Spoliation – Page 40 – Electronic Discovery Law

Superior Performers Inc. v. Meaike, No. 1:13CV1149, 2015 WL 471429 (M.D.N.C. Feb. 4, 2015)

Dec 01 2015

Key Insight: Where Plaintiff?s agent deleted an original voicemail from his phone by way of a factory reset but had produced a copy and also claimed to have transferred the voicemail to his new phone and where Defendants sought sanctions and argued that the deletion would prevent them from showing the voicemail was fabricated, as they suspected, the court declined to impose sanctions for the alleged fabrication, despite evidence the presentation of evidence that could lead to that conclusion, but did order that Plaintiff be prevented from using the voicemail at trial as a sanction for spoliation, reasoning that although the voicemail was not on one of Plaintiff?s phones (but rather on its agent?s), it ?likely? had a duty to preserve the evidence and that Plaintiff did not attempt to provide access to the phone or provide notice of the voicemail?s possible destruction

Nature of Case: Enforcement of Restrictive Covenants

Electronic Data Involved: Voicemail

Flanders v. Dzugan, No. 12-1481, 2015 WL 5022734 (W.D. Pa. Aug. 24, 2015)

Dec 01 2015

Key Insight: Court declined to impose sanctions, despite Defendant?s failure to issue a litigation hold, where Plaintiff could not show that evidence was actually lost or destroyed and where, although the court acknowledged that Defendant?s record keeping appeared ?slipshod,? Plaintiff could not show bad faith (?in no case in the Third Circuit cited by Plaintiff, or found by this Court, has a court granted a spoliation inference on nothing more than a failure to institute a litigation hold?)

Nature of Case: [A]lleged constitutional violations arising out of the building permit approval process

Electronic Data Involved: ESI, email

Evans v. Quintiles Transnational Corp., No. 4:13-cv-00987-RBH, 2015 WL 9455580 (D.S.C. Dec. 23, 2015)

Dec 01 2015

Key Insight: Reasoning that the ?issues of whether the alleged computer file ever existed and, if it did, whether and when Quintiles should have reasonably known that the evidence may be relevant to the anticipated litigation, and whether Quintiles willfully lost or destroyed the computer file rests on credibility determinations that this Court is not in a position make at this stage? and noting the ?disputed facts at issue,? the court indicated its inclination to ?to provide the jury with appropriate guidelines and instructions so that they, after hearing all of the evidence, can resolve any credibility questions and make a determination, first, as to whether the alleged computer file even existed on Plaintiff?s computer, whether and when Quintiles should have reasonably known that the evidence may be relevant to anticipated litigations, and, if so, whether Quintiles willfully lost or destroyed the file? and invited the parties to submit proposed jury instructions

Nature of Case: Wrongful Termination

Electronic Data Involved: Contents of laptop

Cableview Commc?ns of Jacksonville, Inc. v. Time Warner Cable Se., LLC, 3:13-cv-306-J-34JRK, 2015 WL 12838175 (M.D. Fla. May 4, 2015)

Dec 01 2015

Key Insight: The Court denied Plaintiff?s Motion to Compel Production of Documents. Plaintiff sought Defendant?s tax returns and document retention policies. Plaintiff entered into an agreement with Defendant in 2004 to provide cable television installation services. In 2010 Defendant tendered a workplace injury claim to Plaintiff for indemnification. Plaintiff?s insurance carrier denied coverage and the claim was left unpaid. In 2012, Plaintiff informed Defendant that it was being acquired by another company. One day before the closing of the transaction, Defendant contacted the acquiring company and made repayment for the workplace injury claim ?a condition to assent to assignment? of the agreement. Plaintiff alleged tortious interference and sought Defendant?s tax returns to demonstrate its ability to pay punitive damages. Plaintiff further alleged spoliation claiming there were missing emails and sought documents regarding Defendant?s document retention policies. The Court denied Plaintiff?s Motion holding that the request for punitive damages cannot form the basis for financial worth discovery since Plaintiff failed to make a reasonable showing of tortious interference. Further, there was no spoliation given that Defendant located and produced the emails in question and so Defendant?s document retention policies were not relevant.

Nature of Case: Workplace injury claim

Electronic Data Involved: Emails, ESI

Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

Dec 01 2015

Key Insight: Plaintiffs in this collective action sought spoliation sanctions for Defendants? failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc. Defendants objected to the motion on the grounds that ?all of their books, records and computers were seized? pursuant to the court?s order in a different case and that there was no time to make any copies or back ups. Accordingly, the court reasoned that Defendants had not destroyed their records and found that ?[u]nder the specific circumstances of this case ? Defendants did not have an obligation to copy their books and records before complying with the court?s order.? Plaintiffs? motion for sanctions was denied.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Employment records (payroll, W-2s etc.)

Clientron Corp. Devon IT, Inc., —F. Supp. 3d—, No. 13-5634, 2015 WL 5093084 (E.D. Pa. Aug. 28, 2015)

Dec 01 2015

Key Insight: For Defendants? discovery violations, including failure to adequately search for responsive evidence, failure to designate a 30(b)(6) representative for deposition, and admitted deletion of emails despite a duty to preserve, the court found that sanctions were warranted and imposed serious sanctions, including monetary sanctions, exclusion of evidence, and ?enforcing the judgement of the Taiwanese court? against Defendant, where Defendant?s litigation misbehavior may have rendered Plaintiff unable to prove its contractual claim in court

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

Bruno?s v. Bozzuto?s, No. 3:09-CV-00874, 2015 WL 1862990 (M.D. Pa. Apr. 23, 2015)

Dec 01 2015

Key Insight: Where plaintiffs intentionally destroyed all paper and electronic copies of relevant financial information despite a duty to preserve citing the burden of storage, the court found that the destruction was in bad faith, but that the prejudice was minimal where other sources of evidence provided sufficient information to support Defendant?s defenses and thus ordered an adverse inference at trial; where one plaintiff was a Certified Public Accountant, court considered her professional capacity when considering the willfulness of the destruction, noting that it ?strains credulity? that an accountant would throw away all financial documents because of ?storage space?

Nature of Case: Breach of Contract

Electronic Data Involved: ESI (financial data)

Ralser v. Winn Dixie Stores, Inc., No. 13-2799, 2015 WL 5016351 (E.D. La. Aug. 21, 2015)

Dec 01 2015

Key Insight: Where Defendant was unable to produce the original version of a particularly relevant document in native format and claimed the loss resulted from the automatic deletion of the original version pursuant to the company?s document retention policy, the court declined to impose sanctions reasoning that a later version of the document was provided to Defendant?s legal department, that it was ?not obvious? that prior versions needed to be preserved and that by the time Plaintiff filed his lawsuit following termination, a year had passed and the document would have been destroyed under the retention policy; the court further reasoned:? While this destruction still occurred during the litigation hold, the fact that Winn Dixie?s normal retention policy called for the document?s destruction undermines a finding of bad faith because Winn?Dixie?s failure to adjust the document retention system to comply with the litigation hold signified an omission, and not a commission. In other words, Winn?Dixie?s failure to retain the electronic document was not the result of a directed action to delete the document but rather a failure to turn off the automatic deletion mechanism. Such action, at best, amounts to negligence and does not rise to the level of bad faith.?

Nature of Case: Employment litigation

Electronic Data Involved: Original version of relevant ESI

D.O.H. v. Lake Cent. Sch. Corp., No. 2:11?cv?430, 2015 WL 736419 (N.D. Ind. Feb. 20, 2015)

Dec 01 2015

Key Insight: Finding plaintiff responsible for his prior counsel?s deficient Facebook production, saying he ?voluntarily chose his prior counsel and cannot avoid the consequences for his attorney?s discovery failures? and also responsible for his current counsel?s deficient Twitter production, district court granted Motion for Sanctions filed by defendants in part and ordered plaintiff to produce the entirety of his Twitter profile with redactions for privilege and relevance and to produce a log for any social networking information withheld and to pay the reasonable expenses and attorney?s fees associate with the discovery dispute.

Nature of Case: Civil Rights

Electronic Data Involved: Social media postings

Savage v. City of Lewisburg, No. 1:10?0120, 2014 WL 6827329 (M.D. Tenn. Dec. 3, 2014 )

Dec 01 2014

Key Insight: District court said that where Defendant was under a duty to preserve audio recordings and should have taken steps to prevent their destruction; and where Defendant refused to produce payroll and promotion data ordered by the court; and where Defendant had not produced documents ordered by the court; Plaintiff would be permitted to argue adverse inferences to the jury and file an affidavit of reasonable costs and attorneys? fees in bringing its sanctions motion.

Nature of Case: Employment Discrimination

Electronic Data Involved: Audio recordings, payroll and promotion data, documents

Tag:Spoliation