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Document Retention and Destruction
United States v. Laurent, 2010 U.S. App. LEXIS 12449 (1st Cir. N.H. June 17, 2010).
A police department's routine erasure of a video surveillance tape did not create an inference that the tape was destroyed because it contained evidence favorable to the defendant.
A police department's routine erasure of a video surveillance tape did not create an inference that the tape was destroyed because it contained evidence favorable to the defendant.
Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982 (W.D.N.Y. Mar. 31, 2010).
Although plaintiff was grossly negligent in allowing destruction of documents after failing to implement a litigation hold, defendant was not entitled to dismissal of plaintiff's case or an adverse inference. Plaintiff did not act in bad faith, and defendant had not yet shown it had been prejudiced by the failure to preserve relevant electronic documents.
Although plaintiff was grossly negligent in allowing destruction of documents after failing to implement a litigation hold, defendant was not entitled to dismissal of plaintiff's case or an adverse inference. Plaintiff did not act in bad faith, and defendant had not yet shown it had been prejudiced by the failure to preserve relevant electronic documents.
Ahroner v. Israel Discount Bank of New York, 2010 N.Y. Misc. LEXIS 525 (N.Y. Sup. Ct. 2010).
The court struck as improper plaintiff's notice to defendant to admit that hard drives of five employees had not been preserved. After six years of discovery, admitting that hard drives had been erased would require further discovery to determine if a spoliation instruction was needed while acknowledging that information on the hard drives still was available would prompt additional discovery requests.
The court struck as improper plaintiff's notice to defendant to admit that hard drives of five employees had not been preserved. After six years of discovery, admitting that hard drives had been erased would require further discovery to determine if a spoliation instruction was needed while acknowledging that information on the hard drives still was available would prompt additional discovery requests.
Actionlink, LLC v. Sorgenfrei, 2010 U.S. Dist. LEXIS 6703 (N.D. Ohio Jan. 27, 2010).
Defendant's motion for summary judgment on plaintiff's spoliation claim was denied because a computer forensic expert's affidavit provided support for plaintiff's theory that defendant, prior to returning plaintiff's laptop and leaving to work for a competitor, downloaded files from the laptop, took action to overwrite the hard drive, and then copied some files back on to the hard drive.
Defendant's motion for summary judgment on plaintiff's spoliation claim was denied because a computer forensic expert's affidavit provided support for plaintiff's theory that defendant, prior to returning plaintiff's laptop and leaving to work for a competitor, downloaded files from the laptop, took action to overwrite the hard drive, and then copied some files back on to the hard drive.
Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 U.S. Dist. LEXIS 15489 (S.D.N.Y. Feb. 22, 2010).
Adverse inference sanctions were imposed against six plaintiffs or plaintiff groups in a federal securities action that was stayed and then transferred to the Southern District of New York. Those plaintiffs were grossly negligent in responding to discovery requests because they failed while the stay was in effect to meet standards set by the Southern District Zubulake decisions for preserving electronically stored information.
Adverse inference sanctions were imposed against six plaintiffs or plaintiff groups in a federal securities action that was stayed and then transferred to the Southern District of New York. Those plaintiffs were grossly negligent in responding to discovery requests because they failed while the stay was in effect to meet standards set by the Southern District Zubulake decisions for preserving electronically stored information.
Brosnan v. Tradeline Solutions, Inc., 2010 U.S. Dist. LEXIS 3408 (N.D. Cal. Jan. 15, 2010).
Defendant's motion for summary judgment was granted because plaintiff's contention that his evidence was destroyed when defendant's counsel slammed plaintiff's laptop shut and crushed a memory card was not supported by any evidence.
Defendant's motion for summary judgment was granted because plaintiff's contention that his evidence was destroyed when defendant's counsel slammed plaintiff's laptop shut and crushed a memory card was not supported by any evidence.
IMG Fragrance Brands, LLC v. Houbigant, Inc., 2009 U.S. Dist. LEXIS 119486 (S.D.N.Y. Dec. 18, 2009).
Plaintiff's request for a permanent injunction barring defendant from destroying records was denied because plaintiff already was protected by general rules of discovery and defendant was obligated to maintain litigation holds.
Plaintiff's request for a permanent injunction barring defendant from destroying records was denied because plaintiff already was protected by general rules of discovery and defendant was obligated to maintain litigation holds.
Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 U.S. Dist. LEXIS 101104 (E.D. Wis. Oct. 15, 2009).
Although the mayor of defendant city testified at deposition that "hard drives are being deleted as we speak," plaintiff’s motion for sequestration of defendant's electronic storage equipment was denied in order to avoid intrusive searches and unnecessary disruptions. The court stated its expectation that the parties would hold "open and candid" discussions on completing discovery of defendants' electronically stored information.
Although the mayor of defendant city testified at deposition that "hard drives are being deleted as we speak," plaintiff’s motion for sequestration of defendant's electronic storage equipment was denied in order to avoid intrusive searches and unnecessary disruptions. The court stated its expectation that the parties would hold "open and candid" discussions on completing discovery of defendants' electronically stored information.
Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 2009 U.S. Dist. LEXIS 95909 (D.N.J. Oct. 14, 2009).
A letter from defendants' counsel regarding plaintiffs' duty to preserve evidence did not provide plaintiffs with authority to secretly copy computer files on defendants' computer system.
A letter from defendants' counsel regarding plaintiffs' duty to preserve evidence did not provide plaintiffs with authority to secretly copy computer files on defendants' computer system.
Scalera v. Electrograph Systems, Inc., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009).
Filing of a worker's compensation claim by a disabled employee did not trigger the employer's duty to preserve electronically stored information relevant to the employee's later disability discrimination claim. The employee alleged in her discrimination action that the employer failed to accommodate her request for a handrail that might have prevented the injury underlying the worker's compensation claim, but the employer denied that the employee had ever requested installation of the handrail to accommodate her disability.
Filing of a worker's compensation claim by a disabled employee did not trigger the employer's duty to preserve electronically stored information relevant to the employee's later disability discrimination claim. The employee alleged in her discrimination action that the employer failed to accommodate her request for a handrail that might have prevented the injury underlying the worker's compensation claim, but the employer denied that the employee had ever requested installation of the handrail to accommodate her disability.
Swofford v. Eslinger, 2009 U.S. Dist. LEXIS 111064 (M.D. Fla. Sept. 28, 2009).
A Sheriff's Office that did nothing to preserve evidence following receipt of two letters from counsel for plaintiff was sanctioned with adverse inferences relating to lost email and radios and to a deputy's laptop computer that was erased. In-house counsel for the Office was ordered with the defendants to pay plaintiff's fees and costs incurred due to their sanctionable conduct.
A Sheriff's Office that did nothing to preserve evidence following receipt of two letters from counsel for plaintiff was sanctioned with adverse inferences relating to lost email and radios and to a deputy's laptop computer that was erased. In-house counsel for the Office was ordered with the defendants to pay plaintiff's fees and costs incurred due to their sanctionable conduct.
Ferron v. Echostar Satellite, LLC, 2009 U.S. Dist. LEXIS 66637 (S.D. Ohio July 29, 2009).
No sanctions were ordered for defendant's failure to maintain links in emails that plaintiff claimed were improper commercial advertisements. Plaintiff failed to show that defendant had control over the linked websites or that the "lost" electronic information of the links was relevant and needed by plaintiff to support his claims.
No sanctions were ordered for defendant's failure to maintain links in emails that plaintiff claimed were improper commercial advertisements. Plaintiff failed to show that defendant had control over the linked websites or that the "lost" electronic information of the links was relevant and needed by plaintiff to support his claims.
Statera, Inc. v. Henrickson, 2009 U.S. Dist. LEXIS 68891 (D. Colo. July 17, 2009).
Former employees who set up a business in competition with their employer were temporarily restrained from deleting email from any of their email accounts after a computer forensic expert determined the employees had used the employer's computers to download confidential files and then installed, ran, and deleted an anti-forensics software shredder on those computers.
Former employees who set up a business in competition with their employer were temporarily restrained from deleting email from any of their email accounts after a computer forensic expert determined the employees had used the employer's computers to download confidential files and then installed, ran, and deleted an anti-forensics software shredder on those computers.
Innis Arden Golf Club v. Pitney Bowes, Inc., “Innis Arden II”, 2009 U.S. Dist. LEXIS 54135 (D. Conn. June 26, 2009).
Plaintiff's experts on causation in an environmental cleanup action were disqualified as unreliable because they failed to consider alternative sources of contaminants on plaintiff's property. Also, their results could not be replicated because soil samples and data concerning the samples had been destroyed and remediation prevented the gathering of further soil samples. Defendants were granted summary judgment due to plaintiff's resulting lack of evidence of causation.
Plaintiff's experts on causation in an environmental cleanup action were disqualified as unreliable because they failed to consider alternative sources of contaminants on plaintiff's property. Also, their results could not be replicated because soil samples and data concerning the samples had been destroyed and remediation prevented the gathering of further soil samples. Defendants were granted summary judgment due to plaintiff's resulting lack of evidence of causation.
White v. Fuji Photo Film USA, Inc., 2009 U.S. Dist. LEXIS 45555 (S.D.N.Y. June 1, 2009).
Defendant was under no obligation to preserve plaintiff’s personal work computer files during plaintiff's retaliatory employment termination action because "plaintiff never requested access to her personal computer information for discovery" and plaintiff had forwarded email and documents from her work computer to her home computer.
Defendant was under no obligation to preserve plaintiff’s personal work computer files during plaintiff's retaliatory employment termination action because "plaintiff never requested access to her personal computer information for discovery" and plaintiff had forwarded email and documents from her work computer to her home computer.
Plunk v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009).
The court denied defendants’ motion to extend discovery in order to obtain another expert who could issue an opinion contrary to plaintiffs’ expert who provided an opinion that wiping programs were installed and may have been used on defendants’ computers. Allowing defendants to withdraw their first expert who could not conclude there had been no wiping would be unfair to plaintiffs.
The court denied defendants’ motion to extend discovery in order to obtain another expert who could issue an opinion contrary to plaintiffs’ expert who provided an opinion that wiping programs were installed and may have been used on defendants’ computers. Allowing defendants to withdraw their first expert who could not conclude there had been no wiping would be unfair to plaintiffs.
Synventive Molding Solutions, Inc. v. Husky Injection Molding Systems, Inc., 2009 U.S. Dist. LEXIS 105306 (D. Vt. Mar. 13, 2009).
Although it was "technically accurate" that the Federal Rules of Civil Procedure did not require litigation holds, case law has established that litigants must suspend their normal document retention procedures in order to preserve relevant documents.
Although it was "technically accurate" that the Federal Rules of Civil Procedure did not require litigation holds, case law has established that litigants must suspend their normal document retention procedures in order to preserve relevant documents.
Acorn v. County of Nassau, 2009 U.S. Dist. LEXIS 19459 (E.D.N.Y. Mar. 9, 2009).
Although a county was grossly negligent in waiting to implement a litigation hold until after its motion to dismiss was denied, the court declined to impose sanctions beyond plaintiff’s costs and attorney fees in seeking sanctions. Plaintiffs failed to show that any electronic data that may have been deleted due to the lack of a litigation hold would have supported plaintiffs’ claims.
Although a county was grossly negligent in waiting to implement a litigation hold until after its motion to dismiss was denied, the court declined to impose sanctions beyond plaintiff’s costs and attorney fees in seeking sanctions. Plaintiffs failed to show that any electronic data that may have been deleted due to the lack of a litigation hold would have supported plaintiffs’ claims.
Ellington Credit Fund, Ltd. v. Select Portfolio Services, Inc., 2009 U.S. Dist. LEXIS 7905 (S.D.N.Y. Feb. 3, 2009).
Plaintiffs’ motion for lifting a stay of discovery was denied because plaintiffs had not verified their claim that defendants had destroyed electronic evidence and defendants represented that a litigation hold remained in place to avoid destruction of any relevant files.
Plaintiffs’ motion for lifting a stay of discovery was denied because plaintiffs had not verified their claim that defendants had destroyed electronic evidence and defendants represented that a litigation hold remained in place to avoid destruction of any relevant files.
Stone v. Lockheed Martin Corp., 2009 U.S. Dist. LEXIS 12105 (D. Colo. Feb. 2, 2009).
Plaintiff’s emergency motion for an order requiring preservation of evidence by defendants was denied because plaintiff failed to assert that it had sent a litigation hold letter to defendants and failed to attach a copy of the letter to the emergency motion.
Plaintiff’s emergency motion for an order requiring preservation of evidence by defendants was denied because plaintiff failed to assert that it had sent a litigation hold letter to defendants and failed to attach a copy of the letter to the emergency motion.
J&M Associates v. National Union Fire Ins. Co., 2008 U.S. Dist. LEXIS 97542 (S.D. Cal. Dec. 2, 2008).
Contrary to plaintiff’s argument that there is no obligation to preserve email until service of a document request for the email, “it is clear that a party has a duty to preserve all potentially relevant documents, including e-mails, once a lawsuit is reasonably probable or filed.” Plaintiff was ordered to produce its personal computers and servers to defendant to allow defendant’s computer forensics expert to attempt to recover, at defendant’s expense, responsive email deleted from the computers or servers.
Contrary to plaintiff’s argument that there is no obligation to preserve email until service of a document request for the email, “it is clear that a party has a duty to preserve all potentially relevant documents, including e-mails, once a lawsuit is reasonably probable or filed.” Plaintiff was ordered to produce its personal computers and servers to defendant to allow defendant’s computer forensics expert to attempt to recover, at defendant’s expense, responsive email deleted from the computers or servers.
In re Zurn Pex Plumbing Products Liability Litigation, 2008 U.S. Dist. LEXIS 96356 (D. Minn. Nov. 26, 2008).
Plaintiffs were granted permission to depose a corporate representative of defendant regarding document retention and possible spoliation during the two years between a risk of litigation identified by defendant’s general counsel and a document preservation notice issued by defendant once litigation began.
Plaintiffs were granted permission to depose a corporate representative of defendant regarding document retention and possible spoliation during the two years between a risk of litigation identified by defendant’s general counsel and a document preservation notice issued by defendant once litigation began.
Almarri v. Gates, 2008 U.S. Dist. LEXIS 77517 (D.S.C. Oct. 2, 2008).
An order requiring the government to preserve evidence was unnecessary because once the government became aware of its loss of potential evidence, it issued preservation directives to maintain remaining evidence.
An order requiring the government to preserve evidence was unnecessary because once the government became aware of its loss of potential evidence, it issued preservation directives to maintain remaining evidence.
Citizens for Responsibility & Ethics in Washington v. Cheney, "Cheney l", 2008 U.S. Dist. LEXIS 71359 (D.D.C. Sept. 20, 2008).
After determining there was no legal basis for the Vice President’s narrow definition of his statutory duty to preserve documents, the court ordered the Vice President and his office to preserve all documentary material relating to official or ceremonial duties of the Vice President pending the outcome of litigation concerning the Vice President’s documents.
After determining there was no legal basis for the Vice President’s narrow definition of his statutory duty to preserve documents, the court ordered the Vice President and his office to preserve all documentary material relating to official or ceremonial duties of the Vice President pending the outcome of litigation concerning the Vice President’s documents.
Buckley v. Mukasey, 2008 U.S. App. LEXIS 17721 (4th Cir. Aug. 20, 2008).
The failure of plaintiff to obtain a court order barring the government from continuing its normal document destruction program did not excuse the government’s failure to place a litigation hold on document destruction.
The failure of plaintiff to obtain a court order barring the government from continuing its normal document destruction program did not excuse the government’s failure to place a litigation hold on document destruction.
Levine v. Reader's Digest Ass'n, 2008 U.S. Dist. LEXIS 47341 (S.D.N.Y. June 10, 2008).
Plaintiff was not entitled to an adverse inference instruction against his former employer for not retaining email because the employer had no document retention policy when plaintiff’s employment was terminated and the employer was not put on notice of potential litigation relating to the termination.
Plaintiff was not entitled to an adverse inference instruction against his former employer for not retaining email because the employer had no document retention policy when plaintiff’s employment was terminated and the employer was not put on notice of potential litigation relating to the termination.
Treppel v. Biovail Corp., "Treppel II", 2008 U.S. Dist. LEXIS 25867 (S.D.N.Y. Apr. 2, 2008).
Following completion of discovery, defendants were found to have failed to preserve electronic data properly and were ordered to restore additional backup tapes and to pay for forensic examination of a chief executive officer’s laptop.
Following completion of discovery, defendants were found to have failed to preserve electronic data properly and were ordered to restore additional backup tapes and to pay for forensic examination of a chief executive officer’s laptop.
Texas v. City of Frisco, 2008 U.S. Dist. LEXIS 24353 (E.D. Tex. Mar. 27, 2008).
A state’s request for a protective order and declaratory judgment as to its obligations to preserve electronic evidence under Fed. R. Civ. P. 26(f) and 34 was dismissed. A notice of potential litigation against the state requesting preservation of electronic evidence did not present an actual controversy that would confer jurisdiction on the court to make a ruling.
A state’s request for a protective order and declaratory judgment as to its obligations to preserve electronic evidence under Fed. R. Civ. P. 26(f) and 34 was dismissed. A notice of potential litigation against the state requesting preservation of electronic evidence did not present an actual controversy that would confer jurisdiction on the court to make a ruling.
Wells v. Berger, Newmark & Fenchel, P.C., 2008 U.S. Dist. LEXIS 21608 (N.D. Ill. Mar. 18, 2008).
A law firm that allowed a partner accused of sexual harassment to continue working on his computer for over a year without preserving discoverable evidence on the computer was sanctioned through an instruction to be read to the jury before opening arguments. The jury would be instructed that it would not see alleged pornographic images or sexually explicit jokes and that neither the law firm nor the partner took steps to preserve the partner's computer records and email.
A law firm that allowed a partner accused of sexual harassment to continue working on his computer for over a year without preserving discoverable evidence on the computer was sanctioned through an instruction to be read to the jury before opening arguments. The jury would be instructed that it would not see alleged pornographic images or sexually explicit jokes and that neither the law firm nor the partner took steps to preserve the partner's computer records and email.
United States v. O'Keefe, 2008 U.S. Dist. LEXIS 12220 (D.D.C. Feb. 18, 2008).
Citing Fed. R. Civ. P. 37(e) as an analogue, the court held that the government in a criminal case did not violate the Due Process Clause if it destroyed electronic evidence pursuant to a neutral policy and without any evidence of bad faith "if the evidence was destroyed before the defendants raised the possibility that it was exculpatory and the government had no objective reason to believe that it was exculpatory."
Citing Fed. R. Civ. P. 37(e) as an analogue, the court held that the government in a criminal case did not violate the Due Process Clause if it destroyed electronic evidence pursuant to a neutral policy and without any evidence of bad faith "if the evidence was destroyed before the defendants raised the possibility that it was exculpatory and the government had no objective reason to believe that it was exculpatory."
Eckhardt v. Bank of America, N.A., 2008 U.S. Dist. LEXIS 5172 (W.D.N.C. Jan. 9, 2008).
Plaintiff's discovery through depositions that there were responsive documents that defendant claimed to no longer possess led the court to order defendant to certify it had made a thorough search of its records and to disclose what not readily accessible documents might be stored in backup media.
Plaintiff's discovery through depositions that there were responsive documents that defendant claimed to no longer possess led the court to order defendant to certify it had made a thorough search of its records and to disclose what not readily accessible documents might be stored in backup media.
Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007).
A county that continued to save electronic data in a "virtually inaccessible format" even after suit was filed against the county and that did not place a litigation hold on document destruction was negligent. However, a default judgment or adverse inferences were not warranted because plaintiffs had not shown that any lost or destroyed email was favorable or relevant to plaintiffs' claims.
A county that continued to save electronic data in a "virtually inaccessible format" even after suit was filed against the county and that did not place a litigation hold on document destruction was negligent. However, a default judgment or adverse inferences were not warranted because plaintiffs had not shown that any lost or destroyed email was favorable or relevant to plaintiffs' claims.
Marketfare Annunciation, LLC v. United Fire & Casualty Ins. Co., 2007 U.S. Dist. LEXIS 81830 (E.D. La. Nov. 5, 2007).
The court declined to sanction an insurer for failing to place a litigation hold on files and denied plaintiffs' request to search the insurer's databases at the insurer's expense because trial was imminent and plaintiffs had not sought the search until just before the close of discovery.
The court declined to sanction an insurer for failing to place a litigation hold on files and denied plaintiffs' request to search the insurer's databases at the insurer's expense because trial was imminent and plaintiffs had not sought the search until just before the close of discovery.
United States v. Fumo, 2007 U.S. Dist. LEXIS 79454 (E.D. Pa. Oct. 26, 2007).
A motion to dismiss federal obstruction of justice charges based on alleged destruction of electronic evidence was denied. The defendant lacked standing to claim the statute was vague because he knew of an ongoing investigation in which the documents would be relevant, and he failed to support his constitutionally overbroad argument with facts showing a substantial number of instances of unconstitutional applications of the statute.
A motion to dismiss federal obstruction of justice charges based on alleged destruction of electronic evidence was denied. The defendant lacked standing to claim the statute was vague because he knew of an ongoing investigation in which the documents would be relevant, and he failed to support his constitutionally overbroad argument with facts showing a substantial number of instances of unconstitutional applications of the statute.
Citizens for Responsibility & Ethics v. Executive Office of the President, "Citizens l", 2007 U.S. Dist. LEXIS 97574 (D.D.C. Oct. 19, 2007).
Despite a White House declaration that all backup media at the White House would be preserved, a magistrate judge recommended entry of an order requiring maintenance of the backup media.
Despite a White House declaration that all backup media at the White House would be preserved, a magistrate judge recommended entry of an order requiring maintenance of the backup media.
LR5-A L.P. v. Meadow Creek, LLC, 2007 Mass. Super. LEXIS 509 (Mass. Super. Ct. Oct. 16, 2007).
An emergency motion for an order directing a defendant to stop deleting email from his computer was denied. The court noted that it would be more prudent for defendant not to delete email, but his counsel and presumably the defendant were aware of possible penalties if spoliation occurred.
An emergency motion for an order directing a defendant to stop deleting email from his computer was denied. The court noted that it would be more prudent for defendant not to delete email, but his counsel and presumably the defendant were aware of possible penalties if spoliation occurred.
M&T Mortgage Corp. v. Miller, 2007 U.S. Dist. LEXIS 60610 (E.D.N.Y. Aug. 17, 2007).
In an action by consumers, a mortgage company's obligation to preserve documents arose when a consumer protection agency earlier filed a complaint against the company with "strikingly similar" allegations.
In an action by consumers, a mortgage company's obligation to preserve documents arose when a consumer protection agency earlier filed a complaint against the company with "strikingly similar" allegations.
In re Kmart Corp., 2007 Bankr. LEXIS 2541 (Bankr. N.D. Ill. Jul. 31, 2007).
While the filing of a claim in a bankruptcy action did not per se trigger a duty of the debtor to begin a litigation hold, the size of the claim and the potential causes of action asserted by the claimant were sufficient to put the debtor on notice of the need to preserve documents.
While the filing of a claim in a bankruptcy action did not per se trigger a duty of the debtor to begin a litigation hold, the size of the claim and the potential causes of action asserted by the claimant were sufficient to put the debtor on notice of the need to preserve documents.
United States v. Krause (In re Krause), 2007 Bankr. LEXIS 1937 (Bankr. D. Kan. June 4, 2007).
Continuing use of a computer security program that erased files was not within the "safe harbor" provision under recently-amended Fed. R. Civ. P.37(f) barring sanctions for loss of electronic evidence through routine computer operations, and a debtor was threatened with incarceration if he did not comply with the court's discovery order.
Continuing use of a computer security program that erased files was not within the "safe harbor" provision under recently-amended Fed. R. Civ. P.37(f) barring sanctions for loss of electronic evidence through routine computer operations, and a debtor was threatened with incarceration if he did not comply with the court's discovery order.
Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 (D. Colo. Mar. 2, 2007).
A demand letter from plaintiff's counsel that invited negotiations to resolve a trademark dispute was not explicit enough to trigger defendant's obligation to preserve evidence. However, following the filing of the complaint, defendant's routine procedure for wiping computer hard drives could not be permitted to result in making data no longer reasonably accessible and required to be provided within the meaning of Fed. R. Civ. P. 26(b)(2)(B).
A demand letter from plaintiff's counsel that invited negotiations to resolve a trademark dispute was not explicit enough to trigger defendant's obligation to preserve evidence. However, following the filing of the complaint, defendant's routine procedure for wiping computer hard drives could not be permitted to result in making data no longer reasonably accessible and required to be provided within the meaning of Fed. R. Civ. P. 26(b)(2)(B).
Floeter v. City of Orlando, "Floeter II", 2007 U.S. Dist. LEXIS 9527 (M.D. Fla. Feb. 9, 2007).
Sanctions against a city were not warranted because loss of a hard drive from a computer that was replaced was not in bad faith and did not prejudice plaintiff's claims. Despite loss of the city's computer, plaintiff had other evidence, including email sent to him, to support his claims.
Sanctions against a city were not warranted because loss of a hard drive from a computer that was replaced was not in bad faith and did not prejudice plaintiff's claims. Despite loss of the city's computer, plaintiff had other evidence, including email sent to him, to support his claims.
In re NTL, Inc. Securities Litigation, 2007 U.S. Dist. LEXIS 6198 (S.D.N.Y. Jan. 30, 2007).
A company was sanctioned for spoliation because it failed to meet litigation hold requirements extending to documents that the company had access to through an agreement with a successor company following bankruptcy. The sanctions included an adverse inference instruction concerning destroyed email of 44 key employees and payment of attorney fees and costs of plaintiffs who sought production of the email.
A company was sanctioned for spoliation because it failed to meet litigation hold requirements extending to documents that the company had access to through an agreement with a successor company following bankruptcy. The sanctions included an adverse inference instruction concerning destroyed email of 44 key employees and payment of attorney fees and costs of plaintiffs who sought production of the email.
Phillips v. Netblue, Inc., 2007 U.S. Dist. LEXIS 67404 (N.D. Cal. Jan. 22, 2007).
While plaintiff was obligated to preserve electronic evidence in his possession, he was not obligated to gather all available electronic evidence.
While plaintiff was obligated to preserve electronic evidence in his possession, he was not obligated to gather all available electronic evidence.
Miller v. Holzmann, "Miller II", 2007 U.S. Dist. LEXIS 2987 (D.D.C. Jan. 17, 2007).
Although the government's loss of documents that should have been retained for anticipated litigation was sanctionable, the magistrate judge recommended denial of motions to dismiss pending trial when the effect of the loss of documents could be determined.
Although the government's loss of documents that should have been retained for anticipated litigation was sanctionable, the magistrate judge recommended denial of motions to dismiss pending trial when the effect of the loss of documents could be determined.
Roberts v. Canadian Pacific Railway Ltd., 2007 U.S. Dist. LEXIS 2441 (D. Minn. Jan. 11, 2007).
Plaintiff's motion on an expedited basis to depose defendant's computer forensics expert concerning possible recovery of email apparently destroyed by defendant was granted. Although defendant anticipated that the case would be dismissed for lack of jurisdiction, the court held that "an attempt to suborn the fact-finding process [was] an affront to the Court, even if there will ultimately be no fact-finding."
Plaintiff's motion on an expedited basis to depose defendant's computer forensics expert concerning possible recovery of email apparently destroyed by defendant was granted. Although defendant anticipated that the case would be dismissed for lack of jurisdiction, the court held that "an attempt to suborn the fact-finding process [was] an affront to the Court, even if there will ultimately be no fact-finding."
Gibson v. Ford Motor Co., 2007 U.S. Dist. LEXIS 226 (N.D. Ga. Jan. 4, 2007).
Defendant was not required to provide plaintiff with a copy of a litigation hold issued to defendant's employees because the document likely was attorney work product and litigation holds should be encouraged rather than discouraged.
Defendant was not required to provide plaintiff with a copy of a litigation hold issued to defendant's employees because the document likely was attorney work product and litigation holds should be encouraged rather than discouraged.
In re Celexa & Lexapro Products Liability Litigation, 2006 U.S. Dist. LEXIS 91590 (E.D. Mo. Nov. 13, 2006).
In multidistrict litigation concerning adverse reactions by users of two antidepressants, plaintiffs agreed to entry of an order requiring preservation of their computer hard drives, cell phones and instant messaging devices used within a year of a suicide or suicide attempt alleged to have resulted from use of the antidepressants.
In multidistrict litigation concerning adverse reactions by users of two antidepressants, plaintiffs agreed to entry of an order requiring preservation of their computer hard drives, cell phones and instant messaging devices used within a year of a suicide or suicide attempt alleged to have resulted from use of the antidepressants.
Del Campo v. Kennedy, 2006 U.S. Dist. LEXIS 66728 (N.D. Ca. Sept. 8, 2006).
After the attorney for a debt collection service stated the service would maintain its routine telephone recordings for only two weeks, the court granted plaintiff's motion for preservation of documents and ordered the parties to develop a document preservation plan.
After the attorney for a debt collection service stated the service would maintain its routine telephone recordings for only two weeks, the court granted plaintiff's motion for preservation of documents and ordered the parties to develop a document preservation plan.
Frey v. Gainey Transportation Services, Inc., 2006 U.S. Dist. LEXIS 59316 (N.D. Ga. Aug. 22, 2006).
Defendant failed to halt normal destruction of satellite tracking records following receipt before suit was filed of a 15-page list of demands for preservation of evidence. However, sanctions against defendant were denied because other evidence of defendant's negligence was available for plaintiff and the satellite tracking information was not relevant to plaintiff's claims.
Defendant failed to halt normal destruction of satellite tracking records following receipt before suit was filed of a 15-page list of demands for preservation of evidence. However, sanctions against defendant were denied because other evidence of defendant's negligence was available for plaintiff and the satellite tracking information was not relevant to plaintiff's claims.
United States v. Magnesium Corporation of America,, 2006 U.S. Dist. LEXIS 56506 (D. Utah Aug. 11, 2006).
In actions to be conducted in three phases with the third phase of discovery and trial possibly occurring three years later, the government and defendants were ordered to preserve all documents in their possession relevant to claims or defenses of any party until the litigation was completed.
In actions to be conducted in three phases with the third phase of discovery and trial possibly occurring three years later, the government and defendants were ordered to preserve all documents in their possession relevant to claims or defenses of any party until the litigation was completed.
Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 U.S. Dist. LEXIS 66642 (M.D. La. Jul. 19, 2006).
Based on Zubulake IV standards, a federal court in Louisiana determined that a party should have begun a litigation hold on email once it sent a demand letter to another party. However, adverse inferences were not appropriate sanctions because it was not shown that evidence was destroyed in bad faith.
Based on Zubulake IV standards, a federal court in Louisiana determined that a party should have begun a litigation hold on email once it sent a demand letter to another party. However, adverse inferences were not appropriate sanctions because it was not shown that evidence was destroyed in bad faith.
Samsung Electronics Co., Ltd. v. Rambus Inc., 2006 U.S. Dist. LEXIS 50007 (E.D. Va. Jul. 18, 2006).
Court ruled that that a patentee's document retention policy that targeted discoverable documents for destruction while patentee anticipated litigation was spoliation. However, the court declined to exercise its discretion to assess fees of the patentee's opponent because the patentee terminated its claims sufficiently early so that it would not be unjust for the opponent to bear its own litigation costs.
Court ruled that that a patentee's document retention policy that targeted discoverable documents for destruction while patentee anticipated litigation was spoliation. However, the court declined to exercise its discretion to assess fees of the patentee's opponent because the patentee terminated its claims sufficiently early so that it would not be unjust for the opponent to bear its own litigation costs.
Fischer v. UPS Co., 2006 U.S. Dist. LEXIS 21047 (E.D. Mich. Apr. 19, 2006).
Despite defendant's position that a missing email attachment was irrelevant, a plaintiff who had worked as an account manager and alleged defendant fired him due to racial discrimination was entitled to a telephone conference with a person in defendant's technology services group who was familiar with defendant's efforts to locate the attachment.
Despite defendant's position that a missing email attachment was irrelevant, a plaintiff who had worked as an account manager and alleged defendant fired him due to racial discrimination was entitled to a telephone conference with a person in defendant's technology services group who was familiar with defendant's efforts to locate the attachment.
Kemper Mortgage, Inc. v. Russell, 2006 U.S. Dist. LEXIS 20729 (S.D. Ohio Apr. 18, 2006).
A court declined to decide whether plaintiff had a duty to make a mirror image of its computer hard drives as a form of a litigation hold or, if there was such a duty, to require defendant to share in the cost of making the mirror image.
A court declined to decide whether plaintiff had a duty to make a mirror image of its computer hard drives as a form of a litigation hold or, if there was such a duty, to require defendant to share in the cost of making the mirror image.
Afremov v. Amplatz, 2006 Minn. App. Unpub. LEXIS 39 (Ct. App. Minn. Jan. 10, 2006).
In an unpublished opinion, sanctions against an attorney following the deletion or archiving of email just prior to the turnover of a computer ordered by the court were set aside. The attorney was entitled to due process and notice before proceedings to consider sanctions against him for his out-of-court activities.
In an unpublished opinion, sanctions against an attorney following the deletion or archiving of email just prior to the turnover of a computer ordered by the court were set aside. The attorney was entitled to due process and notice before proceedings to consider sanctions against him for his out-of-court activities.
Hynix Semiconductor, Inc. v. Rambus Inc., 2006 U.S. Dist. LEXIS 30690 (N.D. Cal. Jan. 5, 2006).
A company that instituted a document retention policy with annual shred days as part of its patent licensing and litigation program did not engage in spoliation of evidence because the document retention policy was not designed to destroy particular damaging documents.
A company that instituted a document retention policy with annual shred days as part of its patent licensing and litigation program did not engage in spoliation of evidence because the document retention policy was not designed to destroy particular damaging documents.
Holt v. Northwestern Mut. Life Ins. Co., 2005 U.S. Dist. LEXIS 35976 (W.D. Mich. Nov. 30, 2005).
A plaintiff's claim of spoliation by defendant due to defendant's failure to retain and produce "email envelopes" for attachments was rejected because the attachments were produced and a corporation was not required to retain documents not known to be relevant to litigation.
A plaintiff's claim of spoliation by defendant due to defendant's failure to retain and produce "email envelopes" for attachments was rejected because the attachments were produced and a corporation was not required to retain documents not known to be relevant to litigation.
Tantivy Communications, Inc. v. Lucent Technologies Inc., 2005 U.S. Dist. LEXIS 29981 (E.D. Tex. Nov. 1, 2005).
Defendant and its attorneys engaged in sanctionable conduct by trying to "hide the ball" and producing documents only after completion of most discovery and expert reports.
Defendant and its attorneys engaged in sanctionable conduct by trying to "hide the ball" and producing documents only after completion of most discovery and expert reports.
In re Tri-State Armored Services, Inc., 2005 Bankr. LEXIS 1985 (D.N.J. Oct 3, 2005).
A claim by a trustee in bankruptcy that an insurer seeking to rescind policies issued to the bankrupt engaged in spoliation of evidence was dismissed. Although elements of a claim for spoliation or fraudulent concealment arguably were shown, no damage resulted from the insurer's handling of evidence.
A claim by a trustee in bankruptcy that an insurer seeking to rescind policies issued to the bankrupt engaged in spoliation of evidence was dismissed. Although elements of a claim for spoliation or fraudulent concealment arguably were shown, no damage resulted from the insurer's handling of evidence.
Ball v. Versar Inc., 2005 U.S. Dist. LEXIS 24351 (S.D. Ind. Sept. 23, 2005).
Trustees were ordered to provide access by a defendant's technical consultant to all work and home computer systems known to have been used by a trustee over an eight-year period following the trustees' failure to meet their "well settled" obligation to retain discoverable evidence once they reasonably anticipated litigation.
Trustees were ordered to provide access by a defendant's technical consultant to all work and home computer systems known to have been used by a trustee over an eight-year period following the trustees' failure to meet their "well settled" obligation to retain discoverable evidence once they reasonably anticipated litigation.
Heng Chan v. Triple 8 Palace, 2005 U.S. Dist. LEXIS 16520 (S.D.N.Y. Aug. 11, 2005).
In an action alleging failure to comply with labor laws, ongoing destruction of relevant evidence after litigation was commenced was grossly negligent, according to the court, and plaintiffs were entitled to an adverse inference jury instruction and costs and attorney fees.
In an action alleging failure to comply with labor laws, ongoing destruction of relevant evidence after litigation was commenced was grossly negligent, according to the court, and plaintiffs were entitled to an adverse inference jury instruction and costs and attorney fees.
Broccoli v. Echostar Communs. Corp., 2005 U.S. Dist. LEXIS 16000 (Md. August 4, 2005).
Employee who was awarded judgment in breach of contract claim against employer was entitled to reasonable attorney's fees and costs, as employer's bad faith actions of failing to suspend its email and data destruction policy or preserve essential personnel documents resulted in gross spoliation and was prejudicial to the employee's ability to litigate his claim.
Employee who was awarded judgment in breach of contract claim against employer was entitled to reasonable attorney's fees and costs, as employer's bad faith actions of failing to suspend its email and data destruction policy or preserve essential personnel documents resulted in gross spoliation and was prejudicial to the employee's ability to litigate his claim.
Arthur Andersen LLP v. United States, 2005 U.S. LEXIS 4348 (May 31, 2005).
A unanimous Supreme Court reversed the conviction of an accounting firm for document destruction that followed directions to carry out the firm's document retention policy.
A unanimous Supreme Court reversed the conviction of an accounting firm for document destruction that followed directions to carry out the firm's document retention policy.
Liebert Corp. v. John Mazur, 2005 Ill. App. LEXIS 310 (Ill. App. Ct. Apr. 5, 2005).
Unexplained deletion of an application log by a former employee that would have shown whether he had copied trade secret information from his laptop to a CD led an appellate court to presume the information was copied to a CD. The court thus remanded the case to have the employee enjoined from using the trade secret information in a business competing with his former employer.
Unexplained deletion of an application log by a former employee that would have shown whether he had copied trade secret information from his laptop to a CD led an appellate court to presume the information was copied to a CD. The court thus remanded the case to have the employee enjoined from using the trade secret information in a business competing with his former employer.
E*Trade Secs. LLC v. Deutsche Bank AG, 2005 U.S. Dist. LEXIS 3021 (D. Minn. Feb. 17, 2005).
In response to a plaintiff's claim that a defendant securities firm had turned "the litigation process into a sport of dirty tricks," a federal magistrate has recommended that sanctions in the form of an adverse jury instruction should be imposed on the defendant.
In response to a plaintiff's claim that a defendant securities firm had turned "the litigation process into a sport of dirty tricks," a federal magistrate has recommended that sanctions in the form of an adverse jury instruction should be imposed on the defendant.
Hypro, LLC v. Reser, 2004 U. S. Dist. LEXIS 25191 (D. Minn. Dec. 10, 2004).
A temporary restraining order requiring that parties protect and preserve evidence was issued following allegations that an executive retrieved his company laptop allegedly under false pretenses and deleted information relevant to his involvement with a competing company he had set up.
A temporary restraining order requiring that parties protect and preserve evidence was issued following allegations that an executive retrieved his company laptop allegedly under false pretenses and deleted information relevant to his involvement with a competing company he had set up.
MOSAID Techs. Inc. v. Samsung Elecs. Co., MOSAID Techs. III, 2004 U.S. dist. LEXIS 25286 (D. N.J. Dec. 7, 2004).
Defendant's willful blindness to its obligation to preserve potentially relevant digital information justified monetary sanctions and an adverse inference jury instruction.
Defendant's willful blindness to its obligation to preserve potentially relevant digital information justified monetary sanctions and an adverse inference jury instruction.
Housing Rights Center v. Sterling,, 2004 U.S. Dist. LEXIS 28877 (C.D. Cal. Dec. 6, 2004).
Plaintiffs in a housing discrimination action were granted an adverse inference jury instruction and attorney fees and costs following the failure of apartment building owners to preserve documents and implement a litigation hold. Production of responsive email only on the last day for discovery was not adequately explained by counsel's assertion that the building owners were not aware there was a backup system in place for their email.
Plaintiffs in a housing discrimination action were granted an adverse inference jury instruction and attorney fees and costs following the failure of apartment building owners to preserve documents and implement a litigation hold. Production of responsive email only on the last day for discovery was not adequately explained by counsel's assertion that the building owners were not aware there was a backup system in place for their email.
Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 2004 U.S. Dist. LEXIS 10016 (W.D. Pa. Apr. 21, 2004).
A court announced a three-factor balancing test to decide motions to preserve documents under Fed. R. Civ. P. 34.
A court announced a three-factor balancing test to decide motions to preserve documents under Fed. R. Civ. P. 34.
Rambus, Inc. v. Infineon Technologies, 2004 U.S. Dist. LEXIS 4577 (E.D. Va. Mar. 17, 2004).
Court assesses validity of plaintiff's document retention and destruction plan. Plaintiff claims plan was instituted to avoid review and production costs associated with keeping too much data for too long.
Court assesses validity of plaintiff's document retention and destruction plan. Plaintiff claims plan was instituted to avoid review and production costs associated with keeping too much data for too long.
Zubulake v. UBS Warburg LLC,, 2003 U.S. Dist. LEXIS 18771 (S.D.N.Y., Oct. 22, 2003).
Court considers the scope of a litigant's duty to preserve electronic documents (particularly backup tapes) and the consequences of a failure to preserve documents that fall within the scope of that duty in the fourth in a series of opinions issued resolving discovery disputes.
Court considers the scope of a litigant's duty to preserve electronic documents (particularly backup tapes) and the consequences of a failure to preserve documents that fall within the scope of that duty in the fourth in a series of opinions issued resolving discovery disputes.
Kier v. UnumProvident Corp., 2003 U.S. Dist. LEXIS 14522 (S.D.N.Y. Aug. 22, 2003).
Court describes insufficient steps taken by defendant to preserve email and other computer data after entry of prior order requiring preservation of specific emails contained on backup tapes.
Court describes insufficient steps taken by defendant to preserve email and other computer data after entry of prior order requiring preservation of specific emails contained on backup tapes.
Cobell v. Norton,, 2003 U.S. Dist. LEXIS 12833 (D. D.C. July 28, 2003).
Court orders disconnection of systems from Internet to prohibit destruction of computer data.
Court orders disconnection of systems from Internet to prohibit destruction of computer data.
Landmark Legal Foundation v. EPA, 2003 U.S. Dist. LEXIS 12684 (D. D.C. July 24, 2003).
Environmental Protection Agency held in civil contempt of preliminary injunction ordered to prevent destruction of responsive computer materials, including materials on hard drives and backup tapes.
Environmental Protection Agency held in civil contempt of preliminary injunction ordered to prevent destruction of responsive computer materials, including materials on hard drives and backup tapes.
Positive Software Solutions, Inc. v. New Century Mortg. Corp.,, 2003 U.S. Dist. LEXIS 7659 (N.D. Tex. May 2, 2003).
Existing backups and images of servers must be preserved, and party must refrain from deleting computer files while discovery is stayed pending arbitration of underlying claims.
Existing backups and images of servers must be preserved, and party must refrain from deleting computer files while discovery is stayed pending arbitration of underlying claims.
Madden v. Wyeth, 2003 U.S. Dist. LEXIS 6427 (N.D. Tex. Apr. 16, 2003).
Court refuses to enter order requiring halting of routine document retention and destruction protocols; finds no evidence that injunctive relief is required.
Court refuses to enter order requiring halting of routine document retention and destruction protocols; finds no evidence that injunctive relief is required.
United States v. Crim. Triumph Capital Group, 2002 U.S. Dist. LEXIS 21615 (D. Conn. November 4, 2002).
Copying of hard drive did not violate limitations of search and seizure warrant for laptop computer and methodology used to examine hard drive files was proper.
Copying of hard drive did not violate limitations of search and seizure warrant for laptop computer and methodology used to examine hard drive files was proper.
Gorgen Co. v. Brecht, 2002 Minn. App. LEXIS 539 (Minn. Ct. App. May 14, 2002).
A temporary restraining order requiring a company to maintain electronic documents was dissolved because the order, based on an attorney's conclusory allegations of unfair competitive actions did not include facts to suggest that immediate and irreparable harm would result without the order.
A temporary restraining order requiring a company to maintain electronic documents was dissolved because the order, based on an attorney's conclusory allegations of unfair competitive actions did not include facts to suggest that immediate and irreparable harm would result without the order.
Chidichimo v. University of Chicago Press, 289 Ill. App. 3d 6 (Ill. App. Ct. 1997).
The bar of the Illinois Workers Compensation Act against any action for damages resulting from a workplace injury required dismissal of a widow's action claiming spoliation of evidence by an employer that continued its routine destruction of employee computer records.
The bar of the Illinois Workers Compensation Act against any action for damages resulting from a workplace injury required dismissal of a widow's action claiming spoliation of evidence by an employer that continued its routine destruction of employee computer records.
Armstrong v. Bush, 1992 U.S. Dist. LEXIS 17950 (D.C. November 20, 1992).
A temporary restraining order was granted to journalists seeking to prevent officials of the executive branch of the United States from erasing any material stored on an electronic communication system.
A temporary restraining order was granted to journalists seeking to prevent officials of the executive branch of the United States from erasing any material stored on an electronic communication system.
Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443 (C.D. Cal. 1984).
Dismissal of defendant's counterclaim and entry of a default judgment for plaintiff was warranted due to defendant's repeated failures to comply with discovery orders and defendant's destruction of documents that would have supported plaintiff's claim.
Dismissal of defendant's counterclaim and entry of a default judgment for plaintiff was warranted due to defendant's repeated failures to comply with discovery orders and defendant's destruction of documents that would have supported plaintiff's claim.
