Data Preservation – Page 63 – Electronic Discovery Law

Zarwasch-Weiss v. SKF Economos USA, Inc., No. 1:10-cv1327, 1:10-cv-1548, 2011 WL 4628745 (N.D. Ohio Oct. 3, 2011)

Dec 01 2011

Key Insight: In three separate instances, court concluded plaintiff deliberately destroyed or failed to produce relevant electronic devices and documents; culpably contributed to the destruction of a relevant hard drive; and deliberately destroyed relevant financial information and ordered repayment of plaintiff?s attorneys? fees and costs related to the adjudication of their motions for sanctions and repayment of attorneys? fees and costs related to plaintiffs construction of evidence of relevant financial information, made much more difficult by defendant?s spoliation

Nature of Case: Breach of employment contract and related claims and cross claims related to theft and use of confidential information

Electronic Data Involved: ESI

Gerlich v. United Stated Dept. of Justice, 828 F. Supp. 2d 284 (D.D.C. 2011)

Dec 01 2011

Key Insight: Plaintiff argued that Department of Justice had destroyed records in violation of Federal Records Act but court clarified that Federal Records Act rather requires agencies to decide which materials must be preserved and reasoned that where DOJ decided not to require preservation of notes related to employment candidates and thus such information was destroyed, no spoliation could be found where the destruction was in accordance with policy and occurred prior to initiation of the relevant investigation and the subsequent lawsuit

Nature of Case: Claims alleging wrongful employment decisions based on political affiliation

Electronic Data Involved: Notes taken regarding applicants

N.V.E. Inc. v. Palmeroni, No. 06-5455 (ES), 2011 WL 4407428 (D.N.J. Sept. 21, 2011)

Dec 01 2011

Key Insight: Court ordered adverse inference and monetary sanctions (in an amount to be established) where plaintiff was grossly negligent in its preservation, review and collection of documents, including by failing to issue a litigation hold and because of counsel?s failure to supervise the review and collection of documents, and where such failures resulted in the loss of relevant evidence; court denied request for preclusion of evidence where defendant failed to establish that plaintiff acted in bad faith; Motion for Reconsideration denied by District Judge 2012 WL 2020242 (D.N.J. June 5, 2012)

Velocity Press Inc. v. Key Bank, N.A., No. 2:09-CV-520 TS, 2011 WL 1584720 (D. Utah April 26, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for sanctions where at-issue emails were deleted prior to when defendant?s duty to preserve attached; court?s analysis included consideration of when duty to preserve arose and found that some communications from plaintiff may have ?hinted at potential claims to certain employees? but did not ?directly threaten litigation? and that the duty to preserve was triggered later, upon receipt of the summons and complaint

Electronic Data Involved: Emails, ESI

Chevron Corp. v. E-Tech Int., No. 10cv1146-IEG (WMc), 2011 WL 1898908 (S.D. Cal. May 19, 2011)

Dec 01 2011

Key Insight: The court denied defendant’s Motion for Reconsideration of the court?s order allowing forensic examination of the at issue hard drive by a neutral forensic examiner where defendant failed to meet the standard for reconsideration

Electronic Data Involved: Mirror image of hard drive

Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)

Dec 01 2011

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email

Appleton Papers, Inc. v. George A. Whiting Paper Co., No. 08-C-16, 2011 WL 7005721 (E.D. Wis. Dec. 19. 2011)

Dec 01 2011

Key Insight: Court declined to impose spoliation sanctions for destruction of original microfiche where the destruction occurred in a somewhat unique situation ( the crate of microfiche was destroyed after becoming an ?orphan sitting in a warehouse? after being shipped back to England) and where ?nothing of value was lost? because the originals had been digitally copied

Electronic Data Involved: Original microfiche

Cannata v. Wyndham Worldwide Corp., No. 2:1-cv-00068-PMP-VCF, 2011 WL 5598306 (D. Nev. Nov. 17, 2011)

Dec 01 2011

Key Insight: Reasoning that the litigation holds were not discoverable but that the details surrounding them were, court ordered defendant to produce ?information surrounding the litigation hold? including when defendants learned of claims, when and to whom litigation hold instructions were sent, what categories of information were identified for preservation , etc.

Electronic Data Involved: Litigation holds

Fatpipe Networks India Ltd. v. Xroads Networks, Inc., 2010 WL 129790 (D. Utah Jan. 8, 2010)

Dec 01 2010

Key Insight: Where evidence indicated that defendant had not produced all versions of its relevant source code despite a court order and had been untruthful as to its maintenance of certain records, court granted plaintiff?s motion to vacate its scheduling order and ordered defendant to take specific action, including 1) taking specific measures to ensure preservation of relevant evidence, 2) taking ?all reasonable measures to obtain from third parties?including past or present customers? evidence of its software development and version history, 3) identifying all computers on which anyone had engaged in software development since 2006 and all devices which ?ha[d] at any time contained? data reflecting such activity, and 4) producing all prior or current versions of software and source code for each relevant device, among other things

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Mintel Int?l Group, Ltd. v. Neerghen, 2010 WL 145786 (N.D. Ill. Jan. 12, 2010)

Dec 01 2010

Key Insight: Court declined to grant spoliation sanctions for the destruction of metadata resulting from defendant?s continued use of his company-issued laptop where such use was not prohibited by the temporary restraining order and was not shown to destroy relevant evidence and where there was no evidence of defendant?s bad faith

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: Metadata

Tag:Data Preservation