Electronic Discovery and Evidence

Spoliation Claim in Bank Case

Bank refutes claims it destroyed evidence.  "Allegations that Bank of Jackson Hole has destroyed evidence in the fraud case facing the institution are without merit and aimed at "harming its reputation in the community," according to court documents. The bank filed a response last month after a report by attorneys representing plaintiffs Hans and Nancy Johnstone alleged concealment or destruction of documents in the case. The Johnstones’ attorneys based their claims on testimony about deleted e-mails and switched computers provided by four bank officials during depositions in May. . . "

Destruction of Computer Evidence

(6-11-04) Evidence spurs call for probe of SAIF. "SALEM - A whistle-blower's affidavit Thursday charging top officials with destroying documents at a state-owned insurance company prompted the governor to call for an investigation and led a judge to schedule a court hearing on the matter. . . . Cohen's sworn testimony alleges that SAIF officials destroyed, suppressed, and prevented the disclosure of public records related to SAIF's lobbying and political activities . . . Cohen's affidavit also said that: Then-SAIF CEO Katherine Keen ordered him to change the title of a document "in order to make it more difficult for third parties to locate" on SAIF's computer system. Keene directed that SAIF change its e-mail retention policy, so that electronic messages would be retained one day, instead of 30 days, as had previously been the policy. SAIF executive Cecil Tibbetts twice told Cohen to delete SAIF documents from his computer "to avoid producing them pursuant to OSEP's document request. Tibbetts indicated to Cohen that he removed certain documents from his computer and took them home. In response to a superior's order, Cohen destroyed documents by removing them from SAIF computers, but first made copies, which he took home "for safe-keeping."

Comment: Public officials tried to hide electronic evidence as the electronic discovery process crept closer.

Legal and Ethical Obligations to Preserve Electronic Data

The Duty To Preserve Electronic Data By Judge Curt B. Henderson .

Comment: Short but effective article on the duty of lawyers to preserve electronic data.

Sanctions May be Imposed for Inadvertent Erasure of E-mail Backup

Keir v. UnumProvident Corp., 2003 WL 21997747 (D. N.J. Aug. 20 2003).

The Court was highly critical of the defendant's failed efforts to retain e-mails that were not retained even though a preservation order was in place for these e-mail.

Employees fired for destroying electronic data

Schwab probe reveals improper fund trading

By Josh Friedman
Tribune Newspapers: Los Angeles Times
Published November 15, 2003

"U.S. Trust spokeswoman Allison Kellogg said the two employees in the firm's institutional mutual fund sales group were fired for allegedly trying to destroy electronic evidence, which was recovered and given to authorities. She said the pair allegedly were involved in making deals with "a handful of institutional clients" who traded about a half-dozen of the funds."