Illinois Court sheds light on appropriate remedies for spoliation.

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The drastic sanction of dismissal is a last resort, and should only be invoked when spoliation is deliberate, contumacious, or evidence’s an unwarranted disregard for the court’s authority. When an opponent’s negligence leads to the destruction of evidence, the remedy is a claim for damages, which is separate and distinct. Adams v. Bath & Body Works, Inc., 2005 Ill. App. …

Intercepted electronic communications from husband’s computer excluded.

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Wife, who secretly installed software on husband’s computer that copied and stored electronic communications between her husband and another woman, did not get to use the evidence in her divorce proceeding. Because the program copied the communications as they were transmitted, they were “intercepted” and therefore in violation of State Law. The court distinguished between the use of spyware to …

District Court Defers Ruling on Adverse Inference Where Unclear that Destruction Was for Purpose of Depriving Plaintiff of Use in Litigation.

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Someone offered to download Lemony Snickets on eDonkey, and the activity was traced to the defendant. With the help of a computer forensic specialist, Paramount conducted an inspection of the defendant’s hard drive and discovered that he had wiped it clean two weeks after receiving notice of the suit. The defendant claimed that he wiped the hard drive clean because …

Metadata Generally Discoverable with E-Files Produced in the Ordinary Course of Business.

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Looking to Comment 12 of the Sedona Principles, the Court holds that “when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not …

The Eleventh Circuit Rejects Ordinary License Fee for Software as “Costs” When Protective Order Limits the Use of Data to Litigation Purposes.

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In multiple class actions brought by physicians against the nation’s largest HMOs, the American Medical Association, a non-party, was compelled to produce its annual reports regarding physicians’ income and medical practices and the underlying data for those reports. The defendants sought that material to defend against the plaintiffs’ allegations in the case. The AMA argued that it was entitled to …

Court orders Navy to search database for information relevant to plaintiff’s discrimination claims.

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After a new trial was granted to allow the plaintiff to present its case using new evidence the defendant claimed it did not have and did not produce during discovery, the court ordered defendant to “provide access to the Facilities Information System (FIS) database for review by plaintiff’s counsel or a computer technology consultant hired by plaintiff for the limited …

Seventh Circuit rejects tort claim for negligent spoliation in the absence of an express contract or special relationship between the parties, under Indiana law.

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A contractor suing to be compensated for work performed under a construction contract was counter-sued due to problems with an epoxy that had been purchased from a third-party. The manufacturer had conducted an investigation when the epoxy had stripped away, and the plaintiff ultimately asserted a claim of spoliation against the manufacturer, whose investigation materials would have assisted plaintiff in …

Indiana Court of Appeals finds special relationship between employer and employee in case of intentional spoliation.

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While recognizing the general rule that an employer is not required to preserve evidence in support of an employee’s third-party product liability claim, (see Murphy v. Target Prods., 580 N.E.2d 687 (Ind. Ct. App. 1991)), the court, (apparently influenced by defendant’s conduct), concluded that, “under the facts and circumstances, Midwest and Drew had a ‘special relationship’ to support the recognition …

Magistrate recommends default judgment against PwC for spoliation.

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The company, according to the court, “failed at the start of discovery to check thoroughly its local servers and its archives for relevant documents, failed to compare the various versions of relevant documents on those databases, failed to produce documents as they were kept in the ordinary course of business, and failed to reproduce thoroughly and accurately all documents and …

E-Mail notification of arbitration requirement to employees inadequate, district court rules.

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General Dynamics attempted to invoke a binding arbitration policy in defense to a claim under the ADA. The court found that sending an e-mail notification of the policy to employees was insufficient, because it is impossible to know whether the employee actually read the communication. The better practice, suggested the court, would be to require employees to acknowledge that they …