destroyed data so it could not be used in litigation.

Nature of Case: Tort

Electronic Data Involved: Detector Device Data

Case Summary

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