Data Preservation – Page 34 – Electronic Discovery Law

McDaniel v. Loyola Univ. Med. Center, No. 13-cv-06500, 2014 WL 1775685 (N.D. Ill. May 5, 2014)

Dec 01 2014

Key Insight: Finding that plaintiff failed to demonstrate that defendants would destroy discoverable information or that plaintiff would suffer irreparable harm without a preservation order, court denied motion for preservation order as superfluous and needlessly burdensome where defendants were fully apprised of the scope and gravity of their preservation duties and the consequences of breaching them

Nature of Case: Employment discrimination, breach of contract

Electronic Data Involved: Electronic data and e-mail

Metro. Life Ins. Co. v. Ogandzhanova, No. CV-12-00372-PHX-GMS, 2014 WL 2616523 (D. Ariz. June 12, 2014)

Dec 01 2014

Key Insight: Where defendant had testified regarding frequent use of computers but the two computers she produced after being ordered by the court to do so showed very little activity, court found that defendant had willfully failed to comply with court’s order to identify and provide the computers she used during the relevant time period; court further found that defendant failed to produce relevant documents within her control and applied five-factor test to impose sanctions in the form of a permissive adverse inference instruction and payment of plaintiff?s attorneys’ fees and expenses incurred in bringing the motion

Nature of Case: Disability insurance dispute

Electronic Data Involved: Hard drives, ESI

Am. Health, Inc. v. Chevere, No. 12-1678 (PG), 2014 WL 3955906 (PG), 2014 WL 3955906 (D.P.R. Aug. 14, 2014)

Dec 01 2014

Key Insight: Court found that entry of default was too harsh a punishment and that lesser sanction such as an adverse inference instruction was available and adequate to temper prejudice to plaintiffs resulting from individual defendant?s admitted deletion of e-mails containing plaintiff?s confidential information; court further ordered defendants to pay plaintiffs $2,500 for attorneys? fees no later than August 22, 2014

Nature of Case: Claims under the Computer Fraud and Abuse Act, Stored Wire and Electronic Communications and Transactional Records Access Act, and the Wire and Electronic Communications and Interception of Oral Communications Act

Electronic Data Involved: Email attachments

Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)

Dec 01 2014

Key Insight: Where plaintiff ran software to permanently erase all information on his computer then drilled a hole in his hard drive and threw it away, and completely erased and reformatted all data on recording device, and most of recordings produced by plaintiff had been edited, all at a time when plaintiff knew he had an obligation to preserve evidence, court found that plaintiff engaged in willful spoliation of highly relevant evidence, that plaintiff acted in bad faith, that defendants were severely prejudiced by the loss of evidence, that less drastic sanctions would not sufficiently compensate for plaintiff’s widespread destruction of evidence and that, given the extensive spoliation of relevant evidence by plaintiff, it would not be possible to fairly evaluate the case on the merits; court concluded that dismissal was the only appropriate sanction

Nature of Case: Retaliation and wrongful termination

Electronic Data Involved: Plaintiff’s personal computer, email, recordings made by plaintiff of his interactions with other employees

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2014 WL 1222222 (S.D. Ill. Mar. 25, 2014)

Dec 01 2014

Key Insight: Court granted defendants’ request to preserve by storing existing hard drives for the duration of the litigation in lieu of creating and storing a mirror image of the hard drives, and ordered them to place the hard drives in a storage facility that is environmentally conducive to the continued viability of the integrity of the hard drives based on universally accepted computer industry standards

Nature of Case: Products liability

Electronic Data Involved: Laptops of document custodians subject to litigation hold, the operating systems of which were due to be upgraded from Windows XP to Windows 7

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

Tag:Data Preservation