Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

1
Failure to Conduct Reasonable Investigation for Responsive Documents and Other Discovery Abuses Warrant Adverse Inference Instruction
2
Court Dismisses Complaint as Discovery Sanction for “Extensive and Egregious Misconduct”
3
Court Enters Preservation Order and Requires Electronic Records be Produced in the Format in which They are Stored
4
Court Orders Preservation of Ohio’s 2004 Presidential Election Ballots “on Paper or in Any Other Format, Including Electronic Data”
5
Party Not Entitled to Shift Costs of Restoring Emails that were Converted to Inaccessible Format After Duty to Preserve was Triggered
6
Court Orders Party to Preserve Tapes of Recorded Phone Calls, and to Meet and Confer re Document Preservation Plan
7
Plaintiff’s Misstatements to Court and Failure to Preserve Electronic Financial Records Warrant Ultimate Sanction of Dismissal
8
Court Denies Spoliation Motion and Request for Evidentiary Hearing on Party’s E-Discovery Preservation Methods
9
Insufficient Preservation Efforts Warranted Monetary Sanctions, but not Adverse Inference Instruction
10
“Developing an Effective E-discovery Response Plan” Presented by Dawson

Failure to Conduct Reasonable Investigation for Responsive Documents and Other Discovery Abuses Warrant Adverse Inference Instruction

3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006)

In this patent infringement litigation, the district court judge affirmed the magistrate’s report and recommendation that plaintiff’s motion for sanctions against the defendant be granted in part. 3M offered three bases for sanctions: (1) Tomar gave false discovery responses; (2) Tomar failed to retain, collect, and produce court-ordered documents; and (3) Tomar engaged in deposition misconduct. 3M requested that judgment be entered against Tomar, or alternatively, that the court issue multiple sanctions including an adverse inference instruction.
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Court Dismisses Complaint as Discovery Sanction for “Extensive and Egregious Misconduct”

Plasse v. Tyco Elecs. Corp., 2006 WL 2623441 (D. Mass. Sept. 7, 2006)

In this wrongful termination case, defendant Tyco sought to prove that plaintiff had misrepresented his credentials when he applied for employment. At issue were several versions of plaintiff’s resume, some of which had indicated he held an M.B.A.; plaintiff suggested those may have been submitted by “someone else,” possibly a recruiter or headhunter, and claimed he would have indicated he was only a “candidate” for an M.B.A. Previously, Tyco had filed a motion to dismiss the case, alleging that plaintiff had lied at his deposition and fabricated documents. The court denied the motion without prejudice, finding that the evidence was not sufficiently clear and convincing to justify such a serious sanction.
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Court Enters Preservation Order and Requires Electronic Records be Produced in the Format in which They are Stored

United Med. Supply Co., Inc. v. United States, 73 Fed. Cl. 35 (2006)

In this decision, the court issued a Document Preservation Order in light of defense counsel’s reports that several boxes of documents had been inadvertently destroyed during the pendency of the case. The court had ordered the parties to brief the issue of spoliation, and to file a joint status report proposing a document preservation order and a revised discovery schedule.

The court determined that a preservation order was appropriate, using the standard articulated in Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2004). There, the court held that it had the power to preserve evidence and issue orders in furtherance thereof under its inherent authority. It rejected the notion that the standards for the issuance of a preliminary injunction (including showing a likelihood of success on the merits) must be met before a preservation order may issue. Instead, the court found that one seeking a preservation order must show (1) that it is necessary, and (2) that it is not unduly burdensome. Id. at 138. To meet the first prong, “the proponent ordinarily must show that absent a court order, there is significant risk that relevant evidence will be lost or destroyed – a burden often met by demonstrating that the opposing party has lost or destroyed evidence in the past or has inadequate retention procedures in place.” Id. As to the latter prong, “the proponent must show that the particular steps to be adopted will be effective, but not overbroad.”
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Court Orders Preservation of Ohio’s 2004 Presidential Election Ballots “on Paper or in Any Other Format, Including Electronic Data”

King Lincoln Bronzeville Neighborhood Ass’n v. Blackwell, 448 F. Supp. 2d 876 (S.D. Ohio 2006)

Plaintiffs in this action are a collection of civic organizations and individuals that filed suit against the Secretary of State for the State of Ohio (J. Kenneth Blackwell) and various unnamed public election officials and private contractors who provided services to the State of Ohio, alleging that defendants had violated plaintiffs’ civil and constitutional rights. Plaintiffs claimed, inter alia, that during the November 2004 presidential election, “Defendants selectively and discriminatorily designed and implemented procedures for the allocation of voting machines in a manner to create a shortage in the number of machines for certain urban precincts wherein large numbers of African American voters resided.” Plaintiffs sought to enjoin Blackwell from violating plaintiffs’ constitutional rights prior to the next statewide election, in addition to other forms of relief. On the same day they filed suit, plaintiffs sent a letter to each of Ohio’s 88 county boards of elections that notified them to preserve the election ballots from the November 2004 presidential election.
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Party Not Entitled to Shift Costs of Restoring Emails that were Converted to Inaccessible Format After Duty to Preserve was Triggered

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006)

Like the plaintiff in the Zubulake v. UBS Warburg LLC, the plaintiff in this case was a highly-paid investment banker who accused her employer of gender discrimination and illegal retaliation. In her requests for production, plaintiff requested that 19 current and former WestLB employees’ email accounts be searched for certain terms alleged to refer to plaintiff in particular or that were potentially sexist in general. Plaintiff also sought emails relating to discrimination against other women at WestLB and e-mails showing that men were more highly compensated than women. Most of the requests were not limited to any particular period of time.

Defendant objected, claiming the requests were overly broad and would result in undue burden. When the parties were unable to agree on the scope of electronic discovery, they sought the court’s help.

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Court Orders Party to Preserve Tapes of Recorded Phone Calls, and to Meet and Confer re Document Preservation Plan

Del Campo v. Kennedy, 2006 WL 2586633 (N.D. Cal. Sept. 8, 2006)

Plaintiff sued the District Attorney of Santa Clara County (George Kennedy) and American Corrective Counseling Services, Inc. ("ACCS"), a private company that operates a Bad Check Restitution Program under contracts with district attorneys in California. The program is designed to return lost monies to the victim and provide rehabilitation for the offender. Plaintiff alleged that ACCS unlawfully threatens to prosecute program participants and attempts to collect fees not allowed under the statute.

In June 2006, plaintiff filed an ex parte request for an interim order requiring preservation of documents. Plaintiff claimed to have recently learned that ACCS routinely tapes phone calls and routinely destroys the tapes on a two week schedule. Although the court denied the request on procedural grounds, the court ordered ACCS to abstain from destroying any existing tapes.

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Plaintiff’s Misstatements to Court and Failure to Preserve Electronic Financial Records Warrant Ultimate Sanction of Dismissal

Ridge Chrysler Jeep, LLC v. Daimler Chrysler Servs. N. Am., LLC, 2006 WL 2808158 (N.D. Ill. Sept. 6, 2006)

In this opinion (which was issued September 6, 2006, not 2005), the court adopted the Report and Recommendation of the magistrate judge assigned to handle discovery disputes in the case, and dismissed the case with prejudice. One basis for dismissal related to plaintiffs’ failure to preserve and produce financial records stored on computers and misrepresentations about same.

Plaintiffs were two dealerships (“Midlothian” and “Marquette”) that filed a verified complaint alleging that Chrysler persisted in a “shocking corporate policy of blatant racial discrimination and redlining” by refusing to provide financing for African-American customers purchasing cars at the dealerships. Plaintiffs alleged violation of the Automobile Dealers’ Day in Court Act, as well as state law violations of the Illinois Motor Vehicle Franchise Act, tortious interference with prospective business advantage, and breach of contract. Mr. Gerald Gorman was the president and owner of both dealerships, and he personally verified the facts included in plaintiffs’ verified complaint.

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Court Denies Spoliation Motion and Request for Evidentiary Hearing on Party’s E-Discovery Preservation Methods

O’Brien v. Ed Donnelly Enters., Inc., 2006 WL 2583327 (S.D. Ohio Sept. 5, 2006)

In this suit brought under the Fair Labor Standards Act, defendants had produced over 8,000 documents consisting largely of plaintiffs’ work schedules and time punch and payroll records, including Time Punch Change Approval Reports (“TPCA Reports”) related to plaintiffs. The TPCA Reports were printed from defendants’ computer system, referred to as the “in-store processor” or “ISP.” The reports were printed automatically by the ISP as part of the closing paperwork each day, and were regularly kept and maintained by defendants as paper files. The information contained in the TPCA Reports was stored in the ISP in electronic form for 72 days. In addition, defendants backed-up the ISP nightly, using one of three rotating backup tapes. Each backup tape contained information for the preceding 72 days. The tapes were overwritten every three days so that, at most, the backup tapes combined contain information for the preceding 74 days. Defendants attested that the tapes were intended solely for disaster recovery.

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Insufficient Preservation Efforts Warranted Monetary Sanctions, but not Adverse Inference Instruction

Consol. Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D. La. July 19, 2006)

In this opinion, the magistrate judge considered plaintiff’s motion for sanctions based on spoliation of evidence, and concluded that, although adverse inference instructions were not warranted, defendant’s conduct in negligently failing to preserve electronic evidence “should not go unpunished.” Accordingly, the magistrate ordered that defendant bear plaintiff’s costs for re-deposing certain witnesses for the limited purpose of inquiring into issues raised by the destruction of evidence and regarding any newly discovered emails. The magistrate further granted plaintiff’s request to serve additional discovery relating to the electronic evidence which was not preserved, and awarded plaintiff the reasonable costs and attorneys’ fees incurred in bringing this motion and in investigating and attempting to obtain the discovery at issue.

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“Developing an Effective E-discovery Response Plan” Presented by Dawson

Preston’s Martha Dawson will be a featured speaker at the upcoming In-House Paralegal SuperConference in Philadelphia on October 4-5, 2006.  She will be emphasizing the importance of equiping yourself with the insight and knowledge necessary to implement effective strategies for quickly and efficiently complying with e-discovery requests.  Click here for further conference details.

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