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Delgado-O'Neil v. City of Minneapolis, 2010 U.S. Dist. LEXIS 78927 (D. Minn. Aug. 4, 2010).
Plaintiff's motion for spoliation sanctions was denied because sufficient remaining evidence was available to show that plaintiff was not prejudiced by defendant's destruction of a file.
Plaintiff's motion for spoliation sanctions was denied because sufficient remaining evidence was available to show that plaintiff was not prejudiced by defendant's destruction of a file.
Grubb v. Board of Trustees of the University of Illinois, 2010 U.S. Dist. LEXIS 78485 (N.D. Ill. Aug. 4, 2010).
Bad faith of plaintiff – who "knew how to turn his laptop on but knew little else about how computers work" – was not shown and spoliation sanctions were denied because "wiping" of the laptop he was using was carried out by plaintiff's organization rather than by plaintiff. Also, there was no evidence that there was usable data on the laptop when plaintiff was instructed by counsel for the organization to stop using the laptop pending a check on the access history of the laptop.
Bad faith of plaintiff – who "knew how to turn his laptop on but knew little else about how computers work" – was not shown and spoliation sanctions were denied because "wiping" of the laptop he was using was carried out by plaintiff's organization rather than by plaintiff. Also, there was no evidence that there was usable data on the laptop when plaintiff was instructed by counsel for the organization to stop using the laptop pending a check on the access history of the laptop.
Peal v. Lee, 2010 Ill. App. LEXIS 760 (Ill. App. Ct. 1st Dist. July 30, 2010).
An appellate court affirmed dismissal of plaintiff's lawsuit as a sanction for deleting electronic files from his computer with sophisticated data-wiping programs just prior to meeting a court-ordered deadline for producing the computer for examination.
An appellate court affirmed dismissal of plaintiff's lawsuit as a sanction for deleting electronic files from his computer with sophisticated data-wiping programs just prior to meeting a court-ordered deadline for producing the computer for examination.
Antonio v. Security Services of America, LLC, 2010 U.S. Dist. LEXIS 72148 (D. Md. July 16, 2010).
A magistrate judge properly inferred lost email was relevant because defendant "acted with more than gross negligence" in failing to save computers and in converting a local network onto a newer platform at the offices of defendant's parent company.
A magistrate judge properly inferred lost email was relevant because defendant "acted with more than gross negligence" in failing to save computers and in converting a local network onto a newer platform at the offices of defendant's parent company.
Medcorp, Inc. v. Pinpoint Technologies, Inc., 2010 U.S. Dist. LEXIS 68532 (D. Colo. June 15, 2010).
Sanctions against plaintiff for destruction of hard drives were limited to an adverse inference jury instruction and reasonable fees and costs for defendant. Dismissal was not an appropriate sanction because plaintiff's conduct was negligent rather than intentional.
Sanctions against plaintiff for destruction of hard drives were limited to an adverse inference jury instruction and reasonable fees and costs for defendant. Dismissal was not an appropriate sanction because plaintiff's conduct was negligent rather than intentional.
Edington v. Madison Coal & Supply Co., 2010 U.S. Dist. LEXIS 56033 (E.D. Ky. June 4, 2010).
Spoliation sanctions for failure to preserve GPS data at the time of an accident were denied because there was no regulation or law requiring activation of the data preservation system.
Spoliation sanctions for failure to preserve GPS data at the time of an accident were denied because there was no regulation or law requiring activation of the data preservation system.
Genworth Financial Wealth Management, Inc. v. McMullan, 2010 U.S. Dist. LEXIS 53145 (D. Conn. June 1, 2010).
Defendants were ordered to pay 80% of the cost of an independent computer forensics expert appointed by the court to image defendants' electronic storage devices. One of the defendants admitted that he threw out the personal computer on which he downloaded plaintiff's proprietary information.
Defendants were ordered to pay 80% of the cost of an independent computer forensics expert appointed by the court to image defendants' electronic storage devices. One of the defendants admitted that he threw out the personal computer on which he downloaded plaintiff's proprietary information.
Jones v. Bremen High School District 228, 2010 U.S. Dist. LEXIS 51312 (N.D. Ill. May 25, 2010).
Defendant was grossly negligent in relying on its employees whose conduct was in question to select which of their electronic documents were relevant for production and which documents could be permanently deleted. However, due to lack of proof that defendant tried to destroy material evidence, the sanction against defendant was limited to precluding defendant from arguing that the absence of evidence in support of plaintiff's claim meant no evidence had existed.
Defendant was grossly negligent in relying on its employees whose conduct was in question to select which of their electronic documents were relevant for production and which documents could be permanently deleted. However, due to lack of proof that defendant tried to destroy material evidence, the sanction against defendant was limited to precluding defendant from arguing that the absence of evidence in support of plaintiff's claim meant no evidence had existed.
Diocese of Harrisburg v. Summix Development Co., 2010 U.S. Dist. LEXIS 49069 (M.D. Pa. May 18, 2010).
Although no bad faith was asserted, plaintiff was sanctioned with an adverse inference jury instruction. Plaintiff's continued overwriting of backup tapes for over fourteen months, including eight months after filing its complaint, made it "more probable than not" that defendants were prejudiced by plaintiff's failure to preserve email.
Although no bad faith was asserted, plaintiff was sanctioned with an adverse inference jury instruction. Plaintiff's continued overwriting of backup tapes for over fourteen months, including eight months after filing its complaint, made it "more probable than not" that defendants were prejudiced by plaintiff's failure to preserve email.
Mainfreight United States Partnership v. Marco, 2010 U.S. Dist. LEXIS 47982 (D.S.C. May 14, 2010).
After a defendant claimed that his laptop was stolen a week before service of the complaint and that he had no intention to destroy evidence by upgrading his "blackberry device," the court postponed ruling on plaintiff's motion for spoliation sanctions until trial.
After a defendant claimed that his laptop was stolen a week before service of the complaint and that he had no intention to destroy evidence by upgrading his "blackberry device," the court postponed ruling on plaintiff's motion for spoliation sanctions until trial.
Mamola v. Group Manufacturing Services, Inc., 2010 U.S. Dist. LEXIS 35433 (D. Ariz. Apr. 9, 2010).
Partial default judgments requested by both sides due to each side's loss of email after computer "crashes" were denied because neither side presented evidence that the loss of evidence was the result of "egregious conduct" of intentional or willful destruction of relevant evidence to the irreparable prejudice of the other side.
Partial default judgments requested by both sides due to each side's loss of email after computer "crashes" were denied because neither side presented evidence that the loss of evidence was the result of "egregious conduct" of intentional or willful destruction of relevant evidence to the irreparable prejudice of the other side.
Wilson v. Thorn Energy, LLC, 2010 U.S. Dist. LEXIS 47032 (S.D.N.Y. Mar. 15, 2010).
Failure to copy the flash drive of a key witness before the drive failed and was discarded was "at least grossly negligent," and defendants were precluded from offering any evidence at trial "concerning their financial records or the data allegedly contained on the flash drive."
Failure to copy the flash drive of a key witness before the drive failed and was discarded was "at least grossly negligent," and defendants were precluded from offering any evidence at trial "concerning their financial records or the data allegedly contained on the flash drive."
Jain v. Memphis Shelby County Airport Authority, 2010 U.S. Dist. LEXIS 16842 (W.D. Tenn. Feb. 25, 2010).
Plaintiff was entitled to a "permissible adverse inference" as a sanction against an airport authority and a janitorial service for failure to preserve a video tape that may have captured plaintiff's slip and fall at the airport. The janitorial service had a duty to make sure the video was preserved despite having no control over the video because the service "had notice of the possibility of litigation" as a result of its employee's incident report and its knowledge of the airport surveillance video system.
Plaintiff was entitled to a "permissible adverse inference" as a sanction against an airport authority and a janitorial service for failure to preserve a video tape that may have captured plaintiff's slip and fall at the airport. The janitorial service had a duty to make sure the video was preserved despite having no control over the video because the service "had notice of the possibility of litigation" as a result of its employee's incident report and its knowledge of the airport surveillance video system.
Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573 (S.D. Tex. Feb. 19, 2010).
After finding that defendant intentionally deleted email despite a duty to preserve documents, the court imposed a permissive adverse inference sanction against defendant and ruled that a prior judgment for defendant would not be given res judicata effect. However, more severe sanctions were not warranted because prejudice to plaintiff from the document destruction was limited. Plaintiff had access to missing information through subpoenas to third party providers, and some of the destroyed documents were favorable to defendant's position.
After finding that defendant intentionally deleted email despite a duty to preserve documents, the court imposed a permissive adverse inference sanction against defendant and ruled that a prior judgment for defendant would not be given res judicata effect. However, more severe sanctions were not warranted because prejudice to plaintiff from the document destruction was limited. Plaintiff had access to missing information through subpoenas to third party providers, and some of the destroyed documents were favorable to defendant's position.
Kwon v. Costco Wholesale Corp., 2010 U.S. Dist. LEXIS 13614 (D. Haw. Feb. 17, 2010).
Defendant's failure to preserve a videotape despite its video retention policy and plaintiff's request to preserve the videotape resulted in an adverse inference sanction. A default judgment against defendant was not warranted because plaintiff did not produce evidence that defendant acted with willfulness, fault, or bad faith.
Defendant's failure to preserve a videotape despite its video retention policy and plaintiff's request to preserve the videotape resulted in an adverse inference sanction. A default judgment against defendant was not warranted because plaintiff did not produce evidence that defendant acted with willfulness, fault, or bad faith.
TR Investors v. Genger, "TR Investors II", 2010 Del. Ch. LEXIS 19 (Del. Ch. Feb. 3, 2010).
Sanctions against defendant of $750,000 for plaintiffs' attorney fees and costs for "wiping" unallocated space on his company's computer server did not include additional attorney fees of plaintiffs that defendant was ordered to pay during a special master's investigation of document destruction by defendant.
Sanctions against defendant of $750,000 for plaintiffs' attorney fees and costs for "wiping" unallocated space on his company's computer server did not include additional attorney fees of plaintiffs that defendant was ordered to pay during a special master's investigation of document destruction by defendant.
Ascom Hasler Mailing Systems, Inc. v. United States Postal Service, 2010 U.S. Dist. LEXIS 2875 (D.D.C. Jan. 14, 2010).
In order to hold off a possible spoliation motion, the court directed the parties to prepare a joint report on documents that plaintiff had or should have and that defendant still needed.
In order to hold off a possible spoliation motion, the court directed the parties to prepare a joint report on documents that plaintiff had or should have and that defendant still needed.
Wright v. City of Salisbury, 2010 U.S. Dist. LEXIS 1181 (E.D. Mo. Jan. 7, 2010).
Defendants' motion for sanctions after plaintiff lost the original of a digital recording due to a problem with his computer was denied. Plaintiff's explanation for the loss of the original was reasonable, there was no suggestion that a saved portion of the recording was altered, and there was no evidence to dispute plaintiff's sworn statement that there was nothing in the lost portion of the recording that would have any impact on the case.
Defendants' motion for sanctions after plaintiff lost the original of a digital recording due to a problem with his computer was denied. Plaintiff's explanation for the loss of the original was reasonable, there was no suggestion that a saved portion of the recording was altered, and there was no evidence to dispute plaintiff's sworn statement that there was nothing in the lost portion of the recording that would have any impact on the case.
Gotto v. Eusebe-Carter, 2010 N.Y. App. Div. LEXIS 182 (N.Y. App. Div. 2d Dep't Jan. 5, 2010).
A trial court sanction striking defendant's answer in a medical malpractice action was reduced to an adverse inference because no negligence or intention of defendant regarding the loss of fetal monitoring data had been shown.
A trial court sanction striking defendant's answer in a medical malpractice action was reduced to an adverse inference because no negligence or intention of defendant regarding the loss of fetal monitoring data had been shown.
Vagenos v. LDG Financial Services, LLC, 2009 U.S. Dist. LEXIS 121490 (E.D.N.Y. Dec. 31, 2009).
A message on a cell phone that counsel re-recorded for evidence should have been preserved on the cell phone message system. Plaintiff was sanctioned with an adverse inference instruction to the jury that plaintiff's failure to preserve the original recording was evidence that the original recording contained information that was harmful to plaintiff's case.
A message on a cell phone that counsel re-recorded for evidence should have been preserved on the cell phone message system. Plaintiff was sanctioned with an adverse inference instruction to the jury that plaintiff's failure to preserve the original recording was evidence that the original recording contained information that was harmful to plaintiff's case.
Naylor v. Rotech Healthcare, Inc., 2009 U.S. Dist. LEXIS 120142 (D. Vt. Dec. 23, 2009).
In a matter of first impression, the court held that there was no separate cause of action under Vermont law for spoliation.
In a matter of first impression, the court held that there was no separate cause of action under Vermont law for spoliation.
Gillett v. Michigan Farm Bureau, 2009 Mich. App. LEXIS 2666 (Mich. Ct. App. Dec. 22, 2009).
Dismissal of plaintiff's action as a sanction for deleting "massive numbers of files" from his computer was affirmed. The trial court adequately considered lesser sanctions, and a "safe harbor" provision of MCR 2.313(E) for data "lost as a result of the routine, good-faith operation of an electronic information system" was not adopted until after plaintiff’s suit was filed.
Dismissal of plaintiff's action as a sanction for deleting "massive numbers of files" from his computer was affirmed. The trial court adequately considered lesser sanctions, and a "safe harbor" provision of MCR 2.313(E) for data "lost as a result of the routine, good-faith operation of an electronic information system" was not adopted until after plaintiff’s suit was filed.
Bensel v. Allied Pilots Association, 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009).
While defendant "should have moved more quickly to place litigation holds," plaintiff's motion for sanctions was denied because no bad faith of defendant in the destruction of documents had been shown.
While defendant "should have moved more quickly to place litigation holds," plaintiff's motion for sanctions was denied because no bad faith of defendant in the destruction of documents had been shown.
TR Investors v. Genger, 2009 Del. Ch. LEXIS 203 (Del. Ch. Dec. 9, 2009).
Defendant was sanctioned for "wiping" the unallocated space on his company's computer server despite a court order barring any disposal of company-related documents. The sanctions included a raised burden of proof for defendant on any defense or counterclaim, production of documents that defendant claimed were privileged, and payment of plaintiffs' reasonable attorney fees and costs, which the court suggested should be $750,000.
Defendant was sanctioned for "wiping" the unallocated space on his company's computer server despite a court order barring any disposal of company-related documents. The sanctions included a raised burden of proof for defendant on any defense or counterclaim, production of documents that defendant claimed were privileged, and payment of plaintiffs' reasonable attorney fees and costs, which the court suggested should be $750,000.
Park West Radiology v. CareCore National LLC, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009).
Defendants' motion in limine to bar plaintiffs from offering documents or testimony at trial concerning allegations of spoliation of evidence by defendants was granted because plaintiffs had not raised any claim of spoliation earlier.
Defendants' motion in limine to bar plaintiffs from offering documents or testimony at trial concerning allegations of spoliation of evidence by defendants was granted because plaintiffs had not raised any claim of spoliation earlier.
Gray v. State, 2009 Tex. App. LEXIS 8436 (Tex. App. San Antonio Nov. 4, 2009).
Defendant's appeal of his conviction based on the deletion of email to him on the victim's computer was rejected because the loss of the potentially useful email was not shown by defendant to have resulted from bad faith acts of the state.
Defendant's appeal of his conviction based on the deletion of email to him on the victim's computer was rejected because the loss of the potentially useful email was not shown by defendant to have resulted from bad faith acts of the state.
Peschel v. City of Missoula, 2009 U.S. Dist. LEXIS 98784 (D. Mont. Oct. 15, 2009).
The "loss" of an arrest video from a police car camera after the video was uploaded to a police department computer and viewed by police officers led the court to conclude as a sanction that unreasonable force was used in the arrest.
The "loss" of an arrest video from a police car camera after the video was uploaded to a police department computer and viewed by police officers led the court to conclude as a sanction that unreasonable force was used in the arrest.
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., “Coleman IV”, 2009 Fla. App. LEXIS 14934 (Fla. Dist. Ct. App. 4th Dist. Oct. 7, 2009).
Even if considered a fraud upon the court, spoliation of email that resulted in a default judgment as to liability did not support a request for a new trial on damages after a $1.58 billion verdict was reversed for failure to use the proper measure of damages. A fraud claim of any type brought under Florida Rule of Civil Procedure 1.540(b) seeking to set aside a judgment was subject to the requirement that the fraud affected the final judgment.
Even if considered a fraud upon the court, spoliation of email that resulted in a default judgment as to liability did not support a request for a new trial on damages after a $1.58 billion verdict was reversed for failure to use the proper measure of damages. A fraud claim of any type brought under Florida Rule of Civil Procedure 1.540(b) seeking to set aside a judgment was subject to the requirement that the fraud affected the final judgment.
Tango Transport, LLC v. Transport International Pool, Inc., 2009 U.S. Dist. LEXIS 93930 (W.D. La. Oct. 7, 2009).
Defendant's request for an adverse inference against plaintiff for loss of information resulting from an inadequate litigation hold was denied because defendant did not show that lost information would have been admissible and was not available elsewhere.
Defendant's request for an adverse inference against plaintiff for loss of information resulting from an inadequate litigation hold was denied because defendant did not show that lost information would have been admissible and was not available elsewhere.
Beard Research, Inc. v. Kates, “Kates II”, 2009 Del. Ch. LEXIS 170 (Del. Ch. Oct. 1, 2009).
An ex-employee and his new employers who were held jointly responsible for spoliation of possible evidence on the employee's laptop were ordered to pay $76,906.80 in plaintiff's attorney and expert fees and expenses in seeking sanctions.
An ex-employee and his new employers who were held jointly responsible for spoliation of possible evidence on the employee's laptop were ordered to pay $76,906.80 in plaintiff's attorney and expert fees and expenses in seeking sanctions.
Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009).
Defendants' motion for sanctions, described by the court as "a further example of how discovery has become a veritable 'black hole' having the potential to draw in and annihilate the case itself," was denied. Plaintiff's counsel refuted to the court's satisfaction defense counsel's contentions of spoliation, and no material prejudice to defenses of defendant had been established.
Defendants' motion for sanctions, described by the court as "a further example of how discovery has become a veritable 'black hole' having the potential to draw in and annihilate the case itself," was denied. Plaintiff's counsel refuted to the court's satisfaction defense counsel's contentions of spoliation, and no material prejudice to defenses of defendant had been established.
Chet Morrison Contractors, Inc. v. Medco Energi US LLC, 2009 U.S. Dist. LEXIS 84983 (E.D. La. Aug. 25, 2009).
A motion for an adverse inference sanction was denied because bad faith or bad conduct in alleged destruction of evidence was not shown. However, the court invited presentation of evidence during trial to show bad faith destruction of documents because trial would be before the court rather than a jury.
A motion for an adverse inference sanction was denied because bad faith or bad conduct in alleged destruction of evidence was not shown. However, the court invited presentation of evidence during trial to show bad faith destruction of documents because trial would be before the court rather than a jury.
Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009).
Defendants were ordered to produce portions of their litigation hold letters to plaintiffs because plaintiffs made a preliminary showing of spoliation by defendants.
Defendants were ordered to produce portions of their litigation hold letters to plaintiffs because plaintiffs made a preliminary showing of spoliation by defendants.
Pinstripe, Inc. v. Manpower, Inc., 2009 U.S. Dist. LEXIS 66422 (N.D. Okla. July 28, 2009).
Defendant was ordered to contribute $2500 to a county bar association to fund a program on litigation hold orders and preservation of electronic data. The sanction was imposed because defendant neglected to forward counsel's litigation hold instructions to key employees.
Defendant was ordered to contribute $2500 to a county bar association to fund a program on litigation hold orders and preservation of electronic data. The sanction was imposed because defendant neglected to forward counsel's litigation hold instructions to key employees.
Southeastern Mechanical Services, Inc. v. Brody, "Brody II", 2009 U.S. Dist. LEXIS 69830 (M.D. Fla. July 24, 2009).
Although it was "baffling" why plaintiff's litigation hold did not include suspension of routine overwriting of backup tapes, defendant was not entitled to sanctions for plaintiff's spoliation because defendant had not presented evidence that there was crucial evidence on the tapes or that the overwriting was due to bad faith.
Although it was "baffling" why plaintiff's litigation hold did not include suspension of routine overwriting of backup tapes, defendant was not entitled to sanctions for plaintiff's spoliation because defendant had not presented evidence that there was crucial evidence on the tapes or that the overwriting was due to bad faith.
KCH Services, Inc. v. Vanaire, Inc., 2009 U.S. Dist. LEXIS 62993 (W.D. Ky. July 21, 2009).
A call from a competitor's president about defendant's use of the competitor's software should have put defendant on notice of future litigation, and defendant's deletion of the software without first giving the competitor an opportunity to inspect led the court to sanction defendant with an adverse inference jury instruction.
A call from a competitor's president about defendant's use of the competitor's software should have put defendant on notice of future litigation, and defendant's deletion of the software without first giving the competitor an opportunity to inspect led the court to sanction defendant with an adverse inference jury instruction.
Goodman v. Praxair Services, Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009).
Defendant was sanctioned for destroying the laptop of a "key player" and for the key player's willful deletion of email. However, defendant was not obligated to issue a litigation hold to third party consultants or to preserve their records. Also, defendant's failure to search backup tapes did not constitute spoliation of evidence.
Defendant was sanctioned for destroying the laptop of a "key player" and for the key player's willful deletion of email. However, defendant was not obligated to issue a litigation hold to third party consultants or to preserve their records. Also, defendant's failure to search backup tapes did not constitute spoliation of evidence.
Arista Records LLC v. Usenet.com, "Usenet II", 2009 U.S. Dist. LEXIS 55237 (S.D.N.Y. June 30, 2009).
Sanctions for spoliation precluding defendant from asserting a "safe harbor" defense under the Digital Millennium Copyright Act resulted in denial of defendant’s motion for summary judgment.
Sanctions for spoliation precluding defendant from asserting a "safe harbor" defense under the Digital Millennium Copyright Act resulted in denial of defendant’s motion for summary judgment.
Electronic Funds Solutions, LLC v. Murphy, “Electronic Funds II”, 2009 Cal. App. Unpub. LEXIS 4956 (Cal. App. 4th Dist. 2009).
A second default judgment against defendants for wiping computer drives was affirmed because defendants continued after reversal of the first default judgment to fail to comply with a trial court discovery order. However, the court ordered the trial court to strike a "ruinous" $50 million punitive damages award included with the second default judgment.
A second default judgment against defendants for wiping computer drives was affirmed because defendants continued after reversal of the first default judgment to fail to comply with a trial court discovery order. However, the court ordered the trial court to strike a "ruinous" $50 million punitive damages award included with the second default judgment.
Soza v. Interstate Brand Corp., 2009 U.S. Dist. LEXIS 59047 (D. Kan. June 5, 2009).
The court declined to prohibit plaintiff from referring to events depicted on a flash drive that apparently became lost after plaintiff mailed the flash drive to his attorney for production. It was not clear what events were depicted on the flash drive or that disappearance of the drive amounted to spoliation.
The court declined to prohibit plaintiff from referring to events depicted on a flash drive that apparently became lost after plaintiff mailed the flash drive to his attorney for production. It was not clear what events were depicted on the flash drive or that disappearance of the drive amounted to spoliation.
Beard Research, Inc. v. Kates, 2009 Del. Ch. LEXIS 94 (Del. Ch. May 29, 2009).
An ex-employee and his new employers were jointly obligated to preserve evidence in a misappropriation of trade secrets action and were sanctioned with an adverse inference for spoliation of evidence on the ex-employee's laptop computer.
An ex-employee and his new employers were jointly obligated to preserve evidence in a misappropriation of trade secrets action and were sanctioned with an adverse inference for spoliation of evidence on the ex-employee's laptop computer.
Innis Arden Golf Club v. Pitney Bowes, Inc., “Innis Arden I”, 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).
Plaintiff in an environmental cleanup action was precluded from offering evidence of contaminants in samples of soil from its property because plaintiff's environmental consulting firm destroyed the soil samples after analyzing them for contaminants and failed to preserve electronic records of the analyses.
Plaintiff in an environmental cleanup action was precluded from offering evidence of contaminants in samples of soil from its property because plaintiff's environmental consulting firm destroyed the soil samples after analyzing them for contaminants and failed to preserve electronic records of the analyses.
Realnetworks, Inc. v. DVD Copy Control Association, 2009 U.S. Dist. LEXIS 38221 (N.D. Cal. May 5, 2009).
Plaintiffs that could not locate notebook computers of an employee whose employment was terminated less than a week prior to the filing of plaintiffs’ action were sanctioned for failing to preserve the notebooks. However, sanctions were limited to an award of attorney fees and costs for defendants because the contents of the notebooks were unknown and other sources of information were available.
Plaintiffs that could not locate notebook computers of an employee whose employment was terminated less than a week prior to the filing of plaintiffs’ action were sanctioned for failing to preserve the notebooks. However, sanctions were limited to an award of attorney fees and costs for defendants because the contents of the notebooks were unknown and other sources of information were available.
Oz Optics v. Zeynep, 2009 Cal. App. Unpub. LEXIS 2952 (Cal. App. 1st Dist. Apr. 15, 2009).
Monetary sanctions against defendant for scrubbing data on her laptop before turning it over for inspection pursuant to a court order were properly limited to an amount that would not affect her ability to defend herself.
Monetary sanctions against defendant for scrubbing data on her laptop before turning it over for inspection pursuant to a court order were properly limited to an amount that would not affect her ability to defend herself.
Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009).
A defendant’s email preservation system that consisted of instructing employees to preserve email of long term value on their local computers, coupled with “very little evidence compared to what would be expected,” led the court to conclude that the “safe harbor” of Fed. R. Civ. P. 37(e) did not apply and that the defendant should be sanctioned for spoliation.
A defendant’s email preservation system that consisted of instructing employees to preserve email of long term value on their local computers, coupled with “very little evidence compared to what would be expected,” led the court to conclude that the “safe harbor” of Fed. R. Civ. P. 37(e) did not apply and that the defendant should be sanctioned for spoliation.
Kvitka v. Puffin Co., L.L.C., “Kvitka II”, 2009 U.S. Dist. LEXIS 24396 (M.D. Pa. Mar. 24, 2009).
Plaintiffs’ request for an interlocutory appeal of dismissal of their claims due to spoliation by disposing of a computer was denied. The lack of guidance from the Third Circuit on appropriate sanctions for spoliation of electronic evidence did not support an interlocutory appeal because “[s]poliation is spoliation regardless of the form of the evidence” and there was Third Circuit precedent for spoliation sanctions.
Plaintiffs’ request for an interlocutory appeal of dismissal of their claims due to spoliation by disposing of a computer was denied. The lack of guidance from the Third Circuit on appropriate sanctions for spoliation of electronic evidence did not support an interlocutory appeal because “[s]poliation is spoliation regardless of the form of the evidence” and there was Third Circuit precedent for spoliation sanctions.
Technical Sales Associates, Inc. v. Ohio Star Forge Co., 2009 U.S. Dist. LEXIS 22431 (E.D. Mich. Mar. 19, 2009).
Sanctions against defendant were deemed appropriate because intentional deletion of evidence by defendant just prior to forensic examination was not protected by the safe harbor provision of Fed. R. Civ. P. 37(e) for information lost from the routine, good faith operation of an electronic information system.
Sanctions against defendant were deemed appropriate because intentional deletion of evidence by defendant just prior to forensic examination was not protected by the safe harbor provision of Fed. R. Civ. P. 37(e) for information lost from the routine, good faith operation of an electronic information system.
TeleQuest International Corp. v. Dedicated Business Systems, Inc., 2009 U.S. Dist. LEXIS 19546 (D.N.J. Mar. 11, 2009).
An adverse inference sanction was imposed against a defendant who ran a defrag program and a data wiping program on his computer before turning the computer over to plaintiff’s forensics expert pursuant to a court order.
An adverse inference sanction was imposed against a defendant who ran a defrag program and a data wiping program on his computer before turning the computer over to plaintiff’s forensics expert pursuant to a court order.
Kvitka v. Puffin Co., L.L.C., 2009 U.S. Dist. LEXIS 11214 (M.D. Pa. Feb. 13, 2009).
Spoliation sanctions against a plaintiff who discarded her laptop included dismissal of her claims and an adverse inference in support of defendants’ cross claims. Plaintiff had been notified in her state action of her duty to retain email but then threw her laptop in the trash, dismissed her state suit, and filed a federal action where she “concocted an outlandish story” about apparently favorable files and email from her discarded laptop appearing on her new laptop without any transfer of files.
Spoliation sanctions against a plaintiff who discarded her laptop included dismissal of her claims and an adverse inference in support of defendants’ cross claims. Plaintiff had been notified in her state action of her duty to retain email but then threw her laptop in the trash, dismissed her state suit, and filed a federal action where she “concocted an outlandish story” about apparently favorable files and email from her discarded laptop appearing on her new laptop without any transfer of files.
Arista Records LLC v. Usenet.com, Inc., "Usenet I", 2009 U.S. Dist. LEXIS 5185 (S.D.N.Y. Jan. 26, 2009).
A Usenet website operator in a copyright infringement action was sanctioned for disabling access for about 900 music groups using the website without preserving usage data. The operator’s counsel had promised on the same day to provide hourly snapshots of data on usage by music groups.
A Usenet website operator in a copyright infringement action was sanctioned for disabling access for about 900 music groups using the website without preserving usage data. The operator’s counsel had promised on the same day to provide hourly snapshots of data on usage by music groups.
Micron Technology, Inc. v. Rambus Inc., 2009 U.S. Dist. LEXIS 1260 (D. Del. Jan. 9, 2009).
Patents of the plaintiff in a patent infringement action were declared unenforceable against defendant as a sanction for purging files related to the patents after plaintiff knew that its aggressive patent enforcement plan would result in litigation.
Patents of the plaintiff in a patent infringement action were declared unenforceable against defendant as a sanction for purging files related to the patents after plaintiff knew that its aggressive patent enforcement plan would result in litigation.
Barnett v. Simmons, 2008 Okla. LEXIS 102 (Okla. Nov. 10, 2008).
The Oklahoma Supreme Court ordered a trial court to consider appropriate sanctions to impose on a self-proclaimed computer novice who hired a service technician to work on his computer without informing the technician that the computer’s hard drive was subject to a court order. Although the trial court had found that destruction of files on the computer was not willful, willfulness was not required for imposition of sanctions.
The Oklahoma Supreme Court ordered a trial court to consider appropriate sanctions to impose on a self-proclaimed computer novice who hired a service technician to work on his computer without informing the technician that the computer’s hard drive was subject to a court order. Although the trial court had found that destruction of files on the computer was not willful, willfulness was not required for imposition of sanctions.
Gutman v. Klein, 2008 U.S. Dist. LEXIS 92398 (E.D.N.Y. Oct. 15, 2008).
Intentional, thorough, and attempted concealment of destruction of evidence on a laptop computer was the most serious form of spoliation and led the court to recommend entry of a default judgment against defendant.
Intentional, thorough, and attempted concealment of destruction of evidence on a laptop computer was the most serious form of spoliation and led the court to recommend entry of a default judgment against defendant.
Pandora Jewelry, LLC v. Chamilia, LLC, 2008 U.S. Dist. LEXIS 79232 (D. Md. Sept. 30, 2008).
Although defendant was ordered to pay a portion of plaintiff’s costs in seeking sanctions due to defendant’s “stonewalling” of plaintiff’s discovery attempts, the court denied sanctions for spoliation by defendant. There was no showing by plaintiff that lost or deleted email would have evidenced any injury to plaintiff.
Although defendant was ordered to pay a portion of plaintiff’s costs in seeking sanctions due to defendant’s “stonewalling” of plaintiff’s discovery attempts, the court denied sanctions for spoliation by defendant. There was no showing by plaintiff that lost or deleted email would have evidenced any injury to plaintiff.
Wong v. Thomas, 2008 U.S. Dist. LEXIS 71246 (D.N.J. Sept. 9, 2008).
A state agency was not sanctioned for failing to impose a litigation hold on electronic documents when litigation against the agency began. The court held that plaintiff had not shown the relevancy of any specific evidence allegedly destroyed by the agency.
A state agency was not sanctioned for failing to impose a litigation hold on electronic documents when litigation against the agency began. The court held that plaintiff had not shown the relevancy of any specific evidence allegedly destroyed by the agency.
Citizens for Responsibility & Ethics v. Executive Office of the President, "Citizens ll", 2008 U.S. Dist. LEXIS 57261 (D.D.C. July 29, 2008).
Costs and attorney fees of plaintiffs could not be awarded as sanctions against the government for failing to follow a court order to preserve email. The government had not waived its sovereign immunity to attorney fee liability, and the doctrine of sovereign immunity prevailed over inherent judicial power.
Costs and attorney fees of plaintiffs could not be awarded as sanctions against the government for failing to follow a court order to preserve email. The government had not waived its sovereign immunity to attorney fee liability, and the doctrine of sovereign immunity prevailed over inherent judicial power.
Koninklijke Philips Electronics N.V. v. KXD Technology, Inc., 2008 U.S. Dist. LEXIS 50839 (D. Nev. Jul. 1, 2008).
The maximum statutory penalty of $ 1 million for willful copyright infringement was warranted against defendants shown to have sold 222 units of infringing product for gross revenues of $35,206 because defendants failed to comply with temporary restraining order requirements and obstructed discovery by destroying electronic evidence and a server.
The maximum statutory penalty of $ 1 million for willful copyright infringement was warranted against defendants shown to have sold 222 units of infringing product for gross revenues of $35,206 because defendants failed to comply with temporary restraining order requirements and obstructed discovery by destroying electronic evidence and a server.
International Brominated Solvents Association v. American Conference of Governmental Industrial Hygienists, Inc., 2008 U.S. Dist. LEXIS 32114 (M.D. Ga. Apr. 18, 2008).
Sanctions against defendant for destruction of email were denied because failure to preserve email of a defense witness resulted from the administrative policy of a non-party at which the witness was a partially-retired employee.
Sanctions against defendant for destruction of email were denied because failure to preserve email of a defense witness resulted from the administrative policy of a non-party at which the witness was a partially-retired employee.
Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 2008 U.S. Dist. LEXIS 20360 (N.D. Ohio Mar. 11, 2008).
Plaintiff was permitted to add a spoliation claim to its breach of settlement agreement complaint. Defense counsel's concern about being called as a witness on the spoliation claim and forced to withdraw as defendant's counsel was mere speculation because plaintiff's spoliation claim implicated defendant but not defense counsel.
Plaintiff was permitted to add a spoliation claim to its breach of settlement agreement complaint. Defense counsel's concern about being called as a witness on the spoliation claim and forced to withdraw as defendant's counsel was mere speculation because plaintiff's spoliation claim implicated defendant but not defense counsel.
Clearone Communications, Inc. v. Chiang, 2008 U.S. Dist. LEXIS 18499 (D. Utah Mar. 10, 2008).
A defendant whose Fed. R. Civ. P. 30(b)(6) representative misrepresented his use of comments in writing source code was sanctioned. The jury or the court as fact-finder would be allowed to consider that the witness did not answer some questions truthfully during his deposition.
A defendant whose Fed. R. Civ. P. 30(b)(6) representative misrepresented his use of comments in writing source code was sanctioned. The jury or the court as fact-finder would be allowed to consider that the witness did not answer some questions truthfully during his deposition.
Connor v. Sun Trust Bank, 2008 U.S. Dist. LEXIS 16917 (N.D. Ga. Mar. 5, 2008).
An adverse inference sanction was ordered against a defendant that failed to produce a key email document that plaintiff obtained through other means.
An adverse inference sanction was ordered against a defendant that failed to produce a key email document that plaintiff obtained through other means.
Sit-Up Ltd. v. IAC/Interactive Corp., 2008 U.S. Dist. LEXIS 12017 (S.D.N.Y. Feb. 20, 2008).
Plaintiff's request for an adverse inference sanction against defendants was denied as a matter of law because no evidence of negligence or bad faith of defendants was shown as a result of one defendant's failure to maintain a repository of its employees' email.
Plaintiff's request for an adverse inference sanction against defendants was denied as a matter of law because no evidence of negligence or bad faith of defendants was shown as a result of one defendant's failure to maintain a repository of its employees' email.
Columbia Pictures, Inc. v. Bunnell, "Columbia Pictures II", 2007 U.S. Dist. LEXIS 96360 (C.D. Cal. Dec. 13, 2007).
Destruction, alteration, and withholding of evidence by website operators coupled with false testimony to hide evidence of the destruction led the court to issue a default judgment against the operators.
Destruction, alteration, and withholding of evidence by website operators coupled with false testimony to hide evidence of the destruction led the court to issue a default judgment against the operators.
PML North America, LLC v. ACG Enterprises of NC, "PML IV", 2007 U.S. Dist. LEXIS 87602 (E.D. Mich. Nov. 29, 2007).
The president of a company that became insolvent prior to paying sanctions was ordered to pay the sanctions individually because the company was the instrument of its president's litigation misconduct.
The president of a company that became insolvent prior to paying sanctions was ordered to pay the sanctions individually because the company was the instrument of its president's litigation misconduct.
Ecor Solutions, Inc. v. State of New York, 2007 N.Y. Misc. LEXIS 7840 (N.Y. Ct. Cl. Oct. 31, 2007).
Despite defendant's failure to place a litigation hold on document destruction, claimant was not entitled to an adverse inference sanction for deletion of data from a computer of defendant. The computer was not password-protected, and claimant had not shown that the deleted documents were relevant or were deleted by defendant.
Despite defendant's failure to place a litigation hold on document destruction, claimant was not entitled to an adverse inference sanction for deletion of data from a computer of defendant. The computer was not password-protected, and claimant had not shown that the deleted documents were relevant or were deleted by defendant.
Benton v. Dlorah, Inc., 2007 U.S. Dist. LEXIS 80503 (D. Kan. Oct. 30, 2007).
Plaintiff in an employment discrimination action was sanctioned $1,000 for deleting relevant email from her home computer. She also was ordered to produce the hard drive of the computer for a forensic examination to recover the deleted email.
Plaintiff in an employment discrimination action was sanctioned $1,000 for deleting relevant email from her home computer. She also was ordered to produce the hard drive of the computer for a forensic examination to recover the deleted email.
Hawaiian Airlines, Inc. v. Mesa Air Group, Inc. (In re Hawaiian Airlines, Inc., Debtor), 2007 Bankr. LEXIS 3679 (Bankr. D. Haw. Oct. 30, 2007).
A bankruptcy court issued adverse inference sanctions against an airline after the airline's Executive Vice President and Chief Financial Officer used a "wiping" program on his office laptop computers soon after receiving a litigation hold email from the airline's attorney. The court held that the airline failed to make backup copies of the hard drives once suit was filed against it and thereby facilitated its officer's misconduct.
A bankruptcy court issued adverse inference sanctions against an airline after the airline's Executive Vice President and Chief Financial Officer used a "wiping" program on his office laptop computers soon after receiving a litigation hold email from the airline's attorney. The court held that the airline failed to make backup copies of the hard drives once suit was filed against it and thereby facilitated its officer's misconduct.
Lockheed Martin Corp. v. L-3 Communications Corp., 2007 U.S. Dist. LEXIS 79572 (M.D. Fla. Oct. 25, 2007).
Defendant was not entitled to sanctions after an employee of plaintiff testified he had deleted email to "clean up" because there was no evidence the deleted email was relevant evidence or that any "missing evidence" was crucial to defendant's claims or defenses.
Defendant was not entitled to sanctions after an employee of plaintiff testified he had deleted email to "clean up" because there was no evidence the deleted email was relevant evidence or that any "missing evidence" was crucial to defendant's claims or defenses.
APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007).
Several days after receiving notice of a theft of trade secrets complaint against him, defendant travelled 20 miles to a construction site dumpster to dispose of his personal computer. The court held he had acted in bad faith and imposed sanctions that included deeming key allegations in plaintiff's complaint conclusively proven.
Several days after receiving notice of a theft of trade secrets complaint against him, defendant travelled 20 miles to a construction site dumpster to dispose of his personal computer. The court held he had acted in bad faith and imposed sanctions that included deeming key allegations in plaintiff's complaint conclusively proven.
Flowers v. City of Minneapolis, 2007 U.S. Dist. LEXIS 75509 (D. Minn. Sept. 28, 2007).
Although a city could not find a copy of an email sent to city council members concerning plaintiff, sanctions against the city were denied because there had been no indication that the contents of the email would have assisted plaintiff in his claims against the city.
Although a city could not find a copy of an email sent to city council members concerning plaintiff, sanctions against the city were denied because there had been no indication that the contents of the email would have assisted plaintiff in his claims against the city.
United States v. Krause (In re Krause),, 2007 Bankr. LEXIS 2797 (Bankr. D. Kan. Aug. 14, 2007).
A son's motion for reconsideration of a default judgment against his debtor father who ran a "wiping" program on his computer prior to turning the computer over to the government was denied. The default judgment that various trusts created by the father were property of the bankruptcy estate did not include trusts in which the son was a named beneficiary.
A son's motion for reconsideration of a default judgment against his debtor father who ran a "wiping" program on his computer prior to turning the computer over to the government was denied. The default judgment that various trusts created by the father were property of the bankruptcy estate did not include trusts in which the son was a named beneficiary.
Hunts Point Realty Corp. v. Pacifico, 2007 N.Y. Misc. LEXIS 5700 (N.Y. Sup. Ct. Jul. 24, 2007).
While defendant's breach of its contract with plaintiffs caused no lost profit or damages, plaintiffs were awarded their attorney fees and costs related to defendant's failure to preserve email.
While defendant's breach of its contract with plaintiffs caused no lost profit or damages, plaintiffs were awarded their attorney fees and costs related to defendant's failure to preserve email.
Healthcare Advocates, Inc. v. Harding, Earley, Folmer & Frailey, 2007 U.S. Dist. LEXIS 52544 (E.D. Pa. Jul. 20, 2007).
A law firm did not engage in spoliation of evidence by failing to preserve copies in its computer's temporary cache files of archived website images obtained through the "Wayback machine."
A law firm did not engage in spoliation of evidence by failing to preserve copies in its computer's temporary cache files of archived website images obtained through the "Wayback machine."
Doe v. Norwalk Community College, 2007 U.S. Dist. LEXIS 51084 (D. Conn. Jul. 16, 2007).
A community college that failed to take affirmative steps to halt destruction of information once it was on notice of a potential sexual assault claim was not entitled to the Fed. R. Civ. P. 37(f) good faith exception to sanctions for routine destruction of data. The court held plaintiff was entitled to an adverse inference sanction regarding data that the college failed to preserve.
A community college that failed to take affirmative steps to halt destruction of information once it was on notice of a potential sexual assault claim was not entitled to the Fed. R. Civ. P. 37(f) good faith exception to sanctions for routine destruction of data. The court held plaintiff was entitled to an adverse inference sanction regarding data that the college failed to preserve.
Ameriwood Industries, Inc. v. Liberman, "Ameriwood III", 2007 U.S. Dist. LEXIS 74886 (E.D. Mo. Jul. 3, 2007).
A default judgment as to liability was entered against defendants who used a "scrubbing" program on their laptops before and after a court order to produce the hard drives from the laptops.
A default judgment as to liability was entered against defendants who used a "scrubbing" program on their laptops before and after a court order to produce the hard drives from the laptops.
Tri-County Motors, Inc. v. American Suzuki Motor Corp., 2007 U.S. Dist. LEXIS 48418 (E.D.N.Y. Jul. 3, 2007).
Plaintiff's speculation that email was missing from defendants' records and contained evidence in support of plaintiff's claim was insufficient to support striking defendant's answer as a sanction for spoliation.
Plaintiff's speculation that email was missing from defendants' records and contained evidence in support of plaintiff's claim was insufficient to support striking defendant's answer as a sanction for spoliation.
United Medical Supply Co. v. United States, "United Medical Supply II", 2007 U.S. Claims LEXIS 207 (Fed. Cl. June 27, 2007).
In a matter of first impression for the Court of Federal Claims and after a thorough discussion of the history of spoliation and sanctions, the court determined that a finding of bad faith was not a prerequisite for imposing sanctions against the U.S. Government for spoliation of evidence.
In a matter of first impression for the Court of Federal Claims and after a thorough discussion of the history of spoliation and sanctions, the court determined that a finding of bad faith was not a prerequisite for imposing sanctions against the U.S. Government for spoliation of evidence.
FMC Technologies, Inc. v. Edwards, 2007 U.S. Dist. LEXIS 42512 (W.D. Wash. June 12, 2007).
Although a judgment was an available sanction for spoliation, the court denied plaintiff's request for the sanction on the eve of trial. The request was based on generalized allegations that hinged on witness credibility which could be evaluated by the jury in due course.
Although a judgment was an available sanction for spoliation, the court denied plaintiff's request for the sanction on the eve of trial. The request was based on generalized allegations that hinged on witness credibility which could be evaluated by the jury in due course.
Reino de Espana v. American Bureau of Shipping, "Reino de Espana IV", 2007 U.S. Dist. LEXIS 41498 (S.D.N.Y. June 6, 2007).
Although the Spanish government was late in establishing a litigation hold on destruction of email by government agencies, it did not act in bad faith. Nor was there any proof of relevancy of lost records. Defendant's request for an adverse inference instruction that Spain contended would amount to a directed verdict for defendant was denied.
Although the Spanish government was late in establishing a litigation hold on destruction of email by government agencies, it did not act in bad faith. Nor was there any proof of relevancy of lost records. Defendant's request for an adverse inference instruction that Spain contended would amount to a directed verdict for defendant was denied.
Doctor John's, Inc. v. City of Sioux City, 2007 U.S. Dist. LEXIS 36075 (N.D. Iowa May 17, 2007).
A city's destruction of tapes of closed-door meetings warranted a sanction of $50,000. However, the court declined to order the sanction in light of the city's change in its document retention policy to avoid a similar incident in the future and in light of the over $600,000 spent by taxpayers for the city's defense of the ordinances considered in the closed-door meetings.
A city's destruction of tapes of closed-door meetings warranted a sanction of $50,000. However, the court declined to order the sanction in light of the city's change in its document retention policy to avoid a similar incident in the future and in light of the over $600,000 spent by taxpayers for the city's defense of the ordinances considered in the closed-door meetings.
Martinez v. General Motors Corporation, 2007 Mich. App. LEXIS 1279 (Mich. Ct. App. May 15, 2007).
A trial court did not err in declining to impose spoliation sanctions on defendant for allowing a hard drive on a leased computer to be erased when the lease ended because the data that was destroyed was irrelevant and plaintiff thus was not prejudiced by the data destruction.
A trial court did not err in declining to impose spoliation sanctions on defendant for allowing a hard drive on a leased computer to be erased when the lease ended because the data that was destroyed was irrelevant and plaintiff thus was not prejudiced by the data destruction.
Wood Group Pressure Control, L.P. v. B&B Oilfield Services, Inc., 2007 U.S. Dist. LEXIS 83708 (E.D. La. Apr. 27, 2007).
An adverse inference sanction was imposed against a party that had not taken any steps to preserve electronic evidence following entry of temporary restraining orders requiring preservation of all relevant evidence. The possible presence of evidence remaining on a less accessible backup system did not excuse failure to implement measures to preserve evidence.
An adverse inference sanction was imposed against a party that had not taken any steps to preserve electronic evidence following entry of temporary restraining orders requiring preservation of all relevant evidence. The possible presence of evidence remaining on a less accessible backup system did not excuse failure to implement measures to preserve evidence.
AJW Partners, LLC v. Peak Entertainment Holdings, Inc., 2007 N.Y. Misc. LEXIS 2702 (N.Y. Sup. Ct. Apr. 24, 2007).
The court declined to impose an adverse inference instruction for a party's failure to produce a hard copy signature card holding that email confirmation of delivery was sufficient notice of delivery for a registered package.
The court declined to impose an adverse inference instruction for a party's failure to produce a hard copy signature card holding that email confirmation of delivery was sufficient notice of delivery for a registered package.
Greyhound Lines, Inc. v. Wade, 2007 U.S. App. LEXIS 9282 (8th Cir. Apr. 24, 2007).
Plaintiff did not engage in spoliation by sending the electronic control module from a bus after an accident to the manufacturer where data from the module was erased. No intention of the bus company to suppress the truth had been shown.
Plaintiff did not engage in spoliation by sending the electronic control module from a bus after an accident to the manufacturer where data from the module was erased. No intention of the bus company to suppress the truth had been shown.
Great Am. Ins. Cos. v. Subranni (In re Tri-State Armored Services, Inc.), 2007 U.S. Dist. LEXIS 29794 (D.N.J. Apr. 23, 2007).
The court affirmed a bankruptcy court ruling denying the trustee's claim for sanctions against an insurer that failed to produce responsive email on discarded computers. The trustee failed to show that the spoliation harmed the interests of the bankrupt insured.
The court affirmed a bankruptcy court ruling denying the trustee's claim for sanctions against an insurer that failed to produce responsive email on discarded computers. The trustee failed to show that the spoliation harmed the interests of the bankrupt insured.
World Courier v. Barone, 2007 U.S. Dist. LEXIS 31714 (N.D. Cal. Apr. 16, 2007).
Sanctions that included an adverse inference jury instruction and reimbursement of expenses were ordered following the admitted destruction by a defendant's husband of a hard drive containing a copy of plaintiff's data.
Sanctions that included an adverse inference jury instruction and reimbursement of expenses were ordered following the admitted destruction by a defendant's husband of a hard drive containing a copy of plaintiff's data.
Teague v. Target Corp., 2007 U.S. Dist. LEXIS 25368 (W.D.N.C. Apr. 4, 2007).
An adverse jury instruction was ordered for a plaintiff who, about a year after retaining counsel, threw away her personal computer with information about her case.
An adverse jury instruction was ordered for a plaintiff who, about a year after retaining counsel, threw away her personal computer with information about her case.
University of Pittsburgh v. Townsend, "University of Pittsburgh II", 2007 U.S. Dist. LEXIS 24620 (E.D. Tenn. Mar. 30, 2007).
Plaintiff's counsel acted improperly during discovery by destroying email with experts and advising the experts to destroy drafts of their reports and email with counsel. However, the court denied defendant's motion to exclude testimony of the experts because counsel's usual practice of advising experts to destroy drafts was not a product of fraudulent intent.
Plaintiff's counsel acted improperly during discovery by destroying email with experts and advising the experts to destroy drafts of their reports and email with counsel. However, the court denied defendant's motion to exclude testimony of the experts because counsel's usual practice of advising experts to destroy drafts was not a product of fraudulent intent.
In re Gupta, 2007 Tex. App. LEXIS 2483 (Tex. App. Mar. 29, 2007).
A Texas court of appeals without written explanation vacated an eight-month-old stay of trial court proceedings and denied a petition for a writ of mandamus seeking review of "death penalty" sanctions. A concurring opinion was filed in order to provide an explanation of the "important and extraordinary case."
A Texas court of appeals without written explanation vacated an eight-month-old stay of trial court proceedings and denied a petition for a writ of mandamus seeking review of "death penalty" sanctions. A concurring opinion was filed in order to provide an explanation of the "important and extraordinary case."
PML North America, LLC v. ACG Enterprises of NC, Inc.,, 2007 U.S. Dist. LEXIS 22394 (E.D. Mich. Mar. 28, 2007).
Plaintiff was awarded $134,373 in attorney fees and expert witness costs after obtaining a default judgment due to defendant's spoliation of data.
Plaintiff was awarded $134,373 in attorney fees and expert witness costs after obtaining a default judgment due to defendant's spoliation of data.
Netria Corp. v. Graham (In re Graham), 2007 Bankr. LEXIS 785 (D.N.H. Mar. 8, 2007).
A sanction for spoliation was not discharged in bankruptcy. Prior to the debtor's filing for bankruptcy, a state court had granted summary judgment to his former employer and ordered sanctions for the debtor's destruction of evidence.
A sanction for spoliation was not discharged in bankruptcy. Prior to the debtor's filing for bankruptcy, a state court had granted summary judgment to his former employer and ordered sanctions for the debtor's destruction of evidence.
School-Link Technologies, Inc. v. Applied Resources, Inc., 2007 U.S. Dist. LEXIS 14723 (D. Kan. Feb. 28, 2007).
To support sanctions for spoliation following a party's failure to institute a litigation hold, actual destruction of responsive documents had to be shown.
To support sanctions for spoliation following a party's failure to institute a litigation hold, actual destruction of responsive documents had to be shown.
Thompson v. Jiffy Lube Int'l, Inc.,, 2007 U.S. Dist. LEXIS 13078 (D. Kan. Feb. 22, 2007).
A default judgment was too severe a sanction for failure of plaintiffs in a class action to have a backup system for counsel's computer that crashed and caused the loss of information regarding up to four witnesses. Also, it was too early to consider an adverse inference sanction because the case was still at the class certification stage.
A default judgment was too severe a sanction for failure of plaintiffs in a class action to have a backup system for counsel's computer that crashed and caused the loss of information regarding up to four witnesses. Also, it was too early to consider an adverse inference sanction because the case was still at the class certification stage.
Griffin v. GMAC Commercial Finance, Inc., 2007 U.S. Dist. LEXIS 10504 (N.D. Ga. Feb. 15, 2007).
Sanctions in the form of striking defendant's answer were denied because defendant's culpability for the loss of relevant documents was low and plaintiff's resulting inability to supply an expert with all relevant documents had little practical impact on plaintiff's case.
Sanctions in the form of striking defendant's answer were denied because defendant's culpability for the loss of relevant documents was low and plaintiff's resulting inability to supply an expert with all relevant documents had little practical impact on plaintiff's case.
DeSantis v. Biehler, No. OCN-C-196-01 (N.J. Sup. Ct. Jan. 30, 2007).
Although a backup server hard drive and laptops with potentially relevant information had been disposed of or were missing, the court declined to impose spoliation sanctions on defendants. Testimony at trial convinced the court that missing hard drives and backup tapes were the result of defendants' business practices rather than a deliberate attempt to withhold or destroy evidence.
Although a backup server hard drive and laptops with potentially relevant information had been disposed of or were missing, the court declined to impose spoliation sanctions on defendants. Testimony at trial convinced the court that missing hard drives and backup tapes were the result of defendants' business practices rather than a deliberate attempt to withhold or destroy evidence.
Anadarko Petroleum Corp. v. Davis, 2006 U.S. Dist. LEXIS 93594 (S.D. Tex. Dec. 28, 2006).
Spoliation sanctions were not appropriate for defendants' deletion of files because plaintiff had demanded return of its proprietary files without further viewing by defendants' employees and plaintiff was provided with a thumb drive copy of files that had been deleted.
Spoliation sanctions were not appropriate for defendants' deletion of files because plaintiff had demanded return of its proprietary files without further viewing by defendants' employees and plaintiff was provided with a thumb drive copy of files that had been deleted.
PML North America v. Hartford Underwriters Ins. Co., 2006 U.S. Dist. LEXIS 94456 (E.D. Mich. Dec. 20, 2006).
A computer forensics expert's report on signs of tampering with a hard drive and data spoliation coupled with loss of a hard drive and a thumb drive that the court ordered produced led to entry of a default judgment against a defendant.
A computer forensics expert's report on signs of tampering with a hard drive and data spoliation coupled with loss of a hard drive and a thumb drive that the court ordered produced led to entry of a default judgment against a defendant.
Ortega v. City of New York, 2006 N.Y. App. Div. LEXIS 14547 (N.Y. App. Div. Dec. 5, 2006).
A New York appellate court rejected plaintiffs' contention that they had an independent cause of action for damages resulting from spoliation of evidence.
A New York appellate court rejected plaintiffs' contention that they had an independent cause of action for damages resulting from spoliation of evidence.
MacSteel, Inc. v. Eramet North America, 2006 U.S. Dist. LEXIS 83338 (E.D. Mich. Nov. 16, 2006).
Destruction of handwritten notes relied on to compose an email summarizing an agreement did not warrant imposition of sanctions. The notes were made by a former employee of defendant, who could have been interviewed before the notes were destroyed. Also, the duty to preserve evidence did not extend to evidence that is not in a litigant's possession or control.
Destruction of handwritten notes relied on to compose an email summarizing an agreement did not warrant imposition of sanctions. The notes were made by a former employee of defendant, who could have been interviewed before the notes were destroyed. Also, the duty to preserve evidence did not extend to evidence that is not in a litigant's possession or control.
Plasse v. Tyco Electronics Corp.,, 2006 U.S. Dist. LEXIS 89829 (D. Mass. Nov. 8, 2006).
An egregious pattern of discovery misconduct that resulted in dismissal of plaintiff's wrongful employment termination action also warranted an award to defendant of $35,000 in attorney fees and $20,472.32 in costs.
An egregious pattern of discovery misconduct that resulted in dismissal of plaintiff's wrongful employment termination action also warranted an award to defendant of $35,000 in attorney fees and $20,472.32 in costs.
Optowave Co. v. Nikitin, 2006 U.S. Dist. LEXIS 81345 (M.D. Fla. Nov. 7, 2006).
A defendant who was knowledgeable about computers but allowed reformatting of hard drives and destruction of critical email at his company was sanctioned through imposition of an adverse inference jury instruction.
A defendant who was knowledgeable about computers but allowed reformatting of hard drives and destruction of critical email at his company was sanctioned through imposition of an adverse inference jury instruction.
Lerma v. Wal-Mart Stores, Inc., 2006 Okla. LEXIS 88 (Okla. Nov. 7, 2006).
Alleged evidence of defendant's discovery abuses and sanctions in other cases was not admissible in the jury trial of a contempt action against defendant for alleged destruction or delay in production of electronic data.
Alleged evidence of defendant's discovery abuses and sanctions in other cases was not admissible in the jury trial of a contempt action against defendant for alleged destruction or delay in production of electronic data.
Quintus Corp. v. Avaya, Inc. (In re Quintus Corp.), 2006 Bankr. LEXIS 2912 (Bankr. D. Del. Oct. 27, 2006).
A bankruptcy trustee obtained a $1.88 million judgment as a spoliation sanction against the purchaser of a debtor's assets. The asset purchaser's destruction of electronic records to free up computer space despite a contractual obligation to maintain the records was deliberate, and the destroyed documents went to the heart of the trustee's case.
A bankruptcy trustee obtained a $1.88 million judgment as a spoliation sanction against the purchaser of a debtor's assets. The asset purchaser's destruction of electronic records to free up computer space despite a contractual obligation to maintain the records was deliberate, and the destroyed documents went to the heart of the trustee's case.
In re Napster, Inc. Copyright Litigation, 2006 U.S. Dist. LEXIS 79508 (N.D. Cal. Oct. 25, 2006).
Gross negligence in deleting communications relating to merits of the action led to imposition of an adverse inference jury instruction, issue preclusion and attorney fees as a monetary sanction. However, efforts to preserve documents that were taken, although inadequate, led the court to conclude that the deletions were not willful and thus did not warrant imposition of a default judgment.
Gross negligence in deleting communications relating to merits of the action led to imposition of an adverse inference jury instruction, issue preclusion and attorney fees as a monetary sanction. However, efforts to preserve documents that were taken, although inadequate, led the court to conclude that the deletions were not willful and thus did not warrant imposition of a default judgment.
Leon v. IDX Systems Corp., 2006 U.S. App. LEXIS 23820 (9th Cir. Sept. 20, 2006).
Prejudice to defendant and the unavailability of lesser sanctions led the court to affirm dismissal of a whistleblower's complaint following his deletion of over 2,200 files from his employer-provided computer and "wiping" of the hard drive.
Prejudice to defendant and the unavailability of lesser sanctions led the court to affirm dismissal of a whistleblower's complaint following his deletion of over 2,200 files from his employer-provided computer and "wiping" of the hard drive.
United Medical Supply Co., Inc. v. United States, 2006 U.S. Claims LEXIS 270 (U.S. Ct. Claims Sept. 8, 2006).
Two reports of inadvertent destruction of documents by government offices led the court to enter a wide-ranging document preservation order without the need first to examine the merits of plaintiff's claim against the government.
Two reports of inadvertent destruction of documents by government offices led the court to enter a wide-ranging document preservation order without the need first to examine the merits of plaintiff's claim against the government.
Plasse v. Tyco Electronics Corp., 2006 U.S. Dist. LEXIS 65463 (D. Mass. Sept. 7, 2006).
Plaintiff's wrongful employment termination complaint was dismissed following a computer forensics report that a copy of plaintiff's resume falsely claiming he had a graduate business degree had been deleted from a floppy disk and that the system date on plaintiff's laptop was changed five times two days before production of the laptop for inspection by defendant's expert.
Plaintiff's wrongful employment termination complaint was dismissed following a computer forensics report that a copy of plaintiff's resume falsely claiming he had a graduate business degree had been deleted from a floppy disk and that the system date on plaintiff's laptop was changed five times two days before production of the laptop for inspection by defendant's expert.
O'Brien v. Ed Donnelly Enterprises, 2006 U.S. Dist. LEXIS 66633 (S.D. Ohio Sept. 5, 2005).
Plaintiffs' motion for sanctions, including an adverse inference order, was denied because alleged deficiencies in defendants' electronic recordkeeping system were irrelevant to the question whether defendants intentionally lost or destroyed relevant evidence after being on notice of plaintiffs' lawsuit.
Plaintiffs' motion for sanctions, including an adverse inference order, was denied because alleged deficiencies in defendants' electronic recordkeeping system were irrelevant to the question whether defendants intentionally lost or destroyed relevant evidence after being on notice of plaintiffs' lawsuit.
Arista Records L.L.C. v. Tschirhart, 2006 U.S. Dist. LEXIS 70332 (W.D. Tex. Aug. 23, 2006).
Defendant's destruction of the best proof available for plaintiffs by using "wiping" software after receiving notice of plaintiffs' suit and again after being ordered by the court to produce a hard drive for inspection by plaintiffs led the court to impose a default judgment against defendant.
Defendant's destruction of the best proof available for plaintiffs by using "wiping" software after receiving notice of plaintiffs' suit and again after being ordered by the court to produce a hard drive for inspection by plaintiffs led the court to impose a default judgment against defendant.
Krumwiede v. Brighton Associates,, 2006 U.S. Dist. LEXIS 60654 (N.D. Ill. Aug. 9, 2006).
Two hundred hours of attorney time to obtain sanctions against plaintiff for willful and bad faith spoliation of evidence was not excessive because the evidentiary hearing on the sanctions amounted to a bench trial at which defendants obtained a default judgment against plaintiff and plaintiff's spoliation of computer data raised complex technical questions for defendants' attorney.
Two hundred hours of attorney time to obtain sanctions against plaintiff for willful and bad faith spoliation of evidence was not excessive because the evidentiary hearing on the sanctions amounted to a bench trial at which defendants obtained a default judgment against plaintiff and plaintiff's spoliation of computer data raised complex technical questions for defendants' attorney.
Paramount Pictures Corp. v. Davis,, 2006 U.S. Dist. LEXIS 50955 (E.D. Pa. Jul. 26, 2006).
The fact that a computer forensics expert did not perform an expensive procedure ordinarily used in anti-terrorism efforts to retrieve zeroed out data did not negate a spoliation inference.
The fact that a computer forensics expert did not perform an expensive procedure ordinarily used in anti-terrorism efforts to retrieve zeroed out data did not negate a spoliation inference.
Austin v. City and County of Denver, 2006 U.S. Dist. LEXIS 47451 (D. Colo. Jul. 13, 2006).
Plaintiff in an employment discrimination action who deleted data from her computer showing some of her contacts in seeking re-employment was ordered to pay for re-opening her deposition so that defendant could seek proof that she had failed to mitigate damages. However, defendant was not entitled to further sanctions because bad faith or willful conduct of plaintiff had not been shown.
Plaintiff in an employment discrimination action who deleted data from her computer showing some of her contacts in seeking re-employment was ordered to pay for re-opening her deposition so that defendant could seek proof that she had failed to mitigate damages. However, defendant was not entitled to further sanctions because bad faith or willful conduct of plaintiff had not been shown.
Oved & Associates Construction Services, Inc. v. Los Angeles County Metropolitan Transportation Authority, 2006 Cal. App. Unpub. LEXIS 5358 (Cal. App. Jun. 22, 2006).
Entry of default judgments for $5.2 million and $978,958 against a party that violated discovery orders and destroyed the integrity of its financial data by accessing and emptying documents from a computer hard drive was affirmed.
Entry of default judgments for $5.2 million and $978,958 against a party that violated discovery orders and destroyed the integrity of its financial data by accessing and emptying documents from a computer hard drive was affirmed.
Vela v. Wagner & Brown, Ltd., 2006 Tex. App. LEXIS 3088 (Ct. App. Tex. Jun. 21, 2006).
A trial court's imposition of $75,000 in discovery sanctions on a party whose expert lost computer data that should have been produced was upheld in light of the trial court's findings of a general pattern of discovery abuse, filing of frivolous objections to discovery requests, and giving false testimony.
A trial court's imposition of $75,000 in discovery sanctions on a party whose expert lost computer data that should have been produced was upheld in light of the trial court's findings of a general pattern of discovery abuse, filing of frivolous objections to discovery requests, and giving false testimony.
Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. Jun. 2, 2006).
Unresolved questions regarding possible spoliation of satellite positioning evidence by defendant provided a sufficient basis for denying defendant's motion for summary judgment.
Unresolved questions regarding possible spoliation of satellite positioning evidence by defendant provided a sufficient basis for denying defendant's motion for summary judgment.
Covucci v. Keane Consulting Group, Inc., 2006 Mass. Super. LEXIS 313 (Mass. Sup. Ct. May 31, 2006).
Court finds plaintiff's egregious conduct and bad-faith tactics to delete email and scrub files from his computer were clear evidence of persistent bad-faith repudiation of discovery obligations, intentional spoliation, and fraud on the court justifying the dismissal of plaintiff's complaint.
Court finds plaintiff's egregious conduct and bad-faith tactics to delete email and scrub files from his computer were clear evidence of persistent bad-faith repudiation of discovery obligations, intentional spoliation, and fraud on the court justifying the dismissal of plaintiff's complaint.
Krumwiede v. Brighton Associates, L.L.C.,, 2006 U.S. Dist. LEXIS 31669 (N.D. Ill. May 8, 2006).
Default judgment for defendant on its counterclaims in an employment dispute was entered as a sanction against defendant's former Director of Business Development due to the Director's wilful and bad faith spoliation of evidence through continuing alteration and destruction of computer files following notice of defendant's claims against him.
Default judgment for defendant on its counterclaims in an employment dispute was entered as a sanction against defendant's former Director of Business Development due to the Director's wilful and bad faith spoliation of evidence through continuing alteration and destruction of computer files following notice of defendant's claims against him.
Vela v. Wagner & Brown, Ltd., 2006 Tex. App. LEXIS 3088 (Ct. App. Tex. Apr. 19, 2006).
A trial court's imposition of $75,000 in discovery sanctions on a party whose expert inadvertently lost computer data that should have been produced was upheld in light of the trial court's findings of a general pattern of discovery abuse, filing of frivolous objections to discovery requests, and giving false testimony.
A trial court's imposition of $75,000 in discovery sanctions on a party whose expert inadvertently lost computer data that should have been produced was upheld in light of the trial court's findings of a general pattern of discovery abuse, filing of frivolous objections to discovery requests, and giving false testimony.
Select Medical Corp. v. Hardaway, 2006 U.S. Dist. LEXIS 15326 (E.D. Pa. Mar. 24, 2006).
A company's motion for imposition of sanctions and for an adverse inference against a former employee in an action alleging violation of a non-compete agreement was denied. The employee's deletion of company files on his home computer was evidence of the employee's intent to abide by the non-compete agreement rather than an attempt to thwart the company's discovery request.
A company's motion for imposition of sanctions and for an adverse inference against a former employee in an action alleging violation of a non-compete agreement was denied. The employee's deletion of company files on his home computer was evidence of the employee's intent to abide by the non-compete agreement rather than an attempt to thwart the company's discovery request.
DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 U.S. Dist. LEXIS 38162 (E.D. Mich. Dec. 22, 2005).
Failure to suspend normal procedures for document destruction after filing of a lawsuit resulted in a magistrate's recommendation that sanctions, including an adverse inference jury instruction and attorney fees, should be imposed even though document destruction was negligent rather than wilful.
Failure to suspend normal procedures for document destruction after filing of a lawsuit resulted in a magistrate's recommendation that sanctions, including an adverse inference jury instruction and attorney fees, should be imposed even though document destruction was negligent rather than wilful.
Electronic Funds Solutions v. Murphy, 2005 Cal. App. LEXIS 1910 (Cal. App. 4th Dist. Dec. 14, 2005).
A $24 million default judgment entered as a discovery sanction against defendants who "wiped" clean a computer hard drive just prior to turning the drive over for plaintiff's inspection was reversed. Because the sanction took the form of striking defendants' answer, damages to be paid on default could not exceed the amount requested in the complaint, which was "in excess of $50,000." The court offered plaintiffs the option of accepting $50,000 (the maximum amount expressly claimed) or amending their complaint to state the actual amount of damages. Amending the complaint, however, would remove the default.
A $24 million default judgment entered as a discovery sanction against defendants who "wiped" clean a computer hard drive just prior to turning the drive over for plaintiff's inspection was reversed. Because the sanction took the form of striking defendants' answer, damages to be paid on default could not exceed the amount requested in the complaint, which was "in excess of $50,000." The court offered plaintiffs the option of accepting $50,000 (the maximum amount expressly claimed) or amending their complaint to state the actual amount of damages. Amending the complaint, however, would remove the default.
In re Old Banc One Shareholders Securities Litigation, 2005 U.S. Dist. LEXIS 32154 (N.D. Ill. Dec. 8, 2005).
A bank breached its duty to preserve documents by failing to adopt promptly a comprehensive document retention policy and to communicate that policy to employees. As a result, the bank was unable to produce responsive documents and was responsible for spoliation. However, a sufficient sanction consisted of barring cross-examination of the financial expert testifying against the bank and informing the jury of the reason for barring the cross-examination.
A bank breached its duty to preserve documents by failing to adopt promptly a comprehensive document retention policy and to communicate that policy to employees. As a result, the bank was unable to produce responsive documents and was responsible for spoliation. However, a sufficient sanction consisted of barring cross-examination of the financial expert testifying against the bank and informing the jury of the reason for barring the cross-examination.
Jinks-Umstead v. England,, 2005 U.S. Dist. LEXIS 34547 (D.D.C. Dec. 7, 2005).
Discovery abuses by a government agency prior to and during a trial led a court to grant a new trial to an employee alleging discrimination during a reorganization. However, given the severity of that sanction against the government and the government's good faith discovery efforts since the sanction, the court declined to give an adverse inference instruction during the upcoming re-trial or to inform the jury in the new trial about the government's past discovery abuses.
Discovery abuses by a government agency prior to and during a trial led a court to grant a new trial to an employee alleging discrimination during a reorganization. However, given the severity of that sanction against the government and the government's good faith discovery efforts since the sanction, the court declined to give an adverse inference instruction during the upcoming re-trial or to inform the jury in the new trial about the government's past discovery abuses.
Paramount Pictures Corp. v. Davis, 2005 U.S. Dist. LEXIS 31065 (E.D. Pa. Dec. 2, 2005).
An adverse inference jury instruction was warranted due to a computer consultant's wiping of the hard drive on his computer after being notified he was suspected of being the "first propagator" of an unauthorized copy of a film on the internet. However, neither party had requested a jury trial, and an adverse inference was inappropriate on a motion for summary judgment. The court held that at the time of trial, it would take the willful destruction of evidence into account.
An adverse inference jury instruction was warranted due to a computer consultant's wiping of the hard drive on his computer after being notified he was suspected of being the "first propagator" of an unauthorized copy of a film on the internet. However, neither party had requested a jury trial, and an adverse inference was inappropriate on a motion for summary judgment. The court held that at the time of trial, it would take the willful destruction of evidence into account.
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.
Larson v. Bank One Corp., 2005 U.S. Dist. LEXIS 42131 (N.D. Ill. Aug. 18, 2005).
A credit card issuer that failed to create and follow a comprehensive document retention policy was sanctioned after electronic documents could not be found because plaintiffs were prejudiced in the presentation of their case. However, the "draconian" sanction of a default judgment was not warranted because the spoliation by the issuer resulted from its ineffective preservation policies rather than willful document destruction or bad faith.
A credit card issuer that failed to create and follow a comprehensive document retention policy was sanctioned after electronic documents could not be found because plaintiffs were prejudiced in the presentation of their case. However, the "draconian" sanction of a default judgment was not warranted because the spoliation by the issuer resulted from its ineffective preservation policies rather than willful document destruction or bad faith.
Wiedmann v. Bradford Group, Inc., 2005 Mass. LEXIS 418 (Sup. Jud. Ct. Jul. 21, 2005).
An employer that failed to keep employment records for two years as required by statute was barred from making undocumented challenges to commissions allegedly due to plaintiff under an oral contract.
An employer that failed to keep employment records for two years as required by statute was barred from making undocumented challenges to commissions allegedly due to plaintiff under an oral contract.
Donald Arndt v. First Union National Bank, 2005 N.C. App. LEXIS 1080 (N.C. Ct. App. June 7, 2005).
Email correspondence between an employee and his employers was sufficient evidence of the existence of an oral contract regarding compensation. A jury instruction of the trial court regarding spoliation of evidence was proper because the employee established the employers' notice of and the importance of the text of this correspondence, and the employee offered proof that the employers did not preserve the information despite prior knowledge of its existence and relevance.
Email correspondence between an employee and his employers was sufficient evidence of the existence of an oral contract regarding compensation. A jury instruction of the trial court regarding spoliation of evidence was proper because the employee established the employers' notice of and the importance of the text of this correspondence, and the employee offered proof that the employers did not preserve the information despite prior knowledge of its existence and relevance.
Jinks-Umstead v. England,, 2005 U.S. Dist. LEXIS 5813 (D.D.C. Apr. 7, 2005).
Plaintiff, a head contracting officer, claimed in a Title VII Civil Rights action that the Navy took away her supervisory status for discriminatory and retaliatory reasons. Following plaintiff's presentation of her case at trial, the Navy produced for the first time approximately 1,400 pages of "work in place" reports used to determine support staff requirements and relevant to the litigation.. Prior to the trial, the Navy had erroneously claimed it no longer had the reports.
Plaintiff, a head contracting officer, claimed in a Title VII Civil Rights action that the Navy took away her supervisory status for discriminatory and retaliatory reasons. Following plaintiff's presentation of her case at trial, the Navy produced for the first time approximately 1,400 pages of "work in place" reports used to determine support staff requirements and relevant to the litigation.. Prior to the trial, the Navy had erroneously claimed it no longer had the reports.
Zubulake v. UBS Warburg LLC,, 2005 U.S. Dist. LEXIS 4085 (S.D.N.Y. Mar. 16, 2005).
In an earlier decision (Zubulake V), the court imposed an adverse jury instruction sanction on UBS Warburg for acting willfully in destroying potentially relevant information contained in email. In response to motions in limine in preparation for trial, the court ruled (Zubulake VI) that providing the jury the court's five previous discovery opinions would unfairly prejudice UBS. Also, the court held plaintiff will not be allowed to introduce correspondence concerning the discovery disputes unless UBS first introduces evidence to show that any failure to produce information was reasonable. Finally, the court ruled that plaintiff would not be allowed to call defense counsel to the stand to testify regarding preservation of email and backup tapes.
In an earlier decision (Zubulake V), the court imposed an adverse jury instruction sanction on UBS Warburg for acting willfully in destroying potentially relevant information contained in email. In response to motions in limine in preparation for trial, the court ruled (Zubulake VI) that providing the jury the court's five previous discovery opinions would unfairly prejudice UBS. Also, the court held plaintiff will not be allowed to introduce correspondence concerning the discovery disputes unless UBS first introduces evidence to show that any failure to produce information was reasonable. Finally, the court ruled that plaintiff would not be allowed to call defense counsel to the stand to testify regarding preservation of email and backup tapes.
Clark Construction Group, Inc. v. City of Memphis, 2005 U.S. Dist. LEXIS 13808 (W.D. Tenn. Mar. 14, 2005).
Shredding of email and other documents by a city employee after the filing of a suit in which the documents would have been relevant was not in bad faith. However, the court imposed a rebuttable adverse inference sanction as punishment for the City's grossly negligent conduct in failing to establish a document preservation procedure or to take control of all potentially relevant documents.
Shredding of email and other documents by a city employee after the filing of a suit in which the documents would have been relevant was not in bad faith. However, the court imposed a rebuttable adverse inference sanction as punishment for the City's grossly negligent conduct in failing to establish a document preservation procedure or to take control of all potentially relevant documents.
Whitehall Specialties, Inc. v. Delaportas, 2005 U.S. Dist. LEXIS 4345 (W.D. Wisc. Mar. 10, 2005).
A defendant's discovery misconduct displayed "willfulness, bad faith and fault," according to the court in entering a default judgment for $2.2 million.
A defendant's discovery misconduct displayed "willfulness, bad faith and fault," according to the court in entering a default judgment for $2.2 million.
Pennar Software Corp. v. Fortune 500 Sys., 2001 U.S. Dist. LEXIS 18432, 51 Fed. R. Serv. 279 (N.D. Cal.).
Defendant sanctioned for altering relevant portion of web page while motion to dismiss was pending.
Defendant sanctioned for altering relevant portion of web page while motion to dismiss was pending.
Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 U.S. Dist. LEXIS 2866 (S.D.N.Y. Feb. 24, 2005).
Sanctions were recommended for a plaintiff that "engaged in repeated improper discovery conduct." Withholding of damaging email until the end of discovery and until after expert discovery ended was "inexcusable." While rejecting dismissal of the plaintiff's complaint requested by the defendant insurance company, the magistrate recommended that sanctions should include further depositions of certain witnesses, partial preclusion, and cost-shifting.
Sanctions were recommended for a plaintiff that "engaged in repeated improper discovery conduct." Withholding of damaging email until the end of discovery and until after expert discovery ended was "inexcusable." While rejecting dismissal of the plaintiff's complaint requested by the defendant insurance company, the magistrate recommended that sanctions should include further depositions of certain witnesses, partial preclusion, and cost-shifting.
Kucala Enterprises v. Auto Wax Co., Inc.,, 2004 U.S. Dist. LEXIS 22271 (N.D. Ill. Nov. 2, 2004).
The plaintiff in a declaratory judgment action concerning a patent was barred from alleging invalidity or unenforceability of defendant's patent due to plaintiff's bad faith destruction of documents and email through various means, including use of the "Evidence Eliminator" program. Defendant patent holder was granted a preliminary injunction barring plaintiff from using or referring to automotive detailing clay unless plaintiff first obtained a ruling that defendant's patent was not thereby infringed.
The plaintiff in a declaratory judgment action concerning a patent was barred from alleging invalidity or unenforceability of defendant's patent due to plaintiff's bad faith destruction of documents and email through various means, including use of the "Evidence Eliminator" program. Defendant patent holder was granted a preliminary injunction barring plaintiff from using or referring to automotive detailing clay unless plaintiff first obtained a ruling that defendant's patent was not thereby infringed.
Institute For Motivational Living, Inc. v. Doulos Institute for Strategic Consulting, 2004 U.S. App. LEXIS 20834 (3rd Cir. Oct. 5, 2004).
In an unpublished opinion, the Third Circuit held that sanctions could be imposed pursuant to a court's inherent authority against a pro se litigant for deleting personal files from a laptop computer in violation of a court order. However, the court remanded the case to the district court for a determination of how much of $25,000 in attorneys' fees assessed against the pro se litigant was attributable to the pro se litigant's failure to abide by the lower court's discovery order.
In an unpublished opinion, the Third Circuit held that sanctions could be imposed pursuant to a court's inherent authority against a pro se litigant for deleting personal files from a laptop computer in violation of a court order. However, the court remanded the case to the district court for a determination of how much of $25,000 in attorneys' fees assessed against the pro se litigant was attributable to the pro se litigant's failure to abide by the lower court's discovery order.
Goll v. ABC, 2004 N.Y. App. Div. LEXIS 10932 (N.Y. App. Div. 2d Dep't Sept. 20, 2004).
An appellate court reversed a sanction for spoliation because it was not shown that the defendants intentionally attempted to hide or destroy evidence or negligently disposed of evidence that might be used in future litigation.
An appellate court reversed a sanction for spoliation because it was not shown that the defendants intentionally attempted to hide or destroy evidence or negligently disposed of evidence that might be used in future litigation.
MOSAID Techs. Inc. v. Samsung Elecs. Co., "MOSAID Techs. II", 2004 U.S. Dist. LEXIS 23004 (D. N.J. Sept. 1, 2004).
In July 2004, defendants were ordered in an unreported decision to pay monetary sanctions. That order also provided that plaintiff was entitled to an adverse inference jury instruction due to defendants' failure to produce discoverable email. Following the July 2004 order, a Magistrate held that plaintiff should be awarded $566,839.97 in attorney's fees and costs spent in seeking discovery and in obtaining sanctions. The Magistrate also recommended imposition of an adverse jury instruction modeled on the adverse jury instruction in Zubulake V.
In July 2004, defendants were ordered in an unreported decision to pay monetary sanctions. That order also provided that plaintiff was entitled to an adverse inference jury instruction due to defendants' failure to produce discoverable email. Following the July 2004 order, a Magistrate held that plaintiff should be awarded $566,839.97 in attorney's fees and costs spent in seeking discovery and in obtaining sanctions. The Magistrate also recommended imposition of an adverse jury instruction modeled on the adverse jury instruction in Zubulake V.
Jones v. The Boeing Company, 2004 U.S. App. LEXIS 18105 (8th Cir. Aug. 26, 2004).
In a sex discrimination case, an adverse inference instruction was not warranted because the plaintiff did not show that defendant intentionally destroyed documents in order to suppress the truth and did not show that she was prejudiced by destruction of documents.
In a sex discrimination case, an adverse inference instruction was not warranted because the plaintiff did not show that defendant intentionally destroyed documents in order to suppress the truth and did not show that she was prejudiced by destruction of documents.
GE Harris Railway Electronics, L.L.C. v. Westinghouse Air Brake Co., 2004 U.S. Dist. LEXIS 16329 (D. Del. Aug. 18, 2004).
A finding of spoliation of evidence by a key employee and the resulting adverse inference resulted in a determination that a railway equipment manufacturer violated a consent order filed in settlement of a competitor's action and that the competitor was entitled to over $4.5 million in license fees, depending on sales by the manufacturer of a competing product.
A finding of spoliation of evidence by a key employee and the resulting adverse inference resulted in a determination that a railway equipment manufacturer violated a consent order filed in settlement of a competitor's action and that the competitor was entitled to over $4.5 million in license fees, depending on sales by the manufacturer of a competing product.
Advantacare Health Partners, LP v. Access IV, 2004 U.S. Dist. LEXIS 16835 (N.D. Cal. Aug. 17, 2004).
Although an employee who took part in setting up a competing company intentionally destroyed electronic copies of proprietary and confidential information in violation of a temporary restraining order, the court decided that entry of a default judgment was too severe a sanction to impose. The court ordered less severe evidentiary and monetary sanctions. Those sanctions included a finding of fact that the former employee copied all of the files on the employer's computers and an order requiring payment of $20,000 to the employer.
Although an employee who took part in setting up a competing company intentionally destroyed electronic copies of proprietary and confidential information in violation of a temporary restraining order, the court decided that entry of a default judgment was too severe a sanction to impose. The court ordered less severe evidentiary and monetary sanctions. Those sanctions included a finding of fact that the former employee copied all of the files on the employer's computers and an order requiring payment of $20,000 to the employer.
United States v. Philip Morris USA, Inc., 2004 U.S. Dist. LEXIS 13580 (D.D.C., July 21, 2004).
A tobacco company and its parent company must pay a sanction of $250,000 for each of eleven corporate managers or officers who did not comply with a"print and retain" email retention policy. Also, none of the identified managers and officers will be allowed to testify in any capacity in the action if the person has failed to comply with the tobacco company's internal document retention program.
A tobacco company and its parent company must pay a sanction of $250,000 for each of eleven corporate managers or officers who did not comply with a"print and retain" email retention policy. Also, none of the identified managers and officers will be allowed to testify in any capacity in the action if the person has failed to comply with the tobacco company's internal document retention program.
Zubulake v. UBS Warburg LLC,, 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y., July 20, 2004).
Court orders sanctions requiring the defendant to pay costs associated with the discovery dispute and providing plaintiff with a jury instruction that will allow the jury to presume missing information would have been detrimental to defendant. The court also concludes that counsel for defendant was not blameless and sets forth guidance for how counsel generally should preserve electronic information.
Court orders sanctions requiring the defendant to pay costs associated with the discovery dispute and providing plaintiff with a jury instruction that will allow the jury to presume missing information would have been detrimental to defendant. The court also concludes that counsel for defendant was not blameless and sets forth guidance for how counsel generally should preserve electronic information.
Hayman v. PricewaterhouseCoopers, LLP (In re Telxon Securities Litigation), 2004 U.S. Dist. LEXIS 27295 (N.D. Ohio July 2, 2004).
Magistrate recommended that motions for sanctions against third-party defendant be granted where third-party defendant's production of relevant documents and database information was not made in good faith; third-party defendant failed to produce documents and there was strong evidence that suggested spoliation.
Magistrate recommended that motions for sanctions against third-party defendant be granted where third-party defendant's production of relevant documents and database information was not made in good faith; third-party defendant failed to produce documents and there was strong evidence that suggested spoliation.
MasterCard International, Inc. v. Moulton, 2004 U.S. Dist. LEXIS 11376 (S.D.N.Y., June 16, 2004).
While an inference of trademark dilution could be raised, defendants' failure to alter normal document retention practices to meet discovery obligations did not warrant a conclusive determination of dilution because defendants' failure was not shown to be in bad faith.
While an inference of trademark dilution could be raised, defendants' failure to alter normal document retention practices to meet discovery obligations did not warrant a conclusive determination of dilution because defendants' failure was not shown to be in bad faith.
QZO, Inc. v. Moyer, 2004 S.C. App. LEXIS 71 (S.C. Ct. App. 2004).
Appellate court affirms judgment entered against party found to have willfully violated TRO requiring immediate surrender of computer evidence.
Appellate court affirms judgment entered against party found to have willfully violated TRO requiring immediate surrender of computer evidence.
Wiginton v. CB Richard Ellis,, 2003 U.S. Dist. LEXIS 19128 (N.D. Ill., Oct. 27, 2003).
Defendant's actions constitute bad faith when company fails to halt routine document retention and destruction policy. Court declines to issue spoliation sanctions until plaintiff's expert has an opportunity to examine data contained on backup tapes.
Defendant's actions constitute bad faith when company fails to halt routine document retention and destruction policy. Court declines to issue spoliation sanctions until plaintiff's expert has an opportunity to examine data contained on backup tapes.
Kucala Enters. v. Auto Wax Co.,, 2003 U.S. Dist. LEXIS 8833 (N.D. Ill. May 23, 2003).
Magistrate judge recommends dismissal with prejudice after finding that plaintiff destroyed computer evidence.
Magistrate judge recommends dismissal with prejudice after finding that plaintiff destroyed computer evidence.
Eichman v. McKeon, 2003 PA Super 185, 824 A.2d 305, 2003 Pa. Super. LEXIS 1130 (Pa. Super. Ct. May 7, 2003).
No abuse of discretion in failing to award sanctions for alleged discovery misconduct related to computer logs from insurance company.
No abuse of discretion in failing to award sanctions for alleged discovery misconduct related to computer logs from insurance company.
Hildreth Mfg. v. Semco, Inc., 151 Ohio App. 3d 693, 2003 Ohio 741, 785 N.E.2d 774, 2003 Ohio App. LEXIS 713 (Ohio Ct. App., Marion County Feb. 20, 2003).
Motion for contempt for spoliation of evidence denied when there was no reasonable possibility that the destroyed evidence from computer hard drives would have produced evidence favorable to the allegedly harmed party that was otherwise unattainable.
Motion for contempt for spoliation of evidence denied when there was no reasonable possibility that the destroyed evidence from computer hard drives would have produced evidence favorable to the allegedly harmed party that was otherwise unattainable.
Liafail, Inc. v. Learning 2000, Inc., 2002 U.S. Dist. LEXIS 24803 (D. Del. Dec. 23, 2002).
Spoliation of electronic evidence may subject party to adverse inference jury instruction.
Spoliation of electronic evidence may subject party to adverse inference jury instruction.
Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 2002 U.S. Dist. LEXIS 20811, Copy. L. Rep. (CCH) P28554, 54 Fed. R. Serv. 3d (Callaghan) 427 (D. Minn. Apr. 29, 2002).
Court establishes protocol for document preservation
Court establishes protocol for document preservation
Lombardo v. Broadway Stores, 2002 Cal. App. Unpub. LEXIS 4700 (Jan. 22, 2002).
Court affirms sanctions for destroying computer records, though hard copies remained available.
Court affirms sanctions for destroying computer records, though hard copies remained available.
Trigon Ins. Co. v. United States, 204 F.R.D. 277, 2001 U.S. Dist. LEXIS 18824, 88 A.F.T.R.2d (RIA) 6883, 51 Fed. R. Serv. 3d (Callaghan) 378, 57 Fed. R. Evid. Serv. (CBC) 664 (E.D. Va. Nov. 9, 2001).
United States sanctioned for destruction of evidence by retained litigation consultant.
United States sanctioned for destruction of evidence by retained litigation consultant.
Long Island Diagnostic Imaging, P.C. v. Stony Brook Diagnostic, 2001 N.Y. App. Div. LEXIS 7836 (N.Y. Sup. Ct. August 6, 2001).
The court struck defendants' pleadings as a sanction for the spoliation of evidence.
The court struck defendants' pleadings as a sanction for the spoliation of evidence.
Crescendo Invs. v. Brice, 61 S.W.3d 465, 2001 Tex. App. LEXIS 3479 (Tex. App. San Antonio May 30, 2001).
No abuse of discretion in refusing negative inference instruction; showing of lack of fraudulent intent rebutted presumption evidence would have been unfavorable.
No abuse of discretion in refusing negative inference instruction; showing of lack of fraudulent intent rebutted presumption evidence would have been unfavorable.
Danis v. USN Communs., Inc., 2000 U.S. Dist. LEXIS 16900, 53 Fed. R. Serv. 3d (Callaghan) 828 (N.D. Ill. Oct. 20, 2000).
Sanction for failure to preserve electronic evidence.
Sanction for failure to preserve electronic evidence.
Mathias v. Jacobs, 2000 U.S. Dist. LEXIS 10547 (S.D.N.Y. July 28, 2000).
Sanctions were imposed upon plaintiff for recklessly spoliating information on a Palm Pilot.
Sanctions were imposed upon plaintiff for recklessly spoliating information on a Palm Pilot.
Telecom Int'l Am., Ltd. v. AT&T Corp., 1999 U.S. Dist. LEXIS 15109 (S.D.N.Y. September 27, 1999).
The imposition of a sanction on defendant for the spoliation of documents was necessary, despite the fact that defendant did not act willfully or with deliberate intent.
The imposition of a sanction on defendant for the spoliation of documents was necessary, despite the fact that defendant did not act willfully or with deliberate intent.
Adobe Sys. v. South Sun Prods., Inc., 187 F.R.D. 636, 1999 U.S. Dist. LEXIS 11034 (S.D. Cal. July 20, 1999).
Evidence on hard disk more difficult to destroy than evidence in other formats.
Evidence on hard disk more difficult to destroy than evidence in other formats.
New York State Nat'l Org. for Women v. Cuomo, 1998 U.S. Dist. LEXIS 10520, (S.D.N.Y. July 14, 1998).
Because plaintiffs did not establish that they were prejudiced by defendants' failure to preserve a computer database they were not entitled to sanctions for the spoliation of evidence.
Because plaintiffs did not establish that they were prejudiced by defendants' failure to preserve a computer database they were not entitled to sanctions for the spoliation of evidence.
P&G v. Haugen, 179 F.R.D. 622, 1998 U.S. Dist. LEXIS 5689, 1998-2 Trade Cas. (CCH) P72283 (D. Utah Apr. 17, 1998).
Monetary sanctions imposed for destruction of evidence; no adverse inference instruction because no showing of bad faith.
Monetary sanctions imposed for destruction of evidence; no adverse inference instruction because no showing of bad faith.
Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200, 1998 Colo. App. LEXIS 12, 27 Colo. Law. No. 3 146, 1998 Colo. J. C.A.R. 343 (Colo. Ct. App. Jan. 22, 1998).
Spoliation sanctions imposed though no discovery order in effect.
Spoliation sanctions imposed though no discovery order in effect.
In re Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 1997 U.S. Dist. LEXIS 80, 36 Fed. R. Serv. 3d (Callaghan) 767 (D.N.J. Jan. 6, 1997).
$1 million sanction for negligent destruction of evidence while litigation was pending.
$1 million sanction for negligent destruction of evidence while litigation was pending.
Applied Telematics v. Sprint Communs. Co., L.P., 1996 U.S. Dist. LEXIS 14053 (E.D. Pa. Sept. 17, 1996).
Court allowed monetary sanctions for spoliation of evidence when backup information was destroyed during routine deletions of computer information. Court refused to allow adverse inference instruction, finding that plaintiff had not been sufficiently prejudiced to require such a ruling.
Court allowed monetary sanctions for spoliation of evidence when backup information was destroyed during routine deletions of computer information. Court refused to allow adverse inference instruction, finding that plaintiff had not been sufficiently prejudiced to require such a ruling.
Gates Rubber Co. v. Bando Chem. Indus., 167 F.R.D. 90, 1996 U.S. Dist. LEXIS 12423 (D. Colo. May 1, 1996).
Plaintiff awarded attorneys' fees for expenses incurred in pursuing issues related to defendant's possible deletions of electronic evidence.
Plaintiff awarded attorneys' fees for expenses incurred in pursuing issues related to defendant's possible deletions of electronic evidence.
Werbungs Und Commerz Union Austalt v. Collectors Guild, Ltd., 728 F. Supp. 975, LEXIS 15130 (S.D.N.Y. Dec. 19, 1989), aff'd in part, rev'd on other grounds, 930 F.2d 1021 (2d Cir. N.Y. 1991).
Affirming adverse inference instruction; defendant routinely purged computer files every six months and destroyed relevant information.
Affirming adverse inference instruction; defendant routinely purged computer files every six months and destroyed relevant information.
Computer Assoc. Int'l, Inc. v. American Fundware, Inc., 133 F.R.D. 166, 1990 U.S. Dist. LEXIS 16613, Copy. L. Rep. (CCH) P26685, 18 U.S.P.Q.2d (BNA) 1649 (D. Colo. Dec. 6, 1990).
Court entered default judgment, finding willful destruction of evidence while litigation was pending.
Court entered default judgment, finding willful destruction of evidence while litigation was pending.
Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir. 1988).
In reversing a jury verdict against a rifle maker, the court held that on remand, the trial court should determine before issuing any adverse inference jury instruction whether the gun maker's document retention policy was reasonable and not instituted in bad faith.
In reversing a jury verdict against a rifle maker, the court held that on remand, the trial court should determine before issuing any adverse inference jury instruction whether the gun maker's document retention policy was reasonable and not instituted in bad faith.
National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257, 1980 U.S. Dist. LEXIS 11201, 31 Fed. R. Serv. 2d (Callaghan) 414 (E.D. Pa. May 5, 1980).
National Union ordered to create and produce computer-readable tape of information previously produced in paper form.
National Union ordered to create and produce computer-readable tape of information previously produced in paper form.
