Tag: Policy on Routine Records Management and Retention

1
America West Bank Members v. State of Utah (D. Utah 2021)
2
Bolding v. Banner Bank (W.D. Wash. 2020)
3
WeRide Corp. v. Kun Huang (N.D. Cal., 2020)
4
Brittney Gobble Photography, LLC v. Sinclair Broadcast Group, Inc. (D. Md. 2020)
5
Taylor v. Kilmer (Northern District of Illionis, 2020)
6
Nevis v. Rideout Memorial Hospital, et al. (Eastern District of California, 2020)
7
Cruz v. G-Star Inc., No. 17 Civ. 7685 (PGG) (S.D.N.Y. Sept. 30, 2019)
8
Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).
9
Man Zhang v. City of New York (SDNY, 2019)
10
Beseke v. Equifax Information Services, LLC, No. 17-CV-4971-DWF-KMM (D. Minn, 2018)

America West Bank Members v. State of Utah (D. Utah 2021)

Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have been responsive if those emails were still available, the identification of documents or categories of documents no longer available, and an explanation as to why other responsive documents were not produced. The court granted plaintiff’s request but found it “strictly limited to the purged former employee email accounts.” No additional depositions were permitted and plaintiff’s fourteen interrogatories on this topic were “neither reasonable nor proportional” to the limited nature of the discovery needed.

Nature of Case: Civil rights

Electronic Data Involved: Email and documents

Case Summary

Bolding v. Banner Bank (W.D. Wash. 2020)

Key Insight: The plaintiffs, current and former mortgage/residential loan officers of defendant, filed a motion for spoliation sanctions and entry of default judgment against defendant based on the failure to preserve and intentional destruction of email accounts and calendar data. The court found: (1) the ESI was relevant to the claims in the lawsuit; (2) defendant breached its duties by intentionally destroying ESI after learning that employees had accused defendant of not paying overtime and after being threatened with a lawsuit, and even after the lawsuit was filed and formal requests for production were received, it paid to order the destruction of additional backup tapes; and (3) the evidence is irretrievably lost. The court declined to enter a default judgment, concluding “[t]he availability of less drastic sanctions that have the ability to mitigate the damage caused by defendant’s egregious destruction of evidence is a powerful factor that militates against imposing dispositive sanctions.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Email and calendar accounts

Case Summary

WeRide Corp. v. Kun Huang (N.D. Cal., 2020)

Key Insight: Defendant’s failure to suspend document retention policy resulted in loss of evidence and court ordered judgment against Defendant. Plaintiff also showed evidence that USB Drives had been inserted into a shared laptop and files deleted. Defendants actions had made it impossible for Plaintiff to prove case.

Nature of Case: Trade Secrets

Electronic Data Involved: USB Drives inserted into company laptop; Email accounts

Keywords: records retention policy, spoliation, sanctions

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Brittney Gobble Photography, LLC v. Sinclair Broadcast Group, Inc. (D. Md. 2020)

Key Insight: Plaintiff, a professional photographer, filed a motion for spoliation sanctions against the defendant, claiming the deletion of emails were crucial to the claims and defenses in the litigation. The court denied plaintiff’s motion, finding: there is no evidence that the emails at issue actually existed, and an inference that they did not exist; if the emails existed, there is no evidence that the defendant lost or destroyed any emails in order to prevent plaintiff from using them in the litigation; and plaintiff is not prejudiced by the purported loss. Plaintiff never proved that the purported emails existed and to succeed on a spoliation of evidence motion, mere speculation is not enough.

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

Case Summary

Taylor v. Kilmer (Northern District of Illionis, 2020)

Key Insight: argue that those requests and subpoenas are overly broad

Nature of Case: Motor vehicle accident negligence, personal injury

Electronic Data Involved: medical bills, records, and data for treatment received over a year before incident pertaining to rate of reimbursement

Keywords: subpoena, provider billing structure, medical billing and records, overly broad and burdensome

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Nevis v. Rideout Memorial Hospital, et al. (Eastern District of California, 2020)

Key Insight: Plaintiff was made aware that he had to preserve his phone records and text records and than failed to do so

Nature of Case: personal injury and liability

Electronic Data Involved: plaintiff’s cell phone and text messages

Keywords: spoliation, text messages, phone records, cell phone, preservation

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Cruz v. G-Star Inc., No. 17 Civ. 7685 (PGG) (S.D.N.Y. Sept. 30, 2019)

Key Insight: Plaintiff never articulated claims that would make reasonable person believe lawsuit was likely. No duty to preserve had yet attached when Plaintiff when to HR.

Nature of Case: Discrimination

Electronic Data Involved: emails and SAP account

Keywords: Imminent litigation; adverse inference

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Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).

Key Insight: Both sides moved for spoliation sanctions. Court was troubled by failure to suspend automatic deletion and loss of personal cell phone, but imposed no sanctions.

Nature of Case: Employee Termination/Discrimination

Electronic Data Involved: cell phones, company computer, notebooks

Keywords: spoliation; sanctions; automatic deletion

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Man Zhang v. City of New York (SDNY, 2019)

Key Insight: Spoliation, failure to issue Litigation Hold,

Nature of Case: 1983 Civil Rights

Electronic Data Involved: Hard copy, video, telephone recordings

Keywords: Adverse inference, Default Judgment, Sanctions, Attorney’s fees and costs, failure to investigate, Spoliation, Intent to deprive, Reasonable steps to preserve

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Beseke v. Equifax Information Services, LLC, No. 17-CV-4971-DWF-KMM (D. Minn, 2018)

Key Insight: accessibility of data

Nature of Case: Violations of the FCRA

Electronic Data Involved: information related to similar lawsuits and consumer complaints

Keywords: data, searchable, accessible, access*, undue burden,

View Case Opinion

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