Data Preservation – Page 91 – Electronic Discovery Law

Paris Bus. Prods., Inc. v. Genisis Techs., LLC, 2007 WL 3125184 (D.N.J. Oct. 24, 2007)

Dec 01 2007

Key Insight: Where plaintiff submitted photographs of defendant?s computers showing that hard drive from one computer had been tampered with and that hard drives for other computers were missing altogether, and defendants did not oppose substance of sanctions motion, court found that plaintiff had established the four requirements necessary for spoliation inference: (1) evidence in question was within the party’s control; (2) there was actual suppression or withholding of the evidence; (3) evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that evidence would later be discoverable

Nature of Case: Fraud, breach of contract, unjust enrichment

Electronic Data Involved: Hard drives

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D. Fla. Oct. 25, 2007)

Dec 01 2007

Key Insight: Where witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Email

Benton v. Dlorah, Inc., 2007 WL 3231431 (D. Kan. Oct. 30, 2007)

Dec 01 2007

Key Insight: Magistrate judge ordered plaintiff to produce responsive emails, and if emails had been deleted, to produce for inspection her computer hard drive from which those emails were sent to allow defendants to use services of computer forensic specialist, if necessary, to retrieve them; request for sanctions denied without prejudice to a further request for a ?negative inference instruction? to be determined by trial judge

Nature of Case: Employment discrimination

Electronic Data Involved: Deleted email, hard drive of plaintiff’s personal computer

In re Hawaiian Airlines, Inc., 2007 WL 3172642 (Bankr. D. Haw. Oct. 30, 2007)

Dec 01 2007

Key Insight: Finding that Mesa?s CFO deleted files that Mesa had duty to preserve, used special software to wipe hard drives and changed computer’s clock in an attempt to conceal what he had done, and that Mesa could have taken reasonable, inexpensive and non-burdensome steps that would have prevented or mitigated the consequences of CFO’s destruction of evidence, court concluded that adverse inference was appropriate and made certain findings of fact which were binding and conclusive for all purposes in the case

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D. Cal. Sept. 18, 2007)

Dec 01 2007

Key Insight: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct

Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud

Electronic Data Involved: Email and other electronic documents

Hsieh v. Nicholson, 2007 WL 2438315 (N.D. Cal. Aug. 23, 2007)

Dec 01 2007

Key Insight: Finding any request for spoliation sanctions unwarranted, court denied plaintiff’s motion to compel production of emails where defendant made adequate showing that, after reasonable search and inquiry, he was unable to locate requested emails, plaintiff submitted no contrary evidence, and plaintiff identified no flaws in defendant’s search methods

Nature of Case: Employment discrimination

Electronic Data Involved: Email plaintiff claimed was sent in 2000

Agassi Enters., Inc. v. Target Corp., 2007 WL 4441195 (D. Nev. Dec. 11, 2007)

Dec 01 2007

Key Insight: Granting preliminary injunction, court further ordered defendant to “preserve all documents and other evidence (including, but not limited to, electronic documents such as email relating to its use of the AGASSI name . . .” and, within 30 days of the order, to file and serve a report detailing the manner and form in which Target complied with the preliminary injunction

Nature of Case: Trademark infringement

Electronic Data Involved: Electronic documents, email

Muro v. Target Corp., 2007 WL 3254463 (N.D. Ill. Nov. 2, 2007)

Dec 01 2007

Key Insight: District court upheld magistrate judge?s ruling that Target’s ?litigation hold? notices were subject to attorney-client privilege and work product protection since notices were communications of legal advice from corporate counsel to corporate employees regarding document preservation; however, court sustained objection to magistrate’s ruling that privilege log was inadequate for failing to separately itemize each individual email quoted in an email string, concluding that Rule 26(b)(5)(A) does not require separate itemization of each individual email quoted in an email string

Nature of Case: Putative class action alleging violations of Truth in Lending Act

Electronic Data Involved: Litigation hold notices; privileged email

APC Filtration, Inc. v. Becker, 2007 WL 3046233 (N.D. Ill. Oct. 12, 2007)

Dec 01 2007

Key Insight: Where defendant traveled 20 miles to dispose of his computer in a construction site dumpster within days of receiving notice of lawsuit, court found that defendant acted in bad faith but that sanction of default judgment was too severe since plaintiff’s claims were not “severely” or “incurably” prejudiced as a result; court instead deemed certain facts conclusively proven and ordered defendant to pay plaintiff?s reasonable attorneys? fees and costs associated with motion and related discovery

Nature of Case: Misappropriation of trade secrets and breach of employment contract

Electronic Data Involved: Computer

Escobar v. City of Houston, 2007 WL 2900581 (S.D. Tex. Sept. 29, 2007)

Dec 01 2007

Key Insight: Adverse-inference instruction not warranted where there was no showing that relevant electronic communications were destroyed or that destruction occurred in bad faith; officers involved in the shooting were not likely to have used email to communicate about the event in the day after it occurred, and, under HPD’s document retention and destruction policy, electronic communications records were routinely destroyed within ninety days

Nature of Case: Wrongful death action based on shooting death of 14-year-old boy by police officer

Electronic Data Involved: Records of Houston Police Department electronic communications in the 24 hours after victim’s death

Tag:Data Preservation