Key Insight: Can the court order additional discovery if a party destroys evidence? Is a prejudice ruling required in a destruction of evidence case?
Nature of Case: Retaliation and discharge
Electronic Data Involved: text messages, emails, social media messages
Keywords: Prejudice, Destruction of evidence, Social media, Text messages
Key Insight: whether an order of default judgment amounts to abuse of discretion given finding of bad faith
Nature of Case: patent infringement / misappropriation of trade secrets
Electronic Data Involved: deleted electronic records
Keywords: spoliation, overwriting, internal clock, laptop, forensic investigation, intent, bad faith, prejudice, ability to control, litigation hold notice, default judgment, adverse inference, deterrence
Key Insight: Spoliation,
Nature of Case: Trade Secrets
Electronic Data Involved: E-mail accounts, electronic evidence, electronic storage devices, personal and work computers, cloud storage accounts
Keywords: Spoliation, Hot Sheets,
Key Insight: Plaintiff failed to respond to discovery requests. Plaintiff also used data wiping software hours before turning computer over for forensic examination. Defendant granted default judgment.
Nature of Case: Repossession/Ownership
Electronic Data Involved: Files on Computer
Keywords: default judgment, contempt, data wipe
Key Insight: Whether plaintiff?s failure to demonstrate allegations leads to summary judgment for defendant
Nature of Case: Copyright Infringement
Electronic Data Involved: external hard-drive, internal hard-drive
Keywords: bittorrent, torrent
Key Insight: For one defendant?s repeated use of a cleaning software (?Disk Utility? and its ?Secure Erase Free Space? function) to delete files and loss of a relevant hard drive without an adequate explanation and for another defendant?s loss of relevant ESI, including her intentional deletion of information from the desktop registry and her disposal of her cell phone (which she notably was unaware had been automatically backed up each time it was connected to her computer), ongoing deletion of text messages (on her new phone), and misrepresentations about when the old phone was discarded, the court found that a mandatory adverse inference was warranted and rejected Defendants? argument that the court should decline to employ the adverse inference at the preliminary injunction state, reasoning that the objective of promoting fairness was best served by ?employing an adverse inference at all relevant states of the litigation?; court also ordered defendants to pay Plaintiff?s attorneys fees without seeking reimbursement from their new employer and indicated its intention to forward its decision to the NY Bar in light of one defendant?s status as an attorney
Nature of Case: Misappropriation of trade secrets, breach of “post-employment covenants”
Electronic Data Involved: ESI, hard drive, text messages (iphone)
Key Insight: Court granted in part plaintiff?s motion for attorneys? fees, where defendant had used software to wipe a PC and a laptop, deleting and overwriting more than 62,000 files, and violated a court order, and stalled the discovery process. Court denied in part plaintiff?s motion for sanctions, however, instead granting leave for new depositions, saying that while its order ?does not address the loss of evidence that may establish willful infringement,? the alleged infringing materials ?are available for the jury to assess whether infringement has incurred or not.?
Nature of Case: Trade dress and Trademark infringement
Electronic Data Involved: Email and ESI on hard drive
Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot
Nature of Case: Breach of contract, negligence, and violations of bailment
Electronic Data Involved: Source code, hard drives
Key Insight: Because defendant was able to examine the subject cell phone with its expert, court ruled that plaintiff should also have the ability to examine the phone to determine if additional relevant text or voicemail messages exist or if there is evidence that text or voicemail messages were deleted, and ordered defendant to produce the current and old cell phones to plaintiff’s expert; court deferred ruling on other requested sanctions as premature and found that neither side was entitled to attorneys’ fees in connection with the motion
Nature of Case: Michigan Whistleblower Protection Act and breach of contract
Electronic Data Involved: Text messages and voicemail messages on cell phone of plaintiff’s former co-worker
Key Insight: Where plaintiff ran software to permanently erase all information on his computer then drilled a hole in his hard drive and threw it away, and completely erased and reformatted all data on recording device, and most of recordings produced by plaintiff had been edited, all at a time when plaintiff knew he had an obligation to preserve evidence, court found that plaintiff engaged in willful spoliation of highly relevant evidence, that plaintiff acted in bad faith, that defendants were severely prejudiced by the loss of evidence, that less drastic sanctions would not sufficiently compensate for plaintiff’s widespread destruction of evidence and that, given the extensive spoliation of relevant evidence by plaintiff, it would not be possible to fairly evaluate the case on the merits; court concluded that dismissal was the only appropriate sanction
Nature of Case: Retaliation and wrongful termination
Electronic Data Involved: Plaintiff’s personal computer, email, recordings made by plaintiff of his interactions with other employees
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