Key Insight: Court imposed monetary sanctions but not adverse inference instruction where defendant negligently failed to implement adequate litigation hold and preserve electronic evidence, but evidence was insufficient to show defendant acted in bad faith or with culpable state of mind or that plaintiff had suffered any prejudice
Nature of Case: Environmental litigation
Electronic Data Involved: Email and backup tapes
Key Insight: Where plaintiff deleted whole directories without looking at their contents and designed drive wiping program to write over data indiscriminately after he had notice of the pendency of the litigation, court concluded that ?the extreme nature? of plaintiff?s bad faith behavior, combined with harm done to defendants, merited dismissal of plaintiff?s claims with prejudice; court further ordered plaintiff to pay defendants $65,000 to reimburse them for expenses incurred in investigating and litigating spoliation issue
Nature of Case: Retaliation under False Claims Act and other federal statutes, and Washington state law claims
Electronic Data Involved: Laptop
Key Insight: Further to its previous orders imposing $111,348 in sanctions against Krumwiede for willful and bad faith spoliation of evidence, and where Krumwiede presented no evidence of financial inability to pay sanctions amount, court ordered Krumwiede to pay sanctions within 30 days or the remainder of his pleadings would be stricken
Nature of Case: Former employee who went to work for competitor sued for back pay and reformation of employment agreement; former employer asserted counterclaims for breach of non-compete and confidentiality clauses and related claims
Electronic Data Involved: Laptop computers
Key Insight: Court denied plaintiff’s motion for summary judgment and dismissal of opponent’s counterclaims and affirmative defenses based upon spoliation of evidence described as “intentionally modifying and deleting files from the laptops central to this case,” finding that evidence was “far from clear-cut” that defendants destroyed evidence sufficient to warrant a death-penalty sanction
Nature of Case: Copyright infringement, misappropriation of trade secrets and other claims
Electronic Data Involved: Files on laptops
Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”
Nature of Case: Copyright infringement
Electronic Data Involved: Hard drive
Key Insight: Reversing plaintiff’s $800,000 jury verdict on other grounds, state appellate court expressed concern about spoliation instruction given by trial court since plaintiff had not pursued motion to compel, there was doubt about the materiality and relevance of the data and how or if its absence seriously impaired plaintiff’s ability to present her case, defendant had provided an explanation for the data’s removal from his computer and had offered to produce at least some of the data in paper form or print specific reports, and spoliation instruction given appeared to be excessive based upon surrounding circumstances and spoliation instructions recently approved by Texas courts
Nature of Case: Former partner alleged antitrust violations, fraud and breach of fiduciary duty claims
Electronic Data Involved: QuickBooks data
Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees
Nature of Case: Wrongful termination
Electronic Data Involved: Laptop; drafts of plaintiff’s resume
Key Insight: Court denied motion for spoliation inference based upon former employee’s deletion of files on home computer, since plaintiff could not demonstrate any prejudice resulting from alleged spoliation or show that former employee was “at fault” for deleting the files, i.e., that he intended to impair plaintiff’s ability to uncover evidence; employee claimed to have deleted the files to ensure that he no longer had access to plaintiff’s information after he resigned his employment
Nature of Case: Misappropriation of trade secrets, breach of non-competition agreement
Electronic Data Involved: Files on former employee’s home computer
Key Insight: Adverse inference and monetary sanctions warranted, but not default judgment, where defendant acknowledged that its personnel routinely deleted emails without regard to whether the deleted emails were relevant to the litigation, but behavior did not constitute a pattern of deliberately deceptive litigation practices and there was evidence that the actual number of emails lost was small
Nature of Case: Copyright infringement
Electronic Data Involved: Email
Key Insight: Court denied parties’ cross-motions for sanctions based upon spoliation; deletion of software files was unauthorized act by an employee of plaintiff 14 months before case was filed and litigation was not yet reasonably foreseeable
Nature of Case: Contract breach and fraud involving leased software
Electronic Data Involved: Software files on computer hard drive
Copyright © 2022, K&L Gates LLP. All Rights Reserved.