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

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Man Zhang v. City of New York (SDNY, 2019)
2
Bellamy v. Wal-Mart Stores, No. SA-18-CV-60-XR (W.D. Tex., 2019)
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Woods v. Scissons, 3:17-cv-08038 (D. Arizona, Aug. 14, 2019)
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Incardone v. Royal Caribbean Cruises, Ltd. (S.D. Florida, Miami Division, 2019)
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Wilmoth v. Deputy Austin Murphy (W.D. Ark., 2019)
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Wilmoth v. Murphy (District Court of Western District of Arkansas, 2019)
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Cox v. Swift Transportation Co. of Arizona, LLC (N.D. Okla., 2019)
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Hardy v. UPS Ground Freight, Inc. (D. Mass., 2019)
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Cordova v. Walmart Puerto Rico, Inc., et al., No. 16-2195 (ADC) (D.P.R. July 16, 2019)
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Mercado-Cordova v. Walmart Puerto Rico et al (D.P.R., 2019)

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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Woods v. Scissons, 3:17-cv-08038 (D. Arizona, Aug. 14, 2019)

Key Insight: Automatically deleted police dash cam footage is considered spoliated when a serious injury occur s during arrest.

Nature of Case: excessive use of force during arrest

Electronic Data Involved: police dash cam video and audio footage

Keywords: dash camera, police, spoliation

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Incardone v. Royal Caribbean Cruises, Ltd. (S.D. Florida, Miami Division, 2019)

Key Insight: The duty to preserve should be proportional and reasonable, not perfect and absolute.

Nature of Case: Rule 37(e) analysis of the defendant’s actions

Electronic Data Involved: Video Clips, CCTV and VDR

Keywords: Preserve, camera, viewable, “recorded continuously”, CCTV, RCCL

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Wilmoth v. Deputy Austin Murphy (W.D. Ark., 2019)

Key Insight: whether negative inference warranted where pictures taken on personal cell phone pursuant to protocol which became lost or destroyed

Nature of Case: excessive force – prison

Electronic Data Involved: cell phone pictures

Keywords: work image on personal cell phone

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Wilmoth v. Murphy (District Court of Western District of Arkansas, 2019)

Key Insight: whether the defendant took reasonable steps to preserve the relevant evidence and whether the defendant?s actions in this case support a finding that the defendant acted with the intent to deprive another party of the information?s use in the litigation

Nature of Case: personal injury

Electronic Data Involved: deleted photographs

Keywords: sand, egregious

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Cox v. Swift Transportation Co. of Arizona, LLC (N.D. Okla., 2019)

Key Insight: whether sanctions are appropriate where data on tracking device subject to automatic deletion which occurred before spoliation notice

Nature of Case: personal injury – vehicle accident

Electronic Data Involved: electronic control module (ECM)

Keywords: tracking device

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Hardy v. UPS Ground Freight, Inc. (D. Mass., 2019)

Key Insight: whether failure to provide text messages talked was spoliation of evidence

Nature of Case: employment discrimination

Electronic Data Involved: forensic imaging of plaintiff’s cell phone, relevant text messages

Keywords: text messages, forensic imaging of cell phone, spoliation

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Mercado-Cordova v. Walmart Puerto Rico et al (D.P.R., 2019)

Key Insight: inadvertent failure to preserve email evidence leads to monetary sanctions and adverse inference but no termination

Nature of Case: employment

Electronic Data Involved: pictures

Keywords: deleting facebook

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