Tag:Motion for Sanctions

Key Insight: Where Defendant preserved a portion of the relevant surveillance video following Plaintiff?s fall but, upon being ordered to preserve substantially more, could not comply because the video had been automatically overwritten by that time and could not be recovered, the court declined to impose an adverse inference absent evidence of a culpable mindset

Nature of Case: Premises liability (slip and fall)

Electronic Data Involved: Surveillance video

Key Insight: Defendants? duty to preserve video recording of plaintiff?s accident arose well within the two-week period before the video was erased per defendant’s document retention policies, as defendant should have anticipated litigation when defendant?s security personnel arranged for plaintiff to be taken by ambulance to a hospital for treatment of injuries sustained when she slipped, and if not then, the duty ?certainly arose? when plaintiff called defendant?s office manager and it became clear that plaintiff was seeking compensation for her injuries from defendant?s insurer; finding that video recording would have been relevant, court determined that an adverse inference instruction advising the jurors that they may infer that the video recording would have corroborated plaintiff?s allegations and rebutted defendants? assertions would suffice to restore plaintiff to the position she would have been had the recording been preserved

Nature of Case: Slip and fall

Electronic Data Involved: Video footage capturing plaintiff’s fall in stairwell

Key Insight: Court denied defendant?s motion for an adverse inference and monetary sanctions related to its allegations of spoliation where the court ?did not agree? that plaintiff was ?grossly negligent? noting that plaintiff ?had in place ? a comprehensive standard document preservation policy, issued both verbal and written litigation hold notices, preserved backup tapes of emails from before commencement, and confirmed that no custodian had deleted any documents related to this matter? and where, the court determined that ?[w]hile there may have been some shortcomings in [plaintiff?s] document retention protocol, it was, at most, negligent? and that the ?discretionary presumption articulated in Residential Funding Corp [306 F.3d 99] d[id] not apply in any event?; court further declared that the spoliation motion failed ?on the ?inability [of Nektar] to adduce evidence suggesting the existence, let alone destruction , of relevant documents.?

Nature of Case: Breach of contract and related claims

Electronic Data Involved: ESI

Key Insight: In a case arising from a train passenger?s complaints regarding Plaintiff?s telephone conversation which the passenger found threatening and which resulted in Plaintiff?s arrest, the court found that the plaintiff had a duty to preserve the relevant cellular phone and that Defendants were prejudiced by its loss but declined to impose an adverse inference instruction for merely negligent spoliation (inadvertent loss) and instead barred Plaintiff from introducing evidence related to who he was talking to or what was said and allowed Defendants to present evidence regarding Plaintiff?s failure to preserve and argue ?whatever inference they hope the jury will draw?

Nature of Case: Claims arising from arrest where charges were later dismissed

Electronic Data Involved: Cellular phone