Spoliation – Page 84 – Electronic Discovery Law

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL 1212809 (E.D. Mich. May 1, 2009)

Dec 01 2009

Key Insight: Where forensic examiner revealed evidence of defendants? data deletion to plaintiffs while bound by stipulated order requiring results of the examination to be reported to defendants first, but where the court found the stipulated order was focused on the discovery of actual data rather than the lack of data and that the examiner was therefore not in violation of the order, court reserved ruling on examiner?s motion for attorney?s fees stating that while the examiner?s actions did not rise to the level of contempt, they were not free from taint and that such actions ?[gave] the Court pause about granting [the examiner?s] motion

Nature of Case: Dispute over sales commissions

Electronic Data Involved: Email, ESI

Commonwealth v. Lanana, 7 Pa. D. & C. 5th 225 (2009)

Dec 01 2009

Key Insight: Where school?s IT manager discovered child pornography on defendant?s personal computer and where upon opening those files the IT manager altered relevant metadata, appellate court upheld trial court?s denial of defendant?s motion for spoliation sanctions because the police did not commit the alleged destruction, because there was no evidence of the IT manager?s bad faith, because both parties had access to the same information, because defendant had an opportunity to explore the loss at trial and because defendant stipulated that the files were child pornography

Nature of Case: Possession of child pornography

Electronic Data Involved: Metadata

Dilts v. Maxim Crane Works, L.P., 2009 WL 3161362 (E.D. Ky. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where defendants failed to record data stored on crane?s computer following death of two construction workers, but where plaintiffs offered no evidence to support their allegations that the data was manually destroyed or that the failure to photograph the display was unreasonable and where defendants presented evidence that data could not be downloaded from the crane?s computer and plaintiff failed to request the information downloaded in the first place, court declined plaintiffs motion for spoliation sanctions

Nature of Case: Negligence resulting in death

Electronic Data Involved: ESI stored on crane’s internal computer

Vagenos v. LDG Fin. Servs., LLC, No. 09-cv-02672 (E.D.N.Y. Dec. 31, 2009)

Dec 01 2009

Key Insight: Where plaintiff destroyed the original recording of an automated telephone message that was the subject of the litigation but sought to offer an alleged duplicate recording, court denied defendant?s motion to preclude such an offering where defendant failed to establish the requisite ?bad faith? necessary under Fed. R. Evid. 1004(1) and because the evidence was vital to plaintiff?s case but ordered an adverse inference instruction allowing the jury to infer that ?the destroyed portion of the message contained information harmful to plaintiff?s case? where plaintiff and plaintiff?s counsel (who did not instruct plaintiff of his duty to preserve and was responsible for creating the duplicate recording) failed to uphold their duty to preserve evidence in anticipation of litigation

Nature of Case: Violation of Fair Debt Collection Practices Act

Electronic Data Involved: Recording of automated telephone message

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

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

GW Equity LLC v. Xcentric Ventures LLC, 2009 WL 62168 (N.D. Tex. Jan. 9, 2009)

Dec 01 2009

Key Insight: Court adopted magistrate judge?s recommendations and denied plaintiff?s motion for sanctions for intentional spoliation of website content, despite defendants’ failure to suspend its policy allowing content to be edited, where evidence showed that no edits were made to the content at issue and thus plaintiff suffered no prejudice

Nature of Case: Defamation

Electronic Data Involved: Website contents

Lucas v. Old Navy, LLC, 2009 WL 1172710 (M.D. La. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued she was entitled to a presumption that defendant had constructive notice of the hanger on the floor that allegedly caused her injuries because defendant failed to preserve the surveillance tape which would have proven such notice, but where plaintiff failed to request preservation of the relevant tape and failed to notify defendant of her intent to sue resulting in the loss of the tape from the system after 60 days, and where plaintiff offered no evidence of defendant?s bad faith, court declined to rely on such a presumption and granted defendant?s motion for summary judgment

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance videotape

Elec. Machinery Enters., Inc. v. Hunt. Constr. Group, Inc., 2009 WL 2710266 (Bankr. M.D. Fla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Despite finding defendants ?intentionally destroyed relevant documents at a time when litigation was foreseeable? the court declined to award sanctions where it was not established the documents were ?critical for proving? plaintiff?s case, a prerequisite for such sanctions under Florida law

Nature of Case: Action for breach of contract, spoliation, breach if implied warranties

Electronic Data Involved: Hard copy and ESI

Canton v. Kmart Corp., 2009 WL 2058908 (V.I. July 13, 2009)

Dec 01 2009

Key Insight: Court declined to order adverse inference for destruction/loss of surveillance video where plaintiff failed to establish that such a video existed and that defendant therefore had a duty to preserve it; court ordered adverse inference for defendant?s inability to produce photographs upon finding defendant did not take ?reasonable precautions? to preserve the evidence despite knowing that litigation was reasonably foreseeable

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