Data Preservation – Page 80 – Electronic Discovery Law

In re Kessler, 2009 WL 2603104 (E.D.N.Y. Mar. 27, 2009)

Dec 01 2009

Key Insight: In a case arising from the fire of a boat while in the marina the district court rejected the magistrate?s recommendation in favor of spoliation sanctions for the marina?s failure to preserve surveillance video because the court found that the owner of the boat did not meet the burden of establishing the marina?s culpable destruction of relevant tape in violation of a duty to preserve where the footage ?self destructed approximately twenty-seven hours after it was recorded? when it was automatically recorded over in the regular course of the system?s activities; marina was ordered to bear the cost of conducting forensic examination of its hard drive to determine if fire footage could be retrieved

Nature of Case: Claims resulting from a vessel destroyed by fire while in the marina

Electronic Data Involved: Video surveillance

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

Southeastern Mech. Servs., Inc. v. Brody, 2008 WL 4613046 (M.D. Fla. July 24, 2009)

Dec 01 2009

Key Insight: Court granted motion for preliminary injunction, including injunction against destruction of evidence related to plaintiff’s claims, including computers

Nature of Case: Misappropriation of trade secrets, tortious interference and related claims

Electronic Data Involved: ESI

Statera v. Henrickson, 2009 WL 2169235 (D. Colo. July 17, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s ex parte motion for a temporary restraining order enjoining defendants from ?deleting or destroying, erasing or otherwise making unavailable for further proceedings? any of plaintiff?s relevant business information obtained by defendants while employed by plaintiff and enjoining the deletion or alteration of email messages and other content in relevant email accounts, among other things

Nature of Case: Claims arising from former employees’ formation of competing business and suspected use of plaintiff’s confidential information

Electronic Data Involved: ESI, emails

Nutramax Labs. Inc. v. Theodosakis, 2009 WL 2778388 (D. Md. June 8, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for summary judgment and permitted additional discovery by plaintiffs as sanction for defendants? spoliation of its website where defendant removed relevant language from the site after learning of plaintiffs? lawsuit; addressing defendants argument that because plaintiff was able to preserve a copy of the site before the language was removed, there was no prejudice, the court indicated that defendants? ?questionable conduct? suggested that ?there may be other evidence relevant to this summary judgment that has yet to surface? and denied defendants? motion and allowed additional discovery ?to level the evidentiary playing field and to sanction defendants? improper conduct?

Nature of Case: Patent infringement

Electronic Data Involved: Website

Brown v. Coleman, 2009 WL 2877602 (S.D.N.Y. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where expert witness destroyed relevant surgical logs and resisted production of alternative evidence upon the objection that a review of all patient files would be unduly burdensome, court denied motion to compel production of the logs but ordered that as a sanction for spoliation, the expert would not be allowed to testify as to the number of fat grafting procedures he had performed, and would have to be qualified as an expert based on other information

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical records

R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 878 (N.D. Ohio 2009)

Dec 01 2009

Key Insight: Where plaintiff settled its claim of intentional spoliation against one defendant no longer in the case but failed to bring that claim against the defendants that remained and where the evidence was undisputed that the defendant who had settled all claims and was no longer a party to the litigation had maintained exclusive custody and control of the at-issue hard drives and plaintiff offered no evidence of the remaining defendants? involvement in destroying the relevant hard drives, the court held that the remaining defendants could not be sanctioned under either Ohio law or Federal law

Nature of Case: Breach of contract, misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: Hard drives

Golden v. State, 2009 WL 3153262 (Ark. App. Ct. Sept. 30, 2009)

Dec 01 2009

Key Insight: Despite testimony that the methods utilized to copy surveillance tape could reduce the image?s fine detail and the State?s failure to comply with a court order to produce the original of the surveillance tape because it had been lost, the trial court did not err in failing to grant defendant a new trial where a duplicate tape is admissible to the same extent as the original and where there was no evidence of bad faith in the loss of the tape; in so deciding, court also cited testimony that defendant did not objet

Nature of Case: Criminal

Electronic Data Involved: Copy of original surveillance tape

Lewis v. Ryan, 2009 WL 3486702 (S.D. Cal. Oct. 23, 2009)

Dec 01 2009

Key Insight: Court adopted recommendation of the magistrate judge to impose an adverse inference and exclude certain evidence as sanction for spoliation where defendants indicated they could not locate information, including ESI, which, according to records retention requirements, should have been in their possession at the time plaintiff propounded his request and thus should have been preserved and produced; court found ?clear and convincing evidence that defendants were ?at fault? for recklessly and negligently allowing the documents to be destroyed

Nature of Case: Civil rights complaint arising from service of pork to Muslim inmate

Electronic Data Involved: Hard copy, ESI

Canton v. Kmart Corp., 2009 WL 2058908 (V.I. July 13, 2009)

Dec 01 2009

Key Insight: Court declined to order adverse inference for destruction/loss of surveillance video where plaintiff failed to establish that such a video existed and that defendant therefore had a duty to preserve it; court ordered adverse inference for defendant?s inability to produce photographs upon finding defendant did not take ?reasonable precautions? to preserve the evidence despite knowing that litigation was reasonably foreseeable

Tag:Data Preservation