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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
D's 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.
Procter
& Gamble Co. v. Haugen 179 F.R.D. 622, D.Utah, 1998.
P & G sued competitor
and competitor's distributors for spreading rumors of P & G's 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
Defendant's database on issues concerning agency or control in general,
but limited search so that it would not yield general commercial or
competitive information.
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 Wyeth's destruction of emails. Refers to "inexcusable
conduct" by Wyeth several times.
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.
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 attorney's 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.
Carlucci
v. Piper Aircraft Corp 102 F.R.D. 472 (S.D. Fla., 1984)
Lewy
v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998)
In re Prudential
Insurance Co. Sales Practices Litigation
U.S.
v. Lundwall 1 F. Supp. 2d 249 (S.D.N.Y., 1998)
Turner v. Hudson
Transit Lines Inc
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Articles
Ziegler, Richard
F. and Seth A. Stuhl. "Spoliation
issues arise in digital era." National Law Journal 20 (16 February
1998), B09
Ballon, Ian C. "Spoliation
of e-mail evidence: Proposed intranet policies and a framework for analysis."
Cyberspace Lawyer 4 (March 1999), 2.
Grady, Patrick R.
"Discovery of computer stored documents and computer
based litigation support systems: Why give up more than necessary?"
John Marshall Journal of Computer and Information Law 14 (Spring 1996),
523.
The
Linnen Story: Excerpt from Mundy, Alicia. "Dispensing
with the Truth"
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