Spoliation – Page 104 – Electronic Discovery Law

RKI, Inc. v. Grimes, 177 F. Supp. 2d 859 (N.D. Ill. 2001)

Dec 01 2004

Key Insight: Court granted emergency motion to compel, requiring defendants to appear for deposition and produce computers for inspection by plaintiff’s computer forensics expert; at subsequent bench trial, in light of defendants’ deletion of data from computers after litigation commenced, repeated defragmentation of hard drives prior to court-ordered inspections, and decision not to offer any testimony to explain same, court drew adverse inference; court awarded plaintiff $100,000 as royalty for defendants’ unauthorized use of trade secrets, and $150,000 in punitive damages for the willful and malicious misappropriation of trade secrets and attempted cover-up

Nature of Case: Manufacturer sued former employee and competitor for misappropriation of trade secrets and related torts

Electronic Data Involved: Software and databases containing sales and customer information

Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004)

Dec 01 2004

Key Insight: Adverse inference jury instruction against defendant for its prelitigation destruction of tape-recorded voice radio communications between train crew and dispatchers on date of collision was proper, but refusal to permit testimony offered by defendant to rebut the adverse inference was abuse of discretion

Nature of Case: Negligence

Electronic Data Involved: Tape-recorded voice radio communications

Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. Dist. Ct. App. 2001)

Dec 01 2004

Key Insight: Affirming jury award for plaintiff, where plaintiff had been permitted to add claim for negligent destruction of evidence based on defendant’s failure to preserve electronic records and computer hard drive, court found no error in allowing plaintiff to introduce at trial evidence of defendant’s discovery misconduct. Court further concluded that strong statements of disapproval of defendant’s discovery abuses did not require trial judge’s recusal.

Nature of Case: Breach of contract suit between former partners

Electronic Data Involved: Computer hard drive

Stricklen v. Fed. Aviation Admin., 32 F.3d 572 (Table, Text in WESTLAW), 1994 WL 390001 (9th Cir. 1994) (Unpublished)

Dec 01 2004

Key Insight: Negative inference not warranted in NTSB board proceeding where computer tapes containing radar data were destroyed pursuant to FAA policy and without notice that pilot would raise issue of near-miss

Nature of Case: Petition for review of order of NTSB revoking pilot’s airline transport certificate

Electronic Data Involved: Tapes containing radar data

Symantec Corp. v. McAfee Assoc., Inc., 1998 WL 740798 (N.D. Cal. June 9, 1998)

Dec 01 2004

Key Insight: Where defendants admitted to removing customer sales information from sales representatives’ computers by means of “delete and scrub” utilities in response to plaintiff’s claim that such material constituted trade secrets, and retained copies of deleted information, court granted unopposed motion for preliminary injunction enjoining defendant from distributing customer sales information and recalling and impounding customer sales information database

Nature of Case: Copyright infringement; plaintiff also alleged that defendant obtained private customer sales information from plaintiff’s former sales representative

Electronic Data Involved: Database containing customer sales information

3M v. Pribyl, 259 F.3d 587, 606 n.5 (7th Cir. 2001)

Dec 01 2004

Key Insight: Negative inference instruction warranted where six gigabytes of music were downloaded onto hard drive the night before the computer was to be turned over for inspection

Nature of Case: Manufacturer sued former employees and their new competing company for misappropriation of trade secrets

Electronic Data Involved: Hard drive

United States v. Koch Ind., Inc., 197 F.R.D. 463 (N.D. Okl. 1998)

Dec 01 2004

Key Insight: Defendant was negligent in failing to determine which computer tapes in tape library contained information relevant to imminent and ongoing litigation and in failing to communicate clear guidelines regarding preservation of information to data processing personnel and tape librarian; no adverse inference, but plaintiff could inform jury about destruction of tapes and impact on plaintiff’s proof

Nature of Case: Action under False Claims Act

Electronic Data Involved: Computer tapes

United States v. Philip Morris USA Inc., 327 F. Supp. 2d 21 (D.D.C. 2004)

Dec 01 2004

Key Insight: Finding it “astounding” that defendant’s employees failed to follow court’s preservation order and defendant’s own document retention policies, court rejected plaintiff’s request for adverse inference but imposed monetary sanction of $2,750,000 and barred testimony from at least 11 witnesses who failed to comply with defendant’s own internal document retention program

Nature of Case: Tobacco litigation

Electronic Data Involved: Email

William T. Thompson Co. v. Gen. Nutrition Corp., Inc., 593 F. Supp. 1443 (C.D. Cal. 1984)

Dec 01 2004

Key Insight: Defendant’s discovery abuse and destruction of evidence warranted monetary sanctions and default judgment

Nature of Case: Antitrust

Electronic Data Involved: Sales and inventory data

Mosaid Techs. Inc. v. Samsung Elecs. Co., 2004 WL 2550306 (D.N.J. July 7, 2004) (“Mosaid I”)

Dec 01 2004

Key Insight: Magistrate granted various discovery sanctions requested by plaintiff, including monetary sanctions and a jury instruction adverse to defendants based on destruction and non-production of email

Nature of Case: Patent infringement

Electronic Data Involved: Email

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