Spoliation – Page 86 – Electronic Discovery Law

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

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

Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence

Nature of Case: Prisoner asserted ? 1983 action against various prison defendants

Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff

In re Rosenthal, 2008 WL 983702 (S.D. Tex. Mar. 28, 2008)

Dec 01 2008

Key Insight: Finding that District Attorney?s admitted deletion of more than 2,500 emails sought by subpoena constituted ?unexcused, egregious conduct,? court found him in contempt of court and imposed $18,900 in sanctions (representing attorneys? fees); court further found that actions of attorney representing DA in the proceedings were ?unprincipled and dilatory, at best, constituting a deliberate indifference to the Court’s Orders and subpoena,? held him in contempt of court, and ordered that $5,000 of the $18,900 in sanctions awarded against DA was jointly and severally awarded against his attorney

Nature of Case: Civil rights suit against Harris County, Texas, the Harris County Sheriff and several Harris County deputies

Electronic Data Involved: Deleted emails of the District Attorney of Harris County, Texas

Keithley v. Homestore.com, 2008 WL 4830752 (N.D. Cal. Nov. 6, 2008)

Dec 01 2008

Key Insight: Where late production of documents resulted in some prejudice to defendants but where prejudice was minor in light of limited relevance of the documents produced and their limited value to defendants? case and where defendants failed to show that documents missing from production were destroyed rather than ?simply lost? or a significant degree of resulting prejudice, court declined to impose dismissal or adverse inference but ordered monetary sanctions pursuant to Rule 37; monetary sanctions in the amount of $205,507.53 were subsequently ordered (Keithley v. Homestore.com, 2009 WL 55953 (N.D. Cal. Jan. 7, 2009))

Nature of Case: Patent Infringement

Electronic Data Involved: ESI, email

Thermodyne Corp. v. 3M Co., 593 F. Supp. 2d 972 (N.D. Ohio 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion in limine for adverse inference for alleged spoliation, despite evidence that files were deleted, where plaintiff offered only conjecture regarding the relevance of the allegedly spoliated documents, where defendant had the means to recover the allegedly spoliated contents of the files and did not, and where defendant failed to show plaintiff acted deliberately with the intent to deprive plaintiffs of the data

Nature of Case: Theft of trade secrets

Electronic Data Involved: Email, ESI

Tag:Spoliation