Tag:Spoliation

Key Insight: Where defendant claimed infringement based on alleged testing of defendant?s devices but claimed that no testing documentation was created and where, upon a neutral third party?s examination of the relevant devices, it was revealed that two key logs were missing expected messages and reflected abnormal device behaviors that plaintiff was unable to explain, the court held that defendant was prejudiced by plaintiff?s failure to protect and preserve the logs and the resulting inability to verify purported testing and thus ordered that all evidence of plaintiff?s testing of the devices would be precluded from introduction to the record or other use and ordered plaintiff to pay defendant?s expenses associated with the sanctions motion

Nature of Case: Patent infringement

Electronic Data Involved: Log messages, evidence of testing

Key Insight: Where plaintiff recycled the at-issue computer after being notified that Allstate disputed the effective date of her cancellation (which may have been discernible from examination of the computer) but before it was formally requested in discovery (almost two years later), court questioned whether a lay person would have known to keep her computer because of potential litigation when the computer was not the subject of her claim and declined to dismiss her claims but indicated that it would entertain further motions practice on the issue closer to trial

Nature of Case: Breach of contract, bad faith

Electronic Data Involved: Personal Computer

Key Insight: Court denied BP?s motion for spoliation sanctions for Halliburton?s alleged loss of information concerning ?post incident cement testing? where BP had not demonstrated prejudice and, upon Halliburton?s representation that the modeling was done on a particular computer that it would submit for third-party forensic examination to determine if the modeling could be located, the court ordered the parties to meet and confer to develop a protocol for examination with costs to be shared equally and reserved BP?s right to seek additional relief

Nature of Case: Claims arising from oil spill

Electronic Data Involved: Computer modeling data/results

Key Insight: Where employee ?at the heart of Plaintiff?s claims of discrimination and harassment? ?misunderstood the requirements of the litigation hold? and continued his practice of deleting all emails every day but claimed that he never received or erased any emails related to plaintiff?s lawsuit and that all of his sent emails were preserved (as were the emails sent to him from his managers because of their compliance with the litigation hold), court found the deletions were negligent and ordered an instruction that the emails were destroyed and would have been favorable to plaintiff?s case

Nature of Case: Employment litigation

Electronic Data Involved: Email

Key Insight: Where defendant?s failure to preserve potentially relevant surveillance video despite notice of plaintiff?s claim and a request for preservation was at least grossly negligent in light of the failure to implement a litigation hold, the delay between the request for the video and efforts to retrieve it, and the ?collective ignorance? of the people who should have know how the surveillance system worked (the time stamp was set for the wrong time zone resulting in collection of the wrong footage?a mistake that was not discovered until the relevant footage had been recorded over) and where the court determined that because of the grossly negligent conduct, ?relevance [was] determined as a matter of law,? the court ordered sanctions, including an adverse inference and payment of related costs and attorneys? fees

Nature of Case: Claims of discrimination on the basis of disability, national origin, and religion, assault, unlawful imprisonment, and denial of a reasonable accommodation for Plaintiff?s disability

Electronic Data Involved: Video Surveillance

Key Insight: Where a major question in the case was what defendant?s hard drive contained at the time it was returned to him and where defendant sent that hard drive to the manufacturer and received a replacement during a time when he was ?on notice? that the information may be relevant to future litigation, the court found that defendant was at least negligent in his handling of the drive and imposed an adverse inference which allowed the assumption that the drive contained the at-issue intellectual property at the time it was returned by the plaintiff to the police

Nature of Case: Action to collect reward offered for return of laptop and its contents

Electronic Data Involved: Hard drive

Key Insight: Where, for defendant?s alleged spoliation, plaintiff sought to preclude defendants from asserting a legitimate non-discriminatory reason for her termination which would result in summary judgment in her favor, the court found that defendants had likely breached their duty to preserve ESI but that plaintiff failed to establish bad faith or substantial prejudice and thus denied plaintiff?s motion

Nature of Case: Employment Litigation – Sexual harassment

Electronic Data Involved: Notes maintained on work or home computer

Key Insight: Where relevant documents were discovered upon forensic examination of a relevant hard drive and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute Defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs’ motion for spoliation sanctions

Nature of Case: Employment litigation

Electronic Data Involved: ESI