Data Preservation – Page 32 – Electronic Discovery Law

Mazzei v. Money Store, No. 01cv5694 (JGK)(RLE), 2014 WL 3610894 (S.D.N.Y. July 21, 2014)

Dec 01 2014

Key Insight: Defendant failed to preserve data in its control (an issue it hotly contested) when it sold certain assets of its wholly owned subsidiary, including the database/?system? that contained the at issue data; court found failure to preserve was willful and in bad faith and that plaintiff had been prejudiced by the loss; where a non-party who works with defendant indicated that it had information from the at issue system but that the information was not ?readable? and that it would be expensive to extract and convert it, the court ordered defendant to bear the cost of determining whether the system was searchable and to pay plaintiff his attorneys fees for the motion for sanctions

Nature of Case: Class action re: violation of Truth in Lending Act

Electronic Data Involved: Database

Jackson Family Wines, Inc. v. Diageo N. Am., Inc., No. 11-5639 EMC (JSC), 2014 WL 595912 (N.D. Cal. Feb. 14, 2014)

Dec 01 2014

Key Insight: Court granted plaintiffs’ motion for spoliation sanctions in the form of an adverse inference instruction and monetary sanctions, where defendants never issued a litigation hold on marketing employee’s documents, never spoke to her about preserving documents, inexplicably deleted image of the her laptop six months after receiving the image from IBM pursuant to defendant?s ?leaver?s process,? waited over six months before notifying the court or plaintiffs about the destruction, and worse, made numerous representations to the court that consistently and vehemently sought to reassure the court that production of the employee?s documents was complete and irreproachable

Nature of Case: Trademark infringement

Electronic Data Involved: Hard drive containing image of departing marketing employee’s e-mail and other ESI

Oleksy v. Gen. Elec. Co., No. 6 C 1245, 2014 WL 3820352 (N.D. Ill. Aug. 1, 2014)

Dec 01 2014

Key Insight: Where, at time complaint was filed, defendant should have reasonably foreseen that files created by its accused process would be material to the parties’ claims, yet defendant continued to overwrite its files per its standard practice instead of saving the files either manually or automatically, court denied plaintiff’s request for adverse inference instruction but ordered defendant to reconstitute or recreate three complete sequences of old computer code at its own cost

Nature of Case: Patent infringement

Electronic Data Involved: Computer code

Curtin v. Blair Bros. Contracting, Inc., No. 2012-1082, 2014 WL 4695980 (N.Y. Sup. Ct. Aug. 28, 2014) (unreported)

Dec 01 2014

Key Insight: Where defendants asserted they received only a “handful” of emails and argued that plaintiffs destroyed or otherwise failed to preserve relevant emails, court denied defendants’ motion for spoliation sanctions, finding that defendants failed to prove that the subject emails ever actually existed; court further rejected defense argument that missing emails were relevant to their counterclaim, observing that, to the extent the counterclaim sought payment for ?extras? performed by defendants, defendants presumably had their own records to support the counterclaim and did not need to rely on emails exchanged between plaintiffs and their architect, therefore even if spoliation did take place, the defendants were not prejudiced thereby

Nature of Case: Claims for breach of contract, fraudulent misrepresentation, unjust enrichment and conversion arising from residential construction

Electronic Data Involved: Email

IQ Holdings, Inc. v. Stewart Title Guar. Co., No. 01-13-00952-CV, 2014 WL 6601148 (Tex. App. Nov. 20, 2014)

Dec 01 2014

Key Insight: Where hard copy closing file itself was destroyed, but defendants electronically preserved the closing file in two different storage systems, FileStor and SureClose, appellate court found that trial court acted within its discretion when it denied plaintiff?s motion for spoliation sanctions

Nature of Case: Real estate dispute

Electronic Data Involved: Closing file, title commitment

Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2014 WL 439785 (S.D. W. Va. Feb 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs’ request for reasonable costs incurred in bringing the motion as plaintiffs demonstrated that Ethicon’s negligent loss of relevant evidence unduly complicated plaintiffs’ discovery and case preparation and unnecessarily increased the costs of litigation, but denied request for more serious spoliation sanctions since loss of evidence was not willful or deliberate and plaintiffs could not show irreparable prejudice; magistrate recommended that district judge allow plaintiffs the opportunity to introduce evidence regarding Ethicon’s loss of relevant documents on a case-by-case basis, and when appropriate, tender an adverse inference instruction

Nature of Case: Product liability

Black Diamond Mining Co. v. Genser, No. 12-125-ART, 2014 WL 3611329 (E.D. Ky. July 22, 2014)

Dec 01 2014

Key Insight: Court addressed motion for sanctions and found that accused spoliators had acted intentionally and/or negligently, but not in bad faith; court found that sanctions were ?unwarranted? for the negligent loss of certain email attachments because of defendant?s failure to ?access documents in an archive while gathering the original emails?- even despite finding that defendant acted with a ?culpable state of mind? – where plaintiff failed to produce any evidence of the attachments? relevance (court noted that defendant did not ?actively delete the attachments? but rather its agents ?forgot to take steps to preserve the documents before they were deleted from the archive?); for individual actors? negligent and intentional failures to preserve ESI and hard copy documents, the court found that the ?test of relevance [was] satisfied? and imposed a permissive adverse inference, but declined to order reimbursement of the Trustee?s fees or the costs of bringing the motion

Electronic Data Involved: Email attachments, ESI, hard copy

Painter v. Atwood, No. 2:12-cv-01215-JCM-RJJ, 2014 WL 1089694 (D. Nev. Mar. 18, 2014)

Dec 01 2014

Key Insight: Court granted defendants’ motion for sanctions in the form of an adverse inference instruction where, after she contemplated filing a lawsuit and retained counsel, plaintiff intentionally deleted Facebook comments that stated she enjoyed working for defendants; however, no sanctions were warranted for plaintiff’s deletion of text messages, as she was not on notice to preserve the texts at the time she deleted them (prior to leaving defendants’ employ)

Nature of Case: Former employee of dental practice sued for sexual harrassment, constructive discharge

Electronic Data Involved: Text messages and social media posts (Facebook comments and photographs)

Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO, 2014 WL 3615480 (E.D. Cal. July 21, 2014)

Dec 01 2014

Key Insight: Court denied motion for preliminary injunction and preservation order, reasoning as to the request for a preservation order that defendants had issued a litigation hold letter and that plaintiff had not shown that such an order was needed due to ?any actual risk that specific evidence will be lost or destroyed during the pendency of this action?

Nature of Case: Civil rights action (pro se prisoner)

Electronic Data Involved: [F]iles and records, including e-files and intact meta data

Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3939277 (D. Ariz. Aug. 13, 2014)

Dec 01 2014

Key Insight: Where city notified key personnel to preserve relevant evidence but never instructed its IT department to suspend automatic procedure for eliminating deleted emails after 30 days or to assist key individuals in collecting and preserving relevant emails, city?s preservation efforts were “clearly deficient? but no sanctions were warranted as plaintiffs identified only one email that ultimately was lost as a result of defendants? inadequate preservation actions; court further granted plaintiffs? motion to compel production of unredacted versions of two litigation hold letters sent by the city to employees, and ruled on various other dispositive and discovery motions

Nature of Case: First Amendment, retaliation, defamation and related state law claims

Electronic Data Involved: Email

Tag:Data Preservation