Data Preservation – Page 46 – Electronic Discovery Law

Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 5487340 (S.D. Ind. Sep. 30, 2013)

Dec 01 2013

Key Insight: Where school did not keep records identifying the individuals who requested that hard drive of camera located inside school bus be removed, nor did school keep logs of who handled and/or viewed such hard drives once they were removed, and hard drive containing video footage of alleged assault was removed from subject school bus and then subsequently reinstalled on a different bus by persons unknown, resulting in overwriting of file containing segment that would have captured alleged assault, court denied plaintiffs’ motion for spoliation sanctions finding no evidence to support a conclusion that the act of reinserting the hard drive into another bus was undertaken in order to destroy adverse evidence as opposed to its being mere negligence in the handling of the hard drive, and no evidence to support conclusion that any employee of the school manually deleted the video files in an effort to destroy evidence; court would revisit issue if additional evidence came to light

Nature of Case: Title IX of the Education Amendments Act of 1972 claims that plaintiff was subject to unlawful peer-on-peer harassment that violated his constitutional rights, and that school failed to properly train its officials in recognizing and responding to sexual assault and harassment

Electronic Data Involved: Hard drive from video camera installed on school bus where incident allegedly occurred

Magnuson v. Newman, No. 10 Civ. 6211(JMF), 2013 WL 5380387 (S.D.N.Y. Sep. 25, 2013)

Dec 01 2013

Key Insight: Although court observed there was little question that defendants’ disclosures had not included documents that were once in their possession that would be relevant to the case, as they had failed to produce any emails between and among themselves and any drafts of contracts relating to the issues of the lawsuit, court declined to impose discovery sanctions because plaintiffs failed to carry their burden of establishing that defendants had an obligation to preserve the evidence at the time it was destroyed; court rejected plaintiffs’ contention that defendants’ admitted failure to back up their computers or put a litigation hold in place constituted per se gross negligence, and stated that a party?s failure to adopt good preservation practices was one factor in the determination of whether discovery sanctions should issue

Nature of Case: Fair Labor Standards Act claims brought by a group of television production professionals and companies

Electronic Data Involved: Emails and documents

Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2013 WL 9447569 (E.D.N.Y. Sep. 23, 2013)

Dec 01 2013

Key Insight: Where plaintiff did not institute a written litigation hold despite its duty to preserve having arisen when it threatened to sue defendants, and, instead of producing the original of a particular thumb drive as ordered by the court, plaintiff copied contents of original thumb drive onto another (used) thumb drive and then deleted irrelevant files from thumb drive before producing drive to defendant, court found plaintiff was merely negligent and did not act in bad faith or with an intention of destroying or withholding relevant evidence; court declined to impose terminating sanctions or an adverse inference instruction given that defendant did not demonstrate severe prejudice, but ordered plaintiff to reimburse defendant for one-half of its costs, including attorneys? fees and expert costs, that it incurred in connection with litigating the spoliation issue

Nature of Case: Lawsuit arising out of the collapse of a commercial relationship between the parties relating to credit card processing services

Electronic Data Involved: Thumb drive, email, spreadsheets

Lifetouch Nat?l School Studios, Inc. v. Moss-Williams, No. C10-05297, 2013 WL 11235928 (N.D. Cal. Oct. 15, 2013)

Dec 01 2013

Key Insight: Where a former employee (defendant) admitted prior possession of a thumb drive containing Plaintiff?s data (her prior employer) and that she had connected the thumb drive to her new employer?s computers (who is also a defendant) but where she claimed that she had not transferred any of Plaintiff?s information, that she could not recall the computer she connected to, and that she destroyed the drive before her duty to preserve arose, court reasoned that there was a ?sufficient nexus between the defendant?s computers and the alleged misappropriation of trade secrets to warrant forensic imaging of the computers? (over 60 in number) but, applying the cost-shifting analysis from Zubulake v. UBS Warburg LLC 217 FRD 309 (SDNY 2003), found that in light of the ?broad scope of the request, the cost of production, the resource disparity of the parties? and defendant?s repeated assertion that the information did not exist, cost shifting was appropriate; court indicated it ?may reconsider? cost allocation if the expert determined that information from the thumb drive was transferred to defendant?s computer

Nature of Case: Trade secrets

Electronic Data Involved: ESI of former employer

Dunbar v. Google, Inc., No. C 12-330, 2013 WL 1346597 (N.D. Cal. Apr. 2, 2013)

Dec 01 2013

Key Insight: Absent evidence that the failure to preserve prior versions of relevant documents was the result of a ?culpable state of mind,? the court declined to impose spoliation sanctions

Hallmark Cards, Inc. v. Murley, —F.3d—, 2013 WL 149817 (8th Cir. Jan 15, 2013)

Dec 01 2013

Key Insight: Circuit court pronounced prospective rule that a district court must issue explicit findings of bad faith and prejudice prior to delivering an adverse inference instruction but found district court?s failure to do so in the present case was harmless error and that the Defendant was not entitled to a new trial

Nature of Case: Breach of contract

United States v. Dish Network, LLC, No. 09-3073, 2013 WL 1749930 (C.D. Ill. Apr. 24, 2013)

Dec 01 2013

Key Insight: Court imposed sanctions for several discovery violations: 1) for failing to provide Plaintiffs with information regarding its process for scrubbing calling lists against the do not call list and for providing a deponent with insufficient knowledge of the issue, court characterized defendant?s behavior as ?obstructive, contumacious, and willful? and precluded the use of evidence about the creation and scrubbing of telemarketing campaign lists; 2) for failing to preserve ESI related to a particular calling campaign despite a duty to preserve, court issue finding of fact that the campaign was conducted for commercial purposes; 3) for obstructive behavior related to whether it shared lead lists to retailers, including inaccurate statements and for failing to preserve information related to the same, court imposed adverse inference

Electronic Data Involved: ESI

Int?l Bus. Machs. Corp. v. BGC Partners, Inc., No. 10 Civ. 128(PAC), 2013 WL 1775373 (S.D.N.Y. Apr. 25, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s failure to collect information regarding its utilization of the at-issue software, the court refused to grant spoliation sanctions upon finding that defendant did not have an obligation to compile information related to its use of the at-issue software where such information was not typically collected in the usual course of business and where parties are only required to produce documents that exist and have no obligation to create documents to support their adversary?s theory of the case; where plaintiff sought spoliation sanctions for defendant?s migration from the at-issue software to another, the court declined to impose sanctions citing the fact that plaintiff had itself instructed defendant to destroy all copies of the at-issue software and that plaintiff failed to present any evidence that it had requested defendant halt its migration prior to filing a motion for sanctions

Electronic Data Involved: ESI

Keenan v. Int?l Assoc. of Machinists & Aerospace Workers, No. 2:10-cv-277-GZS, 2013 WL 1314302 (D. Me. Mar. 28, 2013)

Dec 01 2013

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s disposal of personal computer that allegedly crashed where the evidence indicated no bad faith (plaintiff admitted that disposal of the computer was an error due to his own ignorance) and where defendants prejudice was limited in light of other evidence and their ability to explore plaintiff?s truthfulness regarding his assertions that he filed a timely appeal (a copy of which was allegedly lost when the computer crashed and was disposed of) at trial; although court declined to exclude evidence (the requested sanction) it left open the possibility that other sanctions may be imposed ?at a later stage?

Electronic Data Involved: Personal Computer

Stirling v. St. Louis Cnty. Police Dept., No. 4:11CV01932, 2013 WL 2244638 (E.D. Mo. May 21, 2013)

Dec 01 2013

Key Insight: Where an individual defendant?s emails were deleted pursuant to the county?s ?routine system updates? and were therefore unavailable when requested, the court clarified that the duty to preserve arises ?when the party has notice that the evidence is relevant to litigation?most commonly when suit has already been filed ?? and NOT when a request is served and ordered defendants to search all available sources where the emails may still exist, including backup files, and to file a notice with the court advising it of such sources and that defendants must show cause why they should not be required to retrieve and produce such documents

Electronic Data Involved: Email

Tag:Data Preservation