Spoliation – Page 44 – Electronic Discovery Law

BancorpSouth Bank v. Kleinpeter Trace, LLC, No. 2013 CA 1396, 2014 WL 4925698 (La. Ct. App. Oct. 1, 2014)

Dec 01 2014

Key Insight: Appellate court concluded that trial court did not err in ordering that adverse inference instruction be given to jury as to contents of particular file where plaintiff had notice that file, which was within plaintiff?s control, was relevant to pending litigation, it attempted to refer to contents of file in support of motion for summary judgment, and plaintiff?s explanation for loss of the file was pretextual and not reasonable; appellate court reversed trial court?s decision to impose ultimate sanction of dismissal because record did not support conclusion that plaintiff willfully or in bad faith failed to comply with trial court?s orders, since dismissal rested on conduct that did not relate to court-ordered discovery and in most instances occurred prior to the first discovery order; appellate court vacated trial court?s award of attorneys? fees in favor of defendant and remanded the matter to the trial court for a determination of reasonable expenses because the basis for the award was unclear and the award appeared to include other fees and costs unrelated to the particular discovery motion for which they were awarded

Nature of Case: Suit to enforce obligations arising out of promissory notes

Electronic Data Involved: ESI, email, spreadsheets

Taylor v. Shippers Transp. Express Inc., No. CV 13-02092 BRO (PLAx), 2014 WL 12560879 (C.D. Cal. Jul. 7, 2014)

Dec 01 2014

Key Insight: Court imposed sanctions, including an adverse inference and possible evidence preclusion (TBD after recovery efforts were exhausted), where Defendant failed to preserve its employees? text messages, including highly relevant text messages, by failing to implement a litigation hold and where despite Defendant?s attempts to recover the deleted information, the court deemed it ?very unlikely? that such efforts would result in full production; court also reasoned that even if all missing documents were produced, Plaintiffs would still be prejudiced in light of less time to review the evidence and prepare for trial

Nature of Case: Class action employment litigation

Electronic Data Involved: Text messages, ESI

Cusato v. Greenberg Traurig, LLP, No. B242696, 2014 WL 1349493 (Cal. Ct. App. Apr. 7, 2014) (unpublished)

Dec 01 2014

Key Insight: Terminating sanctions dismissing cross-complaint deemed proper where cross-complainants used “File Shredder” to delete gigabytes of data from their computers in violation of orders requiring cross-complainants to preserve computer data and to turn over their computers to computer expert; however, trial court instructed to reconsider monetary sanctions imposed against cross-complainants given that computer expert hired by plaintiff began its forensic examination of the computer media months before it was authorized to do so, in violation of the court’s orders

Nature of Case: LLC members asserted claims and cross-claims after failed business venture

Electronic Data Involved: Hard drives of individual cross-claimants

Volcan Group Inc. v. Omnipoint Commc?ns, Inc., 552 Fed. Appx. 644 (9th Cir. Jan. 9, 2014)

Dec 01 2014

Key Insight: District court did not abuse discretion in dismissal of Plaintiff?s breach of contract action where Plaintiff failed to preserve (i.e., spoliated) relevant materials and where the record also suggested that certain evidence had been falsified

Nature of Case: Breach of contract, promissory estoppel, unjust enrichment

Electronic Data Involved: ESI

Crawford v. City of New London, No. 3:11CV1371 (JBA), 2014 WL 2168430 (D. Conn. May 23, 2014)

Dec 01 2014

Key Insight: Spoliation sanctions were not appropriate where original footage on hard drive was recorded over in compliance with standard retention procedures, because: (1) defendants preserved a DVD copy of the video per standard practice, (2) plaintiff failed to present any evidence that the copy was of a lesser quality than the original, other than to allege that it was stored in a format that was inconvenient for enhancement, (3) defendants did not have control over the original security footage nor were they involved in its destruction, (4) recording over original footage occurred long before duty to preserve was triggered, and (5) there was no evidence beyond the fact of destruction itself that would support an inference that the original recording was unfavorable to defendants

Nature of Case: Excessive force claims in connection with plaintiff’s arrest

Electronic Data Involved: Hard drive containing original surveillance footage of plaintiff’s arrest

United States v. Simpson, No. 12-10574, 2014 WL 148654 (5th Cir. Jan. 15, 2014)

Dec 01 2014

Key Insight: Appellate court upheld conviction for obstruction of justice based on deletion of email, where defendant admitted deleting email in response to being told about the execution of search warrants at a co-conspirator’s home and office, and there was evidence that defendant did more than simply delete emails but had also tampered with the drive from which the emails had been deleted

Nature of Case: Criminal case involving wire and mail fraud conspiracy and obstruction of justice convictions

Electronic Data Involved: Deleted email

Luellen v. Hodge, No. 11-CV-6144P, 2014 WL 1315317 (W.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Although severe sanctions were not warranted where plaintiff did not establish bad faith or egregious gross negligence by defendant, or that he had been prejudiced by the loss of bank account records, lesser monetary sanctions to cover fees and costs of motion were appropriate given that defendant was negligent in failing to preserve the records

Nature of Case: RICO and related state law claims

Electronic Data Involved: Bank records

Woodlands Dev. LLC v. Regions Bank, 141 So.3d 357 (La. Ct. App. 2014)

Dec 01 2014

Key Insight: Trial court abused its discretion in dismissing Defendant?s case where there was no evidence that Defendant?s document retention policy (which gave employees discretion to determine which emails should be saved and deleted the remainder after 90days) was operated in bad faith and where the potentially relevant emails were already deleted by the time suit was filed, thus lessening (if not eliminating) the impact of the delay in issuing a litigation hold

Nature of Case: Declaratory judgment action brought by promissory note maker and guarantors against note holder

Electronic Data Involved: Email

Jackson Family Wines, Inc. v. Diageo N. Am., Inc., No. 11-5639 EMC (JSC), 2014 WL 595912 (N.D. Cal. Feb. 14, 2014)

Dec 01 2014

Key Insight: Court granted plaintiffs’ motion for spoliation sanctions in the form of an adverse inference instruction and monetary sanctions, where defendants never issued a litigation hold on marketing employee’s documents, never spoke to her about preserving documents, inexplicably deleted image of the her laptop six months after receiving the image from IBM pursuant to defendant?s ?leaver?s process,? waited over six months before notifying the court or plaintiffs about the destruction, and worse, made numerous representations to the court that consistently and vehemently sought to reassure the court that production of the employee?s documents was complete and irreproachable

Nature of Case: Trademark infringement

Electronic Data Involved: Hard drive containing image of departing marketing employee’s e-mail and other ESI

Sanofi-Aventis Deutschland GMBH v. Glenmark Pharm. Inc., USA, 748 F.3d 1354 (Fed. Cir. 2014)

Dec 01 2014

Key Insight: Concluding that trial court did not err in giving permissive adverse inference instruction where defendant failed to suspend its email retention policy (whereby all emails and related electronic documents were retained for only one month) at the point when patent infringement litigation became reasonably foreseeable, i.e., the earliest date asserted by defendant for work product protection in its privilege log, appellate court commented: “The destruction of documents in the course of preparation for litigation has no entitlement to judicial protection, and need not be concealed from the jury.”

Nature of Case: Patent infringement

Electronic Data Involved: Email

Tag:Spoliation