Spoliation – Page 89 – Electronic Discovery Law

Jones v. Jones, 995 So.2d 706 (Miss. 2008)

Dec 01 2008

Key Insight: Where party admitted to deliberate destruction of personal computer and was thus unable to produce it in response to discovery requests and where party also admitted to perjury, Supreme Court held chancellor abused his discretion in failing to impose sanctions pursuant to his obligation to ?consider sanctions that are severe enough to deter other from pursuing similar action? and remanded for reconsideration accordingly

Nature of Case: Divorce

Electronic Data Involved: Computer

Leist v. GHG Corp., 2008 WL 183330 (S.D. Tex. Jan. 18, 2008)

Dec 01 2008

Key Insight: Where plaintiff alleged that former supervisor wrote memos concerning plaintiff?s alleged deficiencies after plaintiff complained about co-employee?s racist comments, that she never saw the memos and did not sign them as was normal practice with disciplinary memos, and defendant had not preserved hard drive of supervisor?s computer, court did not grant adverse inference as to contents of hard drive but found a material question of fact as to plaintiff?s retaliation claim, and denied defendant’s motion for summary judgment on retaliation claim

Nature of Case: Wrongful termination and retaliation claims

Electronic Data Involved: Hard drive, metadata

Law Offices of Ben C. Martin LLP v. Sweet, 2008 WL 2045477 (N.D. Tex. Mar. 19, 2008)

Dec 01 2008

Key Insight: Where neutral expert could not testify, based on forensic search of Sweet?s computer, that Sweet or someone at his direction had intentionally destroyed subject email, and it appeared that most of expert?s report went beyond scope of his duties as neutral expert and was irrelevant to any issues in case, magistrate judge recommended that plaintiffs? motion for spoliation sanctions be denied and that certain portions of expert?s report be stricken; Report and Recommendation adopted by district court, 2008 WL 2130574 (N.D. Tex. Apr. 23, 2008)

Nature of Case: Dispute over fee owed to Martin and his firm as a result of settlement and verdict in medical malpractice case

Electronic Data Involved: Email sent by Martin via his Blackberry to Sweet confirming the terms of fee arrangement

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2008 WL 4786671 (N.D. Cal. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendants failed to establish custodians? possession of relevant emails beyond speculation or vague assertions, and where responding party already produced ?voluminous amounts of email,? court declined to compel production of emails from either custodian

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: Emails

Fharmacy Records v. Nassar, 572 F. Supp. 2d 869 (E.D. Mich. 2008)

Dec 01 2008

Key Insight: Court declined to reconsider dismissal of plaintiffs? case as sanction for ?campaign of fraud? that included intentionally wiping data, ?losing? original CDs and tape recordings, and misrepresentations to the court where the court found plaintiff?s behavior willful and prejudicial and where lesser sanctions would not have sufficed and where plaintiffs? alleged ?new evidence? was also ?suspect?; dismissal affirmed on appeal (2010 WL 2294538)

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D. Tex. Aug. 8, 2008)

Dec 01 2008

Key Insight: For plaintiff?s and its principals? egregious discovery abuses and bad faith conduct, including intentional spoliation of ESI and willful deception and concealment, magistrate judge set out findings of fact and conclusions of law and recommended sanctions in form of adverse inference instruction and monetary sanctions representing all of defendants? fees and costs incurred in connection with sanctions motion; district court overruled plaintiff’s objections and adopted magistrate judge?s rulings

Nature of Case: Breach of fiduciary duty, breach of contract, RICO violations, negligence, gross negligence and injunctive relief

Electronic Data Involved: Hard drives, DVD, various ESI

Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 2008 WL 5063291 (2d Cir. Nov. 24, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to sufficiently establish existence or relevance of emails allegedly spoliated or that defendants alleged abuses resulted from willful misconduct or gross negligence, trial court declined to impose sanctions; court of appeals affirmed

Nature of Case: Breach of contract, promissory estoppel, interference with a contract

Electronic Data Involved: Email

Reino de Espana v. Am. Bureau of Shipping, 2008 WL 3851957 (S.D.N.Y. Aug. 18, 2008)

Dec 01 2008

Key Insight: District court overruled Spain’s objections to Magistrate Judge?s various orders of November 3, 2006, January 25, 2007 and June 6, 2007

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

In re Zurn Pex Plumbing Prod. Liab. Litig., 20008 WL 5104173 (D. Minn. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court compelled production of deponent to answer specifically tailored questions regarding retention of electronically stored documents where plaintiff suspected spoliation due to defendant?s failure to timely issue preservation notices and where inquiry into retention policies would assist in narrowing scope of discoverable electronic materials; court also compelled production of identity of author of relevant email

Nature of Case: Products liability

Electronic Data Involved: Document retention policies, email

Powell v. Sharpsburg, 2008 WL 5422577 (E.D.N.C. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where defendant willfully destroyed relevant work orders pursuant to its document retention policy but where defendant should have been aware of the relevance of the documents and the resulting duty to preserve, court ordered adverse inference in favor of plaintiff and prohibited defendants from introducing secondary evidence of contents of spoliated documents

Nature of Case: Title VII action for discriminatory discipline based on race

Tag:Spoliation