Spoliation – Page 42 – Electronic Discovery Law

Curtin v. Blair Bros. Contracting, Inc., No. 2012-1082, 2014 WL 4695980 (N.Y. Sup. Ct. Aug. 28, 2014) (unreported)

Dec 01 2014

Key Insight: Where defendants asserted they received only a “handful” of emails and argued that plaintiffs destroyed or otherwise failed to preserve relevant emails, court denied defendants’ motion for spoliation sanctions, finding that defendants failed to prove that the subject emails ever actually existed; court further rejected defense argument that missing emails were relevant to their counterclaim, observing that, to the extent the counterclaim sought payment for ?extras? performed by defendants, defendants presumably had their own records to support the counterclaim and did not need to rely on emails exchanged between plaintiffs and their architect, therefore even if spoliation did take place, the defendants were not prejudiced thereby

Nature of Case: Claims for breach of contract, fraudulent misrepresentation, unjust enrichment and conversion arising from residential construction

Electronic Data Involved: Email

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Dec 01 2014

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

Stewart v. Nucor Corp., No. 3:13-cv-0057-KGB, 2014 WL 12611316 (E.D. Ark. Dec. 8, 2014)

Dec 01 2014

Key Insight: Defendant moved to strike Plaintiffs answer, enter default judgement and give an adverse inference jury instruction as sanctions for alleged spoliation of video footage. The court held that destruction of the footage was prejudicial to Plaintiff, being the only recording of the accident. Defendant did not have an official retention policy and indicated the video at issue was overwritten ?within weeks of the accident through routine system operation.? However the court did not find Defendant acted in bad faith, and thus denied with prejudice Plaintiff?s motion to strike Defendant?s answer and enter default judgement. The court denied without prejudice Plaintiff?s request to strike the affirmative defense asserting Plaintiff?s fault as well as the request to prohibit Defendant from mentioning the tape/contents/employee statements regarding the tape during trial. Plaintiff may file a motion in limine to further pursue exclusion of evidence.

Electronic Data Involved: Video footage

Domanus v. Lewicki, —F.3d—, 2014 WL 408723 (7th Cir. Feb. 4, 2014)

Dec 01 2014

Key Insight: Circuit court found no abuse of discretion for District Court?s imposition of default judgment (or its prior finding of contempt) – which was a more drastic sanction than was originally imposed by the magistrate judge – where Defendants? discovery behaviors, including failing to produce documents as ordered, avoiding depositions, and failing to preserve potentially relevant ESI (and providing conflicting stores about what happened to the hard drive, including that it had been taken apart and given to a defendant?s children to play with) justified the harsh sanction imposed

Nature of Case: Fraud

Electronic Data Involved: ESI on hard drive (emails), bank records

Mpala v. City of New Haven, No. 3:12-CV-01580 (VLB), 2014 WL 883892 (D. Conn. Mar. 6, 2014)

Dec 01 2014

Key Insight: Plaintiff’s motion for sanctions based on spoliation of evidence denied, where two surveillance videos that plaintiff claimed had been destroyed never actually existed, and relevance of the third video that may have existed was “tenuous at best”

Nature of Case: Pro se plaintiff alleged constitutional violations stemming from his suspension from the New Haven Public Library

Electronic Data Involved: Surveillance videos

Emery v. Harris, No. 1:10-cv-01947-JLT (PC), 2014 WL 710957 (E.D. Cal. Feb. 21, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions because it was untimely and because plaintiff did not establish that defendant had control over the subject videotape or that defendant was on notice that litigation would ensue before the videotape was taped over

Nature of Case: Excessive use of force claims brought by pro se state prisoner

Electronic Data Involved: Videotape of prison yard area where altercation took place

Oleksy v. Gen. Elec. Co., No. 6 C 1245, 2014 WL 3820352 (N.D. Ill. Aug. 1, 2014)

Dec 01 2014

Key Insight: Where, at time complaint was filed, defendant should have reasonably foreseen that files created by its accused process would be material to the parties’ claims, yet defendant continued to overwrite its files per its standard practice instead of saving the files either manually or automatically, court denied plaintiff’s request for adverse inference instruction but ordered defendant to reconstitute or recreate three complete sequences of old computer code at its own cost

Nature of Case: Patent infringement

Electronic Data Involved: Computer code

Flagstar Bank, FSB v. Walker, No. 05-13-00724-CV, 2014 WL 6065713 (Tex. App. Nov. 14, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion in denying plaintiff’s request for adverse inference instruction as sanction for defendant?s inability to produce additional communications – which defendant had explained were not available because defendant had replaced its servers and had not backed-up the data – because there was no proof that defendant intentionally concealed evidence or that the spoliation irreparably deprived plaintiff of any meaningful ability to present its claims

Nature of Case: Claims arising from misappropriation of over $8 million in load proceeds designated to fund a series of residential loan transactions

Electronic Data Involved: Email

Black Diamond Mining Co. v. Genser, No. 12-125-ART, 2014 WL 3611329 (E.D. Ky. July 22, 2014)

Dec 01 2014

Key Insight: Court addressed motion for sanctions and found that accused spoliators had acted intentionally and/or negligently, but not in bad faith; court found that sanctions were ?unwarranted? for the negligent loss of certain email attachments because of defendant?s failure to ?access documents in an archive while gathering the original emails?- even despite finding that defendant acted with a ?culpable state of mind? – where plaintiff failed to produce any evidence of the attachments? relevance (court noted that defendant did not ?actively delete the attachments? but rather its agents ?forgot to take steps to preserve the documents before they were deleted from the archive?); for individual actors? negligent and intentional failures to preserve ESI and hard copy documents, the court found that the ?test of relevance [was] satisfied? and imposed a permissive adverse inference, but declined to order reimbursement of the Trustee?s fees or the costs of bringing the motion

Electronic Data Involved: Email attachments, ESI, hard copy

Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)

Dec 01 2014

Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)

Nature of Case: Personal injury (train/car collision)

Electronic Data Involved: Original hard drive containing video footage

Tag:Spoliation