Tag: FRCP 37(e) Preservation (effective Dec. 1, 2015)

1
Digital Mentor, Inc. v. Ovivo USA, LLC (Western District of Washington, 2020)
2
Mannion, et al. v. Ameri-Can Freight Systems Incorporated, et al. (district of AZ, 2020)
3
Nguyen v. Costco Wholesale Corp. (District of South Florida, 2020)
4
Schmidt v. Shifflett, 1:18-cv-00663-KBM-LF (D.N.M. Aug. 6, 2019).
5
Montoya v. Loya Insurance Company (District of New Mexico, 2019)
6
Guarisco v. Boh Brothers Construction, No. 18-7514 (E.D. La. Oct. 3, 2019).
7
Cruz v. G-Star Inc., No. 17 Civ. 7685 (PGG) (S.D.N.Y. Sept. 30, 2019)
8
Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).
9
Shim-Larkin v. City of New York, 16-CV-6099 (S.D.N.Y. Sept. 16, 2019)
10
Williams v. American College of Education, Inc. (Northern District of Illinois, 2019)

Digital Mentor, Inc. v. Ovivo USA, LLC (Western District of Washington, 2020)

Key Insight: Failure to produce; Sanctions; Proportionality

Nature of Case: Trademark & Copyright infringement

Electronic Data Involved: Hard copy; correspondence; email

Keywords: “Functional employee”; Consultant; Third-party communications; Privilege; Spoliation; Unfair prejudice; Attorney’s fees and costs; Proportionality; Access/Resources;

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Mannion, et al. v. Ameri-Can Freight Systems Incorporated, et al. (district of AZ, 2020)

Key Insight: whether the issue of spoliation could be brought before the jury to decide if evidence was withheld and if that was justified

Nature of Case: personal injury, motor vehicle

Electronic Data Involved: Log books of defendant

Keywords: spoliation, jury instruction, question of law/fact

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Schmidt v. Shifflett, 1:18-cv-00663-KBM-LF (D.N.M. Aug. 6, 2019).

Key Insight: Severe sanctions will not be granted where bad faith cannot be proved and no prejudice.

Nature of Case: Automobile collision.

Electronic Data Involved: Mobile phone data.

Keywords: intentional destruction, adverse inference

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Montoya v. Loya Insurance Company (District of New Mexico, 2019)

Key Insight: is it spoliation for an insurance company to destroy a recorded statement of the accident when the loss of the information is minimally prejudicial

Nature of Case: insurance bad faith

Electronic Data Involved: Audio Recordings, recorded statement

Keywords: recorded statement, prejudice, spoliation

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Guarisco v. Boh Brothers Construction, No. 18-7514 (E.D. La. Oct. 3, 2019).

Key Insight: Party could still be sanctioned to pay expert fees where party unsuccessfully altered evidence.

Nature of Case: Automobile accident.

Electronic Data Involved: Photographs and videos.

Keywords: “altering” “deleting” “deliberate[ly]” “computer scientist” “Facebook post”

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Cruz v. G-Star Inc., No. 17 Civ. 7685 (PGG) (S.D.N.Y. Sept. 30, 2019)

Key Insight: Plaintiff never articulated claims that would make reasonable person believe lawsuit was likely. No duty to preserve had yet attached when Plaintiff when to HR.

Nature of Case: Discrimination

Electronic Data Involved: emails and SAP account

Keywords: Imminent litigation; adverse inference

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Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).

Key Insight: Both sides moved for spoliation sanctions. Court was troubled by failure to suspend automatic deletion and loss of personal cell phone, but imposed no sanctions.

Nature of Case: Employee Termination/Discrimination

Electronic Data Involved: cell phones, company computer, notebooks

Keywords: spoliation; sanctions; automatic deletion

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Shim-Larkin v. City of New York, 16-CV-6099 (S.D.N.Y. Sept. 16, 2019)

Key Insight: The obligation to preserve evidence in a workplace discrimination suit can extend to personal devices known to contain relevant material.

Nature of Case: workplace discrimination

Electronic Data Involved: text messages

Keywords: personal device, text message, obligation to preserve

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Williams v. American College of Education, Inc. (Northern District of Illinois, 2019)

Key Insight: whether the party acted willfully in destroying electronic information by installing a new operating system to his remote access computer

Nature of Case: employment discrimination and retaliation

Electronic Data Involved: destroyed electronically stored information

Keywords: spoliation, updating operating system, electronically stored information

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