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Category Archives: CASE SUMMARIES

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Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith


Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014) Plaintiff argued that spoliation sanctions were warranted for Defendants’ destruction of relevant audio recordings of closed-session school board meetings in violation of the Illinois Open Meetings Act (“OMA”), the school board’s own document retention policies, and… Continue Reading

Text Messaging/Phone Records Establish Anticipation of Litigation; Spoliation Sanctions for Selective Preservation of Messages


Calderon v. Corporacion Puertorrique a de Salud, —F. Supp. 2d—, 2014 WL 171599 (D.P.R. Jan. 16, 2014) In this case, Defendants sought to exclude all messages between Plaintiff and a particular email address/unknown person (the alleged harasser) and also asked that the case be dismissed with prejudice because of Plaintiff’s (apparently selective) failure to preserve more… Continue Reading

No Adverse Inference for Damage to Only Copy of Disk Absent Evidence of Materiality; Monetary Sanctions Imposed


Cognex Corp. v. Microscan Sys., Inc., —F. Supp. 2d.—, 2013 WL 6906221 (S.D.N.Y. Dec. 31, 2013) In this case, Defendants sought sanctions for the spoliation of an optical disk which was damaged in shipping between Plaintiffs and their expert and which was therefore “unreadable.”  Finding that an adverse inference was unwarranted absent a showing that… Continue Reading

Stored Communications Act Applies to Previously Opened Web-based Emails


Cheng v. Romo, No. 11-10007-DJC, 2013 WL 6814691 (D. Mass. Dec. 20, 2013) In this case, the court addressed the question of whether previously opened web-based emails were in “electronic storage” as defined by the Stored Communications Act (SCA) and determined that they were.  Plaintiff sued Defendant for accessing his web-based emails without authorization in… Continue Reading

Adverse Inference and Monetary Sanctions Warranted for Failures to Issue Litigation Hold, Monitor Preservation


Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-0541-GPC(WVG), 2013 WL 6159177 (S.D. Cal. Nov. 25, 2013) In this case, the court recommended that an adverse inference instruction be imposed and ordered monetary sanctions where Defendants “did not take adequate steps to avoid spoliation of evidence after it [sic] should have reasonably anticipated… Continue Reading

Sanctions Imposed for Inadequate Implementation of Litigation Hold


In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013) In this case, the court addressed the adequacy of Defendants’ preservation efforts, including the implementation of their litigation hold(s) and determined that sanctions were warranted for Defendants’ violation of the court’s case management orders in bad… Continue Reading

Avoid “Discovery About Discovery” with Cooperation


Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013) In this case, Plaintiffs moved to compel answers to their questions about Defendants’ efforts to respond to Plaintiffs’ discovery requests, including what procedures were undertaken to search for responsive electronically stored information.  Defendants objected, arguing that such information was not within… Continue Reading

Criminal Defendant Entitled to Production of Metadata Related to Police Report


United States v. Tutt, No. 13-cr-20396, 2013 WL 5707791 (E.D. Mich. Oct. 21, 2013) In this case, the court granted in part Defendant’s Motion for Issuance of a Subpoena Duces Tecum seeking production of the arresting officers’ personnel files and disciplinary records as well as the metadata associated with an arresting officer’s police report.  Defendant… Continue Reading

Court Orders Imaging to Ensure Preservation of Self-Proclaimed Hacker’s ESI


Battelle Energy Alliance, LLC v. Southfork Sec., Inc.

Plaintiff sought an ex parte temporary restraining order requiring Defendants to disable their website and remove information related to allegedly infringing software and also sought to create a forensic image of one defendant’s hard drive(s) to ensure preservation. The court granted Plaintiff’s application, relying in part on Defendants’ self-identification as hackers. Upon learning the at-issue source code had already been released, however, the court denied Plaintiff’s motion for a preliminary injunction and partially dissolved the TRO, but continued to retain images of the hard drives.

No Sanctions for Spoliation of Emails in Former Officers’ Personal Accounts Absent Evidence of Bad Faith or Prejudice


Puerto Rico Tel. Co., Inc. v. San Juan Cable, LLC, No. 11-2135 (GAG/BJM), 2013 WL 5533711 (D.P.R. Oct. 7, 2013) Plaintiff alleged that the defendant failed to preserve relevant emails from the personal accounts of three former officers (the CEO, General Manager, and Senior Vice President) and sought an adverse inference instruction.  While the court agreed that… Continue Reading

Court Concludes that “at least in the Seventh Circuit,” the Duty to Preserve is Triggered “when a litigant knew or should have known that litigation was imminent” as Opposed to “Reasonably Foreseeable”


In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

In this case, the court found that the duty to preserve arose after the at-issue information was destroyed in accordance with Defendant’s document retention policies and that an adverse inference was not warranted. Considering the proper standard to employ when assessing when the duty to preserve is triggered, the court concluded that “the duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent (at least in the Seventh Circuit).”

E.D. Michigan Approves Model Order Relating to the Discovery of Electronically Stored Information & a Meet and Confer Checklist for Pilot Use


The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist.  “It is within the judicial officer’s discretion whether these materials may be… Continue Reading

Court Declines to Compel Response to “Ultra-Broad” Request for Passwords and User Names or Allow “Exhaustive Forensic Examination” of Computers


NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013) In this trademark infringement case, Defendant sought to compel Plaintiff and its principal (a third-party defendant) to produce “passwords and user names to all online web sites related to the issues in this litigation” and to compel… Continue Reading

Magistrate Judge Declines to Presume Prejudice, Recommends Denial of Motion for Sanctions


Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013)

Plaintiff sought sanctions for Defendants’ allegedly intentional spoliation of evidence and argued that prejudice could be presumed. The Magistrate Judge declined to do so and also found that Defendants’ spoliation was merely negligent. Thus, absent a showing of actual prejudice, the Magistrate Judge recommended that Plaintiff’s motion be denied.

Plaintiff Ordered to Adhere to “Document Production Agreement” Despite Difficulty Finding an “Inexpensive” Technology Provider


Northstar Marine, Inc. v. Huffman, CA 13-00037-WS-C (S.D. Ala. Aug. 27, 2013) Despite Plaintiff’s assertion that it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery” the court granted Defendants’ motion to enforce Plaintiff’s compliance with the parties’ document production agreement which, among other things, required each party to… Continue Reading

Citing Proportionality, Court Concludes it would be “Senseless” to Require Plaintiff to “Go to Great Lengths” to Produce Evidence Defendants are “Able to Do Without”


Apple Inc. v. Samsung Elecs. Co. Ltd., No. 12-CV-0630-LHK (PSG), 2013 WL 4426512 (N.D. Cal. Aug. 14, 2013)

Relying on the “all-to-often [sic] ignored discovery principle” of proportionality the court declined to compel Plaintiff “to go to great lengths” to produce information that the defendants could “do without.”

Court Warns “Continuing Problems” with Document Production Will Result in Order to Retain an e-Discovery Vendor


Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR), 2013 WL 3967750 (N.D. Cal. July 31, 2013) Plaintiff sought to compel Defendants’ production of all responsive documents and also sought sanctions, including attorneys’ fees and an order requiring Defendants “to retain an e-discovery vendor to conduct a thorough and adequate search for responsive electronic documents.” … Continue Reading

Willful or Grossly Negligent Destruction of ESI Allows Presumption of Prejudice


Sekisui Am. Corp. v. Hart, —F. Supp. 2d—, 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013)

Previously in this case, the Magistrate Judge declined to impose spoliation sanctions for Plaintiff’s deletion of emails and other ESI belonging to two important custodians absent a showing that the defendants were prejudiced by the destruction. Upon Defendants’ objections, the district court reversed the denial of sanctions and imposed an adverse inference and monetary sanctions. In doing so, the court reasoned that prejudice was presumed because the evidence was destroyed intentionally and explained that no showing of malice was required.

Timing of Defendant’s Actions Weighs Heavily in Analysis of Spoliation Sanctions


Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, No. 11-13335, 2013 WL 3983230 (E.D. Mich. Aug. 1, 2013) For Defendant’s bad faith failure to preserve his cellular phone and his deletion of 270,000 files from his personal laptop using scrubbing software, the district court adopted the recommendations of the Magistrate Judge and ordered monetary sanctions… Continue Reading

Citing the Lack of a Clear Distinction between the Two Tiers of Discovery, Court Adopts “Practical Approach” for Addressing Disputes over Scope


DCP Midstream LP v. Anadarko Petroleum Corp., —P.3d—, 2013 WL 3225846 (Colo. June 24, 2013) In this breach of contract case, the Colorado Supreme Court addressed the court’s role in managing the scope of discovery under Colorado Rule of Civil Procedure 26(b)(1)—which was amended in 2002 “to conform to its federal counterpart.”  The court concluded… Continue Reading

Stored Communications Act Does Not Apply to Unauthorized Access to Previously Opened Emails


Lazette v. Kulmatycki, —F. Supp. 2d—, 2013 WL 2455937 (N.D. Ohio June 5, 2013) When Plaintiff’s employment ended and she returned her company-issued Blackberry, she believed that she had deleted her personal email account.  She was mistaken.  Thereafter, her former supervisor, without her knowledge or authorization, proceeded to access and read her personal emails—48,000 of them—during… Continue Reading

No Sanctions for Routine Deletion of Text Messages “so as not to unduly encumber” Cell Phones


PTSI, Inc. v. Haley,—A.3d—, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013)

Plaintiff sued its former employees after they opened a competing sports training facility. In the course of litigation, Plaintiff sought sanctions for Defendants’ alleged spoliation of ESI, including text messages. The trial court found that “the level of importance and complexity of the issues did not weigh in favor of imposing sanctions and that the deleted material was not relevant or important to its decision” and dismissed the claim for sanctions. On appeal, the appellate court found no abuse of discretion and affirmed the order.

No Sanctions for Deletion of Email Folder belonging to “Perhaps the Key Witness” Absent Evidence of Prejudice


Sekisui Am. Corp. v. Hart, No. 12 Civ. 3479(SAS)(FM), 2013 WL 2951924 (S.D.N.Y. June 10, 2013)

In this case, the court considered Plaintiff’s “at least” negligent deletion of “the entire active email folder of an important witness–perhaps the key witness–at a time when [it] obviously knew that it might commence a lawsuit,” but declined to impose the requested adverse inference–or any sanction–absent a sufficient showing that “relevant information potentially helpful to [the defendants] [wa]s no longer available.”