Data Preservation – Page 39 – Electronic Discovery Law

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Fog Cap Acceptance, Inc. v. Verizon Bus. Network Servs., Inc., No. 3:11-CV-724-PK, 2014 WL 6064217 (D. Or. Nov. 12, 2014)

Dec 01 2014

Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot

Nature of Case: Breach of contract, negligence, and violations of bailment

Electronic Data Involved: Source code, hard drives

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

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

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Dec 01 2014

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

Flagstar Bank, FSB v. Walker, No. 05-13-00724-CV, 2014 WL 6065713 (Tex. App. Nov. 14, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion in denying plaintiff’s request for adverse inference instruction as sanction for defendant?s inability to produce additional communications – which defendant had explained were not available because defendant had replaced its servers and had not backed-up the data – because there was no proof that defendant intentionally concealed evidence or that the spoliation irreparably deprived plaintiff of any meaningful ability to present its claims

Nature of Case: Claims arising from misappropriation of over $8 million in load proceeds designated to fund a series of residential loan transactions

Electronic Data Involved: Email

UMG Recording, Inc. v. Escape Media Group, Inc., No. 11 Civ. 8407, 2014 WL 5089743 (S.D.N.Y. Sept. 29, 2014)

Dec 01 2014

Key Insight: Court granted motion for sanctions for Defendants? bad faith deletion of relevant records related to uploading infringing materials to its music distribution service despite a duty to preserve and found that Plaintiffs were entitled to judgment as a matter of law that certain defendants illegally uploaded infringing materials; for culpable spoliation of source code, including by failing to preserve relevant data stored on a backup server when the lease on that server expired, court found that defendants were precluded from raising one of their substantive defenses to plaintiff?s motion for summary judgment

Nature of Case: Copyright infringement

Electronic Data Involved: ESI, source code

Dorchester Fin. Holdings Corp v. Banco BRJ S.A., 11-CV-1529 (KMW) 2014 WL 7051380 (S.D.N.Y. Dec. 15, 2014)

Dec 01 2014

Key Insight: Trial court found Plaintiff committed spoliation when a computer containing key documents was destroyed. Court imposed sanctions of precluding evidence derived from the computer from being presented at trial and ordered Plaintiff to pay Defendant?s attorney fees and costs. Upon review, Court upheld the spoliation ruling but imposed a mandatory adverse inference instead of the preclusion order. Court agreed that Plaintiff had a duty to preserve, was culpable in the destruction of the evidence, and the data that was destroyed was relevant to the Defendant?s claims. The court further elaborated that Plaintiff?s duty to preserve did not end when the computer allegedly crashed, and that Plaintiff should have made reasonable efforts to recover the data it contained. Saying that the spoliation prejudiced the defendant in a ?severe way? that can only be corrected by a ?substantial sanction,? the Court found that a mandatory adverse inference was the best way to repair the damage to Defendant without being a ?harsh measure given the extent of Plaintiff?s reliance of the documents??

Nature of Case: Breach of Contract, Fraud

Electronic Data Involved: Contents of “crashed” laptop computer

Yontz v. Dole Fresh Vegetables, Inc., No. 3:13-cv-066 2014 WL 5109741 (S.D.Ohio Oct.10, 2014)

Dec 01 2014

Key Insight: In this FMLA interference case, Defendant?s motion for summary judgment was denied, in part because the court found merit in Plaintiff?s spoliation claim. Defendant claimed there was no willful destruction of relevant email that was missing from their computer system. However, in deposition Defendant stated that ?there has not been any automatic deletion? from its system, and ?the only way that emails could have been deleted?would have been manually by an end user.? The Court found that to the extent email was missing a reasonable juror could find it was deleted by an employee. Additionally, the required element of a culpable state of mind was shown by Defendant?s failure to implement a litigation hold, which was a violation of their company policy. ?Where Dole?s own policies require retention, and there is testimony documents were not retained but manually deleted by the user, there is a genuine issue for the jury.?

Nature of Case: Employment Law

Electronic Data Involved: ESI

Tag:Data Preservation