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Chicago IP Litigation Tracking Northern District of Illinois IP Cases

Spoliation Sanctions were Premature Until the Parties Determined Whether Evidence was Actually Destroyed

Posted in Discovery

Digital Design Corp. v. Kostan, No. 11 C 6243, Slip Op. (N.D. Ill. Dec. 7, 2012) (Holderman, C.J.).

Judge Holderman denied without prejudice plaintiff’s motion for sanctions based upon alleged spoliation of evidence in this copyright case involving InVision software.  Defendant acknowledged deletion of a copy of the InVision software from his harddrive which allegedly contained metadata showing when he worked on the software.  But defendant argued that a copy of the program was recovered as part of a forensic scan in a related state court case.  Plaintiff replied that the recovered copy may not have all of the relevant metadata as it originally existed and that the terms of the state court protective order did not allow plaintiff access to the recovered file.  The Court ordered that defendant waive the relevant terms of the protective order so that plaintiff could access the file for purposes of this case.  And the Court denied the motion for sanctions with leave to refile after the parties reviewed the recovered file.