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computer forensics
Spoliation (Continued)

Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. Jun. 2, 2006).
The court denied the defendant's motion for summary judgment after unresolved questions regarding possible spoliation were uncovered.

Covucci v. Keane Consulting Group, Inc., 2006 Mass. Super. LEXIS 313 (Mass. Sup. Ct. May 31, 2006).
The plaintiff's complaint was dismissed after the court found his attempts to delete email and files from his computer were in bad faith, and that the plaintiff had also engaged in deliberate spoliation and fraud on the court.

Select Medical Corp. v. Hardaway, 2006 U.S. Dist. LEXIS 15326 (E.D. Pa. Mar. 24, 2006).
In this case alleging violation of a non-compete agreement, plaintiff moved for an adverse inference and sanctions against defendant due to defendant's deletion of company files from his home computer. However, the court found that the defendant had deleted these files in an attempt to comply with the non-compete agreement and did not impose sanctions.

DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 U.S. Dist. LEXIS 38162 (E.D. Mich. Dec. 22, 2005).
Although it was determined that failing to suspend normal procedures for document destruction was negligent and not done purposefully, the magistrate recommended that sanctions, including and adverse inference jury instruction and attorney's fees, be imposed.

Electronic Funds Solutions v. Murphy, 2005 Cal. App. LEXIS 1910 (Cal. App. 4th Dist. Dec. 14, 2005).
The court reversed a discovery sanction in the form of a $24 million default judgment against defendant for wiping a computer hard drive before turning it over to plaintiff, as 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 allowed the plaintiffs to choose between accepting $50,000 or amending their complaint to state the actual amount of damages, however amending the complaint 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 party failed to preserve documents as they did not quickly institute a document retention policy and did not inform its employees of such a policy, resulting in the party being responsible for spoliation and being unable to produce responsive documents. The court imposed a sanction in which the party was not permitted to cross-examine the opposing sides financial expert and the jury was informed of the reason the cross-examination was not allowed to occur.

Jinks-Umstead v. England, "Jinks III", 2005 U.S. Dist. LEXIS 34547 (D.D.C. Dec. 7, 2005).
Plaintiff claimed in a Title VII Civil Rights action that the Navy discriminated and retaliated against her by removing her supervisory status. After plaintiff presented her case at trial, the Navy produced approximately 1,400 pages reports used to ascertain requirements for support staff that they had previously claimed they no longer had in their possession. Due to this, the court granted plaintiff with a new trial, however, due to the severity of the sanction and the Navy's good faith discovery efforts after the sanction, the court did not give the jury and adverse inference instruction or provide the jury with information pertaining to the fact that it was a retrial.

Paramount Pictures Corp. v. Davis, 2005 U.S. Dist. LEXIS 31065 (E.D. Pa. Dec. 2, 2005).
After defendant was found to have wiped his computer hard drive after being notified that he was suspected to have propagated and unauthorized copy of a film, an adverse inference jury instruction was warranted. However, neither party had requested a jury trial and an adverse inference was not appropriate on a motion for summary judgment, although the court held that it would take the willful destruction of evidence into account at the time of trial.

Ball v. Versar Inc., 2005 U.S. Dist. LEXIS 24351 (S.D. Ind. Sept. 23, 2005).
It was determined that the trustees had failed to meet their obligation to retain discoverable evidence after they had reason to believe that litigation would occur. Based on this, the trustees were ordered to allow defendant's technical consultant to access all computer systems that were used by the trustee over an eight-year period.

Heng Chan v. Triple 8 Palace, 2005 U.S. Dist. LEXIS 16520 (S.D.N.Y. Aug. 11, 2005).
Plaintiffs were awarded attorney fees and costs, as well as an adverse inference jury instruction, after defendant was found to have destroyed relevant evidence after litigation had begun.

Wiedmann v. Bradford Group, Inc., 2005 Mass. LEXIS 418 (Sup. Jud. Ct. Jul. 21, 2005).
Defendant failed to retain required employment records for two years and was therefore barred from making challenges regarding alleged commission owed to plaintiff based on an oral contract.

Donald Arndt v. First Union National Bank, 2005 N.C. App. LEXIS 1080 (N.C. Ct. App. June 7, 2005).
The court found that email messages between an employee and his employers were sufficient to act as evidence of the existence of an oral contract regarding compensation. The court found that the trial court's jury instruction regarding the spoliation of evidence was proper, as the employee supplied proof that the employers did not preserve the email messages 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 claimed in a Title VII Civil Rights action that the Navy discriminated and retaliated against her by removing her supervisory status. After plaintiff presented her case at trial, the Navy produced approximately 1,400 pages reports used to ascertain requirements for support staff that they had previously claimed they no longer had in their possession.

Zubulake v. UBS Warburg LLC, "Zubulake VI", 2005 U.S. Dist. LEXIS 4085 (S.D.N.Y. Mar. 16, 2005).
In Zubulake V, an adverse jury instruction sanction was imposed on UBS Warburg due to their willful destruction of potentially relevant email messages. Motions in limine were made in preparation for trial in Zubulake VI and the court ruled that:
  1. The jury would not be provided with the court's five previous discovery opinions as it would unfairly prejudice UBS
  2. Plaintiff would not be permitted to introduce correspondence relating to the discovery disputes unless UBS introduced evidence first that showcased their failure to produce information
  3. Plaintiff would not be permitted to call to the stand defense counsel to question them regarding email and backup tape preservation
Clark Construction Group, Inc. v. City of Memphis, 2005 U.S. Dist. LEXIS 13808
(W.D. Tenn. Mar. 14, 2005).

The city failed to institute a document preservation procedure, resulting in an employee shredding email and other relevant documents after a suit had been filed. Although the court found that the employee did not act in bad faith, they also imposed a rebuttable adverse inference sanction for the city's negligence.

Whitehall Specialties, Inc. v. Delaportas, 2005 U.S. Dist. LEXIS 4345 (W.D. Wisc. Mar. 10, 2005).
The court entered a default judgment of $2.2 million due to defendant's discovery misconduct.

Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 U.S. Dist. LEXIS 2866 (S.D.N.Y. Feb. 24, 2005).
The magistrate judge recommended sanctions against plaintiff who "engaged in repeated improper discovery conduct", such as withholding email until the end of discovery and after expert discovery. The recommended sanctions included cost-shifting, partial preclusion, and additional depositions of certain witnesses.

E*Trade Secs. LLC v. Deutsche Bank AG, 2005 U.S. Dist. LEXIS 3021 (D. Minn. Feb. 17, 2005).
The federal magistrate judge recommended sanctions be imposed on the defendant in the form of an adverse jury instruction.

MOSAID Techs. Inc. v. Samsung Elecs. Co., MOSAID Techs. III", 2004 U.S. dist. LEXIS 25286 (D. N.J. Dec. 7, 2004).
The court imposed both monetary sanctions and an adverse inference jury instruction based on defendant's failure to preserve potentially relevant electronic data.

Kucala Enterprises v. Auto Wax Co., Inc., "Kucala VII", 2004 U.S. Dist. LEXIS 22271 (N.D. Ill. Nov. 2, 2004).
Plaintiff willfully destroyed electronic information and email in various ways, including by using Evidence Eliminator. Defendant, who held the patent in question, 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).
The Third Circuit held the lower court's decision to impose sanctions on a pro se litigant for violating a court order by deleting electronic information from a laptop computer system. The Third Circuit also remanded the case to the district court to determine the percentage of the $25,000 in attorney fees that were assessed against the pro se litigant were attributable to his failure to abide by the discovery order.

Goll v. ABC, 2004 N.Y. App. Div. LEXIS 10932 (N.Y. App. Div. 2d Dep't Sept. 20, 2004).
Sanctions imposed as a result of spoliation were reversed by the appellate court as it did not determine that defendants had intentionally attempted to destroy or hide evidence.

MOSAID Techs. Inc. v. Samsung Elecs. Co., "MOSAID Techs. II", 004 U.S. Dist. LEXIS 23004 (D. N.J. Sept. 1, 2004).
The court imposed both monetary sanctions and an adverse inference jury instruction based on defendant's failure to preserve potentially relevant electronic data in July 2004. Following this decision, the magistrate judge found that plaintiff should be awarded $566,839.97 in attorney's fees and costs spent in seeking discovery and in obtaining sanctions

Jones v. The Boeing Company, 2004 U.S. App. LEXIS 18105 (8th Cir. Aug. 26, 2004).
The court could not confirm plaintiff's claims that defendant intentionally destroyed documents in an attempt to hide the truth or that plaintiff was prejudiced against due to the destruction of the documents, therefore, the court did not issue an adverse inference jury instruction.

GE Harris Railway Electronics, L.L.C. v. Westinghouse Air Brake Co., 2004 U.S. Dist. LEXIS 16329 (D. Del. Aug. 18, 2004).
After determining that a key employee destroyed evidence, the court issues an adverse inference jury instruction, which resulted in the jury finding that over $4.5 million in licensing fees were due.

Advantacare Health Partners, LP v. Access IV, 2004 U.S. Dist. LEXIS 16835 (N.D. Cal. Aug. 17, 2004).
The court ordered sanctions in the form of a finding of fact and a payment of $20,000 after it determined that an employee who founded a competing organization intentionally destroyed electronic evidence, violating a temporary restraining order.

United States v. Philip Morris USA, Inc., 2004 U.S. Dist. LEXIS 13580 (D.D.C., July 21, 2004).
The court issues sanctions against defendant and ordered defendant to pay a total of $2.75 million after eleven managers and officers did not comply with an email retention policy dictating that email messages be printed and retained. In addition, the court found that none of the eleven managers or officers would be permitted to testify in court.

Zubulake v. UBS Warburg LLC, "Zubulake V", 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y., July 20, 2004).
Sanctions against defendant were issued in which a jury instruction would be given and defendant would pay costs relating to the discovery dispute. In addition, the court found that defendant's counsel was also at blame and developed guidelines for the manner in which counsel must preserver electronic evidence.

Hayman v. PricewaterhouseCoopers, LLP (In re Telxon Securities Litigation), 2004 U.S. Dist. LEXIS 27295 (N.D. Ohio July 2, 2004).
After the third-party defendant did not produce documents and strong evidence was identified that suggested spoliation, the magistrate judge recommended motions for sanctions against the third-party defendant.

MasterCard International, Inc. v. Moulton, 2004 U.S. Dist. LEXIS 11376 (S.D.N.Y., June 16, 2004).
Although defendant did not modify their document retention procedures based on discovery needs, the court found that defendant did not do so in bad faith and did not issue sanctions.

QZO, Inc. v. Moyer, 594 S.E.2d 541; 2004 S.C. App. LEXIS 71(S.C. Ct. App. 2004).
The appellate court found that the court had been correct in finding that a party had purposefully violated a temporary restraining order, which resulted in the party being instructed to turn over computer evidence immediately.

Wiginton v. CB Richard Ellis, "Wiginton III", 2003 U.S. Dist. LEXIS 19128 (N.D. Ill., Oct. 27, 2003).
Defendant failed to cease its document retention and destruction procedures, which the court determined the defendant did in bad faith. However, court would not issue spoliation sanctions until after plaintiff's computer forensic expert had the opportunity to assess defendant's backup tapes.

Kucala Enters. v. Auto Wax Co., "Kucala III", 2003 U.S. Dist. LEXIS 8833 (N.D. Ill. May 23, 2003).
Plaintiff willfully destroyed electronic information and email in various ways, including by using Evidence Eliminator. Based on this fact, the magistrate judge recommended the case be dismissed with prejudice.

Eichman v. McKeon, 2003 PA Super 185, 824 A.2d 305, 2003 Pa. Super. LEXIS 1130 (Pa. Super. Ct. May 7, 2003).
The superior court found that the lower court had not abused its discretion by not awarding sanctions based on alleged discovery misconduct.

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).
The court denied a motion for contempt based on spoliation of evidence as the court did not find that the evidence destroyed from computer hard drives harmed the opposing party as all evidence was otherwise attainable.


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