FRCP 37(e) Preservation (effective Dec. 1, 2015) – Page 21

First Amer. Title Ins. Co. v. N.W. Title Ins. Agency, LLC, No. 2:15-cv-00229, 2016 WL 4548398 (D. Utah Aug. 31, 2016)

Dec 01 2016

Key Insight: Court concluded that Defendants ?taking steps? to start a competing company even if it was known that starting the company ?would be contentious and actively opposed? was insufficient to establish imminent litigation triggering a duty to preserve (note that imminence is the test in the 10th Cir.); court assessed requests for sanctions as to multiple sources of ESI and largely denied those motions absent evidence of prejudice or that the information could not be restored or replaced but did impose sanctions for non-party employee of Defendants? loss of potentially relevant ESI and hard copy taken from Plaintiff (both assessed ?under the same rubric of Rule 37?) and ordered that the parties would be permitted to present evidence of the spoliation to the jury

Electronic Data Involved: ESI & hardcopy

O?Berry v. Turner, Nos. 7-15-CV-00064-HL, 7:15:CV-00075-HL, 2016 WL 1700403 (M.D. Ga. Apr. 27, 2016)

Dec 01 2016

Key Insight: Where custodian printed single paper copy of relevant driver?s log and PeopleNet data to be maintained in the usual course of business, did nothing more upon receipt of a request for preservation and ultimately misplaced the envelope in which the information was maintained despite claiming to have done ?everything in his power to preserve evidence,? the court found that Defendant filed to take reasonable steps to preserve the data and acted with the intent to deprive Plaintiffs of the information in litigation, reasoning that it was ?simply irresponsible? to print a single paper copy for preservation and noting Defendant?s lack of a document preservation policy and the failure of counsel to contact the at-issue custodian for approximately two and one half years following receipt of the request to preserve, among other things: ?All of these facts, when considered together, lead the Court to conclude that the loss of the at-issue ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior can only lead to one conclusion?that ADM and Archer Daniel Midlands Company acted with the intent to deprive ??

Nature of Case: Automobile accident

Electronic Data Involved: Driver’s log, PeopleNet data

Mazzei v. Money Store, —Fed. Appx.—, 2016 WL 3902256 (2d Cir. July 15, 2016)

Dec 01 2016

Key Insight: District court did not abuse discretion in declining to impose an adverse inference for failure to preserve ESI in an accessible format and instead awarding costs and attorneys fees where the at issue system “contained only ‘tangential information'” and where Plaintiff failed to seek discovery from other sources; Circuit court’s analysis noted recently amended Rule 37(e)’s required finding of intent to impose an adverse inference and that the District Court “specifically found that defendants did not act with such intent”

Nature of Case: Class action: breach of contract

Electronic Data Involved: ESI in third party custody but under control of defendants

McQueen v. Aramark Corp. – 201611 (D. Utah, 2016)

Nov 29 2016

Key Insight: Sanctions imposed after defendant’s failure to preserve relevant ESI after receiving a preservation letter from plaintiff.

Nature of Case: Wrongful death.

Electronic Data Involved: ESI work orders and related paper records.

Keywords: Defendant acted with gross negligence, but without intent to deprive the plaintiff of the information’s use in the litigation.

View Case Opinion

First American Title Insurance Company v. Northwest Title Insurance Agency, LLC, No. 2:15-cv-00229-DN-PMW (D. Utah, Aug. 31, 2016).

Aug 31 2016

Key Insight: no spoliation becuase no evidence responsive data deleted and no prejudice. Oral litigation hold upheld, but be wary.

Nature of Case: Breach of Contract; Unfair Competition

Electronic Data Involved: Various ESI- personal emails, files from work computer

Keywords: oral litigation hold; spoliation

Emergency Response Specialists, Inc v. CSA Ocean Sciences, Inc N.D. Ala. August 4, 2016 (UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION, 2016)

Aug 04 2016

Key Insight: lost evidence, data preservation

Nature of Case: breach of contract

Electronic Data Involved: destroyed electronic records of experts

Keywords: Case dismissal applicable only in extreme circumstances, defensible collection

View Case Opinion

Saller v. QVC, Inc. (ED Pa., 2016)

Jul 29 2016

Key Insight: Discovery sanctions motion.

Nature of Case: Workplace discrimination.

Electronic Data Involved: Employment records including personnel files of supervisors and documents regarding performance of other employees.

Keywords: Failure to preserve, search terms, motion to compel.

View Case Opinion

Martinez v. City of Chicago, No. 14-cv-369 (N.D. Ill. June 29, 2016).

Jun 29 2016

Key Insight: Plaintiff was arrested while police pursuing his brother. Videos from car were mis-labeled and therefore destroyed. Plaintiff could not show bad faith, so no adverse inference instruction.

Nature of Case: civil rights

Electronic Data Involved: Police Car Videos

Keywords: adverse inference; sanctions; bad faith

View Case Opinion

Matthew Enterprise, Inc. v. Chrysler Group LLC, No. 13-cv-04236-BLF (N.D. Cal. May 23, 2016).

May 23 2016

Key Insight: Plaintiff threatened legal action, but failed to have it’s vendor stop automatic deletion and did not preserve recrods when email system changed. Defendant was prejudiced by this spoilation. Court allowed witnesses to testify to spoilation and potential contents of those communications.

Nature of Case: incentive programs and Robinson-Patman Act violations

Electronic Data Involved: internal and external communications

Keywords: spoilation; vendor

View Case Opinion

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