Deleted Data – Page 10 – Electronic Discovery Law

Williams v. Armstrong, 2007 WL 1424552 (W.D. Mich. May 14, 2007)

Dec 01 2007

Key Insight: District Court sustained plaintiff?s objection to magistrate judge?s discovery order to the extent that factual findings omitted consideration of an exhibit submitted with plaintiff?s motion, which constituted evidence of defendant?s past possession of email which should have been produced in response to a particular discovery request (the exhibit was an email that discussed at least one prior email which was not produced); court remanded to magistrate judge issue of whether to compel further response or production in response to that particular discovery request

Nature of Case: Prisoner asserted claims relating to prison’s Kosher Meal Program

Electronic Data Involved: Email

White v. Potter, 2007 WL 1207205 (D.D.C. Apr. 24, 2007)

Dec 01 2007

Key Insight: Court ordered that certain representations of the Postal Service regarding the ineffectiveness or impossibility of additional searching for responsive documents and ESI be documented and attested to by sworn testimony, in order to lay a solid foundation upon which court could decide motion to compel and/or any future motion for sanctions

Nature of Case: Employment litigation

Electronic Data Involved: ESI

Silipos, Inc. v. Bickel, 2007 WL 1180571 (S.D.N.Y. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court directed plaintiff to identify ?the lowest-paid employee of the data forensics company who is (a) knowledgeable about the process by which the data was extracted from defendant?s computer, and (b) able to give a deposition? by court?s deadline; court further ruled that defendant would be permitted to depose that employee for up to four hours, provided that defendant must pay for employee’s time at same hourly rate that had been billed to plaintiff; court encouraged counsel to take the deposition by telephone

Nature of Case: Misappropriation, breach of loyalty

Electronic Data Involved: Deleted documents recovered from defendant’s computer

Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)

Dec 01 2007

Key Insight: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives

Dorel Juvenile Group, Inc. v. DiMartinis, 2006 WL 3240116 (S.D. Ind. Sept. 29, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel production of an exact image of the hard drive of defendant’s personal computer and instead ordered that the examination of and production from defendant’s personal computer proceed on the terms spelled out in defendant’s responses to the motion to compel

Electronic Data Involved: PC hard drive

Powertrain, Inc. v. Honda Motor Co., Inc. v. 2006 WL 709784 (N.D. Miss. Mar. 15, 2006)

Dec 01 2006

Key Insight: Court granted plaintiff’s request for Rule 56(f) continuance and dismissed defendant’s motion for summary judgment as premature and with leave to refile once defendant had fulfilled all its discovery obligations, where plaintiff had already filed a number of discovery motions and sought, among other things, “information contained in emails which appear to have been deleted by Honda as part of its corporate policy (and which are the subject of a separate Motion for Order Preserving Electronic Data, to Recover[] Deleted Data and Show Cause which is pending before the magistrate)”

Nature of Case: Trademark infringement

Electronic Data Involved: Deleted email

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged

Nature of Case: Misappropriation of funds

Electronic Data Involved: Accounting files on hard drive

Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (N.Y. Sup. Ct. 2006)

Dec 01 2006

Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted

Nature of Case: Fraud and breach of contract claims

Electronic Data Involved: Email and non-email electronic documents restored from backup tapes

Recinos-Recinos v. Express Forestry, Inc., 2006 WL 2349459 (E.D. La. Aug. 11, 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions of $36,391 where defendants “made no effort whatsoever to locate and provide either documentary or electronic data discovery,” and erroneously represented that relevant electronic evidence was irretrievable, thus giving plaintiffs no choice but to incur the extraordinary expense of hiring a computer consulting firm to retrieve what was purportedly ?irretrievable?

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act

Electronic Data Involved: Payroll data

Arista Records, LLC v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006)

Dec 01 2006

Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive

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