Deleted Data – Page 8 – Electronic Discovery Law

In re Rosenthal, 2008 WL 983702 (S.D. Tex. Mar. 28, 2008)

Dec 01 2008

Key Insight: Finding that District Attorney?s admitted deletion of more than 2,500 emails sought by subpoena constituted ?unexcused, egregious conduct,? court found him in contempt of court and imposed $18,900 in sanctions (representing attorneys? fees); court further found that actions of attorney representing DA in the proceedings were ?unprincipled and dilatory, at best, constituting a deliberate indifference to the Court’s Orders and subpoena,? held him in contempt of court, and ordered that $5,000 of the $18,900 in sanctions awarded against DA was jointly and severally awarded against his attorney

Nature of Case: Civil rights suit against Harris County, Texas, the Harris County Sheriff and several Harris County deputies

Electronic Data Involved: Deleted emails of the District Attorney of Harris County, Texas

Meccatech, Inc. v. Kiser, 2008 WL 6010937 (D. Neb. Apr. 2, 2008)

Dec 01 2008

Key Insight: Where the court found that defendants had ?intentionally destroyed or withheld? ESI, including by deleting relevant evidence or attempting to discard a relevant hard drive (which was instead saved by the technician defendant told to discard it), and where the destruction resulted in prejudice to the plaintiff, the court ordered default judgment against defendant and other evidentiary sanctions

Electronic Data Involved: ESI

Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D. Tex. Aug. 8, 2008)

Dec 01 2008

Key Insight: For plaintiff?s and its principals? egregious discovery abuses and bad faith conduct, including intentional spoliation of ESI and willful deception and concealment, magistrate judge set out findings of fact and conclusions of law and recommended sanctions in form of adverse inference instruction and monetary sanctions representing all of defendants? fees and costs incurred in connection with sanctions motion; district court overruled plaintiff’s objections and adopted magistrate judge?s rulings

Nature of Case: Breach of fiduciary duty, breach of contract, RICO violations, negligence, gross negligence and injunctive relief

Electronic Data Involved: Hard drives, DVD, various ESI

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

In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007)

Dec 01 2007

Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order

Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession

Electronic Data Involved: Email and other ESI

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

In re EZ Pay Servs., Inc., 380 B.R. 861 (Bankr. M.D. Fla. 2007)

Dec 01 2007

Key Insight: Court approved Trustee?s request for permission to pay computer forensics expert $70,000 as a necessary cost and expense of preserving the estate, where recovery of deleted electronic information was necessary to enable Trustee to locate and administer valuable assets of estate and to understand debtor’s prepetition transactions, and where expert?s services provided a concrete benefit for the estate since approximately $400,000 in assets was recovered by Trustee as a result

Nature of Case: Bankruptcy case

Electronic Data Involved: 14 hard drives; deleted data

Tag:Deleted Data