Key Insight: Court found attorney?s duty to preserve was triggered upon receipt of correspondence terminating her representation but withheld judgment on issue of spoliation until hearing could be held
Nature of Case: Legal Malpractice
Electronic Data Involved: ESI, computers
Key Insight: Court imposed spoliation sanctions, including an adverse inference, for defendant?s deletion of a ?software library? despite a duty to preserve
Nature of Case: Copyright infringement
Electronic Data Involved: Software library
Key Insight: Court declined to impose spoliation sanctions for alleged failure to preserve ?the actual server and software system? allegedly utilized during the violation of the Computer Fraud and Abuse Act where the defendant did not establish the relevance of the server or software system
Nature of Case: Computer Fraud and Abuse Act
Electronic Data Involved: Server and software system utilized by auction company at time of alleged violation by Defendant
Key Insight: Where Plaintiffs argued that Defendant?s document and preservation efforts were inadequate and briefed ?at long length several document production errors, general complications and litigation hold mishandling,? including incorrect volume estimates of documents produced by search terms, date discrepancies in metadata, and corrupt emails (among others) the court noted that Plaintiffs had not obtained a court order against Defendant or attempted to show that it acted in bad faith and found that the allegations did not rise to a level justifying appointment of an outside third party ediscovery auditor, but granted Plaintiffs? motion for depositions of certain document custodians regarding document production issues; court denied motion to require Defendant to recover all documents deleted by certain custodians, including from backup tapes, where the court found that Defendant ?carried out its duty to preserve documents in a manner commensurate with the likely scope and role of [Defendant?s] participation in future litigation? and noted that reasonable efforts do not require the preservation of ?every single scrap of paper?
Nature of Case: Antitrust
Electronic Data Involved: ESI
Key Insight: Where an employee of Defendant first denied he kept a calendar and then testified that he kept a daily electronic calendar but routinely deleted information after a day had passed and that he had continued such deletions even after being told that the entries were sought by the plaintiff in discovery, the court found that Defendant was culpable for the employee?s actions and for its own failure to notify its employees of the duty to preserve and imposed sanctions including an adverse inference, preclusion of the use of certain evidence, and monetary sanctions equal to double the amount incurred for preparation of the sanctions motion
Nature of Case: Wrongful termination
Electronic Data Involved: Calendar entries
Key Insight: In action arising from roller coaster accident, court denied motion to impose sanctions for failure to preserve potentially relevant photographs on roller coaster?s ?integrated photography system,? where there was no evidence presented explaining how long the photos were stored in the system (although Defendant ?appear[ed] to argue? that had been erased as early as two days after the accident) where there was no evidence of willful conduct, and where the prejudice was limited based on the availability of other evidence regarding whether other riders were wearing hats on the ride?an important question in the case
Nature of Case: Personal Injury (roller coaster accident)
Electronic Data Involved: Photographs
Key Insight: Where plaintiff failed to preserve digital images which she claimed she took with her cell phone and her daughter?s cell phone and which she claimed to have received from her daughter via email and later forwarded to her attorney (resulting in several electronic copies of the image(s)), the court found that plaintiff had the obligation to preserve the evidence, that she knew or should have known that the images were relevant, that the images and metadata were in fact relevant, and that sanctions were appropriate and thus imposed a permissive adverse inference
Nature of Case: wrongful termination
Electronic Data Involved: Digital images
Key Insight: Court denied defendant?s motion for an adverse inference and monetary sanctions related to its allegations of spoliation where the court ?did not agree? that plaintiff was ?grossly negligent? noting that plaintiff ?had in place ? a comprehensive standard document preservation policy, issued both verbal and written litigation hold notices, preserved backup tapes of emails from before commencement, and confirmed that no custodian had deleted any documents related to this matter? and where, the court determined that ?[w]hile there may have been some shortcomings in [plaintiff?s] document retention protocol, it was, at most, negligent? and that the ?discretionary presumption articulated in Residential Funding Corp [306 F.3d 99] d[id] not apply in any event?; court further declared that the spoliation motion failed ?on the ?inability [of Nektar] to adduce evidence suggesting the existence, let alone destruction , of relevant documents.?
Nature of Case: Breach of contract and related claims
Electronic Data Involved: ESI
Key Insight: Where Plaintiff sought production of three versions of at-issue software but encountered repeated delays on the part of Defendants and where one Defendant eventually discovered that he was in fact in possession of (i.e., had preserved) the older version of the software that Plaintiffs requested but had failed to discover the information because he failed to make inquiry of ?others under his control,? including his law firm?s IT personnel, the court elected to impose ?the lesser sanction of taxing costs? and ordered that Defendants reimburse Plaintiff for its reasonable costs and expenses associated with its various motions to compel; Defendants were ordered to install a current copy of the software on a laptop provided by the Plaintiff, to provide Plaintiff with direct access to the customized version currently in use by the Defendant/law firm, and to produce to Plaintiff a copy of the recently discovered database backup containing the software as originally installed
Nature of Case: Claims that defendants “stole a series of [Plaintiff’s] software customizations” and incorporated them into their software
Electronic Data Involved: Versions of case management software (original, customized, and current)
Key Insight: Trial court did not abuse discretion in giving a spoliation instruction for a party?s failure to preserve satellite tracking information relevant to the whereabouts of its drivers at the time of the at-issue crash, where trial court was ?abundantly clear? that it believed the destruction was intentional, even if it did not specifically say ?bad faith? and where the victim/plaintiff was prejudiced by the failure to preserve; although the sanctioned party did produce a print out alleged to reflect the relevant satellite information, questions regarding the party?s veracity led the court to mistrust the accuracy of the document which contributed to the imposition of sanctions
Nature of Case: Malpractice related to underlying case involving automobile accident and resulting injuries
Electronic Data Involved: Satellite tracking data
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