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Cases
U.S.
v. Koch Industries, Inc. 1998 WL 1744497, N.D.Okla., 1998. See also,
U.S. ex rel. Koch v. Koch Industries, 197
F.R.D. 488 (N.D.Okla.,1999) (sanctions)
Detailed analysis
and discussion of digital discovery issues and problems. Shareholders
filed claim under False Claims Act, alleging that oil company understated
quantity of oil produced from federal and Indian lands. Plaintiffs claimed
that company thwarted discovery attempts by destroying backup tapes
and files. Court found that Plaintiffs had failed to show that Defendant
engaged in willful acts to thwart discovery, but the Defendant failed
in its duty to preserve evidence that it should have known was relevant,
and many files which should have been preserved were destroyed due to
Dıs negligence. Court did not allow adverse inference instruction to
jury, but did allow Plaintiffs to inform jury which tapes were destroyed
and the impact of the destruction on their case.
Linnen
v. Robins 1999 WL 462015, 10 Mass.L.Rptr. 189 (Mass Super. Court,
1999)
Fen-Phen litigation.
Defendant Wyeth fails to preserve emails and then fails to turn over
all emails and database info requested in discovery and subject to court
order. This memo orders production of relevant emails by Wyeth and imposes
costs of production on Wyeth. Also sanctions Wyeth and allows spoliation
inference to jury for Wyethıs destruction of emails. Refers to ³inexcusable
conduct² by Wyeth several times.
Procter
& Gamble Co. v. Haugen 179 F.R.D. 622, D.Utah, 1998.
P & G sued competitor
and competitorıs distributors for spreading rumors of P & Gıs Satanism,
specifically alleging defamation, unfair competition, violations of
Lanham act, Utah Truth in Advertising Act, etc. Judge Kimball dealt
with various motions here, including sanctioning P&G for failing to
preserve relevant emails, and allowed P&G to do a keyword search of
Defendantıs database on issues concerning agency or control in general,
but limited search so that it would not yield general commercial or
competitive information.
Telecom
Intern. America, Ltd. v. AT & T Corp. 189 F.R.D. 76, S.D.N.Y., 1999.
In discrimination
claim, order sanctioning AT&T for failing to preserve records of long-distance
calls in its database after specific discovery request had been made.
Court ruled that specific request put AT&T on notice of relevance of
records and thereafter, AT&T had a duty to preserve. Ordered further
evidentiary hearing to determine whether inference of discrimination
was appropriate given destruction of records.
Lexis-Nexis
v. Beer 41 F.Supp.2d 950 (D.Minn., 1999)
Employer sued employee
for misappropriation to trade secrets. Following temporary restraining
order requiring employee to turn over copy of database he made when
he resigned, employer moved for sanctions, claiming employee had destroyed
critical parts of database to avoid discovery and in violation of TRO.
Court found that sanction of drawing inferences against employee for
missing info was not appropriate, but imposed monetary sanctions against
employee for violating TRO.
Mathias
v. Jacobs 197 F.R.D. 29, S.D.N.Y., 2000.
Spoliation of information
in Palm Pilot. Court ruled that Plaintiff had duty to preserve info
in Palm Pilot that she knew might be relevant. But info is still discoverable,
albeit in a more difficult way, so does not warrant dismissing case
of allowing adverse inference. However, monetary sanctions imposed from
costs as a consequence of spoliation.
Danis
v. USN Communications, Inc. 2000 WL 1694325, N.D.Ill., 2000.
Rather amusing
memo and order describing an apparently ugly, mean-spirited discovery
process. Ultimately court finds that Defendantıs failed to properly
preserve information on their databases, but that Plaintiffs vastly
overstated the significance of this. Allowed trial judge to inform jury
that some gaps in Plaintiffıs case were caused by Defendantıs failure
to turn over tapes and documents, fined officer of company for failing
to properly preserve tapes and documents, but denied Plaintiffıs motion
for default judgment.
Smith
v. Texaco, Inc. 951 F.Supp. 109, E.D.Tex.,1997.
Employee sued employer
on race discrimination claim. Judge had entered a TRO enjoining employer
from removing certain records from the state or from deleting certain
records. This order, in part, amends the TRO, allowing employer to delete
or move certain records accumulated in the ordinary course of business,
provided it makes database backups of all relevant material.
Crown
Life Ins. Co. v. Craig 995 F.2d 1376, C.A.7 (Ill.),1993
Insurer brought
action against agent, and agent counter-claimed against insurer, claiming
he was owed commissions. Affirms trial courtıs decision to sanction
insurer and enter default judgment against insurer when it failed on
several occasions to comply with discovery order requesting raw data
from database.
Gates
Rubber Co. v. Bando Chemical Industries, Ltd. 167 F.R.D. 90, D.Colo.,
1996.
Gates alleged chronic
and continuous destruction of evidence and other violations. Court dismisses
most of its claims, but does find that defendant destroyed word processing
files that warranted sanction of ten percent of attorneyıs fees. The
case has a long discussion of the elements of spoliation and the need
for evidence of what was spoliated as a basis for drawing inference,
and finds no spoliation.
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Articles
Delaney, Timothy
Q. "E-mail discovery: The duties, danger and expense."
Federal Lawyer 46 (January 1999), 42.
Lacouture, Peter
V. "Discovery and the use of computer-based information
in litigation." Rhode Island Bar Journal 45 (December 1997), 9.
Aragon, Lawrence.
"E-mail is not beyond the law." PC Week. 6 October
1997, 111. Advice on data preservation policies.
Ballon, Ian C. "Spoliation
of e-mail evidence: Proposed intranet policies and a framework for analysis."
Cyberspace Lawyer 4 (March 1999), 2.
Cotton, Christopher
V. "Document retention programs for electronic records:
Applying a reasonableness standard to the electronic era." Journal
of Corporation Law 24 (Winter 1999), 417.
Ogg, Randell C. and
Matthew P. Maloney. "Agressive pursuit of spoliation
reaps rewards." Product Liability Law and Strategy 15 (January 1997),
4.
Ziegler, Richard
F. and Seth A. Stuhl. "Spoliation
issues arise in digital era." National Law Journal 20 (16 February
1998), B09;
The
Linnen Story: Excerpt from Mundy, Alicia. "Dispensing
with the Truth"
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