Tag: Deleted Data

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FTC v. Noland (D. Ariz. Aug. 30, 2021)
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Bruno v. Peak Resorts, Inc. (N.Y.A.D. Jan. 14, 2021)
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Herzig et al. v. Arkansas Foundation for Medical Care Inc. (District Court of Western Arkansas, 2019)
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International Financial Co. LLC v. Jabali-Jeter (District Court of Eastern Pennsylvania, 2019)
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Miller v. Thompson-Walk (District Court of Western Pennsylvania, 2019)
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WILLIAMS v. UNITED STATES OF AMERICA et al (D. D.C., 2019)
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Envy Hawaii, LLC v. Volvo Car USA LLC, No. 17-00040 HG-RT (D. Haw. Mar. 20, 2019)
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Ennis-Flint, Inc. v. Greer No. 18-CVS-3612, 2019 NCBC 11 (N.C. Business Court Feb. 4, 2019)
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OptoLum v. Cree, Inc., No, 1:17CV687 (M.D.N.C. Dec. 28, 2018)
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Folino v. Hines (District Court of Western District of Pennsylvania, 2018)

FTC v. Noland (D. Ariz. Aug. 30, 2021)

Key Insight: The day after learning about the FTC’s investigation, defendant Noland instructed his team to use encrypted communications platforms, Signal and ProtonMail, turn on the “auto-delete” function, and to stop using their previous work-related messaging platforms. During depositions, Noland and others failed to disclose the use of encrypted communications platforms and deleted the encrypted messaging apps from the phones so that no communications could be retrieved. The court granted the FTC’s request for an adverse inference based on defendants’ intentional spoliation of evidence under FRCP 37(e)(2), finding the most decisive factor in its analysis was the timing of installation of the apps – just one day after Noland learned the FTC was investigating him. There was a coordinated effort among Noland and his leadership team to deprive the FTC of the use of the encrypted messages in the litigation – by installing the app, using the “auto-delete” function, failing to disclose the use of the app, and deleting the app the day before the phones were to be examined – resulting in an “outrageous maneuver that raises a strong inference of bad faith.”

Nature of Case: FTC, Pyramid schemes

Electronic Data Involved: Encrypted messaging platforms

Case Summary

Bruno v. Peak Resorts, Inc. (N.Y.A.D. Jan. 14, 2021)

Key Insight: The trial court granted an adverse inference instruction and the appellate court affirmed, finding that plaintiff engaged in spoliation of evidence when he (1) posted a comment to a blog entry about trail conditions on the mountain on the date of his injuries and then later deleted the comment, and (2) belatedly produced Facebook posts relating to his injuries. Plaintiff failed to provide “accurate representations” regarding his posts. His deleted blog comment related to whether the ski trail where he sustained injuries was open or closed on the day of his accident and its subject matter went directly to defendants’ defenses.

Nature of Case: Negligence; Personal Injury

Electronic Data Involved: Blog Post

Case Summary

Herzig et al. v. Arkansas Foundation for Medical Care Inc. (District Court of Western Arkansas, 2019)

Key Insight: Responsive communications were intentionally withheld and destroyed when the plaintiffs switched to an encrypted communication app

Nature of Case: wrongful termination and age discrimination

Electronic Data Involved: emails, text messages.

Keywords: Intentional spoliation, bad faith, encrypted communication application

View Case Opinion

Envy Hawaii, LLC v. Volvo Car USA LLC, No. 17-00040 HG-RT (D. Haw. Mar. 20, 2019)

Key Insight: failure to preserve electronically stored information. Claim that no spoliation occurred because records are available from 3rd parties. Under 37(e), information is lost only if it is irretrievable from another source.

Nature of Case: Improper business practices

Electronic Data Involved: google email accounts and electronic dealer management system records

Keywords: failure to preserve. “it cannot be restored or replaced through additional discovery.” FRCP 37(e)

View Case Opinion

OptoLum v. Cree, Inc., No, 1:17CV687 (M.D.N.C. Dec. 28, 2018)

Key Insight: Defendant’s email archive system had had issues and was replaced before litigation filed, but servers were kept. Stubbed E-mail attachments were inaccessible. defendant showed attachments were potentially relevant and motion to compel was granted. Costs were to be split since it would be undue burden on plaintiff alone and they had not acted in bad faith.

Nature of Case: Patent Infringement

Electronic Data Involved: Stubbed E-mail Attachments

Keywords: Restoration, undue burden, bad faith, cost shifting

View Case Opinion

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