Data Preservation – Page 63 – Electronic Discovery Law

Makeen v. Comcast of Colo. X, LLC, 2011 WL 93728 (D. Colo. Jan. 11, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s loss of server logs where the court determined that the logs were of minimal relevance to plaintiff?s claims and where the logs ?rolled over? in the usual course of business prior to the trigger of defendant?s duty to preserve

Nature of Case: Violation of FMLA and ADA, employment discrimination, intentional infliction of emotional distress

Electronic Data Involved: Server logs

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

State v. McNeil, 708 S.E.2d 590 (Ga. Ct. App. 2011)

Dec 01 2011

Key Insight: Dismissal of trial for destruction of video tape of defendant?s traffic stop was reversed where appellate court concluded the lost tape did not rise to the level of constitutional materiality and was instead ?at best potentially exculpatory? and where there was no evidence that the tape was destroyed in bad faith

Nature of Case: Criminal possession

Electronic Data Involved: Videotape of traffic stop

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

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

F.T.C. v. Asia Pac. Telecom, Inc., No. 10 C 3168, 2011 WL 2110220 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: Court found defendants in contempt and, in the alternative, invoked its inherent authority to sanction where defendants were found to have deactivated a relevant Yahoo! email account in violation of a temporary restraining order which caused the information therein to be permanently lost and where the court found that the deactivation was in bad faith and resulted in prejudice to the plaintiff; court declined to impose default judgment but ordered adverse inferences which substantially eased plaintiff?s ability to establish liability

Nature of Case: Violations of National Do Not Call Registry

Electronic Data Involved: Web based emails

AMG Nat?l Trust Bank v. Ries, No. 06-CV-3061, 2011 WL 2912874 (E.D. Pa. July 21, 2011)

Dec 01 2011

Key Insight: Court granted motion for spoliation sanctions for defendant?s deletion of relevant computer files and ordered an adverse inference and payment of plaintiff?s attorney?s costs and fees but, because the extent of the prejudice could not be determined, indicated that the language of the inference would be withheld until defendant paid for a forensic examination of his computer to determine what, if any, evidence could be recovered and thus the extent of the prejudice suffered by the plaintiff

Nature of Case: Breach of employment contract, breach of fiduciary duties, and violation of Uniform Trade Secrets Act

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

Phillip M. Adams & Assoc., LLC v. Fujitsu, Ltd., 2010 WL 1064429 (D. Utah Mar. 18, 2010)

Dec 01 2010

Key Insight: Where defendant subpoenaed third parties seeking production of communications between defendant and those third parties from years prior, and where defendant could not produce those communications itself, court found the information relevant and denied third parties? motion to quash but, noting that defendant?s insufficient document retention policies resulted in the need to subpoena the information, court ordered defendant to bear the costs of production

Nature of Case: Patent infringement

Electronic Data Involved: Emails, ESI

Azevedo v. City of Fresno, 2010 WL 2353526 (E.D. Cal. June 9, 2010)

Dec 01 2010

Key Insight: Where two years following the relevant altercation the taser used on plaintiff was sent to the manufacturer for repair, deemed irreparable, and was destroyed without preserving the data contained thereon, the court ruled the spoliation was negligent and declined to impose dispositive sanctions or evidence preclusion, but, noting it was ?troubled? by the data?s destruction, granted permission for plaintiff to file a motion in limine addressing the propriety of a rebuttable inference instruction regarding the spoliation

Nature of Case: Claims arising from detention and arrest of plaintiff which resulted in plaintiff being tasered and injured

Electronic Data Involved: Taser data

Tag:Data Preservation