Archive: August 2010

1
Court Finds No Spoliation as to Documents Produced from Backup Tapes because “Documents Were Never in Fact Destroyed”
2
In “‘David-And-Goliath-Like’ Struggle for Electronic Discovery”, Court Orders Adverse Inference, Monetary Sanctions for Spoliation and Delay
3
Despite Negligent Preservation, Failure to Establish Relevance of Lost Emails Results in Denial of Motion for Sanctions
4
Court Compels Production of Relevant Content from Social Networking Sites
5
Court Enters Order on Sanctions in Phillip M. Adams & Assoc., Concludes Based on “Minimal Evidence” Presented that “It Is Not Clear that [Defendant] Spoliated Evidence”
6
Court Grants Defendant’s Motion for Entry of Clawback Provision
7
Court Orders Dismissal as Sanction for Egregious Discovery Violations
8
Court Approves Order for Preservation of Documents and Tangible Things in Toyota Litigation

Court Finds No Spoliation as to Documents Produced from Backup Tapes because “Documents Were Never in Fact Destroyed”

Pitney Bowes Gov. Solutions, Inc. v. United States, 2010 WL 3278402 (Fed. Cl. Aug. 19, 2010)

In this post-award bid protest, plaintiff sought spoliation sanctions for defendant’s destruction of relevant documents.  Although most of the documents were deleted and/or destroyed by their original custodians upon the order of the contracting officer, the documents were available for production from backup tapes.  The restored documents, however, all reflected the same author in their metadata, causing plaintiff to doubt their veracity and persist in its request for spoliation sanctions.

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In “‘David-And-Goliath-Like’ Struggle for Electronic Discovery”, Court Orders Adverse Inference, Monetary Sanctions for Spoliation and Delay

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was “at a minimum” negligent and indicated that an adverse inference would be crafted after all the evidence had been received.  For “prolonged delay” in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000.

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Despite Negligent Preservation, Failure to Establish Relevance of Lost Emails Results in Denial of Motion for Sanctions

Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

In this employment discrimination case, the court denied the pro se plaintiff’s motion for spoliation sanctions, despite finding defendants were at least negligent in their preservation efforts, where plaintiff failed to present extrinsic evidence “tending to show that the destroyed emails would have been favorable to his case.” 

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Court Compels Production of Relevant Content from Social Networking Sites

EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010)

The EEOC, on behalf of two claimants, filed claims alleging sexual harassment.  In the course of discovery, defendant sought production of claimants’ internet social networking site (“SNS”) profiles and other communications from claimants’ Facebook and MySpace.com accounts.  Plaintiff resisted.  Following its discussion of the “General Principles Applicable to Discovery of SNS” and the proper scope of discovery in the present case, the court determined that certain content was relevant and ordered plaintiff to produce the relevant information, subject to the guidelines identified by the court.

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Court Enters Order on Sanctions in Phillip M. Adams & Assoc., Concludes Based on “Minimal Evidence” Presented that “It Is Not Clear that [Defendant] Spoliated Evidence”

Phillip M. Adams & Assoc. LLC v. Winbond Elec. Corp., 2010 WL 2977228 (D. Utah July 21, 2010)

In March 2009, the court granted in part plaintiff’s motion for sanctions and ordered the parties to present evidence of prejudice before crafting an appropriate sanction.  See, Phillip M. Adams & Assoc., LLC v. Dell, Inc.,621 F. Supp. 2d 1173 (D. Utah 2009).  Following analysis of plaintiff’s “minimal evidence”, the court concluded it was “not clear that ASUS spoliated evidence.”  The court nonetheless made clear the insufficiency of defendant’s preservation efforts, particularly with regard to original source code.  Accordingly, the court declined to order terminating sanctions, but indicated that plaintiff would be allowed to argue to the jury that “ASUS should have the original source code to a program that it both patented and attempted to patent for many years” and that “[t]he jury will consider these facts and draw their inferences.”

Court Grants Defendant’s Motion for Entry of Clawback Provision

Rajala v. McGuire Woods LLP, 2010 WL 2949582 (D. Kan. July 22, 2010)

Plaintiff, as Bankruptcy Trustee, brought suit against defendant, alleging several claims.  The parties could not agree on the entry of a clawback provision. Accordingly, defendant moved the court to enter such a provision.  Upon establishing its authority to enter such an order pursuant to Fed. R. Civ. P. 26(c)(1) and analysis of the relevant facts, the court granted the motion, with modification, and indicated that a separate order setting forth a clawback provision would be entered.

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Court Orders Dismissal as Sanction for Egregious Discovery Violations

Aliki Foods, LLC v. Otter Valley Foods, Inc., 726 F. Supp. 2d 159 (D. Conn. 2010)

Defendant moved to dismiss plaintiff’s claims as a sanction for discovery violations.  Finding that plaintiff “acted willfully and in bad faith in repeatedly violating its discovery obligations and [the] Court’s orders”, including failing to timely respond to discovery despite a court order to do so and defying a court order to allow forensic examination of certain hard drives by giving its computers away without first searching them, the court granted defendant’s motion.

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Court Approves Order for Preservation of Documents and Tangible Things in Toyota Litigation

In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 2010 WL 2901798 (C.D. Cal. July 20, 2010)

On July 20, 2010, the District Court entered an Order for the Preservation of Documents and Tangible Things which was submitted by the parties.  The order, which addresses only the preservation of documents and not relevance, discoverability, or admissibility, includes sections entitled:  “Documents and Tangible Items Required to be Preserved”, “Documents Not Required to be Preserved”, “Permissible Modifications and Alterations of Documents”, and “Implementation and Modification of Order”.  Additionally, an attachment to the order provides a lengthy (though not exhaustive) list of items to be retained.

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