Tag: Deleted Data

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Zamora v. Stellar Management Group, Inc. (W.D. Mo., 2017)
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Organik Kimya v. ITC (Fed. Cir., 2017)
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HCC Ins. Holdings v. Flowers, No. 1:15-cv-3262-WSD (N.D. Ga. Jan. 30, 2017).
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Trude et al. v. Glenwood State Bank, et al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App. Aug. 15, 2016)
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Malibu Media, LLC v. Doe (Northern District of Illinois Court, 2016)
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HMS Holdings Corp. v. Arendt, NO. A754/2014, 2015 WL 2403099 (N.Y. Sup. Ct. May 19, 2015)
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F & J Samame, Inc. v. Arco Iris Ice Cream, SA?13?CV?365?XR, 2015 WL 4068575 (W.D. Tex. Jul. 2, 2015)
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Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)
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Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)
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Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Zamora v. Stellar Management Group, Inc. (W.D. Mo., 2017)

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

View Case Opinion

Organik Kimya v. ITC (Fed. Cir., 2017)

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

View Case Opinion

HCC Ins. Holdings v. Flowers, No. 1:15-cv-3262-WSD (N.D. Ga. Jan. 30, 2017).

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,

View Case Opinion

Trude et al. v. Glenwood State Bank, et al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App. Aug. 15, 2016)

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

HMS Holdings Corp. v. Arendt, NO. A754/2014, 2015 WL 2403099 (N.Y. Sup. Ct. May 19, 2015)

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)

F & J Samame, Inc. v. Arco Iris Ice Cream, SA?13?CV?365?XR, 2015 WL 4068575 (W.D. Tex. Jul. 2, 2015)

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

Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)

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

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

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