Data Preservation – Page 69 – Electronic Discovery Law

Kaufman v. Am. Express Travel Related Servs. Co., Inc., 2010 WL 3365921 (N.D. Ill. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendant admitted that information regarding potential class members had been deleted pursuant to its regular information management practice and indicated that some (but not all) information could be retrieved from backup tapes, the court acknowledged defendant?s duty to preserve but reasoned the culpability for such deletions was ?somewhat lessened? because no one had requested that defendant alter is retention policies and because the deletions occurred ?pursuant to the regular operation? of those policies and determined that no conclusions could be reached on the record provided but that ?the court may consider imposing a remedy in any findings regarding the fairness of settlement?

Nature of Case: Class action challenging certain fees assessed on American Express-issued gift cards

Electronic Data Involved: Customer-identifying information

S. New England Tel. Co. v. Global Naps, Inc., 624 F. 3d 123 (2nd Cir. 2010)

Dec 01 2010

Key Insight: Finding of contempt and order to pay plaintiffs? attorney?s fees and costs was no abuse of discretion where the court?s order to disclose financial assets was ?perfectly clear? and where there was ?clear and convincing? evidence of defendants? non-compliance and that defendants were not diligent in their attempts to comply; trial court did not abuse discretion in granting default judgment against all defendants in light of willful and bad faith discovery violations, including intentional deletion of ESI and lying about the existence and location of documents which ?formed a pattern of ?prolonged and vexatious obstruction?, and where lesser sanctions would be ineffective and defendants were aware of the consequences of non-compliance with their discovery obligations

Nature of Case: Claims arising from defendants’ failure to pay for special access servers ordered from plaintiff

Electronic Data Involved: ESI

Beluga Shipping GMBH & Co. KS ?Beluga Fantastic? v. Suzlon Energy, Ltd., 2010 WL 3749279 (N.D. Cal. Sept. 23, 2010)

Dec 01 2010

Key Insight: Court granted non-party?s Google Inc.?s Motion to Intervene to oppose Defendant?s request for leave to conduct discovery and to subpoena from Google the contents of two cross-defendants? accounts and other, related information where production of the emails themselves was barred by the Electronic Communications Privacy Act absent consent from the accounts owners, and thus it was futile to issue subpoenas; court granted in part defendant?s petition for leave to conduct discovery and ordered Google to disclose documents reflecting when the accounts were created, the names of the account holders, and the countries from which the accounts were created ? information not precluded from disclosure by the ECPA ? and instructed Google to preserve the snapshot of the emails in the account

Nature of Case: Petition for leave to conduct discovery in foreign judicial proceedings

Electronic Data Involved: Information related to Google account holders, and contents of accounts (emails)

Kahmout v. Vons Cos., Inc., 2010 WL 3751466 (Cal. Ct. App. Sept. 28, 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in denying motion for spoliation sanctions for defendant?s alleged spoliation of surveillance video where in the case of an incident the surveillance video was to be copied from the hard drive it was stored on to a CD, but where there was insufficient evidence that such a CD was ever made or existed, and where plaintiff failed to contact defendant regarding her lawsuit until 5 months had passed – a period of time far longer than the video would have been preserved on the hard drive in the usual course of business

Nature of Case: Personal injury

Electronic Data Involved: Video surveillance footage

Trickey v. Kaman Indus. Technologies Corp., 2010 WL 3892228 (E.D. Mo. Sept. 29, 2010)

Dec 01 2010

Key Insight: Where plaintiff suspected defendants of withholding responsive emails and sought to compel defendants to explain their preservation and production efforts and to produce all responsive ESI, court found defendants? explanation of its discovery efforts insufficient to determine whether they had satisfied their obligations where defendants failed to answer questions such as what happens to emails that are ?manually persevered? by individual custodians, the method of preservation employed by defendants (e.g. retaining existing storage archives, creating a mirror image of computer systems), and the availability of backup copies of data from an allegedly stolen laptop, and ordered defendants to provide such information, among other things, and to provide a copy of the police report ?presumably? filed for the stolen laptop

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Coburn v. PN II, Inc., 2010 WL 3895764 (D. Nev. Sept. 30, 2010)

Dec 01 2010

Key Insight: Where forensic investigation of plaintiff?s home computer revealed use of CCleaner only days before the investigation was scheduled, court denied motion for sanctions where the evidence indicated it was unlikely that relevant documents were destroyed and where in light of plaintiff?s denial that she ran or directed someone else to run CCleaner, there was not clear and convincing evidence of a violation of the court?s Forensics Order; court denied sanctions despite existence of thousands of ?non-standard? files containing keyword hits which indicated files that had been deleted where plaintiff presented evidence that such files could have been created in the normal use of the computer and where the relevance of the files could not be established for purposes of a spoliation analysis; court denied sanctions for plaintiff?s deletion of emails from her work account where the emails were saved to her personal computer and produced and where defendant?s protests that more emails should have been produced were insufficient to establish intentional spoliation; for plaintiff?s admitted and intentional destruction of audio tapes, the court imposed a $1500 monetary sanction

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Rockwood v. SKF USA, Inc., 2010 WL 3860414 (D.N.H. Sept. 30, 2010)

Dec 01 2010

Key Insight: Court denied a motion for spoliation sanctions for loss of records following foreclosure on plaintiffs? company where plaintiff made a reasonable effort to ensure preservation of relevant data after the foreclosure, including requesting the data?s preservation and permission to copy relevant records, and where ultimately some (but not all) records were obtained via subpoena from the third-party purchaser of plaintiff?s former assets and defendant was unable to establish prejudice; court denied a motion for spoliation sanctions for plaintiffs? replacement of two crashed hard drives where the court could not conclude the plaintiffs intentionally or carelessly permitted the destruction, particularly in light of their attempts to recover some data with limited success; court denied spoliation sanctions for plaintiffs? use of CCleaner absent evidence that any data was actually deleted; despite the lack of prejudice resulting from one plaintiff?s admitted deletion of allegedly personal documents in light of those documents existence in hard copy, court imposed an ?adverse inference against [plaintiff?s] credibility as a witness? at trial citing the purpose of deterring similar misconduct in future

Nature of Case: Claims arising from failed business relationship

Electronic Data Involved: Emails, ESI

State of California ex rel Fowler v. Caremark RX, LLC, 2010 WL 3991298 (Cal. Ct. App. Oct. 13, 2010):

Dec 01 2010

Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal

Nature of Case: Violation of False Claims Act

Electronic Data Involved: Archived ESI

Kwon v. Costco Wholesale Corp., 2010 WL 571941 (D. Haw. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion in limine and imposed an adverse inference resulting from defendant?s failure to preserve surveillance video tape potentially containing footage of the underlying accident upon finding that defendant was aware of its duty to preserve but took no steps to prevent the footage from being automatically recorded over; court denied request for default judgment where such a drastic step was not warranted absent evidence of the ?requisite willfulness, fault, or bad faith?; court declined to impose monetary sanctions

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Video surveillance tape

Cenveo Corp. v. S. Graphic Sys., Inc., 2010 WL 3893709 (D. Minn. Sept. 30, 2010)

Dec 01 2010

Key Insight: For CFO?s intentional destruction of evidence to defeat litigation despite a duty to preserve, the district court judge adopted the magistrate judge?s recommendation and imposed a $100,000 fine and found that more drastic sanctions were not warranted where the resulting prejudice was mitigated by the availability of all the defendants and other witnesses for questioning

Nature of Case: Tortious interference with business relationships, misappropriation of trade secrets, unfair competition

Electronic Data Involved: Emails

Tag:Data Preservation