Key Insight: delayed legal hold and missing metadata caused prejudice; sanctions imposed such that plaintiffs may not use the date in a document to prove document creation date and defendant may offer archived websites from the internet into evidence
Nature of Case: defamation, libel
Electronic Data Involved: websites, emails, metadata
Keywords: metadata, legal hold, spoliation of websites
Key Insight: Lack of prejudice or evidence of intent to deprive. Denied motion for dispositive sanctions under Rule 37(e). No evidence that higher quality recordings actually existed and were not preserved.
Nature of Case: Excessive force used during security screening
Electronic Data Involved: closed circuit video recordings
Keywords: preserve video recording, excessive force at the security screening.
Key Insight: Lost ESI claim failed because there was no proof anything was lost and there was no clear duty to preserve.
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: archived email, facebook posts
Keywords: spoliation, lost ESI, duty to preserve
Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established
Nature of Case: APA Action related to Touhy request
Electronic Data Involved: Email
Key Insight: In US litigation, court found no duty to preserve was triggered by Korean Fair Trade Commission?s investigation of price-fixing in Korean markets absent case law establishing such a possibility (i.e., that a foreign investigation of domestic markets could trigger a duty to preserve in the US because litigation could someday be commenced) or any related complaints or lawsuits filed in the US or evidence that the price fixing conspiracy was directed at the US or that the KFTC?s investigation extended to impacts in the United States
Nature of Case: Antitrust
Electronic Data Involved: ESI
Key Insight: Where Plaintiff sought spoliation sanctions for Defendant?s deletion of emails and argued that Defendant intended to keep the at-issue account hidden and deleted emails after it was discovered through another party?s production and that those emails revealed Defendant?s intent to keep the at-issue account hidden and other elements of Plaintiff?s claims, the court found that the deletions were ?intended to deprive Plaintiff of the information? contained within and reasoned that Defendant?s claim that he deleted the emails because of computer performance lacked credibility, but declined to impose default judgment absent a sufficient degree of prejudice and instead ordered that a permissive adverse inference instruction would be given to the jury
Nature of Case: Breach of contract and related claims
Electronic Data Involved: Email
Key Insight: Spoliation instructions to jury were erroneous and the case was reversed and remanded for a new trial. No evidence of spoliation was presented at trial and hence spoliation instructions were improper. The Court also went on to discuss the spoliation evidence since it could arise in a new trial. The Court found no spoliation with regard to the deleted emails since Plaintiff?s deletion of emails occurred before she could have anticipated a lawsuit. The Court found that the disposal of Plaintiff?s laptop and sale of her desktop might be spoliation of evidence if there is reason to believe the deleted emails could be recovered from either computer?s hard drive. If Defendant can present evidence that the emails could have been recovered then the court may grant her an instruction on spoliation.
Nature of Case: Alienation of affections
Electronic Data Involved: Emails, hard drives
Key Insight: Court affirmed the sanction of default judgment imposed in 2014 by the International Trade Commission for Appellant?s egregious spoliation of evidence in bad faith and in violation of the Administrative Law Judge?s orders (including, among other things, repeatedly overwriting files, backdating a computer?s internal clock to affect metadata, running CCleaner)
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Key Insight: Plaintiff?s spouse was killed in a tractor-trailer accident when he collided with another tractor-trailer driven by Defendant?s employee. Plaintiff claimed Defendant destroyed or failed to preserve relevant documents in anticipation of litigation and requested sanctions in the form of an adverse inference instruction to the jury. The Court found Plaintiffs did not establish Defendant intentionally destroyed evidence with a desire to suppress the truth. Some of the information did not exist, some was purged per standard practice and much of the material requested by Plaintiffs was provided to them from other sources. The Court denied Plaintiff?s motion with respect to its claim for spoliation. Plaintiffs also requested attorney?s fees and costs as a sanction for Defendant?s failure to produce certain documents. Defendants inadvertently omitted its 2012 income statement but produced those from four other years. The Court held that sanctions were not warranted.
Nature of Case: Tort (Tractor-trailer accident)
Electronic Data Involved: ESI including Driver logs, Qualcomm data, PeopleNet server data
Key Insight: Court found Defendant?s failure to preserve a vehicle?s Electronic Control Module (ECM) data after it was aware of a severe accident, contrary to the Defendant?s ?normal practice,? constituted spoliation. Court denied Plaintiffs? motion for a negative inference under Fed. R. Civ. P. 37 (e) as the Plaintiffs were able to reconstruct the accident and vehicle?s speed from other sources and that the failure to preserve was not intentional based on the defendants? plausible, though erroneous, understanding that the data was overridden by the removal of the damaged vehicle from the scene. Court found a jury instruction that ECM data was not preserved and allowing both parties to present evidence and argument at trial regarding defendant?s failure to preserve the data to be a sufficiently effective sanction.
Nature of Case: Personal injury (auto accident)
Electronic Data Involved: Electronic Control Module (ECM)
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