Archive - 2017

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Rife v. Okla. Dept. of Public Safety (10th Circuit Court of Appeals, 2017)
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Jenkins v. Woody, 2017 WL 362475, 3:15cv355 (E.D. Va, 2017)
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Citing Misconduct “As Deep as it is Wide,” Court Imposes Sanctions on Defendants and Counsel
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Wal-Mart Stores, Inc. v. Cuker Interactive, LLC (W.D. Ark., 2017)
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Rockman Company v. Nong Shim Company (Northern District California, 2017)
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Van Buren v. Crawford County (Eastern District of Michigan, 2017)
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Ruehl v. S.N.M. (Middle District Pennsylvania, 2017)
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Edelson v. Cheung (D. N.J., 2017)
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United States v. Volkswagen AG (E.D. Mich., 2017)
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Solo v United Parcel Serv., Co., No. 14-12719, 2017 WL 85832 (E.D. Mich. Jan. 10, 2017)

Rife v. Okla. Dept. of Public Safety (10th Circuit Court of Appeals, 2017)

Key Insight: Without using FRCP 37(e), bad faith is still an importance factor for spoliation

Nature of Case: Failure to provide medical care (deliberate indifference)

Electronic Data Involved: Video footage

Keywords: deliberate indifference, spoliation sanctions

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Jenkins v. Woody, 2017 WL 362475, 3:15cv355 (E.D. Va, 2017)

Key Insight: defendants took no steps to save a copy of the footage, and it was overwritten after 30 days elapsed.

Nature of Case: Death by negligence and deliberate indifference

Electronic Data Involved: surveillance camera footage

Keywords: surveillance camera footage, defendant sheriff, anticipation of litigation

View Case Opinion

Citing Misconduct “As Deep as it is Wide,” Court Imposes Sanctions on Defendants and Counsel

Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t, Inc., No. 14 Civ. 6512 (KPF), 2016 WL 4991623 (S.D.N.Y. Sept. 16, 2016)

For Defendants’ egregious discovery conduct, including obstructing depositions and failing to preserve and produce relevant documents, among other things, the Court imposed sanctions, including precluding them from litigating the issue of personal jurisdiction; imposing a “spoliation instruction, as appropriate, on any claims that are ultimately submitted to the jury”; ordering payment of Plaintiff’s attorneys fees related to the misconduct; and ordering the retention of a second outside counsel to review their files for additional discoverable materials and to represent them in future discovery-related proceedings.  Defendants’ manager and sometimes CEO was also found in contempt for his behavior throughout discovery, including attempting to minimize his own responsibility for the discovery deficiencies by claiming limited involvement and blaming others.  Finally, for acting in bad faith in a manner that improperly lengthened the proceedings and for making objections in bad faith, the Court also imposed “modest” sanctions against defense counsel.

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Wal-Mart Stores, Inc. v. Cuker Interactive, LLC (W.D. Ark., 2017)

Key Insight: failure to review backup tapes, attorney’s fees

Nature of Case: contract dispute

Electronic Data Involved: email, backup tapes

Keywords: destruction of laptop, key employee, prejudice, duty to preserve, adverse inference, retention policy

View Case Opinion

Rockman Company v. Nong Shim Company (Northern District California, 2017)

Key Insight: Duty of preservation is not enforceable for foreign company investigated by foreign government with no lawsuits filed in USA

Nature of Case: antitrust

Electronic Data Involved: deleted electronic records

Keywords: duty of preservation foreign, foreign government investigation preserve

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Van Buren v. Crawford County (Eastern District of Michigan, 2017)

Key Insight: FRCP 37(e) not used, discretionary powers used instead. Litigation after a police shooting should be anticipated. Failures all around with the destruction of evidence lead to an adverse inference.

Nature of Case: Wrongful death (excessive police force)

Electronic Data Involved: Audio recordings

Keywords: excessive force, marijuana, knife, child protective services, metadata, shell game

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Ruehl v. S.N.M. (Middle District Pennsylvania, 2017)

Key Insight: No spoliation because employees were merely unaware/untrained on surveillance system and didn’t intentionally withhold evidence

Nature of Case: wrongful death, slip and fall

Electronic Data Involved: video surveillance

Keywords: Rule 37 ignored, no culpable state of mind, unaware of surveillance

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Edelson v. Cheung (D. N.J., 2017)

Key Insight: Although the deletion was intentional, the plaintiff was not unduly prejudiced, as there is sufficient other evidence. Therefore, not sanctions other than attorney’s fees for the motion.

Nature of Case: Contract

Electronic Data Involved: email

Keywords: Spoliation sanction, prejudice, intentional

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United States v. Volkswagen AG (E.D. Mich., 2017)

Key Insight: Spoliation

Nature of Case: Plea Agreement – Conspiracy, Obstruction of Justice, Entry of Goods by False Statement

Electronic Data Involved: USB drives, hard drives

Keywords: instruction to destroy documents, late notice of DOJ litigation hold, failure to preserve backup disks, instruction to store documents on removable media rather than network drives

Solo v United Parcel Serv., Co., No. 14-12719, 2017 WL 85832 (E.D. Mich. Jan. 10, 2017)

Key Insight: proportionality

Nature of Case: class action

Electronic Data Involved: backup tapes

Keywords: undue burden, statistical sampling, restoration, reasonably accessible, cooperation, interrogatory, relevance

View Case Opinion

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