Spoliation – Page 81 – Electronic Discovery Law

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 June 19, 2009) (Unpublished)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

Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009)

Dec 01 2009

Key Insight: Where evidence indicated defendant wiped her computer?s hard drive days before producing it for inspection but where evidence also indicated that the wiping occurred prior to receipt of the subpoena seeking the computer?s production, appellate court acknowledged a reasonable basis to suspect intentional spoliation but found that there was not sufficiently compelling evidence to require such a finding and thus, the district court did not abuse its discretion in declining to impose spoliation sanctions

Nature of Case: Invasion of privacy

Electronic Data Involved: Computer hard drive

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.

Nature of Case: Failure to accomodate

Electronic Data Involved: Email

Gutierrez-Bonilla v. Target Corp., 2009 WL 5062116 (E.D.N.Y. Dec. 16, 2009)

Dec 01 2009

Key Insight: Where plaintiff failed to establish the existence of the allegedly destroyed surveillance tape and where, even had the existence of such a tape been established, plaintiff failed to serve any request for preservation, court found plaintiff failed to establish a duty of preservation or that the allegedly spoliated evidence could have supported her case; court also found plaintiff failed to establish defendants? culpable state of mind where, in light of the lack of notice of preservation, the tape would have been recycled in the usual course of business and denied plaintiff?s motion for spoliation sanctions

Nature of Case: Slip and fall

Electronic Data Involved: Video surveillance tape

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

Tag:Spoliation