Tag: TRO

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Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)
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Henry Schein v. Cook – 201606 (Northern District of California, 2016)
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Loop AI Labs Inc. v. Gatti, 2015 WL 1090180 (N.D.Cal. Mar. 12, 2015)
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Toppan Photomasks, Inc. v. Park, No. 13-cv-03323-MMC (JCS), 2014 WL 2567914 (N.D. Cal. May 29, 2014)
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Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO, 2014 WL 3615480 (E.D. Cal. July 21, 2014)
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Sprint Nextel Corp. v. Middle Man, Inc., N. 12-2159-JTM, 2013 WL 1001851 (D. Kan. Mar. 13, 2013)
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You Fit, Inc. v. Pleasanton Fitness LLC, No. 8:12-CV-1917-T-27EAJ, 2013 WL 521784 (M.D. Fla. Feb. 11, 2013)
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Brooks v. Ohio State Chiropractic Board, No. 2:12-cv-225, 2012 WL 1429386 (S.D. Ohio Apr. 25, 2012)
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Shutterfly Inc. v. Foreverarts, Inc., No. CR 12-3671 SI, 2012 WL 2911887 (N.D. Cal. July 13, 2012)
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Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?

Nature of Case: Housing discrimination

Electronic Data Involved: facebook (social media / social network)

Loop AI Labs Inc. v. Gatti, 2015 WL 1090180 (N.D.Cal. Mar. 12, 2015)

Key Insight: Court denied plaintiff?s motion for temporary restraining order which requested restrictions on defendant?s assets, and orders prohibiting destruction of evidence, expediting discovery, allowing plaintiff access to defendant?s email and social media accounts, and for the return of a laptop because the court found plaintiff failed to demonstrate it was likely to suffer irreparable harm absent injunctive relief. In asserting it would suffer irreparable harm, plaintiff argued defendant had demonstrated she would not observe her obligation to preserve evidence, but provided no evidence in support of this claim. Stating that ?suspicions are not a proper ground for injunctive relief,? the Court noted that counsel for each defendant were ?expected to advise their clients of their duty to preserve potentially relevant evidence and the serious consequences for failing to do so,? but denied further relief.

Nature of Case: Misappropriation of Trade Secrets; Breach of Contract

Electronic Data Involved: Email, social media, laptop

Toppan Photomasks, Inc. v. Park, No. 13-cv-03323-MMC (JCS), 2014 WL 2567914 (N.D. Cal. May 29, 2014)

Key Insight: Where defendant?s duty to preserve arose upon threat of litigation and where he was reminded of the obligation in correspondence with opposing counsel and then ordered by the court to preserve, the court found that the level of culpability rose with each indication and thus found that the defendant had failed to preserve ESI in bad faith but, absent evidence of the level of resulting prejudice (attempts to recover the deleted data had not yet been undertaken), declined to impose a an adverse inference but ordered monetary sanctions

Nature of Case: Trade secret, breach of contract

Electronic Data Involved: ESI on multiple devices

Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO, 2014 WL 3615480 (E.D. Cal. July 21, 2014)

Key Insight: Court denied motion for preliminary injunction and preservation order, reasoning as to the request for a preservation order that defendants had issued a litigation hold letter and that plaintiff had not shown that such an order was needed due to ?any actual risk that specific evidence will be lost or destroyed during the pendency of this action?

Nature of Case: Civil rights action (pro se prisoner)

Electronic Data Involved: [F]iles and records, including e-files and intact meta data

Sprint Nextel Corp. v. Middle Man, Inc., N. 12-2159-JTM, 2013 WL 1001851 (D. Kan. Mar. 13, 2013)

Key Insight: Court was satisfied that defendants were aware of their legal duty to preserve evidence and noted that defendants had stated they had a diligent electronic record-keeping practice to track the company’s sales, purchases and inventory, and that the company would consent to an on-site physical inspection of its inventory; court was not persuaded that preservation order was appropriate or that it would serve any useful purpose in light of the parties’ existing legal obligations to preserve relevant evidence

Nature of Case: Trademark infringement, unlawful business practices

Electronic Data Involved: Sprint phones, ESI

You Fit, Inc. v. Pleasanton Fitness LLC, No. 8:12-CV-1917-T-27EAJ, 2013 WL 521784 (M.D. Fla. Feb. 11, 2013)

Key Insight: Addressing request for preliminary injunction in trademark infringement action, court considered Yelp posting stating a customer?s confusion and found that consideration of the comment was appropriate in the context of an injunctive proceeding and also indicated in footnote that ?the comments are not hearsay because they are not being used to prove the truth of the matter asserted in the comment. See Fed.R.Evid. 801(c)(2). Rather, Plaintiffs invoke the comments to demonstrate the consumer?s confusion, a then-existing mental state of the declarant who posted the comments See Fed.R.Evid. 803(3).?

Nature of Case: Copyright infringement

Electronic Data Involved: Social media content (e.g., Yelp review)

Brooks v. Ohio State Chiropractic Board, No. 2:12-cv-225, 2012 WL 1429386 (S.D. Ohio Apr. 25, 2012)

Key Insight: Where plaintiff failed to establish the likelihood of his success on the merits or that he would suffer immediate irreparable harm absent injunctive relief, the court denied plaintiff?s motion for a temporary restraining order and/or preliminary injunction; as to the likelihood of irreparable harm, the court?s analysis focused in part on other mechanisms to ensure preservation, including a specific demand for preservation which the plaintiff had already utilized and the threat of sanctions for failure to preserve

Nature of Case: Claims arising from plaintiff’s placement on administrative leave and defendant’s seizure of his property

Electronic Data Involved: ESI

Shutterfly Inc. v. Foreverarts, Inc., No. CR 12-3671 SI, 2012 WL 2911887 (N.D. Cal. July 13, 2012)

Key Insight: Court granted ex parte motion for temporary injunction prohibiting destruction of relevant ESI where plaintiff showed that it was likely to succeed on the merits of the case, that it would suffer irreparable harm absent an injunction if defendants were to destroy evidence, and that the prohibition against destruction of evidence would not burden defendants

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

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