Data Preservation – Page 70 – Electronic Discovery Law

Barrow v. Miner, 2010 WL 4016815 (Ohio Ct. App. Oct. 15, 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in dismissing plaintiff?s claims as sanction for spoliation where plaintiff failed to preserve evidence and in fact purposefully acted to destroy evidence by utilizing scrubbing software and taking other deliberate measures

Nature of Case: Plaintiffs brought suit to recover losses based on a breach of fiduciary duty, wrongful termination, and indemnification

Electronic Data Involved: Contents of plaintiff’s computer

Whited v. Motorists Mutual Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010)

Dec 01 2010

Key Insight: For plaintiff?s willful and bad faith violations of the court?s orders which resulted in prejudice to the defendants, including unexplained delays in production and intentional deletion of files on computers which the court had ordered no one to use, and where the court had previously warned that failure to comply could result in dismissal, court ordered dismissal of plaintiff?s claims

Nature of Case: Cross claims arising from insurance payments for home health care

Electronic Data Involved: ESI

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Hare v. Opryland Hospitality, LLC, 2010 WL 3719915 (D. Md. Sept. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s alleged destruction of ?full and complete surveillance video? of the relevant incident but failed to establish that defendant had the burden to preserve any video aside from the portion produced or that any other relevant footage existed and was deleted and where plaintiff failed to establish the ?requisite state of mind?, the court denied plaintiff?s motion for sanctions

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance footage

Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 2010 WL 3368654 (S.D. Fla. Aug. 23, 2010)

Dec 01 2010

Key Insight: Where the defendant was negligent in its failure to preserve potentially relevant emails and attachments by failing to timely issue a litigation hold and where those emails and attachments were lost as the result of an automatic deletion pursuant to defendant?s document retention policy, the court denied plaintiff?s motion for spoliation sanctions where the court determined the evidence was not ?crucial? to plaintiff?s case and where there was no direct or circumstantial evidence of bad faith; court noted that the ruling did not foreclose the possibility that plaintiff could introduce evidence of defendant?s failure to retain relevant documents at trial

Nature of Case: Breach of contract

Electronic Data Involved: Emails and attachments

People v. Jobe, 2010 WL 4106708 (Cal. App. Ct. Oct. 20, 2010)

Dec 01 2010

Key Insight: Trial court did not err by refusing to dismiss based on prosecutions failure to preserve potentially exculpatory video surveillance tape where the tape was never in the possession of the State but rather remained in the possession of the market and where the exculpatory value of the video was not apparent, and thus there was no evidence of bad faith

Nature of Case: Attempted robbery

Electronic Data Involved: Video surveillance footage

Romero v. Allstate, 2010 WL 4138693 (E.D. Pa. Oct. 21, 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? request for production of documents in native format and rejected defendants? arguments that plaintiffs must show a ?particularized need? for metadata where ?multiple courts? have held the burden falls to the objecting party to establish hardship or expense and where defendants failed to show how such a production would negatively impact them and noted that were such a showing necessary, plaintiff would have satisfied it; court ordered parties to meet and confer regarding the search terms, additional custodians, and other ?essential details about [defendants?] search methodology? going forward but declined to compel defendant to disclosure the methods utilized for past searching where such an order would result in undue burden to defendants; court declined to compel defendants to certify that they had complied with their discovery obligations absent evidence of spoliation

Nature of Case: Class action

Electronic Data Involved: ESI, metadata

Oto Software, Inc. v. Highwall Techs., LLC, 2010 WL 3842434 (D. Colo. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion for sanctions where defendant Highwall breached its obligation to preserve information related to the underlying royalty dispute following receipt of a letter which triggered the duty to preserve and ordered that discovery be re-opened and that defendant Highwall bear the costs but also found that the duty to preserve documents related to the development of allegedly infringing software was not triggered until the filing of the complaint and that no spoliation had occurred; court found purchaser of Highwall?s assets during pendency of the royalty dispute had no duty to preserve where the software at issue was excluded from purchaser?s acquisition

Nature of Case: Royalty dispute, copyright infringement

Electronic Data Involved: ESI

State v. Absher, 2010 WL 3860501 (N.C. App. Ct. Oct. 5, 2010)

Dec 01 2010

Key Insight: Where police department failed to preserve video surveillance footage containing images of the alleged assault at issue despite a specific written request for preservation by defendants? counsel and instead altered the tape to remove significant portions and then destroyed the original, superior court did not err in dismissing the charges against defendants because of the irreparable prejudice caused by the loss of the video tape

Nature of Case: Criminal/Assault

Electronic Data Involved: Video surveillance footage

Prins v. Dir. of Revenue, 333 S.W.3d 17 (Mo. Ct. App. 2010)

Dec 01 2010

Key Insight: Where the trial court granted spoliation sanctions despite failing to find that the loss was intentional or in bad faith (where the officer failed to preserve the relevant video footage as the result of failing to mark the right ?checkbox? in the system) and where Missouri law requires ?evidence of intentional destruction? or ?evidence that the spoliator destroyed the evidence ?under circumstances manifesting fraud, deceit, or bad faith?, the appellate court reversed the judgment of the trial court and remanded for a new hearing

Nature of Case: DUI

Electronic Data Involved: Video footage of defendant’s stop and arrest

Tag:Data Preservation