Spoliation – Page 79 – Electronic Discovery Law

Grey v. Kirkland & Ellis, LLP, 2010 WL 3526478 (N.D. Ill. Sept. 2, 2010)

Dec 01 2010

Key Insight: Where plaintiffs offered nothing more than speculation regarding defendants? alleged intentional or grossly negligent spoliation of metadata and where defendant asserted that before destroying the server at issue, the information thereon was migrated and no metadata was knowingly changed, the court declined ?to infer from the absence of metadata that such evidence would have been favorable to Plaintiff?s claims?

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic records of phone calls, metadata

Prins v. Dir. of Revenue, 333 S.W.3d 17 (Mo. Ct. App. 2010)

Dec 01 2010

Key Insight: Where the trial court granted spoliation sanctions despite failing to find that the loss was intentional or in bad faith (where the officer failed to preserve the relevant video footage as the result of failing to mark the right ?checkbox? in the system) and where Missouri law requires ?evidence of intentional destruction? or ?evidence that the spoliator destroyed the evidence ?under circumstances manifesting fraud, deceit, or bad faith?, the appellate court reversed the judgment of the trial court and remanded for a new hearing

Nature of Case: DUI

Electronic Data Involved: Video footage of defendant’s stop and arrest

State v. Dewitt, 2010 WL 5550243 (Ohio App. Ct. Dec. 29, 2010)

Dec 01 2010

Key Insight: Court overruled defendant?s assignment of error and found no violation of defendant?s due process rights resulting from the loss of a portion of the video surveillance footage of his traffic stop where defendant presented no evidence of bad faith in the destruction or loss, where defendant failed to seek a preservation order to prevent its destruction, and where defendant offered only speculation as to the exculpatory nature of the missing portions of video

Nature of Case: Criminal

Electronic Data Involved: Surveillance footage

East Coast Brokers and Packers, Inc. v. Seminis Vegetable Seeds, Inc., 2009 WL 361281 (M.D. Fla. Feb. 9, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion for sanctions arising from plaintiff?s alleged spoliation of ?pack data? (related to the number of tomatoes picked and packaged) where the alleged spoliation consisted of plaintiff?s entry of additional information to the ?pack data? following commencement of litigation but where the court found that no spoliation had occurred because the source of the newly added information was preserved, because the data was ?added as opposed to changed,? and because defendant had the right of cross examination at trial

Electronic Data Involved: ESI

U.S. v. Boyce, 2009 WL 1034775 (Apr. 17, 2009)

Dec 01 2009

Key Insight: Court ordered evidentiary hearing where defendant argued the case against him should be dismissed upon the police department?s inability to produce in-car videotape allegedly containing exculpatory evidence because of ?equipment problems? and where defendant asserted that factual issues needed to be resolved surrounding the department?s efforts to secure the footage and whether any procedure for preservation existed

Nature of Case: Possession with intent to distribute

Electronic Data Involved: Video tape

Elec. Funds Solutions, LLC v. Murphy, 2009 WL 1717383 (Cal. Ct. App. June 19, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where terminating sanctions were ordered against defendants for the deliberate deletion/destruction of electronically stored information using wiping software but where the subsequent judgment of the trial court was reversed on appeal and remanded and where the trial court thereafter granted plaintiff?s motion for terminating sanctions, appellate court ruled that trial court did not err in granting plaintiff?s motion where the court?s previous discovery orders to produce information remained in effect and where defendants continued in their violation of such order by failing to produce relevant discovery because they had destroyed it; court stated: ?A continuing discovery violation does not end if the responding party is permanently unable to comply because that party intentionally destroyed the material it was ordered to produce.?

Nature of Case: Breach of fiduciary duty, conversion, intentional interference with economic relationships, etc.

Electronic Data Involved: ESI, hard drives

Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel upon finding that defendant ?did not timely comply with its discovery obligations? including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney?s fees

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: ESI

Gillet v. MI Farm Bureau, 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where plaintiff deleted an ?extremely significant? number of data files from his personal computer despite notice of his obligation to preserve and was thus sanctioned by dismissal of his case, trial court did not abuse its discretion in concluding plaintiff?s actions were not in good faith, particularly in light of the number of files deleted, and properly considered alternative sanctions before imposing terminating sanctions, despite the trial judge?s failure to ?expressly recite? those alternatives on the record; court?s denial of attorneys? fees/monetary sanctions was no abuse of discretion where the court ?dealt appropriately? with plaintiff?s conduct by dismissing the case and where the refusal to impose additional sanctions was ?not unreasoned or unprincipled?

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

In re Atl. Marine Prop. Holding Co., Inc., 2009 WL 1211399 (S.D. Ala. Apr. 29, 2009)

Dec 01 2009

Key Insight: Where court ordered company to obtain waivers from employees allowing their personal email providers to release certain communications for production but where the email providers indicated their inability to provide those communications, court declined to order adverse inference where there was no evidence to indicate company acted in bad faith or purposefully lost or destroyed the emails

Electronic Data Involved: Email from employees’ personal accounts

Kotler v. Woods, 2009 WL 1011701 (E.D.N.Y. Apr. 15, 2009)

Dec 01 2009

Key Insight: Where petitioner challenged his conviction on grounds that the state destroyed material evidence in the form of cassette tapes containing the dictation of a detective?s report and therefore violated his due process rights, court concluded petitioner failed to demonstrate a Brady violation where petitioner failed to show that the evidence would have been favorable to him and would have altered the outcome of his trial and where the trial court gave an adverse inference instruction related to the loss of the tapes that also made a change in the outcome unlikely

Nature of Case: Petition for writ of habeus corpus

Electronic Data Involved: Cassette tapes

Tag:Spoliation