Spoliation – Page 87 – Electronic Discovery Law

Peterson v. Union Pacific R.R. Co., 2008 WL 1930453 (C.D. Ill. May 1, 2008)

Dec 01 2008

Key Insight: Court denied plaintiffs’ request for sanctions, additional depositions and for an order compelling production of electronic data and signal plans in light of plaintiffs’ failure to diligently pursue such requests and failure to establish need for additional discovery at late stage of litigation; court granted plaintiffs opportunity to show that motion was substantially justified and deferred consideration of defendant’s request for expenses incurred in opposing motion

Nature of Case: Claims arising from collision between freight train and automobile

Electronic Data Involved: Data from event recorders and other components and equipment of the crossing signal system

In re Riverside Healthcare, Inc., 393 B.R. 422 (Bankr. M.D. La. 2008)

Dec 01 2008

Key Insight: Where supplier?s computer system routinely deleted email after 60-90 days in the regular course of business absent a request to preserve, and emails could not be recovered from particular individual?s work station because hard drive repeatedly failed and had been replaced three times, and where liquidating supervisor could not show that deletion of email was intentional, prejudicial, or violated any duty to preserve, court found that record did not support a finding of spoliation and denied liquidating supervisor?s request for adverse inference

Nature of Case: Adverse proceeding in bankruptcy brought by liquidating supervisor against supplier/creditor of debtor

Electronic Data Involved: Email

Keithley v. Homestore.com, 2008 WL 5234270 (N.D. Cal. Dec. 15, 2008)

Dec 01 2008

Key Insight: Rejecting each of defendant?s objections, court adopted Report and Recommendation of Magistrate Judge imposing monetary sanctions for discovery violations but did not adopt recommendation for adverse inference instruction because summary judgment in favor of defendant rendered issue moot

Nature of Case: Patent infringement

Electronic Data Involved: ESI, source code, document retention policies

Sampson v. City of Cambridge, 251 F.R.D. 172 (D. Md. 2008)

Dec 01 2008

Key Insight: Where defendant’s failure to preserve emails was merely negligent and plaintiff did not establish that lost evidence would have supported her claims, court denied plaintiff?s motion for default judgment or adverse inference instruction as spoliation sanction; however, since second forensic examination of hard drive was necessitated solely by defendant’s misstatement, court ordered defendant to cover its cost

Nature of Case: Race discrimination and discrimination under ADA

Electronic Data Involved: Emails, hard drive

Wells v. Berger, Newmark & Fenchel, P.C., 2008 WL 4365972 (N.D. Ill. Mar. 18, 2008)

Dec 01 2008

Key Insight: Granting in part motion in limine seeking sanctions for spoliation of evidence where defendants did nothing to preserve key player?s computer files but instead allowed him to continue using computer without monitoring, copying, reviewing or securing potentially relevant information, and key player admitted deleting potentially relevant files, court set out statement that would be read to jury concerning defendants? failure to preserve evidence and prohibited defendants from offering any argument or comments suggesting that lack of pornographic emails in evidence supported a finding that such emails never existed or were never shown to plaintiff

Nature of Case: Sexual harassment, constructive discharge, emotional distress

Electronic Data Involved: Pornographic emails, hard drive

New Albertsons Inc. v. Superior Court, 86 Cal. Rptr. 3d 457 (Cal. Ct. App. 2008)

Dec 01 2008

Key Insight: Court issued writ of mandate vacating award of sanctions against defendant for spoliation of video and photographic evidence where trial court had no statutory or inherent authority to order sanctions absent defendant?s violation of a court order or sufficiently egregious or exceptional circumstances and, where by failing to timely move to compel further response upon Albertson?s alleged deficient production, plaintiffs waived their rights to do so

Nature of Case: Negligence and premises liability

Electronic Data Involved: Video and photographic evidence

Connor v. Sun Trust Bank, 2008 WL 623027 (N.D. Ga. Mar. 5, 2008)

Dec 01 2008

Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead

Nature of Case: FMLA claims

Electronic Data Involved: Email

Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)

Dec 01 2008

Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop hard drive, USB Thumb-Drive

Pandora Jewelry, LLC v. Chamilia, LLC, 2008 WL 4533902 (D. Md. Sept. 30, 2008)

Dec 01 2008

Key Insight: Court imposed monetary sanctions pursuant to Rule 37 for discovery violations related to defendant?s responses to discovery and its inadequate 30(b)(6) deponent, but declined to award spoliation sanction of adverse inference where defendants failed to preserve emails and could not identify blind copy recipients or explain who wrote the emails or to whom they were intended to be sent but where plaintiff failed to show injury resulting from the emails and could not establish that access to the emails or their recipient lists would have been favorable to that showing; court noted, ?the evidence in this case is easily distinguishable from the destroyed evidence in cases where courts have imposed spoliation sanctions?

Nature of Case: False advertising, tortious interference, unfair competition and related claims

Electronic Data Involved: Blind copy email recipients

U.S. v. Bunty, 2008 WL 2371211, (E.D. Pa. June 10, 2008)

Dec 01 2008

Key Insight: Where government agents altered the ?last accessed? date of relevant files by opening the files to investigate their contents, court denied defendant?s motion for spoliation sanctions upon finding that 1) the agents used the least intrusive means of determining the content of the disks in good faith and 2) the defendant suffered ?minimal? prejudice as a result of the alteration

Nature of Case: Possession of child pornography

Electronic Data Involved: Last accessed data

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