Archive: March 20, 2009

1
K&L Gates Obtains Ruling Denying Defendant’s Motion for Contempt Against Plaintiff’s Technical Consultant, and Court Grants Plaintiff’s Motion for Sanctions for Deletion of Data during Pendency of Litigation
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Court Finds Failure to Implement Litigation Hold Gross Negligence but Declines to Order Adverse Inference where Plaintiffs Failed to Establish Relevance of the Information Destroyed

K&L Gates Obtains Ruling Denying Defendant’s Motion for Contempt Against Plaintiff’s Technical Consultant, and Court Grants Plaintiff’s Motion for Sanctions for Deletion of Data during Pendency of Litigation

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. Mar. 19, 2009)

In this case arising from a dispute over sales commissions, the court denied Defendant Ohio Star Forge Company’s (“OSF’s”) motions for contempt and sanctions and granted plaintiff, Technical Sales Associates, Inc.’s (“TSA”), motion for sanctions for destruction of electronic evidence.  The court concluded that OSF deleted approximately 70,000 files and moved several email folders to the recycling bin despite a duty to preserve relevant evidence.

In July 2007, TSA sought the production of all emails between certain specified persons for the purpose of obtaining a particular email alleged by TSA to exist on OSF’s information system and, specifically, in the e-mailbox of OSF employee Patrick Billups.  Notwithstanding numerous targeted requests for the e-mail, OSF did not produce it.

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Court Finds Failure to Implement Litigation Hold Gross Negligence but Declines to Order Adverse Inference where Plaintiffs Failed to Establish Relevance of the Information Destroyed

ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009)

In this case, plaintiffs moved for an adverse inference instruction alleging that Nassau County failed to timely implement a litigation hold which resulted in the destruction of potentially relevant documents and that it failed to adequately search for potentially responsive electronically stored information (“ESI”).  Finding that plaintiffs did not sufficiently demonstrate that any lost materials would have been favorable to them, the court denied the motion.  However, upon the court’s finding that the County’s failure to implement a timely litigation hold amounted to gross negligence, the court awarded plaintiffs their costs and attorney’s fees.  Regarding the County’s failure to search for relevant ESI, the court declined to award sanctions in light of the County’s assertions that manual searches were undertaken, but ordered the County to confirm that their responses were complete.

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