Data Preservation – Page 57 – Electronic Discovery Law

In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299 (N.D. Ga. 2011)

Dec 01 2011

Key Insight: Providing significant analysis of the issue of spoliation, court denied plaintiff?s motion for sanctions for defendant?s alleged failure to adequately preserve evidence where government?s investigation did not trigger a duty to preserve evidence as to the class action plaintiffs in this case and thus, no duty to preserve existed for purposes of the spoliation analysis; court also found that even where duty to preserve existed, plaintiffs also failed to establish prejudice resulting from the alleged failure to preserve and that defendant acted in bad faith by failing to prevent the loss of ESI pursuant to defendant?s usual document retention policies and the automatic functions of its server

Nature of Case: Class action related to alleged collusion in implementation baggage fees

Electronic Data Involved: Emails, ESI

Peterson v. Seagate, 2011 WL 861488 (D. Minn. Jan 27, 2011)

Dec 01 2011

Key Insight: Where court found that plaintiffs? EEOC claims did not provide sufficient notice of the likelihood of a nationwide class action and where defendant destroyed the ESI of the former employees at issue in accordance with its usual document retention policies, court found that plaintiff had failed to show that information was destroyed in an effort to suppress the truth or that they had suffered any prejudice and declined to order sanctions

Nature of Case: Class action alleging age discrimination in employment

Electronic Data Involved: ESI of former employees

United States v. Fetter, No. 3:10 CR 411, 2011 WL 1060301 (N.D. Ohio Feb. 18, 2011)

Dec 01 2011

Key Insight: Where video of defendant?s alleged destruction of evidence while in a holding cell was automatically recorded over pursuant to the department?s standard policy and was not preserved because none of the officers involved in the investigation realized the images from cameras in the cells were recorded (as opposed to merely ?stream[ed]? to allow observation), court found no bad faith and thus no violation of due process arising from destruction of ?potentially useful? evidence (as opposed to exculpatory evidence)

Nature of Case: Criminal (sex trafficking)

Electronic Data Involved: Video of defendant while in holding cell

Larkin v. Trinity Lighting, Inc., No. 3:10cv109-TSL-MTP, 2011 WL 1496248 (D. Miss. Apr. 20, 2011)

Dec 01 2011

Key Insight: Where questions remained as to whether plaintiff deleted files from his work laptop in bad faith before returning it, whether defendant suffered any prejudice as a result and whether the information sought to be forensically retrieved was likely to be of any substantial benefit, court denied defendant?s motion to compel restoration of the laptop at plaintiff?s expense, but concluded that defendant could retrieve the information at its own costs if it so chose

Nature of Case: Claims alleging failure to pay bonus payment

Electronic Data Involved: ESI

Miller v. City of Plymouth, No. 2:09-CV-205 JVB, 2011 WL 1458419 (N.D. Ind. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court upheld ruling that defendants did not destroy video evidence thereby warranting sanctions where plaintiff sought police recordings starting in 2004, but where no retention policy existed during that time period except officers? discretion to retain recording and many of the requested recordings had been recorded over long before plaintiffs? traffic stop; where the relevant officer was not asked to save tape of certain traffic stops until 2010; where plaintiffs? accusations of spoliation assumed that relevant video existed and ?overlooked the significant trouble Defendants have experienced in operating and maintaining their digital systems;? and where defendants had no control over the fact that the systems hard drive recorded over old data

Nature of Case: Claims arising from traffic stop

Electronic Data Involved: Video

Papadoplos v. Schmidt, Ronca & Kramer, PC, 21 A.3d 1216 (Pa. Super. Ct. 2011)

Dec 01 2011

Key Insight: Appellate court affirmed sanction of dismissal of plaintiffs? claims for spoliation where plaintiff was found to have undertaken ?knowing and willful? spoliation of ?pertinent? evidence resulting in prejudice to the defendant by destroying relevant hard drives

Nature of Case: Legal Malpractice

Electronic Data Involved: ESI, hard drives

McCargo v. Texas Roadhouse, Inc., No. 09-cv-02889-WYD-KMT, 2011 WL 1638992 (D. Colo. May 2, 2011)

Dec 01 2011

Key Insight: Where willful, bad faith spoliation of relevant video tapes despite a duty to preserve (triggered by an internal complaint of harassment and receipt of two preservation requests from plaintiff) resulted in prejudice to the plaintiff, court ordered sanctions, including an adverse inference allowing (but not requiring) the jury to infer that certain tapes would have been harmful to defendant, an order precluding defendant from the introduction of certain evidence, and a prohibition on cross examination of plaintiff?s witnesses as to certain topics

Nature of Case: Racial discrimination

Electronic Data Involved: Video

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

Roth v. Sloan, No. 1:08 CV 1656, 2011 WL 1298498 (N.D. Ohio Mar. 31, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish that the accused spoliator had custody and control of the allegedly spoliated audiotape and where the plaintiff was not prejudiced in light of his receipt of a transcript of the tape

Nature of Case: Witness intimidation, retaliation, defamation or false-light invasion of privacy

Electronic Data Involved: Audio tape

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3 :09cv58, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s alleged deletion of relevant ESI upon finding that because plaintiff would not have known of the relevance of information in the identified custodians? custody at the time ESI was lost, there was no duty to preserve and thus no spoliation; as to ESI alleged to have been deleted while a duty to preserve existed, the court denied sanctions absent evidence of relevance or that defendant was prejudiced by the alleged loss

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI, emails

Tag:Data Preservation