Key Insight: Court adopted magistrate judge?s recommendations and denied plaintiff?s motion for sanctions for intentional spoliation of website content, despite defendants’ failure to suspend its policy allowing content to be edited, where evidence showed that no edits were made to the content at issue and thus plaintiff suffered no prejudice
Nature of Case: Defamation
Electronic Data Involved: Website contents
Key Insight: Where transcript of online chat was erased from law enforcement hard drive following ?computer problems? but where there was no evidence of bad faith, appellate court affirmed denial of defendant?s motion for production of the hard drive and reasoned that State could authenticate the printed transcripts by offering testimony from personal knowledge that the document was what it was claimed to be pursuant to ER 901(B)(1) or through the presentation of ?evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result? pursuant to ER 901(B)(9)
Nature of Case: Attemtped unlawful sexual conduct with a minor
Electronic Data Involved: Hard drive, online chat transcripts
Key Insight: Despite plaintiffs? claim that they had ?already been prejudiced? by the ?confessed destruction? of ESI in its native format through defendant?s ?systematic purges? of its computer systems, court denied motion to lift stay of discovery and impose preservation order where defendant provided affidavit stating a litigation hold was imposed and that the ?regular document retention policy? had not been applied to information relating the loans at issue in the case, and where plaintiffs presented no evidence to the contrary
Nature of Case: Breach of Contract
Electronic Data Involved: ESI
Key Insight: Court denied motion for fees and costs related to 30(b)(6) deposition despite acknowledgment that deposition was unnecessary but for city?s delay in locating copies of 911 tapes following original?s destruction by NYPD; court indicated familiarity with NYPD?s destruction of 911 tapes and, while recognizing unique concerns such as storage space, nonetheless indicated the need to balance that concern with the value of tape recorded evidence; court urged city?s counsel to consider measures to ensure preservation of tapes once litigation is anticipated
Nature of Case: Constitutional violations
Electronic Data Involved: 911 call tapes
Key Insight: Where plaintiffs did not deny their failure to preserve relevant documents previously in their possession, did not deny their failure to search for documents demanded, save one plaintiff who limited search to what he described as ?reasonably accessible? information, did not deny their failure to supplement their responses to interrogatories as promised, and did not deny providing contradictory answers regarding documents in their possession, court rejected arguments that sanctions were unnecessary because of a lack of resulting prejudice and arguments that the documents were ?barely relevant? and ordered an adverse inference instruction in favor of defendants
Nature of Case: Violation of Aviation and Transportation Security Act and Privacy Act
Electronic Data Involved: ESI
Key Insight: U.S. District Court affirmed bankruptcy court?s sanction that facts alleged against defendant would be taken as established and that defendant was prohibited from opposing trustee?s claims against him where forensic evidence indicated that defendant destroyed evidence by installing cleaning software and by installing new operating systems on relevant computers despite his ongoing duty to preserve
Nature of Case: Adversary action alleging fraudulent transfer
Electronic Data Involved: ESI, hard drives
Key Insight: Where plaintiff did not consider contact information taken from defendants to be a ?record? and thus deleted the information from his computer and did not return it, court denied motion to hold plaintiff in contempt for violating preliminary injunction upon finding that plaintiff had substantially complied with the court?s order because deletion of the data satisfied the purpose of the injunction
Nature of Case: Fraud, negligent misrepresentation and unjust enrichment
Electronic Data Involved: ESI on plaintiff?s computer
Key Insight: Where evidence indicated high probability of spoliation by defendant including deleting data and running disk defragmenter and disk cleanup functions, among other things, but where evidence also indicated potential spoliation of ESI by plaintiff because of its failure to preserve the last accessed date of certain files, trial court gave adverse inference instruction to jury allowing finding of spoliation by either side and appellate court affirmed; appellate court also affirmed trial court?s denial of plaintiff?s request to access up to 250 hard drives for imaging upon finding the request ?too broad and burdensome? especially in light of trial court?s grant of access to plaintiff, upon narrowing its request, to back up tapes and specifically relevant hard drives
Nature of Case: Breach of confidentiality agreement
Electronic Data Involved: ESI
Key Insight: Where defendants recreated documents sought by plaintiff using raw data after destroying copies of the original document pursuant to its document retention policy and where plaintiff offered no evidence to ?reasonably question? such a practice or that any data was destroyed in anticipation of litigation, court found insufficient evidence to support an adverse inference
Nature of Case: Breach of contract claims arising from denial of insurance claim
Electronic Data Involved: Original declaration sheet
Key Insight: Acknowledging the reasonableness of plaintiff?s suspicion that information may have been lost in light of defendants? failure to immediately institute a litigation hold and in light of their admitted failure to immediately search all potentially relevant sources of responsive material, court nonetheless denied plaintiff?s motion for sanctions where plaintiff failed to present evidence that any relevant information had actually been lost or destroyed as a result of defendants? failures and in light of defendants? remedial efforts, including conducting additional searches and notifying employees of the litigation hold
Nature of Case: Predatory pricing
Electronic Data Involved: Email, ESI
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