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

1
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)
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Philmar Dairy, LLC v. Armstrong Farms, No. 18-cv-0530 SMK/KRS (D. N.M. July 11, 2019)
10
Herzig et al. v. Arkansas Foundation for Medical Care Inc. (District Court of Western Arkansas, 2019)

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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Philmar Dairy, LLC v. Armstrong Farms, No. 18-cv-0530 SMK/KRS (D. N.M. July 11, 2019)

Key Insight: Defendant changed phones and with them photos of fire were lost. Plaintiff requested sanctions due to loss of photos. Court rejects sanction as Defendant could not have known about litigation when phones changed.

Nature of Case: Breach of Contract; Fraud

Electronic Data Involved: Cell Phone Photos

Keywords: spoilation; sanctions

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Herzig et al. v. Arkansas Foundation for Medical Care Inc. (District Court of Western Arkansas, 2019)

Key Insight: Responsive communications were intentionally withheld and destroyed when the plaintiffs switched to an encrypted communication app

Nature of Case: wrongful termination and age discrimination

Electronic Data Involved: emails, text messages.

Keywords: Intentional spoliation, bad faith, encrypted communication application

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