Tag: FRCP 37(e) Safe Harbor (prior to Dec. 1, 2015)

1
Miller v. City of Plymouth, No. 2:09-CV-205 JVB, 2011 WL 1458419 (N.D. Ind. Apr. 15, 2011)
2
Streit v. Elec. Mobility Controls, LLC, 2010 WL 4687797 (S.D. Ind. Nov. 9, 2010)
3
Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)
4
Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)
5
United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)
6
Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)
7
O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)
8
Oklahoma, ex rel. Edmondson, 2007 WL 1498973 (N.D. Okla. May 17, 2007)
9
Escobar v. City of Houston, 2007 WL 2900581 (S.D. Tex. Sept. 29, 2007)
10
In re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007)

Miller v. City of Plymouth, No. 2:09-CV-205 JVB, 2011 WL 1458419 (N.D. Ind. Apr. 15, 2011)

Key Insight: Court upheld ruling that defendants did not destroy video evidence thereby warranting sanctions where plaintiff sought police recordings starting in 2004, but where no retention policy existed during that time period except officers? discretion to retain recording and many of the requested recordings had been recorded over long before plaintiffs? traffic stop; where the relevant officer was not asked to save tape of certain traffic stops until 2010; where plaintiffs? accusations of spoliation assumed that relevant video existed and ?overlooked the significant trouble Defendants have experienced in operating and maintaining their digital systems;? and where defendants had no control over the fact that the systems hard drive recorded over old data

Nature of Case: Claims arising from traffic stop

Electronic Data Involved: Video

Streit v. Elec. Mobility Controls, LLC, 2010 WL 4687797 (S.D. Ind. Nov. 9, 2010)

Key Insight: Where defendant?s multiple attempts at starting plaintiff?s car following the underlying accident resulted in multiple ?blocks? of data being overwritten, the court denied sanctions absent evidence that the loss was intentional (where the imposition of sanctions required a showing of bad faith) and because the relevant ?event? data was also recorded in alternative source that was fully preserved and plaintiff offered no evidence that the relevant data was recorded only to the lost data blocks and not the available alternative source

Nature of Case: Personal injury/product liability

Electronic Data Involved: Black box data from automobile

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)

Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop hard drive, USB Thumb-Drive

Oklahoma, ex rel. Edmondson, 2007 WL 1498973 (N.D. Okla. May 17, 2007)

Key Insight: Where court had invited motion to address e-discovery issues in order to assure that e-discovery issues were moving foward, court granted motion and directed parties to the Guidelines for the Discovery of ESI for the District of Kansas to serve as guidance pendng enactment by the court of its own local rules and/or guidelines; court further noted that, although no formal preservation order had been entered, the duty to preserve evidence including ESI arises as soon as a party is aware the documentation may be relevant; court further warned parties to be “very cautious” in relying upon the safe harbor provision of new FRCP 37(e)

Nature of Case: Nuisance and CERCLA claims against owners of poultry growing operations

Electronic Data Involved: ESI

Escobar v. City of Houston, 2007 WL 2900581 (S.D. Tex. Sept. 29, 2007)

Key Insight: Adverse-inference instruction not warranted where there was no showing that relevant electronic communications were destroyed or that destruction occurred in bad faith; officers involved in the shooting were not likely to have used email to communicate about the event in the day after it occurred, and, under HPD’s document retention and destruction policy, electronic communications records were routinely destroyed within ninety days

Nature of Case: Wrongful death action based on shooting death of 14-year-old boy by police officer

Electronic Data Involved: Records of Houston Police Department electronic communications in the 24 hours after victim’s death

In re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007)

Key Insight: As sanction for debtor?s deliberate and intentional use of a wiping software program on computers after learning that court was ordering their production, and because of severe prejudice to trustee and government, court entered partial default judgment against debtor and ordered debtor to turn over all computers, portable storage devices and any backups within 10 days of order, and to execute any waivers or authorizations necessary for trustee and government to obtain assorted financial records; court further ordered that, if debtor did not comply within 10 days, bench warrant would issue for debtor?s apprehension and debtor would be incarcerated until he purged himself of contempt and complied with orders

Nature of Case: Government brought adversary proceeding against Chapter 7 debtor to except his tax debt from discharge and declare various entities his alter ego

Electronic Data Involved: Hard drives, email

Copyright © 2022, K&L Gates LLP. All Rights Reserved.