Deleted Data – Page 11 – Electronic Discovery Law

Plasse v. Tyco Elecs. Corp., 448 F. Supp. 2d 302 (D. Mass. 2006)

Dec 01 2006

Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2005 WL 4954351 (N.D. Ill. Feb. 11, 2005)

Dec 01 2005

Key Insight: Denying defendant’s motion for a new trial, court concluded that adverse inference jury instruction based upon defendant’s mistaken failure to suspend document retention policy that deleted email every 30 days was not misleading or unduly prejudicial

Nature of Case: Patent infringement

Electronic Data Involved: Email

Frye v. St. Thomas Health Servs., Inc., 2005 WL 5417506 (Tenn. Cir. Ct. Mar. 30, 2005)

Dec 01 2005

Key Insight: Court denied motion to compel production of defendant’s hard drives so that plaintiff’s computer forensics expert could search them for deleted emails since there was no evidence that defendant had consciously or purposely deleted emails and plaintiff had only “suspicions and allegations” which did not justify the costly and burdensome search requested

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

Frye v. St. Thomas Health Servs., 2005 WL 5417507 (Tenn. Cir. Ct. May 31, 2005)

Dec 01 2005

Key Insight: Court denied plaintiff’s motion to revise earlier court order denying production of computer hard drives for review by forensics expert, declining to adopt the law of Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) and finding that defendant had violated no duty to preserve since emails were deleted according to routine policy and at the time she filed the complaint, plaintiff made no request that emails be preserved

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

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

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

R.S. Creative, Inc. v. Creative Cotton, Ltd., 89 Cal. Rptr. 2d 353 (Cal. Ct. App. 1999)

Dec 01 2004

Key Insight: Trial court properly imposed terminating sanctions against plaintiff for egregious discovery abuses, including the deletion of files from hard drives after plaintiff had stipulated that computers and diskettes would not be operated or touched until defendants’ computer expert could examine them

Nature of Case: Breach of contract

Electronic Data Involved: Hard drive, computer files

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

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

Tag:Deleted Data