Motion for Sanctions – Page 103 – Electronic Discovery Law

Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007)

Dec 01 2007

Key Insight: Court ordered defendants to organize and label documents to correspond with discovery requests, or provide an index, and to submit declarations by qualified computer technicians or forensic experts setting forth specific details of any lost or destroyed data or damaged hard drives; court reserved the option to appoint a neutral computer forensic expert as a special master to investigate and assess any claim by defendants that their computer servers or hard drives were damaged during the seizures or that electronic records were lost or destroyed

Nature of Case: Infringement litigation

Electronic Data Involved: Electronic documents, hard drives

Bishop v. Toys ?R? US-NY, LLC, 2007 WL 2042913 (S.D.N.Y. July 13, 2007)

Dec 01 2007

Key Insight: Overruling plaintiff’s objection that magistrate judge’s sanctions order did not go far enough and should have required defendant to retain a computer forensic expert to examine surveillance equipment to determine whether deleted images were recoverable, court found that order was neither clearly erroneous nor contrary to law since defendant had produced affidavit of individual who personally installed and serviced the surveillance system who stated that he inspected the surveillance data system and determined that the images were not recoverable

Nature of Case: Customer asserted federal civil rights claims arising from his detention by store security guards

Electronic Data Involved: Surveillance video

Paris Bus. Prods., Inc. v. Genisis Techs., LLC, 2007 WL 3125184 (D.N.J. Oct. 24, 2007)

Dec 01 2007

Key Insight: Where plaintiff submitted photographs of defendant?s computers showing that hard drive from one computer had been tampered with and that hard drives for other computers were missing altogether, and defendants did not oppose substance of sanctions motion, court found that plaintiff had established the four requirements necessary for spoliation inference: (1) evidence in question was within the party’s control; (2) there was actual suppression or withholding of the evidence; (3) evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that evidence would later be discoverable

Nature of Case: Fraud, breach of contract, unjust enrichment

Electronic Data Involved: Hard drives

Stroupe v. Wal-Mart Stores East, L.P., 2007 WL 3223224 (E.D. Va. Oct. 29, 2007)

Dec 01 2007

Key Insight: Adverse inference instruction not warranted for defendant’s routine destruction of surveillance videotapes created on date of incident; defendant presented evidence that there was no videotape that depicted the subject area where the incident occurred and plaintiff did not show that destroyed videotapes contained any images or information relevant to any issue at trial

Nature of Case: Personal injury

Electronic Data Involved: Surveillance videotapes

Citizens for Consumers v. Abbott Labs., 2007 WL 7293758 (D. Mass. Mar. 14, 2007)

Dec 01 2007

Key Insight: Where plaintiff Nevada admitted its negligence in failing to institute a litigation hold which resulted in the loss of information (which the court stated was ?the same as destroying them?) and where the loss was prejudicial to the defendants because of their inability to discovery ?marginalia or annotations? or introduce Nevada?s copies of the documents, among other things, the court granted defendants? request to establish certain facts for purposes of the litigation

Nature of Case: Claims that defendants defrauded Nevada by manipulating average wholesale prices of prescription drugs

Electronic Data Involved: ESI

Floeter v. City of Orlando, 2007 WL 486633 (M.D. Fla. Feb. 9, 2007)

Dec 01 2007

Key Insight: Court denied motion for spoliation sanctions based on city’s overwriting of backup tapes and failure to preserve computer’s hard drive, where subject computer had been reassigned and its hard drive re-imaged before discovery requests were served, missing evidence was not crucial to plaintiff’s claims, and destruction of the material was not done in bad faith

Nature of Case: Employment discrimination

Electronic Data Involved: Computer hard drive and backup tapes

Wood Group Pressure Control, L.P. v. B & B Oilfield Servs., Inc., 2007 WL 1076702 (E.D. La. Apr. 9, 2007)

Dec 01 2007

Key Insight: Court directed defense counsel to file supplemental memorandum regarding her communications with defendant regarding supplemental discovery responses and preservation of evidence and to provide documentation of same for in camera inspection; court further directed defendant to make available key player’s hard drive for forensic examination

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Drawings; hard drive

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F.Supp.2d 627 (E.D. Pa. 2007)

Dec 01 2007

Key Insight: Spoliation sanctions were not warranted for defendant’s failure to preserve copies of screenshots that may have been automatically stored in temporary cache files of defendant’s computers, since plaintiff’s counsel’s preservation letter said nothing about preserving temporary cache files, defendant had no reason to believe such files were relevant, files were deleted automatically and not through any affirmative action by defendant, defendant produced forensic images of its hard drives, and plaintiff established little if any prejudice from loss of cache files

Nature of Case: Copyright infringement and violations of the Computer Fraud & Abuse Act

Electronic Data Involved: Copies of archived website screenshots automatically stored in temporary cache files of defendant’s computers

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D. Fla. Oct. 25, 2007)

Dec 01 2007

Key Insight: Where witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Email

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Tag:Motion for Sanctions