Deleted Data – Page 8 – Electronic Discovery Law

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Wong v. Thomas, 2008 WL 4224923 (D.N.J. Sept. 10, 2008) (Not for Publication)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

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

White v. Potter, 2007 WL 1207205 (D.D.C. Apr. 24, 2007)

Dec 01 2007

Key Insight: Court ordered that certain representations of the Postal Service regarding the ineffectiveness or impossibility of additional searching for responsive documents and ESI be documented and attested to by sworn testimony, in order to lay a solid foundation upon which court could decide motion to compel and/or any future motion for sanctions

Nature of Case: Employment litigation

Electronic Data Involved: ESI

Silipos, Inc. v. Bickel, 2007 WL 1180571 (S.D.N.Y. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court directed plaintiff to identify ?the lowest-paid employee of the data forensics company who is (a) knowledgeable about the process by which the data was extracted from defendant?s computer, and (b) able to give a deposition? by court?s deadline; court further ruled that defendant would be permitted to depose that employee for up to four hours, provided that defendant must pay for employee’s time at same hourly rate that had been billed to plaintiff; court encouraged counsel to take the deposition by telephone

Nature of Case: Misappropriation, breach of loyalty

Electronic Data Involved: Deleted documents recovered from defendant’s computer

Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)

Dec 01 2007

Key Insight: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives

Tag:Deleted Data