#spoilation

[ukdamo]

from Wycoller Hall

Ted Hughes

So much stubborn history in the old dark house, so much seasoning of old darkening stone so much safety inside the dark stone of the old house, so many lit evenings so many footfalls listening to themselves through the echoing beauty of the old house such furious hooves such hatred such screams so many documents

such vintage of pain

drained finally to the dregs tumbled stones and dry emptiness

the cup shattered

[equusspirit]

Omarosa accuses White House of destroying evidence for Mueller investigation https://a.msn.com/r/2/AAAZUBT?m=en-us&referrerID=InAppShare

[ilsediscovery-blog]

Why Was Spoliation Not Found After Defendant’s Employee Admitted to Intentionally Deleting ESI?

In Selectica v. Novatus, Inc., Case No. 6:13-cv-1708-Orl-40TBS(M.D. Fla. March 12, 2015), Plaintiff was the former employer of four non-parties to the lawsuit, who left the company to work for Defendant. At issue is the deleted electronically stored evidence by one of these parties, an employee named Holt.

Plaintiff had a contract with Holt to hold in confidence and not disclose proprietary information and that all must be returned to Plaintiff upon leaving the company. Holt had a laptop computer at Plaintiff’s office that automatically uploaded files onto cloud storage. Once he left to work for Defendant, Plaintiff had possession of the laptop but Holt admitted he emailed links to files on the cloud storage.

The lawsuit was filed November 29, 2013 and a litigation hold letter was sent December 17, 2013. Beginning in November but mainly on December 29, 2013, Holt purged the Plaintiff’s files form the cloud storage. In deposition, he admitted he was prompted to do this after “finding out about the litigation…” Later, Holt was able to produce a list of the 68 files deleted from the cloud storage.

Plaitniff filed a motion seeking spoliation and the imposition of sanctions agasint Defendant for Holt’s actions. Plaintiff was concerned that the metadata from the cloud storage was irrevocably gone, which may have shown whether the files were copied, viewed, forwarded or downloaded. The court considered the motion under FRCP 37 and the 11th Circuit’s case law regarding spoliation:

·         Did the party in control of relevant evidence that was destroyed have a duty to preserve it? Yes, the files on cloud storage had relevant information when the lawsuit was filed and there was a duty to preserve it. Defendant had access to the files and was obligated to instruct Holt to maintain and preserve the data.

·         Was the evidence crucial to the case? The court found it was not, because Plaintiff still had the files deleted from the cloud from Holt’s laptop. Although the metadata was gone, the court noted metadata was not necessary to show Holt misappropriated the files—he admitted he did. Although the metadata could have shown whether someone copied, viewed, forwarded or downloaded the files, it might not have shown who did it or what was done with the information. Although the metadata might be used to impeach Hold’s testimony if he claimed no one viewed or downloaded the data, the court believed Plaintiff had plenty of other evidence that could impeach Holt’s testimony.

·         Was the data destroyed with a culpable state of mind? The court had no problem finding that Holt deleted the evidence in bad faith. However, there was no evidence Defendant acted in bad faith, a requirement for spoliation under the 11th Circuit. Defendant acted with negligence, or gross negligence.

Therefore, the court denied plaintiff’s motion for spoliation.

ILS – Plaintiff Electronic Discovery Experts

[ilsediscovery-blog]

Was This Video Destroyed Intentionally?

In Wardner v. American Airlines, et al., Case No. 14-22011-CIV (S.D.Fl. Jan. 12, 2015), the court considered Plaintiff’s motion for an adverse inference instruction against Defendants’ due to alleged spoliation of video. 

Plaintiff timely sent a preservation request, but Defendant allowed an employee to take out the request, and he misinterpreted it. He viewed the video for an incident at an airport instead of copying the footage. As he didn’t see any footage involving the police, the video was automatically overridden per the usual course of business. 

The court acknowledged this was negligent, however, in the 11th circuit, a finding of bad faith must be determined before spoliation sanctions can be imposed and mere negligence did not suffice. 

The court did state Plaintiff could present facts and arguments surrounding regarding this lost video at trial, however. 

ILS – 

Plaintiff eDiscovery Experts

[ilsediscovery-blog]

When is a Computer Crash ESI Spoilation?

For an example of what not to do after a computer crash when electronically stored information is contained on the hard drive, see Dorchester Financial Holdings Corp. v. Banco BRJ S.A., No. 11-CV-1529(S.D.N.Y. Dec. 15, 2014). 

The validity of a contract was at issue. Plaintiff’s lawyer had data, including the contract, on his personal computer. Before filing the Complaint, he printed out documents to attach, including the disputed contract and other documents that he believed were beneficial. (He admitted this at deposition, later in the case.) However, he didn’t print out all the electronic data. 

His computer crashed after the Compliant was filed but before discovery began. The attorney only asked his brother-in-law, who was not a computer expert, if it could be saved. The attorney did not consult any computer expert or had the hard drive examined by a forensic expert. Instead, he simply got rid of the computer. 

The magistrate ruled such actions constituted bad faith spoliation and imposed evidence preclusion of the printed-out documents as sanction. The district court agreed it was bad faith, but did not impose  evidence preclusion as sanction. Instead, the district court issued a mandatory adverse inference instruction to the jury as sanction. 

ILS – Plaintiff eDiscovery Experts

[ilsediscovery-blog]

Plaintiff Granted Additional eDiscovery After Alleged Spoliation

Mirkarimi v. Nevada Property 1 LLC, Case No. 12cv-2160-BTM (DHB) (S.D.Cal. November 18, 2014) is a class action case where Defendant claimed over a number of months to be searching audio recordings and metadata. Defendant justified its delay by blaming vague “technical issues.” The Court finally ordered the production of the ESI and Defendant again claimed to be diligently but gathering and producing the electronically stored information. Defendant eventually tendered far less ESI than Plaintiff knew existed. Plaintiff filed a Motion to investigate alleged spoliation of the audio and metadata.

The court noted Defendant’s “lack of candor” regarding the audio and metadata; Defendant never mentioned that the evidence was missing or that they had engaged in a forensic recovery effort. Plaintiff was permitted five additional oral depositions and fifteen interrogatories.

ILS – Plaintiff Electronic Discovery Experts

[ilsediscovery-blog]

Spoliation Claim Moves Forward Regarding Defendant’s Missing Emails

In a Motion for Summary Judgment, all factual allegations are accepted as true towards the moving party. In the following case, one claim Defendant sought Summary Judgment on was Plaintiff’s claim for spoliation of email evidence.

Yontz v. Dole Fresh Vegetables, Case No. 3:13-cv-066(S.D.Ohio, October 10, 2014) is a case where Plaintiff alleged retaliation and wrongful termination regarding FLMA leave. Plaintiff had filed a Complaint with the Department of Labor (DOL) on June 22, 2011. Around July 6, 2011, the Department of Labor sent Defendant a letter stating it would begin an investigation into the potential FMLA violation on behalf of Plaintiff and requested it preserve all evidence.  On September 9, 2011, Defendant sent a response to the DOL. On November 16, 2011, the DOL decided Defendant had violated the FMLA and that he had a right to file a private lawsuit. Plaintiff filed timely suit on March 4, 2013.

Plaintiff alleged spoliation as apparently, emails from the relevant time period were missing (the specifics are unclear in the Order.) Defendant admitted emails were missing, but claimed it didn’t know litigation was probable at the time of the deletion. However, the Court did not accept that.

Firstly, Defendant was put on notice on July 6, 2011 when the DOL told it about the investigation and instructed it to retain evidence.

Secondly, Defendant had spoken to the DOL after the September 9, 2011 letter. The DOL letter to Plaintiff stated Defendant was aware it violated the FMLA, but refused to settle.

Thirdly, although Defendant claimed its managers did not believe Plaintiff when he commented to them there would be “legal consequences” to not settling after the DOL finished its investigation. The Court noted whether Plaintiff’s statements were believed or not is a factual dispute.

Fourthly, Defendant’s IT technician testified that there was no automatic deletion system in place, and therefore, a reasonable juror could conclude that the emails were deleted manually, by an employee.

Finally, Defendant’s own policies stated that it should not deleted any email when a threat of lawsuit or investigation occurred, and the IT technician noted that any emails with Human Recourses keywords in them have a ten-year retention policy.

The Court denied Defendant’s Motion for Summary Judgment regarding the underlying merits of the case and the email spoliation issue.

ILS – Plaintiff eDiscovery Experts

[cceparalegal]

Texas 2-Step For Spoilation of Evidence.

Texas 2-Step For Spoilation of Evidence.

Spoilation, Texas Style, by Joshua Gilliand, Bow Tie Blog

http://bowtielaw.wordpress.com/2014/07/16/spoliation-texas-style/

The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess…

View On WordPress