Data Preservation – Page 71 – Electronic Discovery Law

Streit v. Elec. Mobility Controls, LLC, 2010 WL 4687797 (S.D. Ind. Nov. 9, 2010)

Dec 01 2010

Key Insight: Where defendant?s multiple attempts at starting plaintiff?s car following the underlying accident resulted in multiple ?blocks? of data being overwritten, the court denied sanctions absent evidence that the loss was intentional (where the imposition of sanctions required a showing of bad faith) and because the relevant ?event? data was also recorded in alternative source that was fully preserved and plaintiff offered no evidence that the relevant data was recorded only to the lost data blocks and not the available alternative source

Nature of Case: Personal injury/product liability

Electronic Data Involved: Black box data from automobile

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

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

Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL 2560455 (D. Neb. June 24, 2010)

Dec 01 2010

Key Insight: Where plaintiff presented evidence purportedly showing defendant?s intentional destruction of relevant evidence, court found an imminent threat of irreparable harm to plaintiff existed absent an order to prevent the destruction and that such an order was not likely to cause significant harm to third parties and thus granted plaintiff?s motion for a temporary restraining order preventing such destruction and requiring collection and preservation of relevant evidence, among other things

Nature of Case: Environmental litigation

Electronic Data Involved: ESI

Johnson v. Metro. Gov. of Nashville, 2010 WL 3342211 (M.D. Tenn. Aug. 24, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion for default judgment or an adverse inference where, despite finding that the alleged spoliator had intentionally deleted data in violation of his statutory duty to preserve, the court was presented with no evidence of bad faith in the data?s destruction and nothing more than speculation as to the data?s relevance

Nature of Case: Employment discrimination

Electronic Data Involved: Employment records subject to retention by statute

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

Sofaer Global Hedge Fund v. Brightpoint, Inc, 2010 WL 4701419 (S.D. Ind. Nov. 12, 2010)

Dec 01 2010

Key Insight: Addressing several discovery issues, court ordered plaintiff to undertake search of 13 custodians, despite objection that only one custodian was likely to maintain relevant records, where the paucity of documents produced from plaintiff?s championed custodian indicated the need for additional searching but, as to former employees records, etc. which plaintiff alleged were unavailable because the computers were wiped for use by other employees, court reasoned that ?a party obviously cannot produce documents that do not exist? and declined to compel their production; court denied defendants? request for dismissal but, because plaintiff?s opposition on many issues was ?substantially unjustified? granted the fees related to pursuing those requests

Nature of Case: Claims arising from loan made by plaintiff based on false representations by defendant

Electronic Data Involved: ESI

Brown v. Kia Motors Corp., 2010 WL 135127 (W.D. Pa. Jan. 9. 2010)

Dec 01 2010

Key Insight: Court declined to order adverse inference for the destruction of plaintiff?s wife?s (a non-party) camera and memory card and plaintiff?s resulting inability to provide the ?digital files? created when the relevant photographs were taken where ?the camera and memory stick [did] not appear to have ever been within plaintiff?s control? and where ?it [did] not appear that the camera and memory stick were suppressed or withheld, but rather both were destroyed in an accident? and thus the elements necessary for an adverse inference were not met

Nature of Case: Product liability

Electronic Data Involved: Digital files related to photographs alleged to be relevant to “the condition of the seatlbelt”

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

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Tag:Data Preservation