Data Preservation – Page 65 – Electronic Discovery Law

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

Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 WL 1286366 (W.D.N.Y. Mar. 31, 2010)

Dec 01 2010

Key Insight: Court found destruction or loss of documents resulting from failure to issue a litigation hold grossly negligent but declined to recommend dismissal or an adverse inference where the record did not reveal actual or likely prejudice and held open defendant?s option to renew their request following re-depositions of the relevant custodian, the cost of which plaintiff was to bear; for the late production of responsive documents, court recommended additional depositions and for plaintiff to bear the cost and for plaintiff to bear defendants? costs associated with the instant motions; magistrate judge?s recommendations were affirmed by the district court in their entirety 2010 WL 4027780 (W.D.N.Y. Oct. 14, 2010)

Nature of Case: Claims arising from alleged defects in cellular towers designed and manufactured by defendant

Electronic Data Involved: ESI, email

State v. Huggett, 783 N.W.2d 675 (Wis. App. Ct. 2010)

Dec 01 2010

Key Insight: Where police confiscated cell phones from the defendant and a key witness which contained highly relevant and exculpatory messages but failed to preserve them, court reasoned that ?[b]y creating an expectation of preservation [in the mind of the defendant], the State became responsible for ensuring that it occurred? and that its failure to do so deprived the defendant of due process such that dismissal with prejudice was appropriate

Nature of Case: Charges arising from shooting of intruder, allegedly in self defense

Electronic Data Involved: Voice mail and text messages on cell phones

Potenza v. Gonzales, 2010 WL 890959 (N.D.N.Y. Mar. 8, 2010)

Dec 01 2010

Key Insight: Where plaintiffs? counsel admitted he had been in possession of the videotape of plaintiff?s interview with police following his arrest but that despite a diligent search he could not find it and could offer no explanation for why, court found spoliation sanctions were warranted, noting that the second circuit has recognized ?simple negligence? as a sufficiently culpable state of mind, and ordered an adverse inference; court rejected plaintiff?s argument that defendant should be sanctioned for failing to preserve the original despite plaintiff?s request to do so where plaintiff offered no evidence in support of their claim that defendant ever had control of the tape or played a role in its destruction

Nature of Case: Violation of Fourth Amendment right to be free from false arrest, malicious prosecution, and abuse of process

Electronic Data Involved: Videotape of police interview

Field Day, LLC v. County of Suffolk, 2010 WL 1286622 (E.D.N.Y. Mar. 25, 2010)

Dec 01 2010

Key Insight: Court declined to find County employees culpable for spoliation of ESI, but ordered monetary sanctions against the County for negligently failing to adequately preserve ESI and declined harsher sanctions where many documents were produced in hard copy and thus the resulting prejudice was unclear; court?s analysis of culpability included recognition that the alleged spoliation occurred in 2003-2004, during a time when the law of preservation of ESI was not fully developed

Nature of Case: Claims arising from denial of mass gathering permit

Electronic Data Involved: ESI

State v. Durham, 2010 WL 1254355 (Ohio App. Ct. Apr. 1, 2010)

Dec 01 2010

Key Insight: Where defendant appealed his conviction and argued the State?s failure to preserve videotape depicting a struggle between police and defendant was a violation of due process, court found the videotape was not subject to production pursuant to Brady absent evidence that it contained ?materially exculpatory evidence?, and that absent evidence of bad faith, defendant could not show a due process violation arising from the destruction of ?potentially useful? evidence

Nature of Case: Criminal

Electronic Data Involved: Surveillance video

Global Naps, Inc. v. Verizon New England d/b/a Verizon Mass., 603 F.3d 71 (1st Cir. 2010)

Dec 01 2010

Key Insight: District court did not abuse discretion in ordering default judgment as sanction for discovery violations where evidence indicated that defendants lied to the court regarding its record keeping practices and the timing of their alleged ?loss? of financial records and withheld and destroyed financial records, including intentionally wiping relevant evidence from a hard drive using scrubbing software

Nature of Case: Litigation arising from defendants’ failure to pay access charges for services provided

Electronic Data Involved: ESI

Merck Eprova AG v. Gnosis S.P.A., 2010 WL 1631519 (S.D.N.Y. Apr. 20, 2010)

Dec 01 2010

Key Insight: Court found defendants were ?at least? grossly negligent for failing to issue a written litigation hold and ordered defendants to pay the costs of plaintiff?s motion to compel as well as a $25,000 fine; in devising its sanction, the court considered defendants other conduct, including defendants? deficient search for responsive documents, defense counsel?s lack of meaningful supervision in the discovery process, and defendants? decision to withhold certain documents deemed insufficiently important, among other things

Nature of Case: Lanham Act/ mislabeled ingredients

Electronic Data Involved: Emails

Shlala v. Catholic Health & Human Servs., 2010 WL 1655869 (N.J. Super. Ct. App. Div. Apr. 23, 2010)(Unpublished)

Dec 01 2010

Key Insight: Trial court did not err in dismissing plaintiff?s claim of fraudulent concealment arising from the destruction of the hard drive plaintiff utilized while employed by defendant where plaintiff failed to specifically request the preservation or production of the computer?s contents until three years after he was terminated (despite filing a complaint and requesting discovery) and where plaintiff failed to establish any of the five elements necessary to support an action for fraudulent concealment, including failing to establish defendants? duty to preserve, the materiality of the evidence destroyed, and the inability to obtain the evidence from another source, among other things

Nature of Case: Employment litigation

Electronic Data Involved: ESI on hard drive utilized by plaintiff while employed by defendant

Clark v. Randalls Food, 317 S.W.3d 351 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in denying motion for sanctions where, despite defendant?s failure to preserve all relevant portions of a surveillance video tape, the court found the tape would not have revealed information necessary to establish defendant?s knowledge of the allegedly dangerous condition at issue and thus, there was no prejudice to plaintiff

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance video

Tag:Data Preservation