Data Preservation – Page 33 – Electronic Discovery Law

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

Hawley v. Mphasis Corp., No. 12 Civ. 592(DAB)(JLC), 2014 WL 3610946 (S.D.N.Y. July 22, 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions for spoliation of contents of Plaintiff?s work laptop (by deleting the data and reissuing the computer to another employee) where despite the court?s finding that defendant had been grossly negligent in its failure to preserve, a presumption of relevance was not warranted and plaintiff failed to demonstrate that the lost documents would have supported his claim; regarding the destruction of plaintiff?s supervisor?s laptop (who had resigned), the court ordered an adverse inference where the court found that the failure to preserve was grossly negligent and where defendant?s conduct was sufficiently egregious to warrant a finding that the evidence was unfavorable to it (notably, the court indicated it ?[did] not matter? who had wiped the hard drive because defendant should have taken steps to preserve the data well in advance of the supervisor?s resignation); court ordered an adverse inference for defendant?s failure to produce certain evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Contents of plaintiff’s laptop and supervisor’s laptop

Clemons v. Corrections Corp. of Amer., Inc., No. 1:11-CV-339, 1:11-cv-340, 2014 WL 3507299 (E.D. Tenn. July 14, 2014)

Dec 01 2014

Key Insight: Where defendant attempted to preserve relevant video by assigning a part time maintenance/IT employee to copy the relevant portion but failed to discover that the wrong portion was copied before the tape was overwritten, the Magistrate Judge found that the failure to preserve the relevant footage was grossly negligent and recommended a mandatory adverse inference, that defendant be prohibited from offering evidence or testimony from witnesses who viewed the unavailable footage and that plaintiff be awarded reasonable attorney?s fees; the district court adopted the recommendations

Nature of Case: Claims of deliberate indifference to prisoner’s medical needs

Electronic Data Involved: Video surveillance footage

Duluc v. AC & L Good Corp., 990 N.Y.S.2d 24 (N.Y. App. Div. 2014)

Dec 01 2014

Key Insight: Court affirmed denial of motion for sanctions where defendant preserved 84 seconds of surveillance footage in response a request to preserve footage or photos that ?depict the subject slip and fall accident? and where the remainder of the footage had been automatically overwritten before plaintiff requested broader preservation; court reasoned that: ?While it may have been a better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants, and it would unfair to defendant to penalize it for not anticipating plaintiff’s additional requests.?

Nature of Case: Personal injury / slip and fall

Electronic Data Involved: Video surveillance footage

Cheng v. Lake Forest Assocs., No. CBD-13-1365, 2014 WL 2964082 (D. Md. June 30, 2014)

Dec 01 2014

Key Insight: Court reasoned that ?[c]aselaw demonstrates that a contractual relationship between two parties, which privies one party to access documents or information physically possessed by the other, can be sufficient to establish the requisite control necessary to compel production of a discovery-related document[]? and found that defendant had such control over video surveillance footage in the possession of a third party and granted Plaintiff?s motion to compel

Nature of Case: Personal injury (Slip & fall)

Electronic Data Involved: video surveillance

U.S. Legal Support, Inc. v. Hofioni, No. 2:13-cv-1770 LLK AC, 2014 WL 172336 (E.D. Cal. Jan. 15, 2014)

Dec 01 2014

Key Insight: Motion for spoliation sanctions denied without prejudice where plaintiff argued that individual defendants violated their duty to preserve by continuing to use their personal electronic devices after receiving notice of the action and not “quarantining” the devices pending forensic imaging, as plaintiff did not make a specific showing that spoliation had, in fact, occurred; testimony of plaintiff’s forensic experts was mere speculation as neither expert identified any actual loss of data nor provided any forensic analysis of the personal electronic devices at issue

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition

Electronic Data Involved: ESI stored on individual defendants’ personal electronic devices

McCann v. Kennedy Univ. Hosp., Inc., Civil No. 12-1535 (JBS/JS), 2014 WL 282693 (D.N.J. Jan. 24, 2014)

Dec 01 2014

Key Insight: Applying Third Circuit’s four-factor test for evaluating spoliation claims, court denied plaintiff’s motion for sanctions, finding that plaintiff failed to establish that defendant acted in bad faith by allowing the tapes to be automatically taped over as a matter of routine, since there was no evidence that defendant’s employees knew or anticipated that plaintiff’s claims would require the retention and production of emergency room lobby videotape footage from the night plaintiff was treated

Nature of Case: Emergency Medical Treatment and Labor Act claims

Electronic Data Involved: Security videotapes of emergency room lobby

Dewhurst v. Century Aluminum Co., No. 2:09-1546, 2014 WL 555164 (S.D. W. Va. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence

Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits

Electronic Data Involved: E-mail and other ESI

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Emery v. Harris, No. 1:10-cv-01947-JLT (PC), 2014 WL 710957 (E.D. Cal. Feb. 21, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions because it was untimely and because plaintiff did not establish that defendant had control over the subject videotape or that defendant was on notice that litigation would ensue before the videotape was taped over

Nature of Case: Excessive use of force claims brought by pro se state prisoner

Electronic Data Involved: Videotape of prison yard area where altercation took place

Tag:Data Preservation