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

1
Nguyen v. Costco Wholesale Corp. (District of South Florida, 2020)
2
Schmidt v. Shifflett, 1:18-cv-00663-KBM-LF (D.N.M. Aug. 6, 2019).
3
Montoya v. Loya Insurance Company (District of New Mexico, 2019)
4
Guarisco v. Boh Brothers Construction, No. 18-7514 (E.D. La. Oct. 3, 2019).
5
Cruz v. G-Star Inc., No. 17 Civ. 7685 (PGG) (S.D.N.Y. Sept. 30, 2019)
6
Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).
7
Shim-Larkin v. City of New York, 16-CV-6099 (S.D.N.Y. Sept. 16, 2019)
8
Williams v. American College of Education, Inc. (Northern District of Illinois, 2019)
9
Man Zhang v. City of New York (SDNY, 2019)
10
Bellamy v. Wal-Mart Stores, No. SA-18-CV-60-XR (W.D. Tex., 2019)

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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Man Zhang v. City of New York (SDNY, 2019)

Key Insight: Spoliation, failure to issue Litigation Hold,

Nature of Case: 1983 Civil Rights

Electronic Data Involved: Hard copy, video, telephone recordings

Keywords: Adverse inference, Default Judgment, Sanctions, Attorney’s fees and costs, failure to investigate, Spoliation, Intent to deprive, Reasonable steps to preserve

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Bellamy v. Wal-Mart Stores, No. SA-18-CV-60-XR (W.D. Tex., 2019)

Key Insight: Properly clawed back privileged documents may not be relied upon for evidence in a case. However, if the contents of these clawed back documents demonstrates bad faith discovery conduct, then sanctions can still be awarded.

Nature of Case: slip-and-fall injury

Electronic Data Involved: inadvertently produced privileged documents

Keywords: clawback, bad faith, intent to deprive

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