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electronic discovery
Document Retention

LR5-A L.P. v. Meadow Creek, LLC, 2007 Mass. Super. LEXIS 509 (Mass. Super. Ct. Oct. 16, 2007).
The court denied Plaintiff's emergency motion requiring Defendant to cease deleting email messages; although the court agreed that Defendant should not delete email, the court found that Defendant and his counsel were aware that sanctions could be applied if spoliation occurred.

Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007).
The court found that Defendant was negligent due to the fact that they did not place a litigation hold on document destruction and they continued to save electronic information in an inaccessible format; however the court did not issue a default judgment or adverse inferences, as Plaintiff could not show that the lost electronic information was relevant to their claims.

Marketfare Annunciation, LLC v. United Fire & Casualty Ins. Co., 2007 U.S. Dist. LEXIS 81830 (E.D. La. Nov. 5, 2007).
Plaintiff did not seek to have electronic information provided by defendant until just before discovery ended and trial was set to begin; therefore, the court did not sanction Defendant for failing to place a litigation hold on files and also denied Plaintiff's request to search Defendant's databases.

United States v. Krause (In re Krause), 2007 Bankr. LEXIS 1937 (Bankr. D. Kan. June 4, 2007).
The court found that the ongoing use of a computer program that erased files did not fall within the safety of the amended Fed. R. Civ. P.37(f) that bars sanctions for the loss of electronic evidence through routine computer operations.

Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 (D. Colo. Mar. 2, 2007).
Plaintiff's counsel sent a demand letter inviting negotiations to resolve this dispute, however, this letter did not force Defendant to preserve electronic evidence. Once the complaint was filed, however, Defendants did become responsible for ceasing to wipe their hard drives.

Floeter v. City of Orlando, "Floeter II", 2007 U.S. Dist. LEXIS 9527 (M.D. Fla. Feb. 9, 2007).
The court did not sanction Defendant for replacing a hard drive, as it was not found to have done so in bad faith and Plaintiff possessed other evidence that supported his claims.

In re NTL, Inc. Securities Litigation, 2007 U.S. Dist. LEXIS 6198 (S.D.N.Y. Jan. 30, 2007).
The company did not preserve documents that it had access to through a successor company and was subsequently sanctioned for spoliation in the form of an adverse inference instruction relating to destroyed email, as well as payment of attorney fees and costs of the requesting party.

Miller v. Holzmann, "Miller II", 2007 U.S. Dist. LEXIS 2987 (D.D.C. Jan. 17, 2007).
The government failed to preserve documents relating to an anticipated litigation, which was found to be sanctionable by the magistrate judge. However, as the effect of the loss of these documents could not be determined, the magistrate judge recommended denial of motions to dismiss pending trial.

Roberts v. Canadian Pacific Railway Ltd., 2007 U.S. Dist. LEXIS 2441 (D. Minn. Jan. 11, 2007).
Plaintiff was granted its motion to depose Defendant's computer forensic expert on an expedited basis regarding the recovery of email that may have been destroyed by Defendant.

Gibson v. Ford Motor Co., 2007 U.S. Dist. LEXIS 226 (N.D. Ga. Jan. 4, 2007).
Defendant was not ordered to provide a copy of the litigation hold issued to employees as it was considered attorney work product.

In re Celexa & Lexapro Products Liability Litigation, 2006 U.S. Dist. LEXIS 91590 (E.D. Mo. Nov. 13, 2006).
Plaintiff agreed to enter into an order that they would preserve their computer hard drives, cell phones, and instant messaging devices for one year.

Del Campo v. Kennedy, 2006 U.S. Dist. LEXIS 66728 (N.D. Ca. Sept. 8, 2006).
The court granted Plaintiff's motion that the parties enter into a document preservation plan.

United States v. Magnesium Corporation of America,, 2006 U.S. Dist. LEXIS 56506 (D. Utah Aug. 11, 2006).
Both parties were ordered to preserve all possibly relevant documents in their possessions until the litigation was completed.

Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 U.S. Dist. LEXIS 66642 (M.D. La. Jul. 19, 2006).
Electronic evidence was not shown to have been destroyed in bad faith, even though a litigation hold on email was in place once a demand letter had been sent to the opposing party and, thus adverse inferences were not appropriate sanctions based on Zubulake IV standards.

Fischer v. UPS Co., 2006 U.S. Dist. LEXIS 21047 (E.D. Mich. Apr. 19, 2006).
Defendant was unable to locate a missing email attachment and, although they claimed the attachment was irrelevant, Plaintiff was granted a phone call with one of Defendant's IT employees who could speak to Defendant's attempts to locate the attachment.

Afremov v. Amplatz, 2006 Minn. App. Unpub. LEXIS 39 (Ct. App. Minn. Jan. 10, 2006).
In an unpublished opinion, sanctions against an attorney following the deletion or archiving of email just prior to the turnover of a computer ordered by the court were set aside. The attorney was entitled to due process and notice before proceedings to consider sanctions against him for his out-of-court activities.

Holt v. Northwestern Mut. Life Ins. Co., 2005 U.S. Dist. LEXIS 35976 (W.D. Mich. Nov. 30, 2005).
The court rejected plaintiff's claim of defendant's spoliation of electronic information based on the fact that defendant did not retain and produce "email envelopes" for attachments. The court ruled that, since defendant did produce the attachments, spoliation did not occur, as a corporation is not required to retain documents if they are not known to be relevant to litigation.

Tantivy Communications, Inc. v. Lucent Technologies Inc., 2005 U.S. Dist. LEXIS 29981 (E.D. Tex. Nov. 1, 2005).
Sanctions against defendant and its attorneys were determined due to the production of documents only after a majority of discovery and expert reports were completed.

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.

Broccoli v. Echostar Communs. Corp., 2005 U.S. Dist. LEXIS 16000 (Md. August 4, 2005).
The court ruled that an employee was entitled to be reimbursed for attorney's fees and costs after being awarded judgment in a breach of contract claim against his employer due to employer's failure to suspend their policy regarding the destruction of email and electronic data, resulting in gross spoliation and damaging the employee's ability to litigate his claims.

Arthur Andersen LLP v. United States, 2005 U.S. LEXIS 4348 (May 31, 2005).
The Supreme Court unanimously reversed a document destruction conviction of an accounting firm as it was determined that the firm followed their exisitng document retention policy.

Liebert Corp. v. John Mazur, 2005 Ill. App. LEXIS 310 (Ill. App. Ct. Apr. 5, 2005).
A former employee could not explain how or why an application log that would showcase whether or not trade secret information had been copied from a laptop to a CD-ROM had been deleted, therefore, the court remanded the case to ensure that the employee could not use the trade secret information in a competing business.

Hypro, LLC v. Reser, 2004 U. S. Dist. LEXIS 25191 (D. Minn. Dec. 10, 2004).
Allegations against an executive that he used false pretenses to gain access to his company laptop to delete information relevant to his involvement in starting a competing company resulted in the court issuing a temporary restraining order for all parties to protect and preserve electronic evidence.

Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429; 2004 U.S. Dist. LEXIS 10016 (W.D. Pa. Apr. 21, 2004).
Based on Fed. R. Civ. P. 34., the court developed a three-factor balancing test to decide motions to preserve documents.

Rambus, Inc. v. Infineon Technologies, 2004 U.S. Dist. LEXIS 4577 (E.D. Va. Mar. 17, 2004).
The court has the authority to assess and existing document retention and destruction plan after plaintiff claimed that the plan was instituted to avoid review and production costs associated with retaining excessive amounts of data for long periods of time.

Kier v. UnumProvident Corp., 2003 U.S. Dist. LEXIS 14522 (S.D.N.Y. Aug. 22, 2003).
Court found that defendant had violated a previous order to preserve six days of email messages and other computer data contained on backup tapes. Court could not determine the level of loss suffered by plaintiff due to this lack of evidence and recommended that an independent expert be utilized to ensure that the deleted email messages were properly restored.

Cobell v. Norton, 2003 U.S. Dist. LEXIS 12833 (D. D.C. July 28, 2003).
Court ordered defendant to disconnect computer systems from the Internet to ensure data would not be overwritten after defendant requested to reproduce necessary email messages from paper records rather than from the backup tapes themselves.

Landmark Legal Foundation v. EPA, 2003 U.S. Dist. LEXIS 12684 (D. D.C. July 24, 2003).
Plaintiff moved for sanctions due to the Freedom of Information Act against defendant after plaintiff had requested information regarding rules and regulations for which public notice had not yet been given but that were slated to be made before the administration changed. Plaintiff filed suit after becoming dissatisfied with defendant's response and the court issued a preliminary injunction to prevent the destruction of such materials. Plaintiff brought criminal contempt charges against defendant after hard drives were reformatted and email back up tapes were overwritten. Defendant was held in civil contempt and ordered to pay sanctions to plaintiff.

Positive Software Solutions, Inc. v. New Century Mortgage Corporation, 2003 U.S. Dist. LEXIS 7659 (N.D. Tex. May 2, 2003).
After the case's discovery was stayed due to pending arbitration, the court ordered defendant to safeguard back ups or images of all servers and to avoid deleting any computer files pending arbitration.


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