Moody v. CSX Transp., Inc.

1 Analyses of this case by attorneys

  1. October’s Notable Cases and Events in E-Discovery

    EDRM - Electronic Discovery Reference ModelTom PaskowitzOctober 19, 2023

    k Failla, In Walkie Check Productions, LLC v. ViacomCBS Inc., No. 21 Civ. 1214 (KPF), 2023 WL 5154416 (S.D.N.Y. July 24, 2023).Judge Failla concluded that she was unwilling “to extend Defendants’ preservation obligations” to require recording of the streaming episodes. She explained that “preservation obligations are exactly that — obligations to preserve potential evidence that, by definition, must already exist,” and “a failure to create records — as opposed to the destruction of records that were kept — is not spoliation.” Because preservation obligations do not include an affirmative duty to produce new records, she held that Defendants’ failure to implement a practice of recording the BET series’ livestreams, even after receiving the alleged infringement notice from Plaintiff, could not be the basis for spoliation sanctions.Judge Failla next distinguished the case law that Plaintiff cited to support its spoliation argument. First, she noted that Moody v. CXS Transportation, Inc., 271 F.Supp.3d 410 (W.D.N.Y. 2017), involved a litigant’s alleged mishandling of data that was automatically recorded (and thus created) by a locomotive’s event recorder system, whereas Plaintiff did not allege that the livestreams of Defendants’ show were automatically recorded. Second, Aktas v. JMC Development Co., 877 F.Supp.2d 1, 14-15 (N.D.N.Y. 2012), aff’d, 563 F. App’x 79 (2d Cir. 2014), centered on a litigant’s demolition of the opposing party’s work product on a construction site. She concluded that neither case supported Plaintiff’s argument that a party has an affirmative duty to create new records as part of its preservation obligations.Judge Failla recognized that “the increased proliferation of livestreamed content may make it less likely that information relevant to litigation is memorialized,” but she explained that Plaintiff did not provide “a compelling reason why livestreamed content should be treated differently than other situations in which potentially relevant information exists in some temporary