Spoliation – Page 3 – Bow Tie Law

Audio Recording Sanction Blues

December 26, 2012 Josh Gilliland Audio Discovery, Duty to Preserve, e-Discovery, Spoliation

Many eDiscovery attorneys associate Chicago with 1) the Blues Brothers and 2) Magistrate Judge Nan Nolan. Judge Nolan granted in part and denied in part a motion to compel in an employment dispute. The Judge found the Defendant had a duty to preserve audio recordings of calls that had been[…]

Believing "Missing" Emails Exist Does Not Make Adverse Inference Sanctions Real

July 1, 2012 Josh Gilliland Duty to Preserve, e-Discovery, Litigation Hold, Spoliation

The Plaintiff in an employment discrimination lawsuit brought a motion for adverse inference jury instructions for the alleged destruction or suppression of email over a specific date range. The Plaintiff did not offer evidence of the email messages existence, only that he believed the email existed. Omogbehin v. Cino, 2012[…]

The Fabric of Inadequate Search & Spoliation Allegations

May 18, 2012 Josh Gilliland Document Review, Duty to Preserve, e-Discovery, Electronically Stored Information, ESI, Forensic Image, Imaging Hard Drives, Spoliation

In a case involving claims of copyright infringement of fabric design, the tapestry of the Plaintiff’s discovery production was challenged, including allegations the Plaintiff: Neglected to search for and produce several categories of documents; and Deleted relevant emails. The Defendants sought an order permitting a forensic examination of Plaintiff’s computer[…]

Conjecture is Not Spoliation

April 12, 2012 Josh Gilliland Duty to Preserve, e-Discovery, Electronically Stored Information, Spoliation

Plaintiffs unsuccessful in a trial involving hostile work environment allegations, argued they were entitled to a new trial, because the trial court did not issue a adverse inference instruction for alleged destroyed ESI. Kullman v. New York, 2012 U.S. Dist. LEXIS 47649, 3-5 (N.D.N.Y Apr. 4, 2012). The Court agreed[…]

Cross Spoliation Claims for Lost Video & Witness Statements

December 9, 2011 Josh Gilliland ABA Journal Blawg 100, e-Discovery, Electronically Stored Information, Facebook, Spoliation

In Patel v. Havana Bar, 2011 U.S. Dist. LEXIS 139180 (E.D. Pa. Dec. 2, 2011), both parties were accused of spoliation. The underlining facts involved the Plaintiff attending an engagement party at the Defendant’s restaurant/bar and falling off a two-story balcony. Defendants’ Spoliation The allegations against the Defendant involved the[…]

Sanctions for Back-Up Tapes & Reasonableness in Preservation

June 2, 2011 Josh Gilliland Back-up Tape, e-Discovery, Spoliation

The Plaintiffs in Gaalla v. Citizens Med. Ctr., brought a sanctions motion for alleged spoliation of email stored on back-up tapes. The parties and Court had never discussed the issue of back-up tapes until the Plaintiffs’ spoliation motion. Gaalla v. Citizens Med. Ctr., 2011 U.S. Dist. LEXIS 57317, 2-3 (S.D.[…]

Fashionable Sanctions

February 17, 2011 Josh Gilliland e-Discovery, Electronically Stored Information, Litigation Hold, Spoliation

When sanctions are issued in Chicago on St. Valentine’s Day, you can imagine how the losing party might feel. The Defendants in a sexual and racial discrimination, hostile work environment, harassment and retaliation case did not properly preserve evidence or respond to specific discovery requests. Northington v. H&M Int’l, 2011[…]

Nothing Says “Bad Faith” Like Throwing a Laptop off a Building

February 8, 2011 Josh Gilliland Duty to Preserve, Electronically Stored Information, Litigation Hold, Spoliation

Is entering a default judgment against a party for destroying a laptop excessive and unduly harsh? Not in Utah. Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, P2 (Utah Ct. App. 2011). Daynight involved a destroyed laptop and what was the appropriate sanction for the destruction of evidence. Certainly[…]

The Merger: Litigation Holds & Search Terms

January 5, 2011 Josh Gilliland Discovery, Duty to Preserve, e-Discovery, Litigation Hold, Spoliation

In an action to rescind a merger agreement, the Plaintiff brought a motion for the Defendant to restore back-up tapes; conduct keyword searches; document results from the keyword searches; and conduct additional searches after conferring on the first keyword search. Escue v. Sequent, Inc., 2010 U.S. Dist. LEXIS The Plaintiff[…]

Stamping Out Spoliation

December 13, 2010 Josh Gilliland Electronically Stored Information, ESI, Litigation Hold, Spoliation

Perryman v. Potter is an employment discrimination case involving a postal worker who was not selected for a lateral transfer to a supervisor position. The Defendant brought a motion for summary judgment. The Plaintiff claimed that the Defendant’s destruction of notes from the interview process entitled the Plaintiff to a[…]