FRCP 37(e) Safe Harbor (prior to Dec. 1, 2015) – Page 4

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

Dec 01 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

Inventory Locator Serv., LLC v. PartsBase, Inc., 2005 WL 6062855 (W.D. Tenn. Oct. 19, 2005)

Dec 01 2005

Key Insight: Where there was no evidence that server logs were erased in bad faith and facts suggested that defendant was, at most, merely negligent, since it took reasonable steps to preserve relevant data — it retained and consulted with technical expert; on advice of its expert, it made a copy of the relevant server logs on CDs that could not be overwritten; it stored copies of the data on its server; and it made the data on the server available for inspection by plaintiff prior to the time it was overwritten — and where plaintiff was unable to demonstrate any real prejudice from the loss of some metadata in server logs, magistrate judge found no basis for spoliation sanctions of any kind and recommended denial of plaintiff’s sanctions motion

Nature of Case: Parties asserted claims under Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, each arguing that the other had obtained unlawful access to databases

Electronic Data Involved: Metadata; server logs

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