Archive: January 2014

1
Text Messaging/Phone Records Establish Anticipation of Litigation; Spoliation Sanctions for Selective Preservation of Messages
2
No Adverse Inference for Damage to Only Copy of Disk Absent Evidence of Materiality; Monetary Sanctions Imposed
3
Stored Communications Act Applies to Previously Opened Web-based Emails
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Adverse Inference and Monetary Sanctions Warranted for Failures to Issue Litigation Hold, Monitor Preservation

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 than 38 messages. The court found that Plaintiff had violated his duty to preserve and that an adverse inference was warranted.  Notably, the court’s determination that Plaintiff reasonably anticipated litigation turned on the analysis of his phone and messaging records, which were produced to Defendants by Plaintiff’s service provider.

Plaintiff alleged sexual harassment. The messages at issue were relevant to those claims.  Plaintiff admitted deleting some messages from his phone, prompting Defendants to file a motion in limine seeking the exclusion of all messages and arguing that the case should be dismissed.  While that motion was pending, Defendants received Plaintiff’s phone and text messaging records from the relevant time period from Plaintiff’s service provider.  Based on those records, Defendants filed a supplemental motion seeking dismissal of the case as a sanction for Plaintiff’s spoliation of evidence. Read More

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 the disk contained information that would be “material to [Defendants’] claims or defenses,” the court imposed monetary sanctions, including ordering payment of Defendants’ costs and attorneys’ fees associated with the spoliation motion and a $25,000 fine payable to the Clerk of the Court.

On multiple occasions, Defendants requested that Plaintiffs provide them with an optical disk (“CD”) containing particular relevant software and Plaintiffs promised that they would. “[W]ell after” Defendants’ specific requests for production, however, the original CD was shipped to Plaintiffs’ technical expert and was allegedly damaged by the shipping company during its return.  There was no copy.  Defendants sought spoliation sanctions in the form of an adverse inference. Read More

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 violation of the Stored Communications Act.  Although Defendant admitted accessing the emails, she argued that because they had previously been opened by Plaintiff, they were “not in ‘electronic storage’” as described by the statute. Read More

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 this lawsuit and did not issue a litigation hold nor implement nor monitor an adequate document preservation policy.”

In the fall of 2008, Defendants informed Plaintiffs that they intended to “make their own clone product” to compete with Plaintiffs’ products, for which Defendants were distributors.  In August 2008, Plaintiffs informed Defendants that they considered Defendants’ planned product to be an infringement of their own.  In October 2008, Plaintiffs sent a letter “stating that they would file a lawsuit for patent infringement against Defendants should Defendants continue their plan to commercialize their product.”  In March 2010, Plaintiffs filed the underlying action in this case. In August 2012, Plaintiffs filed a motion for sanctions alleging that Defendants had failed to preserve relevant evidence. Read More

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