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

1
Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)
2
GN Netcom v. Plantronics, Inc., No. 12-1318-LPS, 2016 WL 3792833 (D. Del. July 12, 2016)
3
Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 WL 4544052 (S.D. Miss. Aug. 31, 2016)
4
McQueen v. Aramark Corp. – 201611 (D. Utah, 2016)
5
First American Title Insurance Company v. Northwest Title Insurance Agency, LLC, No. 2:15-cv-00229-DN-PMW (D. Utah, Aug. 31, 2016).
6
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)
7
Saller v. QVC, Inc. (ED Pa., 2016)
8
Martinez v. City of Chicago, No. 14-cv-369 (N.D. Ill. June 29, 2016).
9
Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 7:07-cv-06304-KMK (S.D.N.Y. May 25, 2016).
10
Matthew Enterprise, Inc. v. Chrysler Group LLC, No. 13-cv-04236-BLF (N.D. Cal. May 23, 2016).

Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)

Key Insight: Where Defendant explained that certain emails were not produced because he lost access to the account which subsequently expired and thus the emails were not in his possession custody or control, the court concluded that the duty to preserve was triggered prior to the expiration of the account by the filing of a separate lawsuit involving the same at-issue property in which the parties to this case were codefendants and explained in footnote that it could locate no case law limiting the duty to preserve to an adversary as opposed to all parties to litigation and noted that the duty to preserve ?may carry over to subsequent lawsuits involving the same subject matter?; finding the spoliation was prejudicial but not intentional, the court ordered the jury be informed of the failure to preserve, but not instructed to presume anything about the content of the emails

Nature of Case: Breach of Settlement Agreement

Electronic Data Involved: e-mail

GN Netcom v. Plantronics, Inc., No. 12-1318-LPS, 2016 WL 3792833 (D. Del. July 12, 2016)

Key Insight: Where a senior executive deleted massive amounts of email and instructed others to do the same despite a duty to preserve and the company?s issuance of a litigation hold, the court indicated that the company?s efforts did not absolve it of all responsibility for the failures of a member of its senior management (and noted the company?s own bad conduct in litigating the deletion issue, including its initial refusal to disclose the identity of its forensic expert) and concluded that reasonable steps were not taken to preserve and found that the deletions were in bad faith and prejudicial to the Plaintiff and imposed sanctions including monetary sanctions in the form of reasonable fees and costs, punitive sanctions in the amount of $3 million and a permissive adverse inference

Nature of Case: Antitrust

Electronic Data Involved: email

Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 WL 4544052 (S.D. Miss. Aug. 31, 2016)

Key Insight: Applying 5th Circuit common law (but acknowledging the outcome of the motion would not change under recently-amended Rule 37(e)), the court declined to impose sanctions for the destruction of relevant documents pursuant to Defendant?s document retention policy at a time when there was no duty to preserve and, in its discussion of bad faith, noted that the court ?does ?not draw an inference of bad faith when documents are destroyed under a routine policy??

Nature of Case: Product liability

Electronic Data Involved: ESI, including committee minutes and product testing documents

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

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)

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)

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).

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

Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, No. 7:07-cv-06304-KMK (S.D.N.Y. May 25, 2016).

Key Insight: The Village did not preserve the facebook posts or text messages despite having that duty. Court ruled that severe sanctions were warranted including an adverse inference and legal fees.

Nature of Case: discrimination; zoning

Electronic Data Involved: Facebook posts and text messages

Keywords: adverse inference; facebook, texts

View Case Opinion

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

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