Data Preservation – Page 60 – Electronic Discovery Law

Surowiec v. Capital Title Agency, Inc., No. CV-09-2153-PHX-DGC, 2011 WL 1671925 (D. Ariz. May 4, 2011)

Dec 01 2011

Key Insight: Highlighting that a party?s duty of preservation is owed to the court and not to a potential plaintiff, court found that defendant was grossly negligent in its failure to issue a litigation hold or take other efforts to ensure preservation of relevant evidence and ordered an adverse inference; court also found that defendant acted ?willfully in failing to timely and adequately respond to the document requests? where defendant?s search terms were not ?calculated to capture? relevant documents and where a court ordered (re)search resulted in production of thousands of documents only three days before the close of discovery and ordered defendant to reimburse plaintiff for expenses incurred as a result of the misconduct and for the reasonable attorney?s fees spent to challenge the misconduct, prepare for additional depositions, and bring the instant motion for sanctions; court?s opinion specifically declined to hold that a lack of written litigation hold was negligence per se

Nature of Case: Breach of contract, breach of fiduciary duty, etc. related to purchase of condominium

Electronic Data Involved: Emails, ESI

In re Hitachi Television Optical Block Cases, No. 08cv1746 DMS (NLS), 2011 WL 3263781 (S.D. Cal. Aug. 12, 2011)

Dec 01 2011

Key Insight: Despite the intentional deletion of ESI by defendant?s employee, court declined to impose evidentiary sanctions where there was no showing of prejudice (because the vast majority of deleted ESI was recovered); court also denied request for attorneys? costs and fees pursuant to its inherent authority or under Rule 37

Nature of Case: Putative Class Action alleging a product defect

Electronic Data Involved: Emails

Veolia Transp. Servs. v. Evanson, No. CV-10-01392-PHX-NVW, 2011 WL 5909917 (D. Ariz. Nov. 28, 2011)

Dec 01 2011

Key Insight: Where, prior to being named a party to the action, defendant failed to preserve ESI (including failing to pay a vendor for imaging her hard drive, which resulted in the vendor’s destruction of the image) despite the receipt of two subpoenas, where the court found the spoliation to be at least willful, and where the circumstances surrounding the spoliation permitted an inference that the information destroyed was highly relevant to the litigation, court found an entry of default was appropriate and set a hearing to determine the appropriate damages

Nature of Case: Tortious interference with a contract, breach of contract, defamation, etc. arising from anonymous emails sent to several parties

Electronic Data Involved: ESI, hard drive

State v. Holiday, No. 1 CA-CR 10-0698, 2011 WL 3819844 (Ariz. App. Ct. Aug. 30, 2011)

Dec 01 2011

Key Insight: Court denied motion to reverse conviction based on state?s failure to preserve evidence despite defendant?s alleged express written request to do so where, because the contents of the audio and visual tapes at issue was unknown, evidence of bad faith was required and where no such evidence was presented; the court indicated: ?The record indicates that the officers were acting in good faith in accordance with their normal practices when the tapes were destroyed.?

Nature of Case: Criminal

Electronic Data Involved: Audio and visual tapes related to arrest, etc.

Medeva Pharma Suisse A.G. v. Roxane Labs., Inc., 2011 WL 310697 (D.N.J. Jan. 28, 2011)

Dec 01 2011

Key Insight: Despite acknowledging defendant?s failure to implement a litigation hold until at least 5 years after it first anticipated litigation, the court denied plaintiff?s motion for sanctions where the quantity and quality of the documents produced by defendant established that relevant information was ?diligently preserved? pursuant to defendant?s document retention policy and where plaintiff failed to establish that it had been prejudiced or that its ability to effectively prepare for trial had been impeded

Nature of Case: Hatch-Waxman patent infringement

Electronic Data Involved: ESI, emails

State Farm Mut. Auto. Ins. Co. v. Grafman, 274 F.R.D. 442 (E.D.N.Y. 2011)

Dec 01 2011

Key Insight: For defendants? discovery abuses, including spoliation or withholding of audio tapes of wiretapped conversations despite a court order to produce them; destruction of relevant hard drives and refusal to authorize release of copies of those drives from a third-party; and failure to produce other relevant evidence, court found that plaintiff had been prejudiced and ordered default sanctions

Nature of Case: Claims arising from fraudulent scheme to recover insurance reimbursements

Electronic Data Involved: Audio tapes, hard drives

Pac. Century Int. Ltd. v. Does 1-101, No. C-11-02533-(DMR), 2011 WL 2690142 (N.D. Cal. July 8, 2011)

Dec 01 2011

Key Insight: Upon plaintiff?s showing of good cause, court granted motion for expedited discovery to issue a subpoena to the relevant ISP seeking identifying information regarding one unknown defendant (Doe 1) but denied the motion as to the remaining 100 Does because of improper joinder

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information for ISP subscriber

S.E.C. v. Brewer, No. 10 C 6932, 2011 WL 3584800 (N.D. Ill. Aug. 15, 2011)

Dec 01 2011

Key Insight: Court held defendants in contempt for failing to preserve documents in compliance with a court order; reasoning that because documents had been destroyed, no monetary sanction would coerce their production, the court ordered that defendants pay the reasonable costs associated with the government having to bring and prosecute the motion

Nature of Case: SEC litigation

Electronic Data Involved: ESI

Vibra-Tech Eng?rs, Inc. v. Kavalek, No. 08-2646 (JEI/AMD), 2011 WL 6755194 (D.N.J. Dec. 22, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions absent evidence of fraud or bad faith and where the court did not find sufficient evidence of prejudice

Nature of Case: Breach of employment agreement

Electronic Data Involved: ESI

Denim N. Amer. Holdings, LLC v. Swift Textiles LLC, 816 F. Supp. 2d (M.D. Ga. 2011)

Dec 01 2011

Key Insight: Despite noting that it was ?undisputed? that plaintiffs? witnesses did not modify their practice of ?deleting most emails within a short time of receiving them? even after they reasonably anticipated litigation, the court declined to impose an adverse inference where the record supported a finding that the witnesses ?destroyed the emails in the ordinary course of business unmotivated by any bad faith.?

Nature of Case: Fraudulent inducement, breach of fiduciary duty

Electronic Data Involved: Emails

Tag:Data Preservation