Wednesday, April 29, 2009

2009-04-29 Spoliation Triple Play

Another catch-up digest.

Spoliation: Three decisions for this installment, one addressing both spoliation standard under both Colorado state and federal common law standards, a second addressing spoliation under Minnesota law, and a third addressing both the independent tort of negligent spoliation (in Illinois) and spoliation under federal common law. The third decision also involves discussion about the interplay (or tension) between the Fed. R. Civ. P. Rule 15(a) liberal pleading amendment standard and the Fed. R. Civ. P. Rule 16(b) imposition of a “good-cause” threshold barrier to granting such amendments after passage of a case management order pleadings-amendment deadline

All errata acknowledged in advance.



Salvatore v. Pingel, 2009 WL 943713 (D. Colo. 2009)
Vitelli v. Knudson, 2009 WL 910846 (Minn. App. 2009)
Mintel Intern. Group, Ltd. v. Neergheen, 2009 WL 1033357 (N.D. Ill. 2009)

Salvatore v. Pingel

Citation: 2009 WL 943713 (D.Colo. 2009)
Date: 2009-04-06
Topics: Spoliation standards for Colorado federal courts and under Colorado state law, notice of representation alone insufficient to trigger duty to preserve

One interesting factoid about spoliation decisions is that they are rarely appealed to a U.S. circuit court of appeal. What practitioners now face are a mass (or mess, depending on one’s p.o.v.) of decisional authority that is as often conflicting as it is harmonious. For instance, in this decision, the Court relies extensively on Second Circuit and Southern District of New York (aka Zubulake) decisional authority, but recedes from strict application of a party’s duty to preserve.

That said, this decision, from the U.S. District Court for the District of Colorado involved a plaintiff allegedly injured by a van driven by defendant’s employee. The Court notes that “there was evidence that the “van’s brakes may have malfunctioned in connection with the accident. Deposition testimony of the van driver (defendant’s employee) revealed that the driver had complained about the performance of the van’s brakes, that a vehicle inspection conducted the day before the accident reported a “brakes low” status, and that a written inspection report, signed by defendant’s manager, stated that “above defects [were] corrected.”

Plaintiff alleged that five pieces of documentary evidence had been destroyed:

“(1) The Vehicle Inspection Report which People's Choice drivers were required to prepare on a daily basis, Motion for Sanctions;
(2) The Annual Inspection Report which was required to be completed annually and to be preserved for one year;
(3) The Maintenance Log which is a record of all maintenance work done on a vehicle and which is required to be maintained for 18 months after the vehicle is sold;
(4) The Accident Register which must be maintained for three years following an accident; and
(5) The Safety Manager's Inspection Report which is prepared by the company's safety manager following an investigation conducted to determine whether an accident was preventable.”

Defendant conceded the destruction of documents 1-4 but asserted that plaintiff was provided with a copy of document 5 under a different title. As for the destroyed documents, defendant “…argue[d], however, that those documents were destroyed as a routine practice of the company or as a result of negligence.”

In an interesting twist, the parties first briefed the spoliation issue under federal law. The plaintiff apparently had a change of heart, and (somewhat surprisingly) with defendant’s blessing, opted out of federal common law and chose to brief the spoliation assertion under Colorado state law. [Author’s note: I’m not sure most litigants are free, even by way of stipulation, to so choose or change their choice of applicable law).

With this case on such firm factual footing, let’s go to the analysis:

U.S. Magistrate Judge Boland starts out by noting that the federal district courts in Colorado follow what is best described as “pure” federal common law of spoliation. To that end, Magistrate Judge Boland recounts the standard as followed in the Colorado federal courts. Note that relevancy, rather than control or duty to preserve is not the first element to be analyzed; rather, it is relevancy that is the first precondition to a finding of spoliation. So, if no relevancy, hard stop to any spoliation analysis:

“The legal standard under federal law for imposition of sanctions for spoliation of evidence was succinctly stated by this court in Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614 (D.Colo.2007), as follows:

“The court has inherent power to impose sanctions for the destruction or loss of evidence....In determining whether sanctions are appropriate, the court must first determine whether the missing documents or materials would be relevant to an issue at trial. If not, then the court's analysis stops there. If the missing documents would be relevant, the court must then decide whether [the custodian of the documents] was under an obligation to preserve the records at issue. Finally, if such a duty existed, the court must consider what sanction, if any, is appropriate giving the non-moving party's degree of culpability, the degree of any prejudice to the moving party, and the purpose to be served by exercising the court's power to sanction.”

Similarity of Colorado State and Federal Law Spoliation Standards

Magistrate Judge Boland then discusses the similarity of federal common law and Colorado state law spoliation standards:

“The standard under Colorado law is similar. In Costillo v. Chief Alternative, LLC, 140 P.3d 234 (Colo.App.2006), the court held: Trial courts enjoy broad discretion to impose sanctions for spoliation of evidence....”

“Sanctions may be imposed both to punish a party who has spoiled evidence and to remediate the harm to the injured party from the absence of that evidence....The trial court need not find that the evidence was destroyed in bad faith: it may sanction a party who willfully destroys evidence relevant to a contested issue.”

The Court found that there was no spoliation “under either federal or Colorado law.” This is an interesting statement, since the Court had noted earlier that Colorado federal courts followed federal common law.

Lack of Trigger for Preservation Duty

The Court found that no duty to preserve had been triggered prior to the filing of plaintiff’s action. What ensued appears to be more of an attorney competency issue. In the instant case, the accident in question occurred on May 17, 2005, and on June 1. 2005, plaintiff’s counsel sent a letter of representation (with no preservation language, request, or demand). The Court notes that plaintiff’s counsel letter of representation stated “in its entirety:”

“Please be advised that this firm represents Michael Salvatore in regards to the motorcycle/automobile accident, which occurred on May 17, 2005. Please direct all written and oral communications to this office. Thank you for your time and attention to this matter. Should you have any questions, please do not hesitate to contact this office.”
The Court goes on to note that “[T]he letter did not contain any threat of litigation or indication that litigation was anticipated or imminent.”

Magistrate Judge Boland then describes the ensuing correspondence sent to plaintiff’s counsel “throughout 2006”, all of which received no response:

“In reviewing the file, we note that ... our adjustor[sic] had written to you on several occasions but never received a response. Please advise me if you are still representing Mr. Salvatore. If so [there is a request for information].”

It appears that plaintiff realized that his attorney had been failing to pursue the matter with defendant’s adjustor and retained new counsel in April 2007:

“'On April 23, 2007, the adjustor made a Status Report to the defendants' insurance company, which included the following:

“We have finally heard from the Law Firm representing Mr. Salvatore. Ms. Holland Hoskins is the new attorney assigned to the case. Apparently they have terminated the prior attorney as Ms. Hoskins informed me that they have received a number of calls from her clients who have been waiting for some time to get their cases resolved. She is a bit overwhelmed with the case load but stated that she would get a Settlement Demand Packet out as soon as possible.”

The Court found that the “first threat of litigation, albeit equivocal” was made in November 2007 in connection with successor plaintiff’s counsel’s settlement demand letter.

The Court also found that defendant "knew or reasonably should have known of the likelihood of litigation stemming from this accident on November 1, 2007. They had a duty to preserve evidence based on the possibility of litigation on and after that date."

Of course, the evidence in question had been destroyed long before that date, and so the Court found no spoliation, and basis for the imposition of discovery sanctions.

Blognote: It is quite likely that plaintiff’s first attorney was derelict in his duties of representation. Other cases cited in this digest have held followed the Zubulake doctrine, which applies a “reasonable” standard to percipience of potential evidentiary relevance and an ensuing preservation trigger. U.S. Magistrate Judge Maas of the Southern District of New York issued a recent duty-to-preserve decision with a good Zubulake analysis

““Identifying the boundaries of the duty to preserve [evidence] involves two related inquiries: when does the duty to preserve attach, and what evidence must be preserved.” Zubulake, 220 F.R.D. at 216. A party is obligated to preserve evidence when it “has notice that the evidence is relevant to litigation ... [or] should have known that the evidence may be relevant to future litigation.” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998) (citations omitted); accord Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir.2001).”

Here, however, it appears that the Court first relies on, and then limits Zubulake “reasonable” language (and Second Circuit decisional authority). It appears that Judge Boland’s decision strains, rather than follows Zubulake.

Blognote: I think the facts of this case stood squarely on the fence, and that another district court might well have found that the series of letters from counsel, although not directly threatening litigation, either individually or when taken constituted an early preservation duty trigger.

Case: Vitelli v. Knudson
Citation: 2009 WL 910846 (Minn. App. 2009)
Date: 2009-04-07
Topics: Spoliation standards under Minnesota common law, clear error review standard for reversal of finding of sufficiency of notice of claim

In this negligence action, the Court of Appeals of Minnesota ruled that defendant builder had reasonable notice of plaintiff homeowners' potential claims and, in accordance with Minnesota common law, was precluded from asserting spoliation as a defense in seeking dismissal of plaintiff’s action. Defendant builder received two letters from plaintiff’s counsel within five weeks of the alleged incident, the latter of which strongly suggested that defendant involve its insurer. Despite notice of plaintiff’s claims, defendant never asked to investigate the premises before the homeowners' complaint was filed.”

The Court first discusses evidentiary spoliation standards under Minnesota common law:

“Spoliation of evidence is the destruction of relevant evidence by a party. Hoffman v. Ford Motor Co., 587 N.W.2d 66, 70 (Minn.App.1998). A district court may sanction a party who destroys evidence if that party gains an evidentiary advantage due to its failure to preserve evidence after having had the opportunity to examine it. Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 470-71 (Minn.App.1997), review denied (Minn. Aug. 26, 1997). The severity of the sanction depends on the prejudice suffered by the opposing party. Hoffman, 587 N.W.2d at 71. But a party can avoid sanctions for spoliation of evidence if the opposing party had sufficient notice of the claim, giving the party the opportunity to correct defects, prepare for negotiation or litigation, or “safeguard against stale claims being asserted after it is too late ... to investigate them.” Id. at 70 (quotation omitted). In the absence of clear error, this court will not reverse a district court's determination of the sufficiency of notice of a claim when deciding whether sanctions are appropriate for the spoliation of evidence. Id. at 71.”

In this case the lower court found that two letters sent by denied a party the use of spoliation as a defense because “reasonable notice” had been given:

“Here, in denying CCH's and Halla's motions for summary judgment, the district court concluded that “because the Court has found that the letter of October 4, 2005, was reasonable notice of the potential claims of the Vitellis, and because [CCH] took no immediate and timely action in response to this notice they cannot rely on the defense of spoliation in this action.””

Notice and Inspection

The Court also ruled that notice and inspection “must be given far enough in advance of the destruction of evidence to provide the alleged responsible party with the opportunity to inspect the evidence.” How this plays out where spoliation of ESI is involved will be interesting.

Case: Mintel Intern. Group, Ltd. v. Neergheen
Citation: 2009 WL 1033357 (N.D. Ill. 2009)
Date: 2009-04-17
Topics: Third party ESI discovery protections, forensic imaging, battle of the experts, timing of assertion of negligent spoliation tort claim, Fed. R. Civ. P. Rule 15(a) motion to amend after Rule 16(b) pleadings amendment deadline requires showing of good cause and due diligence, Seventh Circuit standard for review of Magistrate Judge’s Report and Recommendation

This Illinois Trade Secrets Act (“ITSA”) and Computer Fraud and Abuse Act (“CFAA”) matter comes to us courtesy of the U.S. District Court for the Northern District of Illinois. After plaintiff discovered that that defendant (a former employee of plaintiff) had accepted employment at third-party Datamonitor, plaintiff filed the instant action alleging violations of the ITSA, CFAA, and “violations of various terms of Defendant's employment contract with Mintel.”

In an interesting opening, U.S. District Court Judge Dow explains that even though both the District Court and the Magistrate Judge “rejected all of Plaintiff’s motions concerning the alleged spoliation” the Court was obligated by Seventh Circuit decisional authority to conduct a de novo review of plaintiff’s allegations.

The Court reasoned that hearing the testimony of experts from both sides would be helpful because of “…the complexity of the electronic evidence issues involved in this case.” Moreover, the Court reasoned,

“[T]he Court would find it helpful to understand the experts' views on whether any “files relating to or taken from Mintel” were deleted from that computer and those USB drives, and if so, whether the deletions were accidental or intentional.”

The Court was apparently not very pleased at least one party’s counsel. Let’s tee that up with this “for starters” statement by the Court:

“The Court reiterates (see above) that it would not find expert opinion on legal issues helpful.”

Spoliation, the Tort, vs. Spoliation, the Motion for Sanctions

Illinois recognized an independent action for negligent spoliation of evidence, and Judge Dow first wanted to make clear which type of spoliation proceeding was addressed:

“The Court also stresses (see below) that there is no spoliation “claim” in this case. Rather, there is a request for sanctions and/or an adverse inference based on allegations of spoliation. The kind of testimony from the experts outlined above will be useful in the Court's de novo consideration of the request for sanctions and/or an adverse inference. For all of these reasons, the motion in limine to exclude all evidence or argument regarding allegations of spoliation is denied.”

Ok, so why the to-do about a spoliation claim? Well, it appears that the plaintiff filed a Fed. R. Civ. P. Rule 15(a) motion to amend to include a claim for negligent spoliation of evidence. The alleged spoliation involved ESI:

" Plaintiff contends that its additional claim is appropriate in view of the fact that “[t]he discovery pursued in this matter has revealed that Defendant continued to use his laptop computer, deleted files, and severely limited Mintel's ability to trace Defendant's behavior in the days leading up to and following his resignation from Mintel” and that Plaintiff has not been able to corroborate Defendant's claims that he (i) deleted all of the Mintel confidential information that he took shortly before he left his employment at Mintel and (ii) has not shared that information with his new employer. Plaintiff notes that the issue of spoliation of evidence “has been contested since the beginning of this case and has been the subject of several motions.” According to Plaintiff, that fact cuts in favor of granting the motion for leave to file the new claim, because Defendant ‘can claim no surprise that Mintel is claiming that he spoliated evidence.’"

Post Fed. R. Civ. P. Rule 16(b) Pleading Amendment Deadline Motions to Amend

The problem here is that while plaintiff made a colorably proper motion to amend under Fed. R. Civ. P. Rule 15(a), he did so after the pleadings amendment deadline set forth in the Fed. R. Civ. P. Rule 16(b) case management order, which required a showing of “good cause.” Plaintiff did not move to amend his pleadings under Rule 16(b), and the court more than hints that even if he did, no good cause was shown. For civil procedure aficionados, here are the pertinent rule excerpts:

Rule 16(b)(3)(A):

“Contents of the Order:
(A) Required Contents. The Scheduling Order must limit the time to join other parties, amend the pleadings, complete discovery and file motions.”

Rule 16(b)(4):

“Modifying a Schedule. A schedule may be modified only for good cause and with the judge’s consent.”

Good cause, the Court notes, requires a showing of due diligence in attempting to meet the Rule 16(b) deadline, and Judge Dow makes it clear that plaintiff made no showing of any due diligence and denied plaintiff’s motion to amend:

“Applying the Rule 16(b) standard, the Court cannot find “good cause” for the tardiness in Plaintiff's assertion of a spoliation claim. Again, as Plaintiff acknowledges, “[t]he issue of spoliation of evidence has been contested since the beginning of this case and has been the subject of several motions.” [207, at 2 .] Yet, Plaintiff waited to seek leave to add such a claim until fifty-six days after the deadline for amendments to pleadings established under the scheduling order submitted by agreement of parties at Magistrate Judge Valdez's direction. During that time, Plaintiff focused on the pursuit of sanctions-including the entry of a default judgment-for Defendant's alleged spoliation, without making any effort to plead a claim or cause of action for spoliation. In short, by Plaintiff's own admission, it “was, or should have been aware” of the “facts underlying” the claim prior to the deadline set in the scheduling order. Trustmark Ins. Co., 424 F .3d at 553. Accordingly, the Court cannot find “good cause” to permit the filing of the amended complaint, and Plaintiff's motion for leave to amend its complaint [207] is denied.”

Blognote and Takeaway: This sounds very much like a laches approach and rationale. The rather obvious takeaway is…assert as early as practicable, preferably before the tolling of the Rule 16(b)3(A) bell, and if that’s not possible, make sure your motion to amend is for good cause, and thereby defensible.

Seventh Circuit Standard of Review of Magistrate Judge Order

Plaintiff filed a motion for an order to show cause, for discovery sanctions, and for sanctions resulting from evidence spoliation. Judge Dow referred the motion to a Magistrate Judge, who denied the motion. Plaintiff filed objections, and defendant filed its response. The parties disputed the standard of review for the order denying that motion. The parties’ positions were as follows:

Plaintiff argued for de novo review:

"Plaintiff contends that the order should be reviewed de novo because it sought a final determination of Defendant's alleged violations of the TRO, and thus is akin to a contempt motion or a dispositive sanctions motion that cannot be finally resolved by a magistrate judge. Thus, according to Plaintiff, the Court must treat the January 22, 2009 order as a report and recommendation.

Defendant argued for a “clear error or contrary to law” review:

“Defendant counters that the order pertains to a pre-trial discovery matter and thus is subject to review under the “clearly erroneous or contrary to law” standard.

Of course, defendant hedged its bets:

“Defendant further submits that the order should be upheld regardless of the applicable standard of review.”

The Court ruled that Seventh Circuit decisional authority mandates a de novo review:

"While Defendant's position on the standard of review has some support in the decisions of other circuits cited in Defendant's brief, the Court must conclude that in the Seventh Circuit, the January 22, 2009 order is subject to de novo review, whether the motion that gave rise to the order is viewed as seeking a contempt finding for violation of the TRO, sanctions under Rule 37, or both.“

“It is well established that “Rule 37 permits the award of sanctions with dispositive effects; monetary sanctions, the striking of claims and defenses; and default judgment.” Fidelity Nat'l Title Ins. Co. v. Intercounty Nat'l Title Ins. Co., 2002 WL 1433584, at *2 (N.D.Ill. July 2, 2002).”

“It is equally well established that “[a] magistrate judge is only authorized to make decisions on nondispositive matters that have independent effect in order to assure that he or she does not dispose of the merits of any civil case without the parties' consent.” Royal Maccabees Life Ins. Co. v. Malachinski, 2001 WL 290308, at *6 (N.D.Ill. Mar. 20, 2001).”

So, in the Seventh Circuit, if the request for relief is couched in “sanctions” terminology, the review is always de novo:

“Accordingly, the Seventh Circuit has held that “all sanctions requests, whether pre- or post-dismissal” must be determined de novo by the district court. Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856, 869 (7th Cir.1996); see also Alpern v. Lieb, 38 F.3d 933, 935 (7th Cir.1994); Fidelity Nat't Title Ins., 2002 WL 1433584, at *2 (“judges in this district conduct de novo review of magistrate judges' sanctions awards” as well as “a magistrate judge's recommendation on a dispositive motion”); see also Royal Maccabees, 2001 WL 290308, at *7 (same).”

“And “[t]he de novo standard applies to the magistrate judge's findings of fact and conclusions of law.” Fidelity Nat't Title Ins., 2002 WL 1433584, at *2 (citing Rajaratnam v. Moyer, 47 F.3d 922, 924 (7th Cir.1995)). "

Magistrate Judge’s Order Viewed as “Report and Recommendation” Subject to De Novo Review

Accordingly, the Court was constrained to view the Magistrate Judge’s Order as a “Report and Recommendation” subject to de novo review. The Court then describes next steps in a de novo review:

"Under [the de novo review] standard, this Court must give “fresh consideration to those issues to which specific objections have been made.” Rajaratnam v. Moyer, 47 F .3d 922, 925 n. 8 (7th Cir.1995).

The Court notes that where a de novo review involves complex issues about electronic discovery, that expert testimony is warranted. Moreover, the Court now fully explains that issues of spoliation relate to a motion for sanctions, rather than an independent tort claim for spoliation of electronic evidence:

“And, in view of both the applicable standard of review and the complexity of the electronic discovery issues raised in the expert reports and affidavits, the Court concludes that going forward with “Phase II” proceedings in which the experts present their testimony in court, subject to cross-examination, will best position the Court to make an informed de novo ruling on Plaintiff's sanctions motion. See Fed.R.Civ.P. 72(b) (“The district court may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions”); 28 U.S.C. § 636(b)(1)(C) (noting that on de novo review, the district judge may “receive further evidence”).”

“Accordingly, the Court reserves ruling on Plaintiff's objections to the January 22, 2009 order until after it has heard testimony from the experts, after which time the Court will issue a written ruling on whether any basis exists for sanctions and/or an adverse inference on the basis of the alleged spoliation."

Third Party eDiscovery

Plaintiff sought to discover ESI from third party (and defendant’s current employer) Datamonitor. The discovery process was contentious, involving multiple subpoenas seeking forensic images, motions to compel, and motions for reconsideration, in pertinent part seeking:

“[A] forensic image of Datamonitor's desktop and/or laptop computers used at any time by Defendant and the forensic image of Defendant's electronic mail account at Datamonitor,” or, at a minimum, a “Round 1-style” report FN3 of the forensic images of those Datamonitor computers.”

Ok, here now, the definition of “Round 1-style” report:

“FN3. A Round 1-style report is generated from an existing forensic image of a computer and contains “metadata”-information generated by the software in the computer. According to Plaintiff, it would include the following registers and logs: All Files Present; Event Logs; Internet History (excluding the substance of any queries or searches input by Datamonitor personnel); Link File Reports; Recycle Bin; System Information; and USBSTOR Registries/Logs.”

Put succinctly, plaintiff’s third party eDiscovery attempts (and five discovery motions) could be characterized as alternatively Herculean, or needlessly repetitive, generally unsubstantiated, and therefore unjustified. Guess which way the Magistrate Judge Ruled on plaintiff’s five (count ‘em) discovery motions? Denied, but with some concessions to plaintiff’s “concerns.”
Seventh Circuit Standards for Review of Magistrate Judge’s Non-Dispositive Ruling

The rule in the Seventh Circuit is the standard of review for an objected-to non-dispositive ruling of a Magistrate Judge is clear error or contrary to law:

“As both parties have recognized, where, as here, a district court considers objections to a magistrate judge's rulings on nondispositive matters, the magistrate judge's disposition will be set aside only if it is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); see also Hall v. Norfolk Southern Ry. Co., 469 F.3d 590, 595 (7th Cir.2006); Bobkoski v. Board of Educ. of Cary Consol. School Dist., 141 F.R.D. 88, 90 (N.D.Ill.1992). Under the clear error standard of review, “the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943 (7th Cir.1997)."

Third Party Discovery Requests

Having teed up the standard for review, Judge Dow then notes that third parties are entitled to somewhat greater protection than parties from discovery requests, and that some showing beyond mere speculation is required to permit full bore type discovery:

“As Judge Valdez repeatedly has noted, third parties are entitled to somewhat greater protection than parties in regard to discovery requests (see Builders Ass'n of Greater Chicago v. City of Chicago, 2001 WL 664453, at *7 n. 4 (N.D. Ill. June 12, 2001)), such as requests for a forensic image of a competitor's computers (see, e.g., Powers v. Thomas M. Cooley Law School, 2006 WL 2711512, at *5 (W.D.Mich. Sept. 21, 2006)).

“Moreover, the pertinent rules of civil procedure generally do not permit the requesting party to conduct the actual search for discoverable data (In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir.2003)), at least absent some showing that the documents sought by the requesting party are or were in the possession of the party to whom the request is made (see, e.g., Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005, at *4 (N.D.Ill. March 9, 2006)).”

"Upon review of Plaintiff's motions, the parties' briefs and arguments, and Judge Valdez's two orders, the Court concludes that Judge Valdez considered all of the evidence presented by Plaintiff, applied the appropriate rules and case authorities, and offered a more than reasonable justification for her ruling that Plaintiff had not come forward with sufficient information to get “beyond the mere speculation line and towards the standard required for discovery from a third-party.”"

Finding no clear error in the Magistrate Judge’s ruling, the District Court affirmed.

This decision also has an interesting “battle of the experts” discussion in connection with data wiping. Plaintiff alleged that certain USB devices were “wiped.” Judge Dow provides an interesting analysis. Look for the “some evidence of no intentional wiping” language:

“Magistrate Judge Valdez had before her the contradicting opinions of two forensic experts regarding the hexadecimal value “FF” found on the unallocated space of both drives. After wading through, and then setting forth, the testimony of the two experts, Judge Valdez concluded that Plaintiff's motion to reconsider presented a classic “battle of the experts.” [219, at 10.]

“She found it important that Plaintiff's expert found no traces of a wiping program on the USB drives apart from the presence of the “FF” pattern and that he did not state that he was familiar with any wiping program that leaves an “FF” hexadecimal pattern.”

“She compared that testimony with the explanation of Defendant's expert for the “FF” pattern in the absence of any other evidence of wiping and concluded that it was “reasonable” to assume that no wiping program was ever run. In addition, Magistrate Judge Valdez reasonably concluded that the fact that two Mintel-related documents-neither of which has been shown to have been transferred to any Datamonitor device-actually remained on the USB devices provided some evidence that there was no intentional “wiping” of the device. Id. (citing Bryant v. Gardner, 2008 WL 4966589, at *15 (N.D.Ill.2008) (“Had Defendants purposefully deleted unfavorable evidence from the laptop, the Court finds it unlikely that [ ] other documents favorable to Plaintiff would have remained”)). "

Blognote: It appears that Datamonitor’s status in this action might more appropriately be described as a non-party rather than a “third party.” While no specific mention of Fed. R. Civ. P. Rule 45 is made in the opinion, the Court discusses a subpoena and motion to compel Datamonitor’s compliance both with a subpoena and a court order directing compliance therewith.


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