Data Preservation – Page 30 – Electronic Discovery Law

Bright Sols. For Dyslexia, Inc. v. Doe, No. 15-cv-01618-JSC, 2015 WL 5159125 (N.D. Cal. Sept. 2, 2015)

Dec 01 2015

Key Insight: Court granted motion for expedited discovery to discover the identity of Defendant Doe; court also granted Plaintiffs? ex parte motion for a preservation order directing eBay, PayPal, and Google to preserve account information where the third parties had no independent duty to preserve absent a court order and where Plaintiffs established that: the at-issue data was regularly destroyed by the third parties in their regular business practices, that Plaintiffs would be ?irreparably harmed? by the loss of the at-issue data (because they could not serve Defendant and stop the alleged infringement), and that the third parties had the capability to maintain the information, particularly because of the limited nature of the request

Nature of Case: Trademark and copyright infringement

Nuvasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB), 2015 WL 4479147 (S.D. Cal. July 22, 2015)

Dec 01 2015

Key Insight: For Defendant?s failure to preserve its employees? text messages, court imposed an adverse inference.

Electronic Data Involved: Text messages

DeCastro v. Kavadia, —F.R.D.—, 2015 WL 4619914 (S.D.N.Y. July 6, 2015)

Dec 01 2015

Key Insight: For defendant?s intentional deletion of emails using cleaning software and misrepresentations intended to cover up the same as well as defendant?s failure to produce documents over which he was found to maintain control and misrepresentations related to the same, the magistrate judge recommended a permissive adverse inference and that defendant and counsel, who ?exacerbated? the effects of defendant?s misconduct through incomplete or misleading representations to the court, be jointly and severally liable for plaintiff?s attorneys fees and costs incurred in bringing the motion for sanctions; district court rejected objections to the recommendations and adopted them in full

Electronic Data Involved: Emails, ESI

Bruno v. Bozzuto?s, Inc., No. 3:09-CV-00874, 2015 WL 5098952 (M.D. Pa. Aug. 31, 2015)

Dec 01 2015

Key Insight: On motion for reconsideration of three discovery orders, the court found no error in the lower court?s determination that Plaintiff?s admitted contemplation of litigation was sufficient to trigger her obligation to preserve, noting the lower court?s reliance on case law that ?the knowledge of a potential ? claim is deemed sufficient to impose a duty to preserve evidence?; court indicated that evidence contradicting Plaintiff?s claim that a third party still maintained the at-issue records was sufficient to allow the court to revisit the issue and to find that plaintiff acted in bad faith and also noted that in the Third Circuit, bad faith was not required to impose an adverse inference; addressing prejudice, court dismissed the proposition that Defendant?s access to at-issue evidence years earlier was sufficient to undercut any prejudice, noting that Defendant?s experts had not had access to the evidence; court found no clear error in the imposition of monetary sanctions for spoliation of evidence prior to trial

Electronic Data Involved: ESI

Moulton v. Bane, No. 14-cv-265-JD, 2015 WL 7776892 (S.D.N.H. Dec. 2, 2015)

Dec 01 2015

Key Insight: Where Defendant unintentionally lost text messages when his service provider failed to transfer those text messages to his new phone?despite his request to transfer ?everything??and where the texts were later recovered by a forensic analysist, court declined to impose ?punitive sanctions? and ordered Defendant to pay the cost of retrieving the messages

Electronic Data Involved: Text messages (WhatsApp)

Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)

Dec 01 2015

Key Insight: Magistrate Judge concluded that absent evidence of a special relationship or circumstance that imposed a duty to preserve evidence, a third party did not have an obligation to preserve evidence before it was served with a subpoena, even though it was aware of potential litigation against a party with whom it had a close working relationship. Where the non-party was ordered to search for and produce all responsive information but limited its search to its ShareFile and failed to adequately investigate whether responsive information existed on its computers and other devices, the Magistrate judge reasoned that compliance required more than ?simply asking current employees if they have responsive documents? and concluded that third party?s mere survey of current employees (omitting an employee with a difficult personality) as to whether they had responsive emails without an attempt to search or forensically image any devices in its custody failed to satisfy the Discovery Order?s request to make ?all reasonable efforts to search? for potentially relevant documents, violating Rule 45(g).

Electronic Data Involved: ESI

Domanus v. Lewicki, —F.3d—, 2014 WL 408723 (7th Cir. Feb. 4, 2014)

Dec 01 2014

Key Insight: Circuit court found no abuse of discretion for District Court?s imposition of default judgment (or its prior finding of contempt) – which was a more drastic sanction than was originally imposed by the magistrate judge – where Defendants? discovery behaviors, including failing to produce documents as ordered, avoiding depositions, and failing to preserve potentially relevant ESI (and providing conflicting stores about what happened to the hard drive, including that it had been taken apart and given to a defendant?s children to play with) justified the harsh sanction imposed

Nature of Case: Fraud

Electronic Data Involved: ESI on hard drive (emails), bank records

Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)

Dec 01 2014

Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)

Nature of Case: Personal injury (train/car collision)

Electronic Data Involved: Original hard drive containing video footage

In re Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, 2014 WL 355995 (W.D. La. Jan. 30, 2014)

Dec 01 2014

Key Insight: Despite defendants? claims that litigation regarding claims of bladder cancer were not reasonably foreseeable until 2011, and thus the preservation obligation did not attach as to evidence related to those claims, the court found that the duty to preserve began in 2002, when defendants disseminated a broad and general litigation hold requiring the preservation of documents and ESI which ?discuss, mention, or relate to Actos? and that documents destroyed after that (including the files of 46 employees) were spoliated; court ordered that the jury would hear about the destruction and be instructed by the court on how to proceed (instruction would be crafted after hearing all the evidence)

Nature of Case: Products Liability

Electronic Data Involved: ESI (46 “custodial files”)

Cusato v. Greenberg Traurig, LLP, No. B242696, 2014 WL 1349493 (Cal. Ct. App. Apr. 7, 2014) (unpublished)

Dec 01 2014

Key Insight: Terminating sanctions dismissing cross-complaint deemed proper where cross-complainants used “File Shredder” to delete gigabytes of data from their computers in violation of orders requiring cross-complainants to preserve computer data and to turn over their computers to computer expert; however, trial court instructed to reconsider monetary sanctions imposed against cross-complainants given that computer expert hired by plaintiff began its forensic examination of the computer media months before it was authorized to do so, in violation of the court’s orders

Nature of Case: LLC members asserted claims and cross-claims after failed business venture

Electronic Data Involved: Hard drives of individual cross-claimants

Tag:Data Preservation