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Electronic Discovery Law Blog Legal issues, news, and best practices relating to the discovery of electronically stored information.

Monthly Archives: November 2010

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:

“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,… Continue Reading

European Commission Announces Intention to Strengthen EU Data Protection Rules

Posted in NEWS & UPDATES

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… Continue Reading

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… Continue Reading

Upcoming Events -December

Posted in EVENTS

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,… Continue Reading

e-Discovery in Oklahoma

Posted in NEWS & UPDATES

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,… Continue Reading

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.