Data Preservation – Page 52 – Electronic Discovery Law

Coral Group Inc. v. Shell Oil Co., No. 4:05-CV-0633-DGK, 2012 WL 4569468 (W.D. Mo. Sept. 30, 2012)

Dec 01 2012

Key Insight: For intentional spoliation resulting in irreparable prejudice, including a ?discernible pattern? of efforts to deprive Plaintiffs of relevant financial information contained on the computer of Plaintiff?s outside accountant and the failure to preserve other data, the court ordered that plaintiff?s claims were dismissed with prejudice

Nature of Case: Fraud, breach of contract

Electronic Data Involved: ESI

Rogers v Allstate Ins. Co., No. 11-cv-7776, 2012 WL 5250513 (E.D. Pa. Oct. 23, 2012)

Dec 01 2012

Key Insight: Where plaintiff recycled the at-issue computer after being notified that Allstate disputed the effective date of her cancellation (which may have been discernible from examination of the computer) but before it was formally requested in discovery (almost two years later), court questioned whether a lay person would have known to keep her computer because of potential litigation when the computer was not the subject of her claim and declined to dismiss her claims but indicated that it would entertain further motions practice on the issue closer to trial

Nature of Case: Breach of contract, bad faith

Electronic Data Involved: Personal Computer

Augstein v. Leslie, No. 11 Civ 7512(HB), 2012 WL 4928914 (S.D.N.Y. Oct. 17, 2012)

Dec 01 2012

Key Insight: Where a major question in the case was what defendant?s hard drive contained at the time it was returned to him and where defendant sent that hard drive to the manufacturer and received a replacement during a time when he was ?on notice? that the information may be relevant to future litigation, the court found that defendant was at least negligent in his handling of the drive and imposed an adverse inference which allowed the assumption that the drive contained the at-issue intellectual property at the time it was returned by the plaintiff to the police

Nature of Case: Action to collect reward offered for return of laptop and its contents

Electronic Data Involved: Hard drive

Haskins v. First Amer. Title Ins. Co., No. 10-5044 (RMB/JS), 2012 WL 5183908 (D.N.J. Oct. 18, 2012)

Dec 01 2012

Key Insight: Court found defendant had control over files in the possession of ?independent title agents? where contracts with those agents provided defendant the right to access those files; because ?control? was established for purposes of discovery, court ordered defendant to serve a litigation hold on present and former title agents with contracts similar to those examined by the court (which established control) who sold the at-issue title insurance within the relevant time frame

Nature of Case: Alleged scheme to overcharge for title insurance

Electronic Data Involved: ESI in possession of independent title agents

Hunter v. State of Delaware, —A.3d—, 2012 WL 5349395 (Del. Oct. 26, 2012)

Dec 01 2012

Key Insight: Addressing the police department?s failure to preserve relevant surveillance footage of events at the police station following defendant?s arrest (by allowing it to be automatically recorded over), the Supreme Court of Delaware determined that the lost recording was not dispositive evidence and that the criminal trial was therefore not ?fundamentally unfair? and thus held that the trial court properly determined that a missing evidence instruction was a sufficient remedy and that fundamental fairness did not require a judgment on acquittal on the Assault and Resisting Arrest charges

Nature of Case: Criminal: Assault and Resisting Arrest

Electronic Data Involved: Video footage

State v. Fox, No. 11CA3302, 2012 WL 4946436 (Ohio Ct. App. Oct. 16, 2012)

Dec 01 2012

Key Insight: ?[B]ecause appellant failed to show that the video contained materially exculpatory evidence or that the state acted in bad faith by failing to preserve the evidence, appellant did not demonstrate that his due process rights were violated. Thus, the trial court did not err by overruling his motion to dismiss.?

Nature of Case: Criminal: assault

Electronic Data Involved: Video surveillance footage

Mahaffey v. Marriot Int?l, Inc., —F. Supp. 2d —, 2012 WL 4833370 (D.D.C. Oct. 11, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions for defendant?s alleged destruction of video tape and hard copy where, as to the video tape, the court determined that defendant ?could not reasonably have known? that it had an obligation to preserve the at-issue video at the time it was destroyed, and that no sanctions were therefore merited and where, as to the hard copy documents, the plaintiff was unable to establish that the at-issue documents actually existed or that, if they did, they were destroyed with the requisite culpable state of mind (where the alleged spoliation resulted from a broken sprinkler which flooded a storage room), and where even if defendant had been negligent, plaintiff could not establish that the allegedly destroyed evidence was relevant to his claims

Nature of Case: Personal injury arising from alleged elevator accident

Electronic Data Involved: Video, hard copy

Anderson v. Otis Elevator Co., No. 11-10200, 2012 WL 5493383 (E.D. Mich. Nov. 13, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation without prejudice where plaintiffs ?demonstrated only a suspicion of prejudice and have not been able to establish bad faith conduct on the part of the Defendant?

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email, metadata related to excel spreadsheet

Dokho v. Jablonowski, No. 306082, 2012 WL 5853754 (Mich. Ct. App. Nov. 15, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not err in failing to grant Plaintiff?s request for an adverse presumption for insurance company?s failure to preserve a relevant file that was instead purged pursuant to the company?s document retention policy where Plaintiff provided no evidence of fraudulent conduct or intentional destruction; court further noted that Plaintiff failed to explain how the failure to provide an adverse inference (a lesser sanction than an adverse presumption) altered the court?s ?summary disposition analysis? reasoning that the court was already required to consider the evidence in the light most favorable to the non-moving party

Nature of Case: Claims arising from a slip and fall involving questions related to insurance coverage

Electronic Data Involved: Underwriting file

Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)

Dec 01 2012

Key Insight: Where defendant?s litigation specialist initially asserted that no responsive emails were uncovered but later testified that she had recently been told of a possible repository of archived emails and that search efforts there were ongoing and already had uncovered several relevant emails, Circuit court found no abuse of discretion in District Court?s refusal to impose an adverse inference which requires a showing of bad faith noting that the litigation specialist?s ?initial lack of knowledge? was ?carelessness at most? and further reasoning that the admission that relevant emails had been discovered was a further indication that the defendant was not acting in bad faith

Nature of Case: Fraud, breach of contract and similar claims related to plaintiff’s mortgage

Electronic Data Involved: Emails

Tag:Data Preservation