Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008).

In this slip and fall case, the plaintiff appealed the trial court's grant of summary judgment in favor of the defendant. The trial court held that the plaintiff failed to provide any evidence that the defendant had constructive knowledge of the liquid spill which allegedly caused the plaintiff to fall. The plaintiff argued she was entitled to a spoliation inference based on the defendant store manager's decision to preserve the digital surveillance video of the actual fall but not the footage immediately prior to or subsequent to the fall. The defendant countered that the plaintiff was not entitled to a spoliation inference because the evidentiary destruction was a matter of routine practice and was devoid of fraudulent intent. After noting the store manager's, "conscious and intentional choice not to review or retain the recorded footage," the court determined that the defendant "both intentionally and fraudulently destroyed relevant evidence." The court also stated that the manager's failure to retain the footage "shocks the conscience of the court and creates a presumption of fraud." Accordingly, the court granted a spoliation inference against the defendant for the purpose of summary judgment, but noted that whether a jury would actually draw a spoliation inference was a matter left for trial and remanded the case.




United States v. General Maritime Mgmt., 2008 WL 2810594 (S.D.Tex. July 21, 2008).

In this criminal prosecution, the government's material witness filed a motion to assert attorney-client privilege and for reconsideration of the court's previous order to disclose a mirror image of the witness' computer hard drive. The witness previously provided the government with voluntary consent to search and create a forensically sound image of his computer's hard drive. Subsequent to this search, the government provided the defendants with all material relevant to this case. The defendants argued for disclosure of the imaged hard drive claiming the witness' voluntary consent waived the attorney-client privilege. Agreeing with the defendants, the court held that the voluntary disclosure of the hard drive to the government resulted in waiver of any attorney-client privilege and ordered the government to produce the mirror image in its entirety.




Young v. Pleasant Valley Sch. Dist., 22008 WL 2857912 (M.D.Pa. July 21, 2008).

In this civil rights case, the plaintiffs requested production of e-mail stored on backup tapes. The defendants objected, arguing the request was unduly burdensome and unlikely to produce relevant material. In response to a previous court order, the defendant provided an estimate that the search's cost would be a minimum of $10,000. The court analyzed the factors laid out in Fed.R.Civ.P. 26(b)(2) and cited three factors that weighed against requiring production: (1) the burden and expense of the proposed discovery outweighed its likely benefit; (2) the needs of the case limit the usefulness of the information sought as it could be accessed in a more cost-efficient and less burdensome manner; and (3) the resources of the parties involved and the amount in controversy were relatively small. The court also rejected the plaintiffs' offer to have their own expert search the backup tapes finding the request unduly burdensome, impractical and contrary to the spirit of the Federal Rules, noting that privacy concerns would undoubtedly require the defendant to closely supervise the plaintiff's search thus creating unnecessary costs.




Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D.Ohio July 7, 2008).

In this breach of contract suit, the plaintiff sought summary judgment on its spoliation claim. The plaintiff alleged that the defendant engaged in spoliation of electronic evidence by failing to issue a litigation hold, thereby neglecting to retain relevant evidence as well as the destruction of relevant hard drive data. The plaintiff argued this failure resulted in the destruction of potentially relevant data, in addition to destruction of evidence contained on computer hard drives. The court found no direct evidence that the defendant deleted data with an intent to avoid disclosure to the plaintiff. Determining a genuine dispute of material fact to exist regarding intent with each aspect of the plaintiff's spoliation claim, the court denied the plaintiff's motion.




Square D. Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D.Pa. July 15, 2008).

In this intellectual property litigation, the parties filed cross motions for sanctions based on the execution of a previous forensic inspection of the defendant's computer systems. The plaintiff requested a forensic inspection of the defendant's remaining computer systems, the removal of imaged data from the defendants' premises, and for a default judgment sanction. The defendant requested the plaintiff be required to complete its forensic inspection on the defendant's premises, that further inspection of certain computers be prohibited, and sanctions for the plaintiff's intentional disregard for previous orders. Determining the defendant's imposition of limitations to be untimely, the court granted the plaintiff access to the defendant's computer workstations. However, the court denied the plaintiff's motion for default judgment as the defendant's conduct "falls just shy of conduct befitting default judgment, i.e., 'flagrant bad faith' and 'callous disregard'". The court ordered the defendant to bear all costs related to the forensic inspection, consistent with past orders and warned that future "baseless barriers impeding the completion of discovery will be met with sanctions" and cautioned that future discovery disputes may require the utilization of a special master with costs borne by the parties.