Archive: July 16, 2008

1
Liability for State Law Spoliation Cause of Action Does Not Result Simply from Failure to Implement Litigation Hold or Defects in Its Scope or Substance
2
Court Denies Defendant’s Post-Production Motion for Cost-Shifting as Untimely and Inappropriate in the Context of “Accessible” ESI

Liability for State Law Spoliation Cause of Action Does Not Result Simply from Failure to Implement Litigation Hold or Defects in Its Scope or Substance

Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008)

In this breach of contract litigation, the court had previously granted plaintiff leave to amend its complaint to add a state law cause of action for spoliation of evidence based on defendant’s failure to implement a litigation hold.  Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 538 F. Supp. 2d 1032 (N.D. Ohio 2008).  In this decision, the court denied plaintiff’s motion for summary judgment on the spoliation claim, in light of genuine disputes over several material facts.

In an interesting passage, the court opines that liability for a state law spoliation of evidence cause of action does not result simply from the failure to implement a litigation hold:

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Court Denies Defendant’s Post-Production Motion for Cost-Shifting as Untimely and Inappropriate in the Context of “Accessible” ESI

Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008)

In this class action litigation, defendant moved, pursuant to Fed. R. Civ. P. 26(c), for an order requiring plaintiffs to pay at least 50 percent of its third party vendor electronic discovery costs.

The court first observed that the parties had entered a Stipulated Order for Discovery of Electronically Stored Information, which noted that the parties held several discussions regarding the possibility of limiting the scope and extent of discovery and that future agreements might be reached.  The Stipulated Order also reserved to the parties the right to petition the court to limit the scope and burden of discovery and to request that the opposing party share the costs.

The court then cited Fed. R. Civ. P. 26(b)(2)(B) and stated that, among the measures available to the court is the apportionment (or shifting) of costs between the requesting and the producing parties.  However, the court observed that defendant had not identified any form of ESI “as not reasonably accessible because of undue burden or cost,” nor did it file a motion for an order protecting it from the obligation of production.  Rather, defendant produced the information requested of it and sought, after the fact, an order imposing 50 percent of its costs upon plaintiffs.

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