Data Preservation – Page 99 – Electronic Discovery Law

McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)

Dec 01 2005

Key Insight: Where plaintiff?s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants? backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants? efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval

Nature of Case: Disability discrimination

Electronic Data Involved: Emails, hard drives

Padilla v. Price Toyota, 2005 WL 6209494 (D.N.J. Oct. 28, 2005)

Dec 01 2005

Key Insight: Court granted plaintiffs? motion to compel production of vehicle?s ?black box? where information sought was not available elsewhere and was necessary for expert analysis of airbag system despite defendants? arguments that data was irrelevant and unreliable and that retrieving the data would be unduly expensive because of need for technician to travel cross-country; regarding unreliability, court noted that a Daubert motion was not precluded in future

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Vehicle’s “black box”

Advantacare Health Partners, LP v. Access IV, 2004 WL 1837997 (N.D. Cal. Aug. 17, 2004)

Dec 01 2004

Key Insight: Court denied motion for default judgment but granted motion for an adverse inference instruction and $20,000 in monetary sanctions where, in advance of court-ordered inspection, defendants deleted from their computers numerous electronic files which had been copied from former employer’s computer systems prior to their resignations, and, after the inspection, defendants failed to comply with court’s order that they delete all of plaintiffs’ files from their computers

Nature of Case: Misappropriation of trade secrets and related torts

Electronic Data Involved: Proprietary information in electronic form

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2004 WL 417193 (N.D. Ill. Jan. 30, 2004)

Dec 01 2004

Key Insight: Motion for sanctions for destruction of email denied since plaintiff failed to follow procedure set forth in court’s prior order which would have required plaintiff to file a petition seeking the appointment of a computer forensics expert, and instead waited over seven months to bring the issue to the court in the form of a motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Deleted email

Anderson v. Crossroads Capital Partners, LLC, 2004 WL 256512 (D. Minn. Feb. 10, 2004)

Dec 01 2004

Key Insight: Plaintiff’s use of Cyberscrub data wiping software prior to court-ordered inspection of her computer and after agreeing on the record that she would not purge her hard drive or delete any documents, and her misrepresentations about age of hard drive, were not sufficiently egregious to warrant dismissal but did warrant an adverse inference instruction

Nature of Case: Sexual harassment and whistleblower claims by former employee

Electronic Data Involved: Hard drive of plaintiff’s personal computer

Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27 (D.D.C. 2004)

Dec 01 2004

Key Insight: Since defendant had destroyed electronic records and failed to produce the very records that would provide evidence of its contacts within D.C., even after being ordered by court to do so, court denied defendant’s motion to dismiss for lack of personal jurisdiction; court declined to impose any sanctions, but said plaintiff could bring a motion in the future

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Electronic information on servers

Brick v. HSBC Bank USA, 2004 WL 1811430 (W.D.N.Y. Aug. 11, 2004)

Dec 01 2004

Key Insight: District Court affirmed sanctions award of $147,635.74 imposed by Bankruptcy Court under its inherent powers on law firm representing estate, where among other things, law firm “got caught time and time again with having made misrepresentations about the completeness of what was provided,” even after the evidence indicated otherwise and after additional documents continued to be found

Nature of Case: Bankruptcy proceeding

Electronic Data Involved: Email and documents in electronic format

Byrne v. Byrne, 650 N.Y.S.2d 499 (1996)

Dec 01 2004

Key Insight: Wife’s acts of removing laptop from family home and delivering it to her attorney for safekeeping were not wrongful; court established protocol for inspection and production

Nature of Case: Divorce proceeding

Electronic Data Involved: Financial data stored on laptop provided by husband’s employer

Carlton Group, Ltd. v. Tobin, 2003 WL 21782650, fn. 8 (S.D.N.Y. July 31, 2003)

Dec 01 2004

Key Insight: Court granted ex parte application for TRO and related relief in order to locate and recover stolen information, and ordered return of laptops and “bit stream copying” of defendants’ computers to preserve deleted data

Nature of Case: Financial services company sued former employees for conspiring to steal confidential and proprietary information and unfair competition

Electronic Data Involved: Client databases and other proprietary information

Century ML-Cable Corp. v. Carrillo, 43 F. Supp. 2d 176 (D.P.R. 1998)

Dec 01 2004

Key Insight: Default judgment entered against defendant and attorneys’ fees awarded to plaintiff, pursuant to Fed. R. Civ. P. 37, for defendant’s willful and intentional destruction of laptop presumably containing crucial evidence of defendant’s decoder key modification programs, sale records and customer lists

Nature of Case: Cable TV provider sued businessman for cable TV theft

Electronic Data Involved: Laptop

Tag:Data Preservation