FRCP 37(e) Preservation (effective Dec. 1, 2015) – Page 23

H.M. Elecs., Inc. v. R.F. Techs., Inc., No. 12cv28840-BAS-MDD, 2015 WL 4714908 (S.D. cal. Aug. 7, 2015)

Dec 01 2015

Key Insight: For multiple discovery violations by Defendant and counsel, including improper certification of discovery responses pursuant to Rule 26(g), failure to issue a litigation hold or appropriately supervise discovery, and intentional deletion of responsive materials and delayed production, the court imposed multiple discovery sanctions, including attorneys? fees and costs, issue sanctions, and an adverse inference; notably, the court indicated sanctions would have been imposed under New Rule 37(e), because the court found that the at-issue ESI was lost with the intent to deprive Plaintiff of the information?s use in the litigation; Update: Compensatory sanctions vacated by District Court upon determination that parties? settlement mooted the issue of compensatory sanctions (—F.Supp.3d—, 2016 WL 1267385 (S.D. Cal. Mar. 15, 2016))

Nature of Case: Trademark infringement, false designation of origin, trade dress infringement, trade libel, unfair competition and interference with prospective economic advantage

Electronic Data Involved: ESI

Stewart v. Nucor Corp., No. 3:13-cv-0057-KGB, 2014 WL 12611316 (E.D. Ark. Dec. 8, 2014)

Dec 01 2014

Key Insight: Defendant moved to strike Plaintiffs answer, enter default judgement and give an adverse inference jury instruction as sanctions for alleged spoliation of video footage. The court held that destruction of the footage was prejudicial to Plaintiff, being the only recording of the accident. Defendant did not have an official retention policy and indicated the video at issue was overwritten ?within weeks of the accident through routine system operation.? However the court did not find Defendant acted in bad faith, and thus denied with prejudice Plaintiff?s motion to strike Defendant?s answer and enter default judgement. The court denied without prejudice Plaintiff?s request to strike the affirmative defense asserting Plaintiff?s fault as well as the request to prohibit Defendant from mentioning the tape/contents/employee statements regarding the tape during trial. Plaintiff may file a motion in limine to further pursue exclusion of evidence.

Electronic Data Involved: Video footage

Tag:FRCP 37(e) Preservation (effective Dec. 1, 2015)