Case Blurb-IL: Perks; Court discusses state causes of action for spoliation

U.S. District Court interprets state law.

The Defendants further claim that Perks does not allege when Shelby County erased or “wrote over” the relevant videotapes. “It is well settled that Illinois courts do not recognize negligent spoliation of evidence as an independent cause of action.” “An action for negligent spoliation can be stated under existing negligence law without creating a new tort.” Thus, negligent spoliation of evidence is a derivative action that arises out of other causes of action. Although there typically is no duty to preserve evidence, such a duty may arise through an agreement, a contract or a statute. In such cases, “a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.”

Perks v. County of Shelby, 2009 U.S. Dist. LEXIS 77575 (C.D. Ill. Aug. 31, 2009)(internal citations removed)

Case Summary-ME: Parlin; Spoliation not an Independent Cause of Action in Maine

Parlin v. Cumberland County, 2009 U.S. Dist. LEXIS 83192 (D. Me. Sept. 11, 2009)

District Court of Maine interprets state law.

Factual Background: Prison inmate brings claims against Sheriff and sheriff’s employees for actions during her stay in the counter jail. Plaintiff was an inmate at the Cumberland County jail. She had self-reported to the facility to serve a seven day sentence. During the first day of her stay, she became emotional and disruptive, possibly due to the influence of prescription drugs, which were taken legally (although she admitted to taking double the amount prescribed for one of the medicines). Plaintiff’s outbursts caused her to be moved a number of times to the “detox” cell. The detox cell is a simple cement slab with a metal grate in the floor and no bunk or toilet. During one of these moves, an incident occurred in which the plaintiff and one of the defendant prison guards fell to the ground. Plaintiff landed chin first, while the guard landed on top of her. This incident, according to plaintiff, caused a torn rotator cuff to plaintiff’s shoulder, on which she had already had surgery.

Plaintiff’s Claim under a theory of Spoliation:
Plaintiff had submitted a claim for spoliation in her complaint, contending that defendants failed to preserve videotape of the incident in which she was injured. The court immediately dismissed this part of the complaint, because “Maine does not recognize an independent cause of action for spoliation.”

Plaintiff’s Motion for Sanctions for Spoliation: Plaintiff had moved that the court issue an order: (1) establishing as a matter of fact that Defendants destroyed the videotape and physically assaulted Plaintiff; (2) striking all defenses to Counts VI 1 (spoliation of evidence) and VIII (battery); and (3) prohibiting Defendants from introducing any evidence at trial opposing Counts VI and VIII. Plaintiff also requests an adverse inference instruction at trial.

Defendants argued that any failure to preserve was not their fault. The court agreed, stating that: “[a] key consideration in whether to impose sanctions for spoliation of evidence is the ‘degree of fault of the offending party.’” The court stated that Plaintiff had failed any fault could be attributed to defendants for the failure to preserve the video. Because it would be inequitable to sanction a blameless party for another’s act of spoliation, the court denied the motion.

States’ moves to better manage IT due in part to EDD

Computerworld has posted an article concerning States’ (led here by West Virginia) efforts to get their IT infrastructures under control:

West Virginia is part of a wave of states that are embracing data center and server consolidation in their government IT operations. It’s replacing 85 e-mail servers that run a half-dozen different applications with four Exchange-based systems — two for production, and two for backup.

And that’s just for starters. Kyle Schafer, West Virginia’s chief technology officer, wants to extend the consolidation initiative to the state’s financial, procurement and human resources management systems. The savings on hardware alone justify the move, according to Schafer, who said that West Virginia currently replaces as many as 20 e-mail servers annually as part of its regular hardware refresh cycle.

IT managers will be aware of many reasons for making this move, most of which will fall under categories of economics and operational efficiency. However, what might surprise some (though, not us here a Post Process, of course) is that electronic discovery also plays a role:

Another reason why some states are moving to consolidate and better integrate their systems is to comply with new electronic-discovery legislation. For instance, the [state] of Washington is deploying a unified e-mail archiving system from Symantec Corp. and later this year plans to seek bids on tools for searching the archives, said Gary Robinson, the state’s CIO. Robinson led the preparation of an “impact statement” on e-discovery that the NASCIO released last week.

Pre-dispute data management is the answer to reducing post-dispute discovery costs…

Will Lit Support Vendors need a PI License in Texas?

NB: Updates can be found on Post Process here, here, and here.

There has been much discussion in the litsupport groups concerning a new law set to take effect on September 1, which, among other things, expands the definition of an “investigations company.”

From 80(R) HB 2388, Here is the full text of this section (the bold font is the newly amended text):

Sec. 1702.104. INVESTIGATIONS COMPANY. (a) A person acts
as an investigations company for the purposes of this chapter if the
person:
(1) engages in the business of obtaining or
furnishing, or accepts employment to obtain or furnish, information
related to:
(A) crime or wrongs done or threatened against a
state or the United States;
(B) the identity, habits, business, occupation,
knowledge, efficiency, loyalty, movement, location, affiliations,
associations, transactions, acts, reputation, or character of a
person;
(C) the location, disposition, or recovery of
lost or stolen property; or
(D) the cause or responsibility for a fire,
libel, loss, accident, damage, or injury to a person or to property;
(2) engages in the business of securing, or accepts
employment to secure, evidence for use before a court, board,
officer, or investigating committee;
(3) engages in the business of securing, or accepts
employment to secure, the electronic tracking of the location of an
individual or motor vehicle other than for criminal justice
purposes by or on behalf of a governmental entity; or
(4) engages in the business of protecting, or accepts
employment to protect, an individual from bodily harm through the
use of a personal protection officer.
(b) For purposes of Subsection (a)(1), obtaining or
furnishing information includes information obtained or furnished
through the review and analysis of, and the investigation into the
content of, computer-based data not available to the public.

To parse the language then, the existence of new section (b) means that if you are in the business of: obtaining or furnishing information related to four areas listed above:
A Crimes or wrongs against the US;
B The identity, habits, business, occupation,
knowledge, efficiency, loyalty, movement, location, affiliations,
associations, transactions, acts, reputation, or character of a
person
C The location or disposition of stolen property; or
D An investigation into a fire
Then you are an investigations company.

This is true if the information is obtained through the “review and analysis of, and the investigation into the content of, computer-based data not available to the public.”

So the question for vendors becomes: what operational tasks meet the definition of the new section? There seems little doubt that a forensics examination of a network or pc system is covered by the new definition, because forensic examiners deliver a report based on an analysis of and investigation into the content of computer-based data” on private systems.
But what about other tasks, such as the collection of data, the processing of data for review and production, and the storing and display of data for attorney review?

We should not an exception is noted in section Section 1702.324:

This chapter does not apply to:
…(10) a person who obtains a document for use in
litigation under an authorization or subpoena issued for a written
or oral deposition…

Yet that exception seems rather narrow, as it only applies to a particular deposition, and not to a possible trial in general. Furthermore, the exception is narrowed still by text in section 1702.324 (c), which states:

The exemptions do not apply to activities or services that are independent of the service or profession that is the basis for the exemption.

It seems obvious that in order to provide a full range of litigation support services, including forensic examination, then you will have to become licensed. But will all vendors, even those who do not perform such examinations, need a license as well? Stay tuned…