JSH Reporter Summer 2014 - Page 23

E-DISCOVERYARTICLE 023 RECENT DEVELOPMENTS IN COURT DECISIONS ON E-DISCOVERY ISSUES AUTHOR: Bill Caravetta EMAIL: wcaravetta@jshfirm.com BIO: jshfirm.com/williamgcaravettaIII As seen on the Federal Defense Counsel Corporation Blog, Federation Forum www.thefederation.org/blogcfcx/client/ The duty to preserve and collect data that may be discoverable once litigation is reasonably anticipated is well established. The following are highlights from recent decisions affecting the eDiscovery process. Although these unpublished federal decisions are not citable in state court, they are in federal court. The decisions are also instructive. In Riley v. City of Prescott, Arizona, CV-11-08123-PCT-JAT (D. Ariz. Feb 18, 2014), Judge James Teilborg granted Plaintiff’s Motion for Discovery sanctions against the City of Prescott in the form of a spoliation instruction to the jury. The Court found that the City of Prescott became obligated to preserve emails between city employees and Plaintiff’s employer prior to the date plaintiff first publicized his protest against the City. From the facts presented, the Court found that multiple emails potentially relevant to the litigation were deleted from the Mayor of Prescott’s city-assigned email account and spoliation of those emails had occurred. The City argued that there was no evidence emails were deleted, except in the exercise of normal City practice and this did not constitute destruction with any culpable state of mind. But the Court found that Prescott’s Mayor acted willfully and in bad faith when he continued to refuse production of email accounts and these emails were thereafter deleted. Plaintiff established, through a subpoena to Google, the existence of nine emails which indicated that Prescott’s Mayor was corresponding with his assistant during a critical period prior to the litigation and that the Defendant produced none of these emails. The Court found that an adverse ABOUT THE AUTHOR BILL CARAVETTA Bill Caravetta frequently speaks at the local and national levels on issues regarding bad faith and insurance coverage. During his 16 years as an attorney, Mr. Caravetta has advised corporate risk managers on insurance coverage issues, indemnity agreements and risk transfer options through commercial contracts. Contact Bill at 602.263.7389 or wcaravetta@jshfirm.com. inference instruction was warranted to the extent Defendant’s spoliation affected Plaintiff’s ability to prove her claim. In McCann v. Kennedy Universal Hospital, Inc., 2014WL282693 (D.N.J. January 24, 2014), Judge Joel Schneider was faced with a Motion for Sanctions from Plaintiff because of Defendant’s alleged failure to preserve emergency room lobby surveillance footage. Plaintiff claimed that he arrived at the Defendant’s hospital in great pain and was left untreated for hours. He alleged that the hospital staff left him lying on the floor for more than ten minutes after he entered the emergency room. The following day, Plaintiff emailed the hospital threatening to sue for unfair and inhumane treatment. Plaintiff filed suit against the hospital and requested production of the emergency room surveillance camera footage. The hospital had erased the footage claiming that this was the normal course of business. Plaintiff claimed the hospital spoliated evidence. Judge Schneider determined that Defendant did not have a duty to preserve the surveillance footage because Plaintiff’s email did not trigger the hospital’s duty to maintain this evidence. The Court found that Plaintiff’s email only indicated that he “intended to sue.” Id at 6. Judge Schneider determined that Defendant did not erase the footage in bad faith or with the intent to destroy relevant evidence. Id at 7. In Calderon v. Corporation Puertorrique a De Salud, 2014WL171599 (D.P.R. January 16, 2014), United States District Court Judge Francisco Besosa granted Defendant’s Request for a Spoliation instruction based on Plaintiff’s admission that he deleted text messages and failed to produce approximately thirty eight relevant text messages which Defendant obtained by subpoenaing Plaintiff’s mobile carrier. The Court determined that Plaintiff intentionally spoliated evidence because he failed to produce and/or deleted text messages amounting to a conscious abandonment of potentially useful evidence which may have been unhelpful to his case. Finally, District Court Judge David Bury entered summary judgment against Defendant as a spoliation sanction in Slep-Tone Entertainment Corp. v. Granito, 2014WL65297 (D. Ariz. January 8, 2014). Plaintiff had requested that Defendant produce computer hard drive information containing karaoke tracks which Plaintiff alleged contained approximately 150,000 counterfeit tracks. Defendant claimed that the hard drives could not be produced because they had been wiped clean one to two months prior to the lawsuit. Plaintiffs sought, as a sanction, summary judgment against Defendant because of the alleged spoliation. Defendant filed a counter motion for summary judgment on grounds that Plaintiff could not prove he possessed counterfeit karaoke tracks. Judge Bury entered summary judgment in favor of Plaintiff stating that Defendant had control over the evidence, had a duty to preserve the hard drives once he was served with the Complaint, and that Defendant had a culpable state of m