Deleted Data – Page 7 – Electronic Discovery Law

Rockwood v. SKF USA, Inc., 2010 WL 3860414 (D.N.H. Sept. 30, 2010)

Dec 01 2010

Key Insight: Court denied a motion for spoliation sanctions for loss of records following foreclosure on plaintiffs? company where plaintiff made a reasonable effort to ensure preservation of relevant data after the foreclosure, including requesting the data?s preservation and permission to copy relevant records, and where ultimately some (but not all) records were obtained via subpoena from the third-party purchaser of plaintiff?s former assets and defendant was unable to establish prejudice; court denied a motion for spoliation sanctions for plaintiffs? replacement of two crashed hard drives where the court could not conclude the plaintiffs intentionally or carelessly permitted the destruction, particularly in light of their attempts to recover some data with limited success; court denied spoliation sanctions for plaintiffs? use of CCleaner absent evidence that any data was actually deleted; despite the lack of prejudice resulting from one plaintiff?s admitted deletion of allegedly personal documents in light of those documents existence in hard copy, court imposed an ?adverse inference against [plaintiff?s] credibility as a witness? at trial citing the purpose of deterring similar misconduct in future

Nature of Case: Claims arising from failed business relationship

Electronic Data Involved: Emails, ESI

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

In re Kessler, 2009 WL 2603104 (E.D.N.Y. Mar. 27, 2009)

Dec 01 2009

Key Insight: In a case arising from the fire of a boat while in the marina the district court rejected the magistrate?s recommendation in favor of spoliation sanctions for the marina?s failure to preserve surveillance video because the court found that the owner of the boat did not meet the burden of establishing the marina?s culpable destruction of relevant tape in violation of a duty to preserve where the footage ?self destructed approximately twenty-seven hours after it was recorded? when it was automatically recorded over in the regular course of the system?s activities; marina was ordered to bear the cost of conducting forensic examination of its hard drive to determine if fire footage could be retrieved

Nature of Case: Claims resulting from a vessel destroyed by fire while in the marina

Electronic Data Involved: Video surveillance

Nucor Corp. v. Bell, 2008 WL 4442571 (D.S.C. Jan. 11, 2008)

Dec 01 2008

Key Insight: Where parties submitted competing expert testimony in support of and in opposition to plaintiff’s motion for spoliation sanctions, court also considered and ruled upon parties’ cross-motions to exclude their opponent’s computer forensics expert under FRE 702 and Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993)

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop and USB flash-drive device

Wong v. Thomas, 2008 WL 4224923 (D.N.J. Sept. 10, 2008) (Not for Publication)

Dec 01 2008

Key Insight: Where defendants were able to produce responsive emails from plaintiff?s email account, but could produce no other emails from accounts of various defendants or from Department of State due to routine ?purging? procedures that included closing individuals’ email accounts, deletion of files from their office computers after they leave employment, and routine deletion of files from State’s email servers, court denied plaintiff?s motion for spoliation sanctions finding that defendants had acted in good faith and that plaintiff had not met threshold showing of relevancy of any specific evidence that was lost

Nature of Case: Discrimination based on race and national origin, wrongful termination

Electronic Data Involved: Email

Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008)

Dec 01 2008

Key Insight: Finding that forensic analysis of defendants? business and home computers was appropriate where plaintiffs presented evidence of specific problems that raised questions regarding accuracy, completeness and authenticity of defendants? email production, court articulated detailed 20-point protocol covering, inter alia, instructions for parties? retention of third party forensic expert, scope of forensic search, privilege review and cost-shifting

Nature of Case: Breach of contract, tortious interference with contract, violations of trade secrets and unfair trade practices acts, and related claims

Electronic Data Involved: Work and home computers containing both business and personal information; email

Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution

Nature of Case: Wrongful termination, discrimination

Electronic Data Involved: Laptop

Gateway Senior Hous., Ltd. v. MMA Fin., Inc., 2008 WL 5142152 (E.D. Tex. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants? proffered explanations for the destruction of those hard drives was contradicted and ?lame? in light of defendants? knowledge of their relevance and its duty to preserve

Nature of Case: Breach of contract

Electronic Data Involved: ESI, emails, hard drives

Thermodyne Corp. v. 3M Co., 593 F. Supp. 2d 972 (N.D. Ohio 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion in limine for adverse inference for alleged spoliation, despite evidence that files were deleted, where plaintiff offered only conjecture regarding the relevance of the allegedly spoliated documents, where defendant had the means to recover the allegedly spoliated contents of the files and did not, and where defendant failed to show plaintiff acted deliberately with the intent to deprive plaintiffs of the data

Nature of Case: Theft of trade secrets

Electronic Data Involved: Email, ESI

U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)

Dec 01 2008

Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner

Nature of Case: Breach of contract, account stated, open account, and unjust enrichment

Electronic Data Involved: Computer hard drives of plaintiff’s employees

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