Data Preservation – Page 45 – Electronic Discovery Law

EEOC v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166 (S.D. Ohio 2013)

Dec 01 2013

Key Insight: Defendant’s failure to establish a litigation hold and resulting loss of relevant data through routine purge was inexcusable and presented exceptional circumstances that removed such conduct from the protections provided by Rule 37(c); as sanction, court denied defendant’s motion for summary judgment which turned in part on skill login data, and would give permissive adverse inference instruction regarding the destroyed evidence at trial

Nature of Case: Sex discrimination claims

Electronic Data Involved: Skill login data

Clay v. Consol Penn. Coal Co., No. 5:12CV92, 2013 WL 4854746 (N.D. W. Va. Sep. 11, 2013)

Dec 01 2013

Key Insight: Where defendants were dilatory in participating in discovery and did not begin searching for ESI until plaintiff was on the brink of filing his second motion to compel, district court affirmed magistrate judge?s recommendation that plaintiff?s motion for default judgment be denied because there was no showing of bad faith on the part of defendants and prejudice to plaintiff could be alleviated through imposition of less drastic sanctions, such as allowing plaintiff to re-depose certain witnesses at defense expense, allowing plaintiff to exceed the deposition limit, and awarding plaintiff reasonable expenses (including attorneys’ fees) of the motion

Nature of Case: Race discrimination

Electronic Data Involved: ESI

Anderson v. Sullivan, No. 1:07-cv-111-SJM, 2013 WL 4455602 (W.D. Pa. Aug. 16, 2013)

Dec 01 2013

Key Insight: After granting summary judgment in favor of all defendants, court retained ancillary jurisdiction to adjudicate plaintiff?s motion for spoliation sanctions; court conducted seven-day evidentiary hearing on the motion, ultimately rejecting plaintiff’s various claims of spoliation

Nature of Case: Pennsylvania Whistleblower Act claims

Electronic Data Involved: Email, computer hard drives

Sprint Nextel Corp. v. Middle Man, Inc., N. 12-2159-JTM, 2013 WL 1001851 (D. Kan. Mar. 13, 2013)

Dec 01 2013

Key Insight: Court was satisfied that defendants were aware of their legal duty to preserve evidence and noted that defendants had stated they had a diligent electronic record-keeping practice to track the company’s sales, purchases and inventory, and that the company would consent to an on-site physical inspection of its inventory; court was not persuaded that preservation order was appropriate or that it would serve any useful purpose in light of the parties’ existing legal obligations to preserve relevant evidence

Nature of Case: Trademark infringement, unlawful business practices

Electronic Data Involved: Sprint phones, ESI

Mayor of Baltimore v. Unisys Corp., No. JKB 12-614, 2013 WL 4833841 (D. Md. Sep. 10, 2013)

Dec 01 2013

Key Insight: Court denied city’s motion for spoliation sanctions, without prejudice, in light of the evidence offered by Unisys that an unadulterated copy of the pre-litigation version of the software still existed; court ordered parties to meet and confer in person to address the issues the city had encountered with the software and reconstructng the testing environment, attempt to resolve defendant’s work product and attorney client privilege claims, and prepare a joint report to the court summarizing the meet and confer

Nature of Case: Breach of contract, breach of express warranties, and intentional misrepresentation claims relating to the development of a tax software system

Electronic Data Involved: Pre-litigation version of the tax software, interim software files, source code

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5745855 (S.D.N.Y. Oct. 23, 2013)

Dec 01 2013

Key Insight: Although court found that U.S. Bank was grossly negligent in failing to institute a litigation hold until eight months after its duty to preserve arose, court denied spoliation sanctions as there was no evidence of bad faith but positive evidence of good faith, and U.S. Bank presented persuasive evidence that no relevant documents were destroyed; court further ruled that litigation hold that U.S. Bank finally did impose was reasonable, as custodians were guided by both business people and counsel as to what to retain and counsel monitored compliance, gathering and reviewing relevant emails in the legal hold folders, substantive emails and attachments were printed out and retained separately and not subject to autodeletion policy

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Mejia v. Charette, No. 12-cv-449-JD-LM, 2013 WL 6001081 (D.R.I. Nov. 12, 2013)

Dec 01 2013

Key Insight: In the interest of judicial economy and efficiency, Court deferred ruling on plaintiff?s motion to compel to the extent it sought records from Wyatt Detention Facility (a third party), and directed defense counsel to request from the WDF the records plaintiff sought and to report on the status of such request at the next pretrial conference; court further denied defendants? request to limit their obligation to preserve and produce ESI so that they need not maintain that information beyond the regularly scheduled deletion, purge or overwriting date unless they have actual knowledge that responsive information actually is contained in the system or unless opposing party specifically requests it in writing, and to exclude backup tapes from litigation hold, as defendants did not provide any reason why their obligation to preserve all relevant ESI, including backup tapes or disks, should be voided, or why they should be excused from a party?s general duty to preserve relevant evidence once on notice of litigation

Nature of Case: Inmate at Wyatt Detention Facility asserted escessive force claims against four U.S. Marshals

Electronic Data Involved: ESI

Rodgers v. Rose Party Functions Corp., No. 10-CV-4780 (MKB), 2013 WL 6002375 (E.D.N.Y. Nov. 12, 2013)

Dec 01 2013

Key Insight: Defendants? duty to preserve video recording of plaintiff?s accident arose well within the two-week period before the video was erased per defendant’s document retention policies, as defendant should have anticipated litigation when defendant?s security personnel arranged for plaintiff to be taken by ambulance to a hospital for treatment of injuries sustained when she slipped, and if not then, the duty ?certainly arose? when plaintiff called defendant?s office manager and it became clear that plaintiff was seeking compensation for her injuries from defendant?s insurer; finding that video recording would have been relevant, court determined that an adverse inference instruction advising the jurors that they may infer that the video recording would have corroborated plaintiff?s allegations and rebutted defendants? assertions would suffice to restore plaintiff to the position she would have been had the recording been preserved

Nature of Case: Slip and fall

Electronic Data Involved: Video footage capturing plaintiff’s fall in stairwell

In re Heinz, 501 B.R. 746 (Bankr. N.D. Ala. 2013)

Dec 01 2013

Key Insight: Although court found that evidence compelled conclusion that debtor?s spoliation of electronic evidence, failure to preserve both ESI as well backup paper documentation, and failure to produce thumb drive was willful and intentional given the timing during imminent or ongoing litigation, court declined to impose a specific sanction against the debtor such as a default judgment and instead drew an adverse inference against debtor to the extent it impacted the debtor?s overall credibility; court ultimately found that plaintiffs? claim against the debtor for $39,296, stemming from judgment obtained by plaintiffs against debtor for breach of contract, was not dischargeable

Nature of Case: Complaint to determine dischargeability

Electronic Data Involved: Thumb drive containing financial information from 2009 through 2011

Tag:Data Preservation