Archive: November 2010

1
District Court Declines to Order Incarceration for Defendant’s Bad Faith Spoliation but Orders Monetary Sanction of $337,796.37
2
“No Matter How Inadequate a Party’s Preservation Efforts May Be … Sanctions are Not Warranted Unless there is Proof that Some Information of Significance has Actually Been Lost”
3
European Commission Announces Intention to Strengthen EU Data Protection Rules
4
Finding No Duty To Preserve, Court Denies Motion for Sanctions
5
Upcoming Events -December
6
e-Discovery in Oklahoma
7
Court Imposes Adverse Inference for Failure to Preserve Text Messages Related to Criminal Investigation

District Court Declines to Order Incarceration for Defendant’s Bad Faith Spoliation but Orders Monetary Sanction of $337,796.37

Victor Stanley, Inc. v. Creative Pipe, Inc. ("Victor Stanley II")

As previously summarized on this blog, defendant Mark Pappas, President of Creative Pipe, Inc., was ordered to “be imprisoned for a period not to exceed two (2) years, unless and until he [paid] to Plaintiff the attorney’s fees and costs that will be awarded…” as a sanction for willful, bad faith discovery violations which the Magistrate Judge ruled would be treated as contempt of the Court.  On defendants’ appeal, the District Court Judge declined to adopt the Magistrate Judge’s order regarding incarceration:

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“No Matter How Inadequate a Party’s Preservation Efforts May Be … Sanctions are Not Warranted Unless there is Proof that Some Information of Significance has Actually Been Lost”

Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010)

Addressing defendant’s motion for sanctions, the court found that although “plaintiffs did not engage in model preservation of electronically stored information in this case,” they were not subject to sanctions absent evidence that any relevant information had actually been destroyed.  Significantly, in reaching this decision, the court took issue with certain aspects of the often-cited Pension Committee decision issued in the same jurisdiction earlier this year as well as with the discovery standard of “reasonableness and proportionality” set forth in another cited opinion, Rimkus v. Cammarata.

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European Commission Announces Intention to Strengthen EU Data Protection Rules

In a press release dated November 4, 2010, the European Commission outlined its goal of reviewing and amending its Data Protection Directive to address “challenges raised by new technologies and globalisation.”  The press release announces the Commission’s intention to “put forward legislation next year to strengthen individuals’ rights while also removing red tape to ensure the free flow of data within the EU’s Single Market” and sets forth a “series of key goals”, including “[s]trengthening individuals’ rights,” “[e]nsuring high levels of protection for data transferred outside the EU,” and “[m]ore effective enforcement of the rules.” The press release is entitled, “European Commission sets out strategy to strengthen EU data protection rules” and begins:

What happens to your personal data when you board a plane, open a bank account, or share photos online? How is this data used and by whom?  How do you permanently delete profile information on social networking websites?  Can you transfer your contacts and photos to another service?  Controlling your information, having access to your data, being able to modify or delete it – these are essential rights that have to be guaranteed in today’s digital world.  To address these issues, the European Commission today set out a strategy on how to protect individuals’ data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU.  This policy review will be used by the Commission with the results of a public consultation to revise the EU’s 1995 Data Protection Directive.  The Commission will then propose legislation in 2011.

To read the entire press release, click here.

Finding No Duty To Preserve, Court Denies Motion for Sanctions

Huggins v. Prince George’s Cnty, 750 F. Supp. 2d 549 (D. Md. 2010)

In this litigation arising from a dispute between plaintiff, a landowner, and the County regarding the plaintiff’s use of her land, the court found that the defendant was not subject to sanctions for the destruction of a former employee’s email pursuant to County policy where no duty to preserve existed at the time of their destruction.

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Upcoming Events -December

Thomson Reuters 14th Annual Electronic Discovery and Records Retention Conference – Achieving Practical Proportionality

Dec. 1-2, 2010
San Francisco Marriott Marquis
55 4th St.
San Francisco, CA 94103

K&L Gates Partner Julie Anne Halter will participate in this conference which will address a myriad of topics, including e-discovery in all cases, proportionality, early case assessment, litigation with the government and much more.

To learn more or to register, click here.

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e-Discovery in Oklahoma

As of November 1, 2010, Oklahoma’s Code of Civil Procedure specifically provides for the discovery of electronically stored information (“ESI”).  Closely mirroring the Federal Rules of Civil Procedure, the Code addresses issues including the identification of “not reasonably accessible” information, the format of production, and sanctions for the loss of ESI resulting from the routine, good-faith operation of an electronic information system.

Oklahoma’s Code of Civil Procedure is available here.
 

Court Imposes Adverse Inference for Failure to Preserve Text Messages Related to Criminal Investigation

United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010) (Not for Publication)

For the Government’s failure to preserve text messages sent between investigating agents and a cooperating witness, the court found sanctions were warranted and ordered that the jury would received a “spoliation charge” allowing (but not requiring) it to infer that the deleted messages were favorable to the defendants.

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