Data Preservation – Page 51 – Electronic Discovery Law

Burgess v. Fischer, No. 3:10-cv-00024, 2012 WL 3811863 (S.D. Ohio Sept. 4, 2012)

Dec 01 2012

Key Insight: Court granted defendants? motion for summary judgment as to plaintiff?s claim of spoliation related to video footage of the alleged excessive force where the tape was destroyed pursuant to the jail?s document retention policy after five days and plaintiff?s case was not filed for almost one year and where the court indicated there was no evidence that defendants knew litigation was probable; court did note in footnote, however, that five days is a short retention time and that ?a prudent jail would keep the video of a takedown incident for a longer period of time?

Nature of Case: Claims of excessive force against police officers

Electronic Data Involved: Video surveillance footage

Bruno v. Bozzuto?s, Inc., 850 F. Supp. 2d 462 (M.D. Pa. Feb. 6, 2012)

Dec 01 2012

Key Insight: Where plaintiffs destroyed paper copies of records that were also maintained in electronic format (by a third party) despite anticipation of litigation, court ordered discovery reopened for the purpose of allowing plaintiff to take the necessary action to acquire the electronic records and to provide them to defendant at their own cost and indicated that if the records were no longer in the third party?s possession, the court would ?reconsider its ruling? where the absence of those records would result in a greater degree of prejudice to the defendant

Nature of Case: Breach of contract

Electronic Data Involved: Electronic copies of hard copy records that had been destroyed

Dalcour v. City of Lakewood, No. 11-1117, 2012 WL 3156342 (10th Cir. Aug. 6, 2012)

Dec 01 2012

Key Insight: Reviewing for abuse of discretion circuit court affirmed lower court?s denial of motion for an adverse inference based on loss of TASER records where the evidence indicated the loss resulted from a computer error or possibly negligence and where absent evidence of bad faith, no adverse inference was appropriate; court also recognized that allowing plaintiffs to question witnesses about the missing evidence amounted to a lesser sanction for spoliation

Nature of Case: ? 1983 claims

Electronic Data Involved: TASER records

Oyebade v. Boston Scientific Corp., No. 1:11-cv-0968-JMS-DML, 2012 WL 4020971 (S.D. Ind. Sept. 12, 2012)

Dec 01 2012

Key Insight: For a ?pattern of discovery misconduct, including the spoliation of evidence? (an audio tape of a meeting with HR), the court imposed an adverse inference and ordered the jury be instructed that Plaintiff destroyed the audio recording ?under circumstances that suggest that the contents ? would not be helpful in proving his claims? and further ordered that Plaintiff would not be allowed to present evidence regarding the meeting with HR, that the jury be instructed to accept defendant?s evidence about the meeting, and that defendant was entitled to its attorneys fees and expenses incurred in seeking redress for the spoliation

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tape of meeting with HR

Perez-Garcia v. Puerto Rico Ports Auth., No. 08-1448 (GAG), 2012 WL 2553274 (D.P.R. July 3, 2012)

Dec 01 2012

Key Insight: Court found request for sanctions for defendant?s failure to retain records dating back to 1995 was not supported by the rules or the case law on the subject and stated that ?Corporations may maintain their records according to their business practices, so long as the record keeping does not afoul [sic] of the rules outlined by the Federal Rules of Civil Procedure, the Federal Rules of Evidence and judicially created rules of the court.? Addressing plaintiff?s citation to an Eighth Circuit case ?that states that a negative inference can be given when the company?s policy for retention of documents is unreasonable or in bad faith,? (Remington Arms Co. , 836 FRD 1103 (8th Cir. 1988)) the court found that defendant?s policy was neither unreasonable nor in bad faith

Nature of Case: Claims arising from crash of golf cart perhaps related to faulty emergency brake

Electronic Data Involved: ESI

EEOC v. New Breed Logistics, No. 10-2696 STA/TMP, 2012 WL 4361449 (W.D. Tenn. Sept. 25, 2012)

Dec 01 2012

Key Insight: Upon Plaintiff?s motion for spoliation sanctions, court recognized two relevant trigger dates, the second of which expanded the initial scope of preservation, and found that Defendant was negligent in its failure to preserve relevant emails but declined to impose an adverse inference and instead ordered Defendant to bear the cost of restoring 33 backup tapes to determine if relevant information was contained thereon

Nature of Case: Sexual harassment

Electronic Data Involved: Emails

SEC v. Mercury Interactive LLC, No. C 07-02822 WHA, 2012 WL 4466582 (N.D. Cal. Sept. 25, 2012)

Dec 01 2012

Key Insight: Where, the SEC mistakenly deleted documents based on a miscommunication/misunderstanding with the producing party including the mistaken belief that the documents were maintained elsewhere (e.g. by the producing party or its counsel) and thereafter could not produce them when requested, the magistrate judge found that the deletion was not in bad faith and that an adverse inference was not warranted where defendants failed to show the relevance of the missing documents; on appeal the District Court denied defendants? motion for relief from the magistrate judge?s order

Nature of Case: SEC investigation

Electronic Data Involved: ESI

DMAC LLC v. City of Peekskill, No. 09 Civ. 5093 (GAY), 2012 WL 4459290 (S.D.N.Y. Sept. 26, 2012)

Dec 01 2012

Key Insight: Court granted motion for sanctions and ordered an adverse inference for trial where defendant was grossly negligent in its destruction of relevant emails (as proven by Plaintiff?s receipt of relevant emails from third parties that should have been in defendant?s possession, for example, and defendant?s failure to dispute the existence of certain emails which were relevant to plaintiff?s claims but which were not produced); court found defendant was ?at least negligent? in its failure to preserve (and later found that defendant was grossly negligent) where the city had no formal email retention policy and instead relied on its employees to determine what to save: ?Because the City has effectively conceded that it had a duty to preserve the e-mails in question, its failure to maintain a formal e-mail retention policy was at least negligent.?

Nature of Case: Violation of constitutionally protected property rights based on Stop Work Order

Electronic Data Involved: ESI

St. Louis Produce Mkt. v. Hughes, No. 4:09CV1912 RWS, 2012 WL 4378194 (E.D. Mo. Sept. 25, 2012)

Dec 01 2012

Key Insight: In a case where defendant tried to ?pull a fast one? by altering material terms to a contract and inducing plaintiff to sign it, defendant sought but was repeatedly unable to procure production of defendant?s laptop — which it suspected was used to alter the contract — and when the laptop was produced, it had been substantially damaged. Moreover, evidence indicated that defendant had destroyed relevant cell phone records and emails and that defendant?s counsel made repeated misrepresentations to the court. Thus, the court struck defendant?s pleadings as a sanction.

Nature of Case: Declaratory judgment that contract was invalid because procured by fraud

Electronic Data Involved: Laptop

Johnson v. Metro. Gov. of Nashville and Davidson Cnty., TN, 2012 WL 4945607 (6th Cir. Oct. 18, 2012)

Dec 01 2012

Key Insight: Reviewing District Court?s denial of spoliation sanctions for abuse of discretion, Circuit Court found that the at-issue information should have been preserved and was intentionally destroyed but upheld the denial of sanctions based on plaintiffs? inability to establish relevance, a necessary element of the test for determining whether sanctions are appropriate

Nature of Case: Employment discrimination

Electronic Data Involved: ESI (Survey results)

Tag:Data Preservation