FRCP 37(b)(2) – Electronic Discovery Law

In re: CCA Recordings 2255 Litigation v. United States of America (D. Kan. 2021)

Jun 01 2021

Key Insight: Petitioners filed an action alleging the government violated their Sixth Amendment rights by recording their conversations and meetings with counsel while detained at Corrections Corporation of America (CCA). Petitioners sought spoliation sanctions against CCA, alleging an upgrade to the operating system where the recordings were saved wiped all metadata that would have shown if the US attorneys viewed the video recordings containing privileged communications. The court denied the motion, finding petitioners could not establish the threshold question: whether any metadata actually existed to show who logged in to view the recordings. “If there is no evidence that logging metadata ever existed, it could not have been intentionally destroyed to deprive petitioners of its use, and there can be no spoliation as it relates to that specific ESI relevant to petitioners’ claims.”

Nature of Case: Violation of Sixth Amendment Rights

Electronic Data Involved: Video Recordings

Case Summary

Copenhaver v. Cavanga Group S.p.A Omeca Division (D. Mont. 2021)

Mar 12 2021

Key Insight: If a motion to compel is granted, the party whose conduct necessitated the motion is required to pay reasonable expenses in making the motion, including attorney fees. However, payment cannot be ordered if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action.”

Nature of Case: Products Liability

Electronic Data Involved: Email, Electronic Documents Generally

Case Summary

Nevis v. Rideout Memorial Hospital, et al. (E.D. Cal. 2020).

Feb 06 2020

Key Insight: At the start of litigation, Plaintiff sent a preservation letter to Defendant(s). Subsequently, a Defendant requested Plaintiff produce records and screenshots of text messages from his phone for the month of the incident that was the basis of the litigation. Plaintiffs produced several screenshots of text messages, but was unable to provide the requested phone records. During a subsequent deposition, Plaintiff claimed that he still had the phone.

Additional Defendants subsequently requested a digital download of all information on the phone. However, in response Plaintiff claimed that he no longer possessed the phone. Defendants responded with a Motion for Terminating Sanctions on the basis of spoliation of evidence.

Utilizing a five-part test for imposing sanctions adopted by the Ninth Circuit, the Court found that none of the factors were in favor of sanctions in the litigation. Defendants’ Motion for Terminating Sanctions was denied.

Nature of Case: Personal Injury

Electronic Data Involved: Cell Phone Data, Cell Phone Data Image, Text Messages, Phone Records

Case Summary

Tag:FRCP 37(b)(2)