Data Preservation – Page 61 – Electronic Discovery Law

Io Group, Inc. v. GLBT, Ltd., No. C-10-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

Dec 01 2011

Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Miller v. Four Winds Int. Corp., No. 2:10-cv-00254-CWD, 2011 WL 5080032 (D. Idaho Oct. 25, 2011)

Dec 01 2011

Key Insight: Where plaintiff testified in deposition that she had saved relevant voice messages two years prior and that they were still available but later indicated that the messages were lost as a result of water damage to her phone and the passage of time (her service carrier indicated the messages were automatically deleted after a certain time), the court found that because she had previously indicated that the messages were available and because there was no evidence presented of when the messages became inaccessible, spoliation had occurred; court indicated an adverse inference ?may be appropriate? but withheld a final determination until it could consider the evidence offered at trial

Nature of Case: Product liability

Electronic Data Involved: Voicemail

Felman Prod., Inc. v. Indus. Risk. Insurers, No. 3:09-0481, 2011 WL 4547012 (S.D.W. Va. Sept. 29, 2011)

Dec 01 2011

Key Insight: For egregious discovery violations, including attempting to conceal relevant custodians, failure to issue litigation holds, spoliation, delay, and lack of candor, the court granted in part defendants? motion for terminating sanctions and dismissed plaintiff?s claim for business interruption losses?the claim most affected by the discovery abuse; court declined to dismiss all claims where, despite the discovery violations, defendants? were not sufficiently prejudiced to support terminating sanctions, but found an adverse inference instruction to be ?an adequate remedy?

Nature of Case: Complaint seeking payment of insurance claims; counterclaim for fraud

Electronic Data Involved: ESI

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

Escamilla v. SMS Holdings Corp., No. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21, 2011)

Dec 01 2011

Key Insight: Court affirmed Magistrate Judge?s order requiring defendant to submit his computers for forensic examination, at his own expense, where defendant reinstalled an operating system less than two weeks after plaintiff filed a motion to compel and where, because of the loss of data, plaintiff was therefore prejudiced to an unknown extent?bad faith was not required for such an order; court affirmed order requiring corporate defendant to search hard drives of key employees, the image of a file and print server, and backup tapes dating back five years where the search was not overly broad and where defendant did not establish undue burden?despite its exorbitant estimate regarding backup tapes?in light of the large disparity between estimates from both parties, and where the court noted that much of the costs could have been avoided had SMS fulfilled its preservation duties and not converted to a less accessible format

Nature of Case: Employment litigation – sexual harassment

Electronic Data Involved: ESI

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

United States ex rel Berglund v. Boeing Co., 835 F.Supp.2d 1020 (D. Or. Dec. 2011)

Dec 01 2011

Key Insight: Where plaintiff altered and deleted emails and discarded potentially relevant hard drives the court undertook a substantial analysis of the relevant legal standards surrounding spoliation and, upon consideration of those standards, imposed two monetary sanctions requiring the plaintiff to pay for the reasonable costs and fees arising from his failure to produce a hard drive as he had been directed to do by the court and to pay for Boeing?s costs ?directly connected with the investigation and discovery of the altered emails?; the court also dismissed, with prejudice, plaintiff?s claim of retaliation

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Emails, hard drives

Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011)

Dec 01 2011

Key Insight: Where ?severe spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith,? the circuit court affirmed the lower court?s denial of plaintiff?s motion for spoliation sanctions where there was no evidence that the accused party intentionally destroyed the relevant video tape ?or acted with bad faith or gross negligence in respect to it?

Nature of Case: False arrest, defamation

Electronic Data Involved: Videotape

Yelton v. PHI, Inc., 2011 WL 6100445 (E.D. La. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where, following a helicopter crash, defendant hired an engineer to conduct relevant analysis, and where defendant failed to place that engineer under a litigation hold, court found that relevant information was deleted and that the evidence indicated a finding of ?a significant degree of culpability? and ordered an adverse inference and that defendant pay the moving party?s reasonably costs and attorneys? fees related to the spoliation motion

Nature of Case: Claims arising from helicopter crash

Electronic Data Involved: ESI related to engineering analysis

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

Tag:Data Preservation