Tag: Motion for Preservation Order

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Sprint Nextel Corp. v. Middle Man, Inc., N. 12-2159-JTM, 2013 WL 1001851 (D. Kan. Mar. 13, 2013)
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Chandler v. Buncich, No. 2:12 cv 175, 2012 WL 4343314 (S.D. Ind. Sept. 24, 2012)
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Margolis v. Dial Corp., No. 12-CV-0288-JLS (WVG), 2012 WL 2588704 (S.D. Cal. July 3, 2012)
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URS Corp. v. Isham, 2010 WL 2428841 (D.S.C. June 11, 2010)
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Ellington Credit Fund, Ltd. v. Select Portfolio Servs. Inc., 2009 WL 274483 (S.D.N.Y. Feb. 3, 2009)
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Cimaglia v. Union Pac. R.R. Co., 2009 387266 (C.D. Ill. Feb. 13, 2009)
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Johnson v. U.S. Bank Nat?l Assoc., 2009 WL 4682668 (S.D. Ohio Dec. 3, 2009)
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Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Co., 2009 WL 464989 (N.D. Tex. Feb. 23, 2009)
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Robinson v. Motivation Excellence, Inc., 2008 WL 2096957 (W.D. Pa. May 16, 2008)
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Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008)

Sprint Nextel Corp. v. Middle Man, Inc., N. 12-2159-JTM, 2013 WL 1001851 (D. Kan. Mar. 13, 2013)

Key Insight: Court was satisfied that defendants were aware of their legal duty to preserve evidence and noted that defendants had stated they had a diligent electronic record-keeping practice to track the company’s sales, purchases and inventory, and that the company would consent to an on-site physical inspection of its inventory; court was not persuaded that preservation order was appropriate or that it would serve any useful purpose in light of the parties’ existing legal obligations to preserve relevant evidence

Nature of Case: Trademark infringement, unlawful business practices

Electronic Data Involved: Sprint phones, ESI

Chandler v. Buncich, No. 2:12 cv 175, 2012 WL 4343314 (S.D. Ind. Sept. 24, 2012)

Key Insight: Where plaintiff sought a preservation order but made no attempt to show that defendants would destroy evidence and instead focused on the prejudice that he may suffer if such destruction occurred, court indicated that the possibility of prejudice alone was insufficient to warrant the relief requested and further noted that defendants had acknowledged their duty to preserve and that there was no reason to doubt that they would fulfill that duty

Nature of Case: Injuries from attack suffered while in custody

Electronic Data Involved: Surveillance data, photos & “related media”

Margolis v. Dial Corp., No. 12-CV-0288-JLS (WVG), 2012 WL 2588704 (S.D. Cal. July 3, 2012)

Key Insight: Court denied Plaintiffs? request for a preservation order as to voicemail and instant messages where defendants had already sent litigation hold notices requiring preservation such that Plaintiffs? request was moot; Court further declined to enter preservation order as to backup tapes where defendants established that their preservation would impose a significant burden and that the contents were likely duplicative and where the court found that the backup tapes did not fall within the exception identified in Zubulake v UBS Warburg, 220 FRD 212 (S.D.N.Y. 2003).

Electronic Data Involved: Voicemail, instant messages, backup tapes

URS Corp. v. Isham, 2010 WL 2428841 (D.S.C. June 11, 2010)

Key Insight: Court granted plaintiff?s motion for preservation and inspection of defendant?s relevant hardware but found plaintiff?s proposed protocol overly burdensome and thus ordered adherence to defendant?s proposed protocol which called for more targeted searches using terms proposed by plaintiff and provided a more reasonable time frame for the production of documents and privilege logs; parties to split the cost

Nature of Case: Claims arising from employees’ departure from plaintiff’s company to join defendant’s

Electronic Data Involved: Hard drives

Ellington Credit Fund, Ltd. v. Select Portfolio Servs. Inc., 2009 WL 274483 (S.D.N.Y. Feb. 3, 2009)

Key Insight: Despite plaintiffs? claim that they had ?already been prejudiced? by the ?confessed destruction? of ESI in its native format through defendant?s ?systematic purges? of its computer systems, court denied motion to lift stay of discovery and impose preservation order where defendant provided affidavit stating a litigation hold was imposed and that the ?regular document retention policy? had not been applied to information relating the loans at issue in the case, and where plaintiffs presented no evidence to the contrary

Nature of Case: Breach of Contract

Electronic Data Involved: ESI

Cimaglia v. Union Pac. R.R. Co., 2009 387266 (C.D. Ill. Feb. 13, 2009)

Key Insight: Court denied plaintiffs? motion for preservation order and immediate production of data related to 2009 railroad crossing failure, finding that 2009 data was not relevant to 2004 incident at issue in light of defendants? lack of intention to present evidence that the system could not fail, and where court found 2009 data was not relevant to rebut defendants? assertions regarding lack of failure in 2004 or admissible to establish ?a routine practice of willful conduct?

Nature of Case: Train collision

Electronic Data Involved: Electronic copies of downloads from event recorders at railroad crossing

Johnson v. U.S. Bank Nat?l Assoc., 2009 WL 4682668 (S.D. Ohio Dec. 3, 2009)

Key Insight: Court granted motion to serve preservation subpoena on third-party prior to the Rule 26(f) conference where plaintiff showed good cause for such a subpoena, including the potential relevance of the documents and the danger of spoliation where the company had been ?dormant? since 2006, and where the subpoena was narrowly tailored to prevent spoliation and did not impose an immediate obligation to produce documents

Nature of Case: Class action

Electronic Data Involved: ESI

Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Co., 2009 WL 464989 (N.D. Tex. Feb. 23, 2009)

Key Insight: Where defendant sought protection against disclosure of documents related to the billing dispute with its former attorneys because such production could waive privileges in another, pending case, court ordered production pursuant to prescribed provisions, including a provision that no waiver would result by the compelled disclosures pursuant to Fed. R. Evid. 502

Nature of Case: Billing dispute between counsel and former client

Electronic Data Involved: Information related to billing dispute

Robinson v. Motivation Excellence, Inc., 2008 WL 2096957 (W.D. Pa. May 16, 2008)

Key Insight: Because court ruled that plaintiff?s claims were without merit and granted defendant?s motion to dismiss, with prejudice, court concluded there was no need for expert to access laptop?s hard drive and that defendant was entitled to return of its property; court ordered plaintiff to return laptop and other property to defendant former employer, and directed defendant to ?preserve, maintain, and protect all such property and things in their present state from destruction, modification and/or alteration? until the action was finalized

Nature of Case: Wrongful termination

Electronic Data Involved: Employer-provided laptop

Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008)

Key Insight: Where plaintiff failed to establish relevance of comment that was posted by individual defendant on Dattallegro?s web log (?blog?) but was later made unavailable for public access, and defendants had represented to court that they intended to meet their discovery obligations and would meet and confer with plaintiff to define scope of parties’ preservation obligations and protocols, court rejected plaintiff?s claim that defendants had destroyed relevant evidence and denied motion for preservation order

Nature of Case: Patent infringement

Electronic Data Involved: Web log comment

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