Spoliation – Page 31 – Electronic Discovery Law

Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)

Dec 01 2016

Key Insight: Addressing motion for sanctions for the loss of emails in third party custody (GoDaddy), Iron Mountain back ups, and miscellaneous computer files, the Magistrate Judge concluded: 1)that Exeter had a duty preserve reasoning that since 2009 it had been involved in other litigation involving the disclosure of its books, records and financial documents, and that Exeter therefore knew or should have known that the documents ?could be relevant to future litigation? and also found that even if the filing of the 2009 lawsuit (involving different parties) did not trigger the preservation obligation, receipt of a 2009 subpoena should have and that in any event, the duty to preserve arose no later than Exeter?s 2011 bankruptcy filing; 2)that Exeter?s loss of ESI was ?intentional and done in bad faith? absent evidence of any effort to ensure preservation or to contact the third-party providers to inform them of the duty; and 3) that as a result of the intentional loss, a presumption of relevance was warranted and therefore recommended a sanction of an permissive adverse inference at trial; upon Exeter?s objection, District Court adopted the sanctions recommendation entirely and indicated that ?[W]hen there has been intentional destruction of evidence by an officer of a closely held corporation, other officers of the closely held entity may be subject to sanctions, even if they did not have direct control of the evidence at issue.?

Nature of Case: Plaintiff claims that Defendants defrauded Exeter?s creditors by transferring funds from Exeter to themselves, certain trusts, and other entities.

Electronic Data Involved: Email in third-party custody, Iron Mountain backups, miscelaneous ESI

Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sept. 1, 2016)

Dec 01 2016

Key Insight: Court found dismissal was a disproportionate sanction for failure to preserve text messages lost when phone was dropped and broken but did conclude that Plaintiff and her counsel failed to take ?reasonable steps to preserve? those texts which resided only on Plaintiff?s phone, reasoning that ?[o]nce it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one?; court indicated defendant would be free to examine witnesses who had read the texts and explore the circumstances surrounding their destruction and further indicated that the court had not ruled out a spoliation instruction, an option reserved until after the court heard the evidence at trial

Nature of Case: Employment litigation

Electronic Data Involved: Explicit text messages

Moore v. Lowe?s Home Centers, LLC, No. 2:14-cv-01459 RJB, 2016 WL 3458353 (W.D. Wash. June 24, 2016)

Dec 01 2016

Key Insight: No sanctions imposed for Defendant?s deletion of Plaintiff?s email in accordance with Defendant?s email retention policy following her termination where Plaintiff?s emails to HR and management ?did not raise ?potential claims? but rather raise Plaintiff?s concerns about workplace gossip and challenging relationships? and where other ?low-level employees? general awareness that Plaintiff was rumored to pursue litigation? did not result in a duty to preserve

Nature of Case: Employment litigation

Electronic Data Involved: Emails of departed/terminated employee

Marshall v. Dentfirst, P.C., No. 1:14-cv-2421-WSD, 2016 WL 1222270 (N.D. Ga. Mar. 24, 2016)

Dec 01 2016

Key Insight: Plaintiff seeks sanctions for Defendant allegedly failing to preserve ESI including browsing history, emails and pretreatment documents on Plaintiff?s work computer. The court quotes Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012), ?it is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party.? Plaintiff failed to show that the alleged spoliated information existed at the time Defendant reasonably could have anticipated litigation but that the Defendant failed to preserve it. The court continued its analysis, finding that ?even if the evidence existed at the time Defendant had a duty to preserve it,? Plaintiff failed to show prejudice (which could have been mitigated through depositions) or bad faith on the part of Defendant. The court denied Plaintiff?s motion.

Electronic Data Involved: Internet browsing history, emails

Marten Transp. Ltd. v. Platform Advertising, Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL 492743 (D. Kan. Feb. 8, 2016)

Dec 01 2016

Key Insight: Court denied motion for spoliation sanctions where, although a general duty to preserve arose in 2013, the duty to preserve the internet history of the at-issue employee did not arise until June 2015, which was after the employee had been moved to a different work station

Nature of Case: Trademark infringement, unfair competition

Electronic Data Involved: Internet history

Applebaum v. Target Corp., 831 F.3d 740 (6th Cir. 2016)

Dec 01 2016

Key Insight: In affirming the verdict of the trial court, the circuit court specifically indicated that the trial court did not err in refusing to give an adverse inference instruction and in its analysis recognized recent amendments to Rule 37(e): ?It bears adding that to the extent Applebaum sought an adverse inference instruction for spoliation of electronic information, a 2015 amendment to Civil Rule 37(e)(2) required her to show that Target had ?intent? to deprive her of the information?s use. A showing of negligence or even gross negligence will not do the trick. Fed. R. Civ. P. 37, 2015 Advisory Comm. Note. Applebaum would not have been able to show any degree of fault for Target?s alleged destruction of records, because she cannot show that Target destroyed the records?if they even existed in the first place?after it was put on notice of litigation.?

Nature of Case: Products Liability

Electronic Data Involved: ESI

Ericksen v. Kaplan Higher Ed., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016)

Dec 01 2016

Key Insight: Where forensic examination revealed that immediately prior to that examination Plaintiff had run ?several ?optimizer? or ?data destruction programs?? that destroyed ?some data? the court found that Plaintiff acted willfully and, addressing Defendant?s request for dismissal, cited newly amended Rule 37(e) for the proposition that the ?Court need impose ?measures no greater than necessary to cure the prejudice?? and ordered that Plaintiff would be precluded for presenting evidence that Defendants?because of her actions?could not confirm as authentic but reasoned that dismissal was not necessary

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Archer v. York City Sch. Dist., No. 1:13-cv-2826, 2016 WL 7451562 (M.D. Pa. Dec. 28, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs alleged spoliation resulting from school district?s deletion of former employee?s email account in accordance with its policy and more than 11 months before a complaint was filed, the court concluded that Plaintiffs presented ?no factual basis? in support of their allegations of intentional destruction of evidence favorable to Plaintiffs and declined to find that the school district?s decision not to renew the at-issue school?s charter was sufficient to trigger a duty to preserve such that the deletion would constitute spoliation (?Plaintiffs? argument that by the simple act of doing their jobs, Defendants should have been on notice of litigation that would not commence until nearly a full year later does not create knowledge that litigation is ?pending or probable.?)

Nature of Case: Claims arising from non-renewal of charter school’s charter

Electronic Data Involved: Former employee’s email account

First Amer. Title Ins. Co. v. N.W. Title Ins. Agency, LLC, No. 2:15-cv-00229, 2016 WL 4548398 (D. Utah Aug. 31, 2016)

Dec 01 2016

Key Insight: Court concluded that Defendants ?taking steps? to start a competing company even if it was known that starting the company ?would be contentious and actively opposed? was insufficient to establish imminent litigation triggering a duty to preserve (note that imminence is the test in the 10th Cir.); court assessed requests for sanctions as to multiple sources of ESI and largely denied those motions absent evidence of prejudice or that the information could not be restored or replaced but did impose sanctions for non-party employee of Defendants? loss of potentially relevant ESI and hard copy taken from Plaintiff (both assessed ?under the same rubric of Rule 37?) and ordered that the parties would be permitted to present evidence of the spoliation to the jury

Electronic Data Involved: ESI & hardcopy

Magdaluyo v. MGM Grand Hotel, LLC, no. 2:14-cv-01806-RFB-GWF, 2016 WL 614397 (D. Nev. Feb. 16, 2016)

Dec 01 2016

Key Insight: Where Plaintiff specifically requested preservation of certain video that was not preserved, court concluded that Defendant ?simply ignored? the request and imposed an adverse inference that the video would have been favorable to Plaintiff; for Defendant?s failure to preserve surveillance video of alleged harassment for which there was no specific request to preserve, court reasoned that Defendant had a duty to investigate the allegation and preserve any video that existed of the incident and concluded that the jurors would be instructed that ?Defendant had a duty to preserve the video if it existed and that they may, but are not required to, infer that the video recording would have been favorable to the Plaintiff?

Nature of Case: Employment litigation (discrimination, harassment, etc.)

Electronic Data Involved: Video surveillance footage

Tag:Spoliation