Data Preservation (ESI)

 

The following cases are Multi-State cases that involve Data Preservation issues.  These are key elements to tactically attacking lenders that destroy evidence, claim they can’t find it or provide some other type of excuse.

Case Citation: ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009) Nature of Case: Housing discrimination Electronic Data Involved:  ESI E-Discovery Issue: Where defendants were “grossly negligent” in failing to implement a timely litigation hold but where plaintiffs could not prove the relevance of the information destroyed, court declined to order adverse inference but ordered defendants to pay plaintiff’s reasonable costs for making the motion, including attorney’s fees; where court found defendants “at most, negligent” in failing to preserve electronically stored information, court ordered defendant to supplement their discovery and, if they determined it complete, to provide plaintiffs a letter to that effect Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation

Case Citation: Actionlink, LLC v. Sorgenfrei, 2010 WL 395243 (N.D. Ohio Jan. 27, 2010) Nature of Case: Breach of confidentiality agreement and related claims, independant cause of action for spoliation Electronic Data Involved:  ESI E-Discovery Issue: Where issues of material fact existed as to the willfulness of defendant’s destruction of potentially relevant ESI and as to whether such destruction “disrupted” plaintiff’s case, court denied defendant’s motion for summary judgment as to its claim of spoliation and denied plaintiff’s request for an adverse inference as to claims 1 through 4, but indicated its willingness to entertain a motion for an appropriate jury instruction at trial Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Advantacare Health Partners, LP v. Access IV, 2004 WL 1837997 (N.D. Cal. Aug. 17, 2004) Nature of Case: Misappropriation of trade secrets and related torts Electronic Data Involved:  Proprietary information in electronic form E-Discovery Issue: Court denied motion for default judgment but granted motion for an adverse inference instruction and $20,000 in monetary sanctions where, in advance of court-ordered inspection, defendants deleted from their computers numerous electronic files which had been copied from former employer’s computer systems prior to their resignations, and, after the inspection, defendants failed to comply with court’s order that they delete all of plaintiffs’ files from their computers Case Summary: Not Available Attributes: TRO; Motion for Sanctions; Data Preservation; Mirror Image; Inspection; Spoliation; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: Am. Serv. Mktg., Corp. v. Bushnell, 2009 WL 1870887 (E.D. La. June 25, 2009) Nature of Case: Federal trademark and state law breach of contract claims Electronic Data Involved:  ESI E-Discovery Issue: Where plaintiff alleged defendant violated the preliminary injunction by deleting files he was directed to preserve and return to plaintiff, including using wiping software to delete files hours before producing his computer for inspection, court denied plaintiff’s motion for contempt finding that “without some other indication that [defendant] deliberately deleted files referenced in the preliminary injunction,” plaintiff failed to present the “clear and convincing evidence” required to warrant a finding of contempt Case Summary: Not Available Attributes: TRO; Data Preservation; Lack of Cooperation / Inaccurate Representations

Case Citation: Am. Family Mut. Ins., Co. v. Roth, 2009 WL 982788 (N.D. Ill. Feb. 20, 2009) Nature of Case: Misappropriation of customer information Electronic Data Involved:  Hard drives, ESI E-Discovery Issue: Where defendant discarded a hard drive that had been ordered produced for inspection, court rejected evidence of defendant’s lack of “know-how” or “resources” to maintain the hard drive in light of the lack of expense or effort required beyond physical retention and held defendant in contempt of court; court also found grounds for contempt where evidence ordered destroyed or turned over to plaintiffs was discovered on defendants’ hard drives upon forensic inspection; where plaintiffs presented “clear and convincing evidence” that defendants intentionally destroyed evidence by discarding relevant hard drives subject to a duty to preserve, court found spoliation had occurred and ordered an adverse inference instruction but declined to order default judgment where prejudice did not render plaintiffs unable to prove their case Case Summary: Not Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Am. Fast Freight, Inc. v. Nat’l Consol. & Distrib., Inc., 2007 WL 3357694 (W.D. Wash. Nov. 7, 2007) Nature of Case: Breach of contract, unjust enrichment Electronic Data Involved:  ESI used to answer interrogatories; backup and retention policies E-Discovery Issue: Court granted plaintiffs’ motion to compel production of: (1) electronic data used to answer interrogatories, (2) information systems organizational charts, (3) policies and records regarding electronic data, electronic backup, electronic data retention and destruction, finding that the requests could lead to relevant evidence regarding what efforts defendant made to preserve ESI, since plaintiffs alleged that defendant failed to produce ESI with its initial disclosures under FRCP 26(a)(1) Case Summary: Not Available Attributes: FRCP 26(b)(2)(C) Limitations; Motion to Compel; Data Preservation; Records Retention Policy

Case Citation: Anderson v. Am. Airlines, Inc., 2008 WL 4816620 (N.D. Cal. Nov. 5, 2008) Nature of Case: Employment discrimination Electronic Data Involved:  ESI, email E-Discovery Issue: Plaintiff’s motion for contempt sanctions for discovery abuse denied where defendant indicated no documents responsive to subpoena existed, where search for documents entailed “paper files, electronic files, hard drives, archives, computers, etc.”, where search was performed in presence of defendant’s paralegal and where defendant hired a contractor to search for archived emails but still found nothing; court found plaintiff’s reliance on “passing statement” regarding email communication at deposition “insufficient to prove that the purported emails ever existed” Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Lack of Cooperation / Inaccurate Representations

Case Citation: Arista Records, LLC v. Usenet.com Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009) Nature of Case: Copyright infringement Electronic Data Involved:  ESI stored on server E-Discovery Issue: Court rejected defendants’ claims that loss of evidence resulted from system limitations or from the “transitory nature” of the data at issue and ordered adverse inference and other sanctions for defendants’ bad faith spoliation where, despite specific requests to preserve data, defendants failed to take action to prevent data from being lost from its servers and where the court determined defendants had taken affirmative steps to hasten the loss of the data and to ensure its permanent deletion Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 37(e) Safe Harbor; Data Preservation; Records Retention Policy; Spoliation; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: Arista Records, LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009) Nature of Case: Copyright infringement Electronic Data Involved:  ESI, emails E-Discovery Issue: Where plaintiff established defendants’ numerous discovery violations, including wiping the data from seven hard drives, failing to preserve other employee hard drives and emails, providing false responses to discovery requests, and violating the court’s discovery orders, among others, court declined to impose terminating sanctions but precluded defendants from asserting their affirmative defense of protection from liability by the relevant statute’s safe harbor provision Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007) Nature of Case: Patent and licensing litigation Electronic Data Involved:  ESI E-Discovery Issue: Where plaintiff failed to implement litigation hold and produced responsive documents some 18 months after deadline set by earlier court order, court ordered plaintiff to (1) conduct comprehensive search and produce responsive documents, (2) certify its compliance, (3) immediately impose a litigation hold on all possibly relevant documents, (4) make certain witnesses available for re-deposition, and (5) pay the opposing party’s reasonable expenses in filing the motions; court also ordered plaintiff’s counsel to submmit affidavits detailing what was done to ensure compliance with court orders and suspended case deadlines Case Summary: Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: Bensel v. Allied Pilots Assoc., 2009 WL 4884052 (D.N.J. Dec. 17, 2009) Nature of Case: Allegations of breach of duty of fair representation Electronic Data Involved:  ESI E-Discovery Issue: Despite acknowledging that “defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data,” the court found that plaintiffs failed to identify any specific document that was lost or destroyed, failed to establish destruction of documents in bad faith and failed to specify any prejudice arising from the alleged bad behavior and denied plaintiff’s motion for spoliation sanctions; in so holding, court noted plaintiff’s reliance on speculation and “vague statements” which did not “rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation.” Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 WL 2431926 (C.D. Cal. Aug. 6, 2009) Nature of Case: Lawsuit arising from defendant’s breach of contract and defendant’s undereporting of revenue and underpayment of taxes Electronic Data Involved:  ESI, hard copy E-Discovery Issue: Where court found defendant had perjured himself, including making untrue statements about the existence of relevant evidence, had willfully disobeyed the court’s order to produce “substantial documents,” and had knowingly and intentionally either destroyed or ordered destroyed relevant electronically stored information, court ordered adverse inference and monetary sanctions Case Summary: Not Available Attributes: Data Preservation; Mirror Image; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Nov. 12, 2007) Nature of Case: Organizations sought to preserve for history the records of the Bush presidency Electronic Data Involved:  Emails that plaintiffs claimed were improperly deleted from servers maintained by the Executive Office of the President and currently exist only on backup tapes, if at all E-Discovery Issue: Court adopted magistrate judge’s report and recommendation and ordered the White House to: “preserve media, no matter how described, presently in their possess[ion] or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction.” Case Summary: Available Attributes: TRO; Data Preservation; Backup Media Recycling; Backup Tapes; Deleted Data

Case Citation: Columbia Pictures Indus. v. Bunnell, 2007 WL 2080419 (C.D. Cal. May 29, 2007) Nature of Case: Copyright infringement Electronic Data Involved:  Server log information stored in the random-access memory (“RAM”) of defendants’ servers E-Discovery Issue: Court ordered defendants to preserve and produce server log data that was stored in defendants’ servers’ random access memory, or RAM, finding such data to constitute ESI and in light of defendants’ failure to show undue burden or cost in retaining such extremely relevant and potentially dispositive evidence; court further denied spoliation sanctions finding defendants’ failure to retain such data to date was based on a good faith belief that preservation of data temporarily stored only in RAM was not legally required Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 37(e) Safe Harbor; FRCP 26(b)(2)(C) Limitations; Motion for Preservation Order; Motion to Compel; Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Cornwell v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio Ct. App. Dec. 31, 2009) Nature of Case: Wrongful death Electronic Data Involved:  ESI on “nonfunctional” hard drives E-Discovery Issue: Affirming trial court’s order allowing plaintiff to create a mirror image of defendants’ hard drives upon which evidence of suspected spoliation may exist, appellate court rejected defendants arguments that such access would essentially violate physician-patient privilege (established in statute and common law) in light of plaintiff’s expert’s testimony that his process would not result in viewing or disclosing patient information and found that such access was allowable pursuant to Fed. R. Civ. P. 34 where plaintiff’s recovery was contingent upon being allowed to determine whether the hard drives were willfully altered and where the trial court’s order included specific protocol sufficient to protect the privileged information Case Summary: Available Attributes: Motion to Compel; Data Preservation; Mirror Image; Spoliation; Keyword Search

Case Citation: Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 2008 WL 5111894 (E.D. Mich. Dec. 2, 2008) Nature of Case: Price fixing Electronic Data Involved:  ESI, email E-Discovery Issue: Where plaintiffs admitted to deletion of electronic data after failing to disable auto-delete function but where deletion was not intentional and where defendants failed to show more than a suspicion of prejudice, court declined to issue order for plaintiffs to show cause why sanctions should not be imposed; court issued warning to plaintiffs that any future loss of data, whether negligent or otherwise, was “not acceptable” and ordered measures taken against further deletion Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation

Case Citation: D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.D.C. 2008) Nature of Case: Gender Discrimination, hostile work environment, retaliation Electronic Data Involved:  ESI, server E-Discovery Issue: Where defendants agreed to allow in-person inspection and imaging of most servers and depositories of relevant, electronic information but parties could not agree on search protocol, court created search protocol covering topics including scope of search, time limitations, production, and costs, among other issues; protocol relied heavily on plaintiff’s forensic expert and imposed upon him “quasi-judicial responsibilities” to carry out the search in good faith and to provide a copy of the results to the court under seal and without revealing those results to the plaintiff Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Mirror Image; Cost Shifting; Inspection; Spoliation; Deleted Data

Case Citation: Dawe v. Corrections, USA, 2009 WL 3233883 (E.D. Colo. Oct. 1, 2009) Nature of Case:   Electronic Data Involved:  ESI, laptop E-Discovery Issue: Citing a “pervasive” level of “distrust that permeates this litigation” and plaintiff’s “adamant refusal to permit even a limited inspection” and citing defendants’ representations that additional, relevant information remained on the laptop and that the laptop had been “forensically cleaned,” court granted defendants’ motion to compel inspection of plaintiff’s laptop but ordered defendants to bear the cost – if inspection revealed relevant information was withheld, court invited a motion to shift some or all of the costs to plaintiff(s) Case Summary: Not Available Attributes: FRCP 26(b)(2)(C) Limitations; Motion to Compel; Data Preservation; Cost Shifting; Inspection; Privilege

Case Citation: Dilts v. Maxim Crane Works, L.P., 2009 WL 3161362 (E.D. Ky. Sept. 28, 2009) Nature of Case: Negligence resulting in death Electronic Data Involved:  ESI stored on crane’s internal computer E-Discovery Issue: 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 Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Doe v. Norwalk Community College, 2007 WL 2066497 (D. Conn. July 16, 2007) Nature of Case: Student sued college and former professor based on alleged sexual assault Electronic Data Involved:  Email and other ESI E-Discovery Issue: Finding defendants’ failure to issue litigation hold or preserve relevant emails and hard drives to be “at least grossly negligent, if not reckless,” court granted plaintiff’s motion for adverse inference and awarded expert and attorneys’ fees incurred in connection with forensic examination and motion for sanctions Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Inspection; Spoliation; Backup Media Recycling; Backup Tapes; Deleted Data

Case Citation: Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2009 WL 1949124 (N.D. Cal. July 2, 2009) Nature of Case: Breach of contract (non-conforming goods) Electronic Data Involved:  ESI E-Discovery Issue: Stating “Taishan did not even come close to making reasonable efforts to carry out its preservation of materials…”, court ordered adverse inference and monetary sanctions (attorney’s fees and costs) for third-party defendant’s failure to preserve relevant evidence in violation of its litigation related duty to preserve and, in some instances, in violation of its own document retention policies Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation

Case Citation: Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802(Cal. Ct. App. 2009) Nature of Case: Seven causes of action arising from defendant’s failure to remedy problem of foul odor in plaintiff’s car Electronic Data Involved:  ESI, emails E-Discovery Issue: Where trial court ordered monetary and adverse inference sanctions but declined to order terminating sanctions for defendant’s “repeated and egregious” discovery abuses, including violating four discovery orders or directives, deleting relevant emails, failing to produce relevant documents, and making misrepresentations regarding the completeness of production, among others, appellate court found trial court had abused its discretion, reversed the jury’s verdict, and remanded the case for entry of default judgment Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Inspection; Lack of Cooperation / Inaccurate Representations

Case Citation: Dynamic Sports Nutrition, Inc. v. Roberts, 2008 WL 2775007 (S.D. Tex. July 14, 2008) Nature of Case: Misappropriation of trade secrets, breach of fiduciary duty, conversion and and violations of Computer Fraud and Abuse Act Electronic Data Involved:  Laptop computer and confidential business information E-Discovery Issue: Finding substantial likelihood that plaintiff would prevail on its claims, that plaintiff was suffering “immediate, irreparable, imminent harm” for which there was no adequate remedy at law, that defendants had posted confidential information about plaintiff’s products on publicly accessible blogs and websites, that individual defendant had misappropriated laptop belonging to plaintiff after his termination from plaintiff and had failed to comply with aspects of the court’s Temporary Restraining Order, court entered preliminary injunction forbidding defendants from, among other things, deleting relevant ESI and requiring defendants to return laptop to plaintiff’s counsel and to preserve all evidence of any disclosure or dissemination of plaintiff’s confidential information Case Summary: Not Available Attributes: TRO; Data Preservation; Lack of Cooperation / Inaccurate Representations

Case Citation: East Coast Brokers and Packers, Inc. v. Seminis Vegetable Seeds, Inc., 2009 WL 361281 (M.D. Fla. Feb. 9, 2009) Nature of Case:   Electronic Data Involved:  ESI E-Discovery Issue: Court denied defendant’s motion for sanctions arising from plaintiff’s alleged spoliation of “pack data” (related to the number of tomatoes picked and packaged) where the alleged spoliation consisted of plaintiff’s entry of additional information to the “pack data” following commencement of litigation but where the court found that no spoliation had occurred because the source of the newly added information was preserved, because the data was “added as opposed to changed,” and because defendant had the right of cross examination at trial Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008) Nature of Case: Alleged violations of Americans with Disabilities Act Electronic Data Involved:  Email and other ESI E-Discovery Issue: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination Case Summary: Not Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; Motion to Compel; Data Preservation; Backup Tapes

Case Citation: Elec. Funds Solutions, LLC v. Murphy, 2009 WL 1717383 (Cal. Ct. App. June 19, 2009) (Unpublished) Nature of Case: Breach of fiduciary duty, conversion, intentional interference with economic relationships, etc. Electronic Data Involved:  ESI, hard drives E-Discovery Issue: Where terminating sanctions were ordered against defendants for the deliberate deletion/destruction of electronically stored information using wiping software but where the subsequent judgment of the trial court was reversed on appeal and remanded and where the trial court thereafter granted plaintiff’s motion for terminating sanctions, appellate court ruled that trial court did not err in granting plaintiff’s motion where the court’s previous discovery orders to produce information remained in effect and where defendants continued in their violation of such order by failing to produce relevant discovery because they had destroyed it; court stated: “A continuing discovery violation does not end if the responding party is permanently unable to comply because that party intentionally destroyed the material it was ordered to produce.” Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Elec. Machinery Enters., Inc. v. Hunt. Constr. Group, Inc., 2009 WL 2710266 (Bankr. M.D. Fla. Aug. 28, 2009) Nature of Case: Action for breach of contract, spoliation, breach if implied warranties Electronic Data Involved:  Hard copy and ESI E-Discovery Issue: 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 Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Ellington Credit Fund, Ltd. v. Select Portfolio Servs. Inc., 2009 WL 274483 (S.D.N.Y. Feb. 3, 2009) Nature of Case: Breach of Contract Electronic Data Involved:  ESI E-Discovery Issue: Despite plaintiffs’ claim that they had “already been prejudiced” by the “confessed destruction” of ESI in its native format through defendant’s “systematic purges” of its computer systems, court denied motion to lift stay of discovery and impose preservation order where defendant provided affidavit stating a litigation hold was imposed and that the “regular document retention policy” had not been applied to information relating the loans at issue in the case, and where plaintiffs presented no evidence to the contrary Case Summary: Not Available Attributes: Motion for Preservation Order; Data Preservation; Records Retention Policy

Case Citation: Estrada v. Dehli Cmty. Ctr., 2009 WL 3359194 (Cal. App. Ct. Oct. 20, 2009) Nature of Case: Wrongful termination/ sexual harassment Electronic Data Involved:  ESI E-Discovery Issue: Court imposed terminating sanctions against plaintiff and monetary sanctions upon counsel for egregious discovery abuses; client’s abuses included refusal to produce relevant information despite agreement and/or a court order to do so and willful installation of a new operating system on a computer subject to preservation and production, among other things; counsel’s abuses included delay in responding to discovery, misrepresentations to the court and opposing counsel, and refusal to produce relevant information despite a court order Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005) Nature of Case: Divorce proceeding Electronic Data Involved:  Data on hard drives E-Discovery Issue: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee Case Summary: Available Attributes: Motion to Compel; Motion for Protective Order; Data Preservation; Mirror Image; Cost Shifting; Inspection; Appointed Expert; Privilege

Case Citation: Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008) Nature of Case: Ohio Consumer Sales Practices Act claims Electronic Data Involved:  Evidence of plaintiff’s visits to various websites that would show whether visits constituted a consumer transaction under the OCSPA E-Discovery Issue: Where it appeared plaintiff had failed to preserve evidence and had not otherwise produced requested information, and his computers contained the only available evidence that could show the pathways taken by plaintiff to solicit emails or the absence of those pathways, court granted defendants access to plaintiff’s computer systems but entered search protocol designed to address plaintiff’s concerns about confidential and privileged information Case Summary: Available Attributes: Motion for Preservation Order; Motion to Compel; Data Preservation; Mirror Image; Inspection; Appointed Expert; Format of Production; Privilege; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: Flying J, Inc. v. TA Operating Corp., 2008 WL 5449714 (D. Utah Dec. 31, 2008) Nature of Case: Unlawful conspiracy to prevent and suppress competition Electronic Data Involved:  ESI on back up tapes E-Discovery Issue: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant’s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order Case Summary: Not Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; Motion to Compel; Data Preservation; Records Retention Policy; Backup Media Recycling; Backup Tapes; Lack of Cooperation / Inaccurate Representations

Case Citation: Fox v. Riverdeep, Inc., 2008 WL 5244297 (E.D. Mich. Dec. 16, 2008) Nature of Case: Copyright infringement, breach of contract Electronic Data Involved:  Email E-Discovery Issue: Where defendant breached its duty to preserve evidence by taking “no steps whatsoever to preserve emails or documents” following receipt of a cease and desist letter, court ordered adverse inference instruction that missing documents were unfavorable to defendants but declined to impose requested sanction of default judgment absent a showing of bad faith Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Frees, Inc. v. McMillian, 2007 WL 708593 (E.D. Tenn. Mar. 5, 2007) Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act Electronic Data Involved:  Computer files E-Discovery Issue: Where first tier of discovery showed numerous similarities between certain CAD files, drawing and specifications maintained by the parties, court found that second tier of limited additional discovery was warranted and ordered defendant’s current employer to produce materials relating to four additional projects; court further entered order on parties’ agreement relating to forensic imaging of current employer’s computer servers and desktops at plaintiff’s expense Case Summary: Not Available Attributes: Motion to Compel; Third Party Discovery; Data Preservation; Mirror Image; Cost Shifting

Case Citation: Gateway Senior Hous., Ltd. v. MMA Fin., Inc., 2008 WL 5142152 (E.D. Tex. Dec. 4, 2008) Nature of Case: Breach of contract Electronic Data Involved:  ESI, emails, hard drives E-Discovery Issue: Court found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants’ proffered explanations for the destruction of those hard drives was contradicted and “lame” in light of defendants’ knowledge of their relevance and its duty to preserve Case Summary: Not Available Attributes: FRCP 26(b)(5)(B) or FRE 502; Motion to Compel; Motion for Sanctions; Data Preservation; Inspection; Privilege; Deleted Data

Case Citation: GE Harris Ry. Elecs., LLC v. Westinghouse Air Brake Co., 2004 WL 5702740 (D. Del. Mar. 29, 2004) Nature of Case: Patent infringement and misappropriation of trade secrets Electronic Data Involved:  ESI, emails E-Discovery Issue: Court declined to impose terminating sanctions and instead ordered an adverse inference sanction against defendant for employee’s intentional spoliation of electronic evidence where the destruction was motivated by an intent to eliminate incriminating evidence but where the prejudice was minimal in light of plaintiff’s ability to obtain copies of the deleted evidence by other means Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Gillet v. MI Farm Bureau, 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009) (Unpublished) Nature of Case: Sexual harassment Electronic Data Involved:  ESI E-Discovery Issue: Where plaintiff deleted an “extremely significant” number of data files from his personal computer despite notice of his obligation to preserve and was thus sanctioned by dismissal of his case, trial court did not abuse its discretion in concluding plaintiff’s actions were not in good faith, particularly in light of the number of files deleted, and properly considered alternative sanctions before imposing terminating sanctions, despite the trial judge’s failure to “expressly recite” those alternatives on the record; court’s denial of attorneys’ fees/monetary sanctions was no abuse of discretion where the court “dealt appropriately” with plaintiff’s conduct by dismissing the case and where the refusal to impose additional sanctions was “not unreasoned or unprincipled” Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Global Ampersand, LLC v. Crown Eng’g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009) Nature of Case: Breach of contract, fraud, negligence Electronic Data Involved:  ESI E-Discovery Issue: Court granted plaintiff’s motion to compel upon finding that defendant “did not timely comply with its discovery obligations” including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney’s fees Case Summary: Not Available Attributes: FRCP 34(b) Procedure or Format; Motion to Compel; Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Goodman v. Praxair Services, Inc., 632 F. Supp. 2d 494(D. Md. 2009) Nature of Case: Breach of contract Electronic Data Involved:  Hard drives, emails, ESI E-Discovery Issue: Court ordered adverse inference for defendant’s destruction of its CEO’s laptop but declined to order sanctions for the destruction of employee computers where plaintiff failed to establish that the hard drives contained relevant data; court declined to order sanctions for the destruction of third party consultants’ materials upon finding defendant did not have “the sufficient legal authority or the practical ability” to ensure the preservation of its third party consultants’ materials and thus had no attendant obligation to do so Case Summary: Available Attributes: Third Party Discovery; Motion for Sanctions; Data Preservation; Spoliation; Keyword Search; Backup Tapes

Case Citation: Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) Nature of Case: Breach of contract, promissory estoppel Electronic Data Involved:  ESI, hard drive E-Discovery Issue: Where defendant spoliated original electronic files by copying the files to CD and then reinstalling her operating system, court found defendant and her counsel were “at least negligent” in failing to implement a litigation hold, properly search for documents, and supplement discovery responses, and ordered evidentiary sanctions and monetary sanctions to be paid by defendant and counsel Case Summary: Available Attributes: Local Rule; Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. Apr. 24, 2007) Nature of Case: Motor vehicle accident Electronic Data Involved:  Electronic control module (ECM) on bus that stored information, including speed, starts, stops, and the time and type of a mechanical failure E-Discovery Issue: Eight Circuit affirmed trial court’s denial of spoliation sanctions for Greyhound’s pre-litigation erasure of ECM data, since there was no showing that the destruction indicated “a desire to suppress the truth” and there was no prejudice Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Grochinski v. Schlossberg, 402 B.R. 825 (N.D. Ill. 2009) Nature of Case: Adversary action alleging fraudulent transfer Electronic Data Involved:  ESI, hard drives E-Discovery Issue: U.S. District Court affirmed bankruptcy court’s sanction that facts alleged against defendant would be taken as established and that defendant was prohibited from opposing trustee’s claims against him where forensic evidence indicated that defendant destroyed evidence by installing cleaning software and by installing new operating systems on relevant computers despite his ongoing duty to preserve Case Summary: Not Available Attributes: Data Preservation; Spoliation

Case Citation: Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. Apr. 9, 2007) Nature of Case: Antitrust and tortious interference litigation Electronic Data Involved:  Email; hardware and software; systems information E-Discovery Issue: Where corporate designee could not fully answer questions regarding certain topics listed in Rule 30(b)(6) notice pertaining to plaintiff’s computer servers, software, data storage and retention, or plaintiff’s efforts to search for responsive email and documents, and did not know “exactly how [the e-discovery vendor] searched” plaintiff’s servers or “what all was on” the CD that was produced to defendants, court found that witness was inadequately prepared and ordered plaintiff to produce a supplemental Rule 30(b)(6) witness on those topics Case Summary: Not Available Attributes: Motion to Compel; Data Preservation; Records Retention Policy

Case Citation: Hoyle v. Dimond, 2009 WL 604899 (W.D.N.Y. Mar. 9, 2009) Nature of Case: Fraud, negligent misrepresentation and unjust enrichment Electronic Data Involved:  ESI on plaintiff’s computer E-Discovery Issue: Where plaintiff did not consider contact information taken from defendants to be a “record” and thus deleted the information from his computer and did not return it, court denied motion to hold plaintiff in contempt for violating preliminary injunction upon finding that plaintiff had substantially complied with the court’s order because deletion of the data satisfied the purpose of the injunction Case Summary: Not Available Attributes: TRO; Data Preservation

Case Citation: In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006) Nature of Case: Personal injury product liability Electronic Data Involved:  Hard drives, ESI E-Discovery Issue: In stipulated order, parties agreed that plaintiffs would preserve hard drives used by plaintiffs and plaintiffs’ decedents and that such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol; that responsive ESI would be collected by defendants from defendants’ active IT environment and not from backup tapes absent exceptional circumstances, and that plaintiffs would defer to defendants as to the format of production Case Summary: Not Available Attributes: Data Preservation; Mirror Image; Backup Media Recycling; Backup Tapes; Format of Production

Case Citation: In re eBay Seller Antitrust Litig., 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007) Nature of Case: Antitrust Electronic Data Involved:  Litigation hold notices E-Discovery Issue: “Document Retention Notices” sent out by eBay to 600 employees were protected from discovery by attorney-client privilege and work product doctrine and need not be produced; however, eBay must disclose identities of 600 employees who received DRNs, and plaintiffs were entitled to know what kinds and categories of ESI eBay employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end Case Summary: Available Attributes: Motion for Preservation Order; Early Conference/Discovery Plan; Data Preservation; Privilege

Case Citation: In re Gupta, 263 S.W. 3d 184 (2007) Nature of Case: Fraudulent inducement, breach of contract, conversion Electronic Data Involved:  Computers, diskettes, ESI E-Discovery Issue: Appellate court denied petition for writ of mandamus where trial court appropriately ordered “death penalty sanctions” (struck all pleadings) for defendant’s discovery violations including repeated failure to produce relevant information, repeated production of fraudulent materials, including diskettes and computers, and repeated false representations to the court; plaintiff filed three motions to compel and at least two motions for sanctions resulting in more than $60,000 in fines before imposition of “death penalty sanctions” by trial court Case Summary: Not Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007) Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession Electronic Data Involved:  Email and other ESI E-Discovery Issue: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order Case Summary: Not Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Backup Media Recycling; Keyword Search; Backup Tapes; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: In Re Nat’l Century Fin. Enters., Inc. Fin. Inv. Litig., 2009 WL 2169174 (S.D. Ohio July 16, 2009) Nature of Case: Consolidated actions arising from the collapse of National Century Financial Enterprises, Inc. Electronic Data Involved:  ESI E-Discovery Issue: Court granted in part and denied in part a motion for sanctions based on multiple plaintiffs’ alleged delay and spoliation, including a failure to preserve relevant evidence, and ordered sanctions including excluding certain plaintiffs from affirmatively using late produced documents and allowing the moving party to proffer evidence at trial that it believed would give rise to an adverse inference and entitle it to an adverse jury instruction Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Privilege

Case Citation: In re Nat’l. Sec. Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007) Nature of Case:   Electronic Data Involved:  ESI E-Discovery Issue: Court granted plaintiffs’ motion for an order prohibiting the alteration or destruction of evidence during the pendency of the action and ordered counsel to inquire of their respective clients if the business practices of any party involve the routine destruction, recycling, relocation, or mutation of such materials and, if so, direct the party, to the extent practicable for the pendency of this order, either to (1) halt such business processes; (2) sequester or remove such material from the business process; or (3) arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested Case Summary: Available Attributes: Motion for Preservation Order; Data Preservation; Backup Media Recycling

 

Case Citation: In re NTL, Inc. Sec. Litig., 244 F.R.D. 179 (S.D.N.Y. 2007) Nature of Case: Securities class action Electronic Data Involved:  Email and other ESI E-Discovery Issue: Court granted plaintiffs’ motion for adverse inference instruction and awarded costs and attorneys’ fees incurred in connection with motion and additional discovery necessitated by defendant’s conduct, where because of its grossly negligent failure to preserve relevant ESI, defendant was only able to produce emails for 13 out of 57 requested current and former employees who were “key players” Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Backup Media Recycling; Backup Tapes; Metadata

Case Citation: In re Seroquel Prods. Liab. Litig., 2007 WL 219989 (M.D. Fla. Jan. 26, 2007) Nature of Case: Drug product liability Electronic Data Involved:  Email, databases and other ESI E-Discovery Issue: District court adopted magistrate’s report and recommendations and entered modified case management order containing provisions relating to various electronic discovery issues, including format of production, metadata, databases, costs, inaccessible and/or legacy ESI, preservation of documents and ESI, and spoliation of evidence Case Summary: Available Attributes: Data Preservation; Spoliation; Format of Production; Metadata

Case Citation: John B. v. Goetz, 2007 WL 3012808 (M.D. Tenn. Oct. 10, 2007) and Oct. 9, 2007 Memorandum (Not available on Westlaw) Nature of Case: Class action against various Tennessee state agencies on behalf of roughly 550,000 children entitled under federal law to medical services Electronic Data Involved:  ESI E-Discovery Issue: Faulting defendants’ preservation and production methods, court ordered defendant state agencies to produce ESI using agreed search terms, designated key custodians, and specified time period, and ordered that production of responsive ESI must include all metadata and all deleted information on any computer of designated key custodians; court further ordered that plaintiffs’ computer expert “shall be present for the [d]efendants’ ESI production and shall provide such other services to the defendants as are necessary to produce the metadata, as ordered by the Court.” Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 34(b) Procedure or Format; FRCP 26(b)(5)(B) or FRE 502; Motion to Compel; Third Party Discovery; Data Preservation; Cost Shifting; Records Retention Policy; Spoliation; Backup Media Recycling; Keyword Search; Backup Tapes; Format of Production; Privilege; Deleted Data; Metadata; Lack of Cooperation / Inaccurate Representations

Case Citation: John B. v. Goetz, 2007 WL 4014015 (M.D. Tenn. Nov. 15, 2007) Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services Electronic Data Involved:  Computer systems of defendant Tennessee state agencies E-Discovery Issue: Ruling on defense motions for clarification, court directed that plaintiffs’ expert and court-appointed monitor shall “forthwith inspect the State’s computer systems and computers of the fifty (50) key custodians that contain information relevant to this action,” that plaintiffs’ expert or his designee “shall make forensic copies of any computer inspected to ensure the preservation of all existing electronically stored information (“ESI”)”; court further ordered that United States Marshall should accompany the plaintiffs’ expert to “ensure that this Order is fully executed.” Case Summary: Available Attributes: Motion to Compel; Motion for Protective Order; Motion for Sanctions; Data Preservation; Mirror Image; Inspection; Appointed Expert; Lack of Cooperation / Inaccurate Representations

Case Citation: John B. v. Goetz, 2007 WL 4198266 (M.D. Tenn. Nov. 26, 2007) Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services Electronic Data Involved:  Computer systems of defendant Tennessee state agencies E-Discovery Issue: Where goal of prior discovery orders authorizing immediate forensic copying of computers of defendants’ 50 key custodians by plaintiff’s expert, escorted by United States Marshall, was to protect against defendants’ destruction of responsive information in light of defendants’ persistent and contumacious refusals to produce ESI, court denied motion for stay of orders pending appeal, finding that the class’s interests far outweighed any potential harm to defendants in the execution of the orders Case Summary: Available Attributes: Motion for Protective Order; Data Preservation; Mirror Image; Inspection; Lack of Cooperation / Inaccurate Representations

Case Citation: John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008) Nature of Case: Class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services Electronic Data Involved:  State-owned and privately owned computers E-Discovery Issue: Applying a five-factor balancing test and in light of significant confidentiality and federalism concerns present in the case, Sixth Circuit concluded that certain aspects of district court’s orders constituted a “demonstrable abuse of discretion,” and granted, in part, defendants’ petition for mandamus and set aside those provisions of the district court’s orders that required forensic imaging of state-owned and privately owned computers, including the provisions that required U.S. Marshal or his designee to assist plaintiffs’ computer expert in execution of orders Case Summary: Available Attributes: Motion for Protective Order; Data Preservation; Mirror Image; Inspection

Case Citation: Jones v. Hawley, 255 F.R.D. 51 (D.D.C. Jan. 12, 2009) Nature of Case: Violation of Aviation and Transportation Security Act and Privacy Act Electronic Data Involved:  ESI E-Discovery Issue: Where plaintiffs did not deny their failure to preserve relevant documents previously in their possession, did not deny their failure to search for documents demanded, save one plaintiff who limited search to what he described as “reasonably accessible” information, did not deny their failure to supplement their responses to interrogatories as promised, and did not deny providing contradictory answers regarding documents in their possession, court rejected arguments that sanctions were unnecessary because of a lack of resulting prejudice and arguments that the documents were “barely relevant” and ordered an adverse inference instruction in favor of defendants Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Lack of Cooperation / Inaccurate Representations

Case Citation: KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009) Nature of Case: Copyright infringement Electronic Data Involved:  Software and other ESI E-Discovery Issue: Court declined to order terminating sanctions but ordered an adverse inference instruction where defendants erased software and other evidence from relevant computers after receiving notice from which they “should have known” that the evidence “may be” relevant to future litigation, thus triggering a duty to preserve, and where defendants failed to place a “meaningful litigation hold” and continued “to delete and overwrite” ESI even after plaintiff filed its complaint and sent defendants an evidence-preservation letter Case Summary: Available Attributes: FRCP 37(e) Safe Harbor; Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Keithley v. Home Store.com, Inc., 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008) Nature of Case: Patent infringement Electronic Data Involved:  Source code, early architectural, design and implementation documents, and reports E-Discovery Issue: For defendants’ “reckless and egregious discovery misconduct,” including failure to implement litigation hold, spoliation of evidence, failure to diligently search for and produce responsive material, and misrepresentations to plaintiffs and court regarding existence of responsive ESI, magistrate judge recommended adverse inference instruction and imposed monetary sanctions (including future expenses plaintiffs expected to incur as a result of the need to “do over” certain tasks due to defendants’ belated production of documents and ESI); court awarded $282,970.37 as “further sanctions as described in the Court’s August 12, 2008 Order” in March 2009 (2009 WL 816429) Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 37(e) Safe Harbor; Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Backup Media Recycling; Backup Tapes; Format of Production; Lack of Cooperation / Inaccurate Representations

Case Citation: Keithley v. Homestore.com, 2008 WL 4830752 (N.D. Cal. Nov. 6, 2008) Nature of Case: Patent Infringement Electronic Data Involved:  ESI, email E-Discovery Issue: 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)) Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Keithley v. Homestore.com, 2008 WL 5234270 (N.D. Cal. Dec. 15, 2008) Nature of Case: Patent infringement Electronic Data Involved:  ESI, source code, document retention policies E-Discovery Issue: 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 Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Kellogg v. Nike, Inc., 2007 WL 4570871 (D. Neb. Dec. 26, 2007) Nature of Case: Patent infringement Electronic Data Involved:  Email and other ESI E-Discovery Issue: Resolving various discovery issues, court found defendants’ explanation of document search sufficient and observed that plaintiff could not identify any particular document or category of missing documents based on evidence aside from his own incredulity; court added that, if gaps evolved after defendants’ supplementation of production, plaintiff could revisit the issue Case Summary: Not Available Attributes: Early Conference/Discovery Plan; Motion to Compel; Data Preservation; Records Retention Policy; Backup Media Recycling; Format of Production

Case Citation: Kemper Mortgage, Inc. v. Russell, 2006 WL 4968120 (S.D. Ohio May 4, 2006) Nature of Case: Breach of employment agreement Electronic Data Involved:  Laptop computer E-Discovery Issue: Where plaintiff presented convincing evidence at preliminary injunction hearing of defendant’s intentional spoliation of evidence, including his installation of file “shredder” program on laptop computer the day before litigation was filed and under threat of its commencement, court allowed inference that that considerably more evidence of misconduct would have been found without the spoliation and granted preliminary injunction barring defendant from, among other things, destroying or deleting relevant ESI Case Summary: Not Available Attributes: TRO; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: King Lincoln Bronzeville Neighborhood Ass’n v. Blackwell, 448 F. Supp. 2d 876 (S.D. Ohio 2006) Nature of Case: Plaintiffs alleged violations of civil and constitutional rights in connection with 2004 presidential election Electronic Data Involved:  Presidential election ballots E-Discovery Issue: Court had inherent power to issue a preservation order directly upon Ohio’s 88 county boards of elections in possession of 2004 presidential election ballots, even though they were not actual parties to the litigation; court warned that discovery sanctions may be imposed in the event any ballots were destroyed in violation of the order Case Summary: Available Attributes: Data Preservation; Records Retention Policy

Case Citation: Kinnally v. Rogers Corp., 2008 WL 4850116 (D. Ariz. Nov. 7, 2008) Nature of Case: Age discrimination Electronic Data Involved:  ESI, email E-Discovery Issue: Where plaintiffs offered only an inference that evidence was destroyed based on “the mere lack of evidence” produced by defendant and where plaintiffs failed to take timely action to address discovery disputes, court denied plaintiffs’ motion for an adverse inference based on spoliation; addressing plaintiffs’ argument that defendant’s failure to issue a timely litigation hold notice resulted in destruction of evidence, court noted, “[w]hile a party must ‘put in place a ‘litigation hold’ to ensure the preservation of relevant documents, there is no requirement that it must be written.” [citation omitted] Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation

Case Citation: Koninklijke Philips Electronics, N.V. v. KXD Tech., Inc., 2009 WL 3059090 (9th Cir. Sept. 24, 2009) (Unpublished) Nature of Case: Infringement litigation Electronic Data Involved:  ESI stored on server E-Discovery Issue: District court did not abuse discretion in ordering default judgment where court found defendant deliberately destroyed computer servers, and with it certain ESI that had been requested by the plaintiff, where such destruction demonstrated the necessary “willfulness, bad faith and fault” to support such a sanction, where the prejudice caused by the failure to produce the ESI was “not excused” by the fact that plaintiff already possessed some of the destroyed documents, and where less severe sanctions were previously awarded and defendant had been warned of the possibility of stricter sanctions in future Case Summary: Not Available Attributes: Data Preservation; Spoliation

Case Citation: Laethem Equip. Co. v. Deere & Co., 2008 WL 4997932 (E.D. Mich. Nov. 21, 2008) Nature of Case: Breach of contract, statutory violations, tortious interference Electronic Data Involved:  ESI E-Discovery Issue: Following plaintiff’s identification of all relevant ESI, court declined to order re-production of thousands of documents in electronic format where information had been produced in hard copy and cost of re-production exceeded $250,000 but ordered plaintiffs to provide explanation of what had already been produced and for why certain documents were withheld; court found no waiver pursuant to ER 502 where production was inadvertent, where plaintiffs took reasonable steps to prevent disclosure, and where plaintiffs took prompt action upon discovery of disclosure to secure its return Case Summary: Available Attributes: FRCP 26(b)(5)(B) or FRE 502; Motion to Compel; Motion for Sanctions; Data Preservation; Spoliation; Format of Production; Privilege; Lack of Cooperation / Inaccurate Representations

Case Citation: Leon v. IDX Sys. Corp., 2004 WL 5571412 (W.D. Wash. Sept. 30, 2004), affirmed, 464 F.3d 951 (9th Cir. 2006) Nature of Case: Retaliation under False Claims Act and other federal statutes, and Washington state law claims Electronic Data Involved:  Laptop E-Discovery Issue: 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 Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Magana v. Hyundai Motor Am., 220 P.3d 191 (Wash. 2009) Nature of Case: Products liability Electronic Data Involved:  ESI and hard copy E-Discovery Issue: Where defendants’ participated in “willful efforts to frustrate and undermine truthful pretrial discovery” by providing false and evasive responses to discovery and by failing to timely produce relevant evidence, where such willful behavior resulted in substantial prejudice to plaintiff’s ability to prepare for trial, and where the trial court properly considered but declined to impose lesser sanctions, the supreme court found the trial court did not abuse its discretion, reversed an appellate court opinion which determined the opposite, and therefore reinstated the $8,000,000 default judgment ordered by the trial court Case Summary: Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005) Nature of Case: Disability discrimination Electronic Data Involved:  Emails, hard drives E-Discovery Issue: Where plaintiff’s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants’ backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants’ efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval Case Summary: Not Available Attributes: Motion to Compel; Data Preservation; Mirror Image; Inspection; Backup Media Recycling; Backup Tapes; Deleted Data

Case Citation: Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) Nature of Case: Breach of Contract Electronic Data Involved:  Source code, ESI E-Discovery Issue: Court ordered production of source code and expressed approval of defendant’s suggestion to mitigate burden to plaintiff by producing the code to outside consultants for review; court denied motion to compel production of ESI where plaintiff had already produced a significant volume and where ample time to seek additional documents had passed; court also denied defendant’s requests for court supervised discovery, production of files in native format, and attorney’s fees Case Summary: Available Attributes: FRCP 34(b) Procedure or Format; Motion to Compel; Data Preservation; Records Retention Policy; Spoliation; Backup Tapes; Format of Production; Lack of Cooperation / Inaccurate Representations

Case Citation: N.H. Ball Bearings, Inc. v. Jackson, 969 A.2d 351 (N.H. 2009) Nature of Case: Breach of confidentiality agreement Electronic Data Involved:  ESI E-Discovery Issue: Where evidence indicated high probability of spoliation by defendant including deleting data and running disk defragmenter and disk cleanup functions, among other things, but where evidence also indicated potential spoliation of ESI by plaintiff because of its failure to preserve the last accessed date of certain files, trial court gave adverse inference instruction to jury allowing finding of spoliation by either side and appellate court affirmed; appellate court also affirmed trial court’s denial of plaintiff’s request to access up to 250 hard drives for imaging upon finding the request “too broad and burdensome” especially in light of trial court’s grant of access to plaintiff, upon narrowing its request, to back up tapes and specifically relevant hard drives Case Summary: Not Available Attributes: Data Preservation; Mirror Image; Spoliation

Case Citation: O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007) Nature of Case: Employment discrimination Electronic Data Involved:  ESI E-Discovery Issue: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the “Suggested Protocol for Discovery of Electronically Stored Information” set forth by the United States District Court for the District of Maryland Case Summary: Not Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 26(b)(5)(B) or FRE 502; FRCP 37(e) Safe Harbor; FRCP 26(b)(2)(C) Limitations; Local Rule; Early Conference/Discovery Plan; Third Party Discovery; Data Preservation; Cost Shifting; Records Retention Policy; Backup Media Recycling; Keyword Search; Appointed Expert; Format of Production; Privilege; Metadata

Case Citation: Oklahoma, ex rel. Edmondson, 2007 WL 1498973 (N.D. Okla. May 17, 2007) Nature of Case: Nuisance and CERCLA claims against owners of poultry growing operations Electronic Data Involved:  ESI E-Discovery Issue: Where court had invited motion to address e-discovery issues in order to assure that e-discovery issues were moving foward, court granted motion and directed parties to the Guidelines for the Discovery of ESI for the District of Kansas to serve as guidance pendng enactment by the court of its own local rules and/or guidelines; court further noted that, although no formal preservation order had been entered, the duty to preserve evidence including ESI arises as soon as a party is aware the documentation may be relevant; court further warned parties to be “very cautious” in relying upon the safe harbor provision of new FRCP 37(e) Case Summary: Not Available Attributes: FRCP 37(e) Safe Harbor; Local Rule; Data Preservation

Case Citation: Oldenkamp v. United Am. Ins. Co., 2008 WL 4682226 (N.D. Okla. Oct. 21, 2008) Nature of Case: Litigation concerning insurance company’s denial of benefits Electronic Data Involved:  Email, ESI E-Discovery Issue: Court denied motion to compel where plaintiff failed to offer any evidence that requested emails existed and where defendant offered sworn testimony that all responsive document had been produced; court also denied plaintiffs’ motion for spoliation sanctions where plaintiff offered no evidence that allegedly spoliated materials existed; where defendant indicated its inability to locate a particular document but produced audio tapes detailing the contents, court declined to impose sanctions because plaintiffs offered no evidence of defendant’s intentional destruction of evidence and because plaintiffs suffered no prejudice in light of alternative source for requested information Case Summary: Not Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation

Case Citation: Orbit One Commc’ns, Inc. v. Numerex Corp., 2008 WL 4778133 (S.D.N.Y. Oct. 31, 2008) Nature of Case: Breach of contract Electronic Data Involved:  ESI E-Discovery Issue: Where defendant/successor corporation acquired computer and server utilized by plaintiff/predecessor corporation in pre-acquisition operation of predecessor company but plaintiff asserted privilege as to certain pre-acquisition documents in response to subpoena from defendant, court ruled documents were protected by privilege, despite presence on acquired hardware, where plaintiff removed allegedly privileged and personal documents prior to defendant’s access and control of hardware and thus had a reasonable expectation of privacy; court ordered production of non-privileged materials and categorical privilege log and declined to sanction plaintiff for removal of documents from acquired hardware where plaintiff acted to preserve the documents and agreed to produce non-privileged material Case Summary: Not Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Privilege

Case Citation: Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006) Nature of Case: Employment discrimination Electronic Data Involved:  ESI E-Discovery Issue: This order constitutes the parties’ stipulated Electronic Discovery Plan and Order to Preserve Evidence, which includes definitions of various terms and sets out a number of discovery “protocols” Case Summary: Not Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; Motion for Preservation Order; Early Conference/Discovery Plan; Data Preservation; Mirror Image; Cost Shifting; Format of Production

Case Citation: Palgut v. City of Colo. Springs, 2007 WL 4277564 (D. Colo. Dec. 3, 2007) Nature of Case: Employment discrimination Electronic Data Involved:  ESI, backup tapes E-Discovery Issue: Ruling on a number of discovery motions, court found that plaintiff failed to meet her burden of proof for third party computer forensic expert to be appointed by court to examine defendant’s computer system, that trigger date for duty to preserve was date plaintiff’s litigation hold letter was received by defendant, and that search of inaccessible backup tapes was not warranted since cost of restoration outweighed the possible yield of relevant information Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 26(b)(2)(C) Limitations; Motion to Compel; Motion for Sanctions; Data Preservation; Inspection; Spoliation; Keyword Search; Appointed Expert; Backup Tapes

Case Citation: Paul v. USIS Commercial Servs., Inc. Slip Copy, 2007 WL 2727222 (D. Colo. Sept. 17, 2007) Nature of Case: Putative class action under Fair Credit Reporting Act Electronic Data Involved:  Information in all databases maintained by defendant, any and all e-mail, and other broad categories of information E-Discovery Issue: Court denied defendant’s post-trial motion for reimbursement of $292,000 incurred to preserve large volume of ESI as demanded by plaintiff at outset of litigation, finding that plaintiffs’ demand, while arguably unreasonable, was not so abusive as to warrant sanctions; court noted that, where plaintiff demanded preservation of huge amounts of ESI and parties were not able to agree on narrowed scope of information to be preserved, defendant, “like all parties, was left to make a reasonable judgment about what information must be preserved” Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Cost Shifting

Case Citation: Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Amer. Secs., LLC, 2010 WL 93124 (S.D.N.Y. Jan. 11, 2010) Nature of Case: Action to recover losses stemming from liquidation of hedge funds Electronic Data Involved:  ESI E-Discovery Issue: In a lengthy opinion addressing the duty to preserve and spoliation, the court discussed in detail the relevant levels of culpability, burdens of proof, and available remedies and, setting forth a detailed description of each plaintiffs’ discovery failures, found that one group of plaintiffs was grossly negligent in failing to uphold their discovery obligations and that a second group was only negligent; as to grossly negligent plaintiffs, court ordered an adverse inference and monetary sanctions but as to negligent plaintiffs ordered only monetary sanctions; two plaintiffs were also ordered to search backup tapes Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Backup Tapes; Lack of Cooperation / Inaccurate Representations

Case Citation: Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) Nature of Case: Wrongful arrest, violation of civil rights, excessive force Electronic Data Involved:  Video of arrest E-Discovery Issue: Where city failed to have a back-up system in place to ensure the preservation of data and thus recklessly lost relevant video of defendant’s arrest “due to glitches in its newly installed digital video system” in violation of its duty to preserve, court noted the prejudice to the defendant resulting from the loss of the “best evidence of what occurred” and, as a sanction, designated as established for purposes of the case “that the arresting officers used unreasonable force to affect the arrest of [defendant]” Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Peskoff v. Faber, 244 F.R.D. 54 (D.D.C. 2007) Nature of Case: Fraud and related claims Electronic Data Involved:  Emails and other ESI E-Discovery Issue: Where production raised many questions as to its completion and sufficiency of searches performed, court concluded that it was appropriate to ascertain the cost of forensic testing of computers and server at issue to see if forensic search was justified; magistrate judge ordered parties to collaborate with him on request for proposals seeking bids from qualified forensic computer technicians to perform the examination Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 37(e) Safe Harbor; FRCP 26(b)(2)(C) Limitations; Motion to Compel; Third Party Discovery; Data Preservation; Cost Shifting; Records Retention Policy; Backup Media Recycling; Keyword Search; Backup Tapes; Format of Production; Deleted Data

Case Citation: Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008) Nature of Case: Fraud and related claims Electronic Data Involved:  Email and other ESI E-Discovery Issue: Given that need for forensic examination was directly attributable to what was and was not done by defendant to preserve ESI, court found that expense of examination was not so “undue” as to justify deviation from traditional presumption and shift some or all of cost to requesting party; court ordered defendant to pay estimated cost of forensic examination ($33,000) into court’s registry so court could pay vendor as invoices were received Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 26(b)(2)(C) Limitations; Motion to Compel; Motion for Protective Order; Data Preservation; Cost Shifting; Records Retention Policy; Backup Media Recycling; Appointed Expert; Backup Tapes; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009) Nature of Case: Patent infringement Electronic Data Involved:  Email, ESI E-Discovery Issue: Where plaintiff offered no direct evidence of spoliation but inferred spoliation based on the absence of evidence produced and where defendant explained that its document retention policy was based on its employees’ judgment regarding what to keep and preserve, court found defendant culpable for spoliation based on insufficient document management and determined sanctions were warranted; court reserved order regarding specific sanctions upon finding that prejudice could not be determined until the close of discovery Case Summary: Available Attributes: FRCP 37(e) Safe Harbor; Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation

Case Citation: Phillips v. Potter, 2009 WL 1362049 (W.D. Pa. May 14, 2009) Nature of Case: Violations of Title VII and breach of contract Electronic Data Involved:  ESI E-Discovery Issue: Where defendants failed to timely place a litigation hold and where electronic evidence was subsequently destroyed by an automatic deletion system, court declined to impose sanctions upon plaintiff’s failure to show that the evidence destroyed was relevant to her claims Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982460 (S.D. Fla. Apr. 9, 2009) Nature of Case: Claims arising from breach of confidentiality agreement Electronic Data Involved:  Email, ESI E-Discovery Issue: Where defendants discovered 10,000 responsive documents one month before trial and printed and then deleted that information pursuant to the terms of a Confidentiality Agreement requiring the information be destroyed before producing the printed copies, court found that defendant had failed to carry out its discovery obligations and ordered additional discovery and monetary sanctions but declined to order terminating sanctions where defendant’s behavior was result of negligence and not intentional or in bad faith; recognizing concerns regarding the completeness of defendant’s production, court ordered plaintiffs be allowed access to defendant’s backup system to verify that all responsive materials had been produced Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Inspection; Spoliation

Case Citation: Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009) Nature of Case: Employment discrimination Electronic Data Involved:  ESI E-Discovery Issue: Court found plaintiff’s objections to defendants’ production in pdf format “without merit” where plaintiff failed to specify the preferred format of production and where absent such specification “pdf format…is presumptively a ‘reasonably useable form’” and similarly dismissed plaintiff’s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff’s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay Case Summary: Not Available Attributes: FRCP 34(b) Procedure or Format; Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Format of Production

Case Citation: Realnetworks, Inc. v. DVD Copy Control Assoc., Inc., 2009 WL 1258970 (N.D. Cal. May 5, 2009) Nature of Case: Declaratory judgment Electronic Data Involved:  Email, ESI E-Discovery Issue: Where, despite plaintiffs’ failure to specify each technology individually, plaintiffs’ preservation order was deemed sufficient because the instructions to preserve utilized terminology customarily used within the company to refer a category of technologies, including those at issue, court nonetheless ordered parties to negotiate stipulated Preservation Order going forward; court ordered monetary sanctions for failure to preserve prior employee’s notebook, but declined to order sanctions for plaintiff’s alleged instructions to employees to delete emails absent evidence that employees willfully deleted emails after the preservation order was issued and where one employee at issue testified that emails subject to preservation were not among those deleted and where a second employee at issue deleted emails prior to duty to preserve and subsequently located back up drive with substantial number of non-email documents Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Reeves v. Case W. Univ., 2009 WL 3242049 (N.D. Ohio Sept. 30, 2009) Nature of Case: Employment discrimination Electronic Data Involved:  ESI E-Discovery Issue: Where it remained “entirely unclear” that defendant performed a “full and thorough search” for responsive ESI, court ordered defendant to perform a “comprehensive examination of all electronic storage” and to provide certification of the search to plaintiff; as sanction for “failing to even search for certain evidence,” court prohibited defendant from re-filing its motion for summary judgment as to two of plaintiff’s claims Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Remedy Intelligent Staffing, Inc. v. Metro. Employment Corp. of Am., 2008 WL 5156609 (D. Mass. Dec. 5, 2008) Nature of Case: Trademark infringement Electronic Data Involved:  ESI, hard drives E-Discovery Issue: Court declined to order preliminary injunction requiring defendants to image hard drives for production and to produce copies of all electronic files related to the action where plaintiff alleged that defendants destroyed ESI on plaintiff’s server but did not state who deleted it or how, and where plaintiff failed to show the information was not available elsewhere or that ample protection was not provided by the preservation obligations under the Federal Rules or the rules of the American Arbitration Association Case Summary: Not Available Attributes: TRO; Data Preservation; Mirror Image; Lack of Cooperation / Inaccurate Representations

Case Citation: Rhoades v. Young Women’s Christian Assoc. of Greater Pittsburgh, 2009 WL 3319820 (W.D. Pa. Oct. 14, 2009) Nature of Case: Violations of Equal Pay Act and Fair Labor Standards Act Electronic Data Involved:  ESI, Privileged ESI E-Discovery Issue: Where defendant inadvertently produced 4 privileged documents (among over 1600 total) as the result of an administrative error following a careful review of the documents for production and where defendants sought the return of those document only five days later, court found privilege had not been waived; court found request for “versions of all emails sent by or to Plaintiff” and several other persons unduly burdensome where the request covered more than seven years of email and did not specify the topics of the information sought Case Summary: Not Available Attributes: FRCP 26(b)(5)(B) or FRE 502; FRCP 26(b)(2)(C) Limitations; Motion to Compel; Data Preservation; Privilege

Case Citation: S. New England Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82 (D. Conn. 2008) (Second Amended Ruling) Nature of Case: Plaintiff alleged that defendant misrouted long-distance traffic of certain circuits not designated for such traffic, thereby depriving SNET of applicable access charges, and failed to pay required access charges Electronic Data Involved:  Financial records E-Discovery Issue: Based on defendants’ willful failure to comply with court’s discovery orders and continuing pattern of discovery abuse, including deliberate use of “Window Washer” disk wiping software and “Disk Defragmenter” utility to frustrate forensic examination of computer hard drive, court concluded that lesser sanctions would not deter defendants from further discovery misconduct and entered $5,247,781 default judgment against defendants, and awarded attorneys’ fees and costs of $645,760 Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Mirror Image; Spoliation; Deleted Data; Metadata; Lack of Cooperation / Inaccurate Representations

Case Citation: Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009) Nature of Case: Failure to accomodate Electronic Data Involved:  Email E-Discovery Issue: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position. Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Backup Tapes

Case Citation: Se. Mech. Servs., Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009) Nature of Case:   Electronic Data Involved:  ESI on hand held devices E-Discovery Issue: Where defendants failed to preserve data on their handheld devices and were found to have deleted the data in bad faith, court declined to order terminating sanctions but ordered an adverse inference instruction to be given at trial Case Summary: Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Smith v. Cafe Asia, 246 F.R.D. 19 (D.D.C. 2007) Nature of Case: Sexual harassment Electronic Data Involved:  Graphic images stored on plaintiff’s cell phone E-Discovery Issue: Balancing defendant’s need for the images against plaintiff’s valid privacy concerns, court ordered plaintiff to preserve images stored on cell phone and permit inspection by one attorney designated by defendant only so far as necessary to fully inform its discovery and trial preparation; issue of admissibility of the images was left for trial court to decide Case Summary: Available Attributes: Motion to Compel; Data Preservation

Case Citation: Smith v. Silfer Smith & Frampton/ Vail Assoc. Real Estate, LLC, 2009 WL 482603 (D. Colo. Feb. 25, 2009) Nature of Case: Breach of statutory duties, negligence per se, negligent misrepresentation, and fraud, among others Electronic Data Involved:  ESI E-Discovery Issue: Despite the lack of a “smoking gun establishing who caused the loss of data on the two computers” and dueling testimony of the parties’ experts regarding whether spoliation occurred, magistrate judge found that defendants failed to preserve evidence and acted in bad faith to destroy evidence and recommended adverse inference in favor of plaintiffs; magistrate’s finding of spoliation was “primarily based upon” highly-suspect timing of use of wiping software and the timing of the reformatting of another relevant PC; recognizing prejudice to plaintiff, magistrate still declined to recommend terminating sanctions where such sanctions are considered a “weapon of last, rather than first, resort” – court adopted magistrate’s recommendations Case Summary: Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Mirror Image; Spoliation

Case Citation: Starbucks Corp. v. ADT Security Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009 Nature of Case: Breach of contract Electronic Data Involved:  ESI E-Discovery Issue: Court declined to find archived emails “not reasonably accessible” where IT manager “exaggerated reasons and exaggerated expenses” as to the emails’ inacessability and where despite such claims the defendant corporation continued to utilize the allegedly “cumbersome” system in its business operations; even if emails were found inaccessible, court noted there was good cause to compel the emails’ production “considering the factors set out in Rule 26(b)(2)(C),” specifically that the emails were created during a time which resulted in their storage on the “cumbersome” system, that the amount in controversy was significant, that both parties had substantial resources, and that plaintiff made an effort to limit the burden of production by limiting the number of custodians and providing search terms for filtering Case Summary: Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 26(b)(2)(C) Limitations; Motion to Compel; Data Preservation; Records Retention Policy; Lack of Cooperation / Inaccurate Representations

Case Citation: Stratienko v. Chatanooga-Hamilton County Hosp. Auth., 2009 WL 2168717 (E.D. Tenn. July 16, 2009) Nature of Case: Action arising from physical altercation resulting in plaintiff’s suspension from work Electronic Data Involved:  ESI, hard drive E-Discovery Issue: Court denied defendants’ objections to magistrate’s finding that sanctions were warranted (including a possible adverse inference) where defendants delayed production of relevant notes for four years and where, despite a duty to preserve based upon specific requests for the hard drive at issue, defendants re-imaged the drive rendering the information thereon unavailable, and where the information stored on defendants’ network was also unavailable Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D. Tex. Aug. 8, 2008) 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 E-Discovery Issue: 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 Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Mirror Image; Spoliation; Deleted Data; Metadata; Lack of Cooperation / Inaccurate Representations

Case Citation: Superior Prod. P’ship d/b/a PBSI v. Gordon Auto Body Parts Co, Ltd, 2009 WL 690603 (S.D. Ohio Mar. 12, 2009) Nature of Case: Predatory pricing Electronic Data Involved:  Email, ESI E-Discovery Issue: Acknowledging the reasonableness of plaintiff’s suspicion that information may have been lost in light of defendants’ failure to immediately institute a litigation hold and in light of their admitted failure to immediately search all potentially relevant sources of responsive material, court nonetheless denied plaintiff’s motion for sanctions where plaintiff failed to present evidence that any relevant information had actually been lost or destroyed as a result of defendants’ failures and in light of defendants’ remedial efforts, including conducting additional searches and notifying employees of the litigation hold Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation

Case Citation: Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365 (D. Va. 2009) Nature of Case: Patent infringement Electronic Data Involved:  ESI E-Discovery Issue: Where plaintiff failed to issue a litigation hold, court ordered plaintiff to issue a litigation hold as to those personnel likely to possess discoverable evidence and to file a sworn declaration describing whether any files had been lost, the methods use to determine the existence of such a loss, the extend of the loss, and the nature of the litigation hold placed in response to the present order; court found plaintiff’s production of documents “problematic” where it failed to organize the production according to Rule 34 and ordered plaintiff to “amend” its production to comply; acknowledging that “the identities of those in control of certain documents is information that may be as relevant as the documents’ [substance]”, court ordered search and production of President’s documents despite claims that those documents were produced from other custodians Case Summary: Not Available Attributes: FRCP 34(b) Procedure or Format; Motion to Compel; Data Preservation; Format of Production

Case Citation: Tango Transp., LLC v. Transp. Int. Pool, Inc., 2009 WL 3254882 (W.D. La. Oct. 8, 2009) Nature of Case: Contract dispute Electronic Data Involved:  Emails, other ESI E-Discovery Issue: Where defendant established plaintiff’s breach of its duty to preserve emails by failing to timely issue litigation hold notices to all “key players” but failed to establish defendants’ bad faith or the relevance of the lost messages, court declined to impose adverse inference sanctions but ordered monetary sanctions, including defendant’s attorneys fees associated with the motion Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. Mar. 19, 2009) Nature of Case: Dispute over sales commissions Electronic Data Involved:  ESI, email E-Discovery Issue: Where forensic examination of defendant’s computer system revealed the deletion of 70,000 files and that several relevant email folders had been moved to the recycle bin during the pendency of litigation, and where the timing of the deletions were “more than coincidental”, court held that Fed. R. Civ. P. 37(e) would not protect defendants from the intentional deletion of electronically stored information and ruled that sanctions were warranted; a determination of sanctions was delayed until trial Case Summary: Available Attributes: FRCP 37(e) Safe Harbor; Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Telequest Int’l Corp. v. Dedicated Business Sys., Inc., 2009 WL 690996 (D.N.J. Mar. 11, 2009) Nature of Case: Claims of fraud, misappropriation of confidential and proprietary information, breach of fiduciary duties, and breach of contract Electronic Data Involved:  ESI, contents of hard drive E-Discovery Issue: Where forensic examination of defendant’s hard drive revealed the deletion of electronic evidence using wiping software and where at the time of the deletion defendant was subject to a duty to preserve, court declined to impose default judgment but ordered an adverse inference and monetary sanctions in an amount to be determined Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation

Case Citation: Thermodyne Corp. v. 3M Co., 593 F. Supp. 2d 972 (N.D. Ohio 2008) Nature of Case: Theft of trade secrets Electronic Data Involved:  Email, ESI E-Discovery Issue: 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 Case Summary: Not Available Attributes: Motion for Sanctions; Data Preservation; Spoliation; Deleted Data

Case Citation: Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008) Nature of Case: Defamation, tortious interference with prospective economic advantage and civil conspiracy Electronic Data Involved:  Email stored on backup tapes; laptop E-Discovery Issue: Given defendants’ failure to adequately preserve relevant ESI, court granted motion to compel production of email from certain backup tapes but declined to impose adverse inference instruction since plaintiff failed to demonstrate that lost ESI would have supported his claims; court further ordered defendants to produce CEO’s laptop so that plaintiff’s expert could conduct thorough forensic search, at defendants’ expense, for any additional relevant emails that CEO may have deleted Case Summary: Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Mirror Image; Cost Shifting; Records Retention Policy; Backup Media Recycling; Keyword Search; Backup Tapes; Deleted Data

Case Citation: Triton Constr. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115 (Del. Ch. May, 18, 2009) Nature of Case: Breach of fiduciary duty by working simultaneously for direct competitor Electronic Data Involved:  Email, ESI E-Discovery Issue: Finding that defendant should have expected litigation upon his resignation to accept employment with a competitor, court found that defendant “intentionally, or at a minimum recklessly destroyed or failed to preserve evidence” by installing wiping software to target specific files for overwriting, by deleting thousands of files and folders as well as emails, and by failing to produce his home computer or portable thumb drive without adequate explanation; court allowed adverse inference that missing information would have supported plaintiff’s position “on any issue to which that information was relevant” Case Summary: Not Available Attributes: Data Preservation; Mirror Image; Spoliation

Case Citation: U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D. Fla. Nov. 26, 2007) Nature of Case: Breach of contract, account stated, open account, and unjust enrichment Electronic Data Involved:  2004 emails that plaintiff claimed were “unloadable” due to a computer error following a server change that occurred prior to litigation E-Discovery Issue: Court deferred ruling on defendant’s motion to compel inspection of hard drives of plaintiff’s computers pending non-party’s production of 2004 emails responsive to defendant’s subpoena; court also deferred ruling on sanctions issue, directing plaintiff to submit affidavit of corporate representative detailing 1) why the subject 2004 emails were “unloadable” and 2) efforts the company had undertaken to retrieve the information Case Summary: Available Attributes: FRCP 37(e) Safe Harbor; Motion to Compel; Motion for Protective Order; Third Party Discovery; Motion for Sanctions; Data Preservation; Mirror Image

Case Citation: U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008) Nature of Case: Breach of contract, account stated, open account, and unjust enrichment Electronic Data Involved:  Computer hard drives of plaintiff’s employees E-Discovery Issue: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner Case Summary: Not Available Attributes: FRCP 26(b)(2)(B) “Not Reasonably Accessible”; FRCP 26(b)(2)(C) Limitations; Early Conference/Discovery Plan; Motion to Compel; Motion for Sanctions; Data Preservation; Cost Shifting; Records Retention Policy; Inspection; Appointed Expert; Deleted Data; Lack of Cooperation / Inaccurate Representations

Case Citation: UMG Recordings, Inc. v. Doe, 2008 WL 2949427 (N.D. Cal. July 30, 2008) Nature of Case: Copyright infringement through use of peer-to-peer (“P2P”) networking Electronic Data Involved:  ISP logs; documents and ESI sufficient to identify defendant’s true name, current and permanent addresses and telephone numbers, email addresses, and Media Access Control addresses E-Discovery Issue: Where plaintiffs made prima facie showing of infringement, there was no other way to identify Doe defendant, and there was risk that ISP would destroy its logs prior to Rule 26(f) conference, court found that need for expedited discovery outweighed prejudice to defendant and granted plaintiffs’ motion for leave to take immediate discovery Case Summary: Not Available Attributes: Early Conference/Discovery Plan; Third Party Discovery; Data Preservation

Case Citation: United Med. Supply Co., Inc. v. United States, 77 Fed. Cl. 257 (2007) Nature of Case: Federal Claims Court action Electronic Data Involved:  Hard copy documents and ESI E-Discovery Issue: Where government’s failure to take effective steps to preserve documents and to prevent further spoliation transcended any form of negligence, and constituted, at the least, reckless disregard of its duty to preserve relevant evidence, court concluded that (monetary and evidentiary) spoliation sanctions were appropriate notwithstanding lack of demonstrated bad faith Case Summary: Available Attributes: FRCP 37(e) Safe Harbor; Motion for Sanctions; Data Preservation; Records Retention Policy; Spoliation; Lack of Cooperation / Inaccurate Representations

Case Citation: United States v. Magnesium Corp. of Am., 2006 WL 2350155, (D. Utah Aug. 11, 2006) Nature of Case: RCRA Electronic Data Involved:  Electronic and hard copy evidence E-Discovery Issue: Court entered reciprocal preservation order in the form suggested by defendants, where government indicated it has no reason to believe that defendants were destroying documents but also noted that litigation’s Phase III could occur as late as 2009, and government wanted to ensure that relevant documents were not inadvertently destroyed as part of the defendants’ document retention policy Case Summary: Available Attributes: Data Preservation; Records Retention Policy

Case Citation: United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008) Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests Electronic Data Involved:  Hard copy and electronic files E-Discovery Issue: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms Case Summary: Not Available Attributes: FRCP 34(b) Procedure or Format; FRCP 37(e) Safe Harbor; Data Preservation; Keyword Search; Format of Production; Metadata

Case Citation: Wendle Motors, Inc. v. Honkala, 2006 WL 3842146 (E.D. Wash. Dec. 29, 2006) Nature of Case: Plaintiff claimed damage to its goodwill and business reputation based upon Internet postings regarding a particular vehicle Electronic Data Involved:  ESI E-Discovery Issue: Court’s preliminary injunction included the following provision: “Pending resolution of this litigation, the Defendants shall not destroy, delete, or alter electronically stored file information.” Case Summary: Not Available Attributes: TRO; Data Preservation

Case Citation: Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D. Cal. Sept. 18, 2007) Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud Electronic Data Involved:  Email and other electronic documents E-Discovery Issue: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct Case Summary: Not Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Records Retention Policy; Backup Media Recycling; Keyword Search; Appointed Expert; Lack of Cooperation / Inaccurate Representations

Case Citation: Woodburn Const. Co. v. Encon Pacific, LLC, 2007 WL 1287845 (W.D. Wash. Apr. 30, 2007) Nature of Case: Construction litigation Electronic Data Involved:  ESI E-Discovery Issue: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion Case Summary: Not Available Attributes: Motion to Compel; Motion for Sanctions; Data Preservation; Records Retention Policy; Inspection; Spoliation; Keyword Search; Backup Tapes; Format of Production; Metadata; Lack of Cooperation / Inaccurate Representations