Lack of Cooperation / Inaccurate Representations – Page 21

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2013 WL 1277878 (D.N.M. Mar. 28, 2013)

Dec 01 2013

Key Insight: Addressing Plaintiff?s fourth and fifth motions for sanctions resulting from the delayed production of relevant ESI for reasons ranging from alleged computer glitches to prior counsel?s failure to turn over highly relevant emails?and current counsel?s failure to timely discovery that those emails had previously been withheld?the court acknowledged current counsel?s efforts to rectify prior discovery abuses (addressed in prior sanctions motions) but nonetheless found that severe sanctions were warranted, including that defendant?s non-equitable counterclaims be stricken, that defendant pay the reasonable costs associated with the filing of the fourth and fifth motions for sanctions, that defendant or its counsel bear the cost of re-depositions (which they had previously offered to do), and that defendant pay a portion of the costs for plaintiff?s experts to supplement their reports

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: Misc. ESI

United States v. Dish Network, LLC, No. 09-3073, 2013 WL 1749930 (C.D. Ill. Apr. 24, 2013)

Dec 01 2013

Key Insight: Court imposed sanctions for several discovery violations: 1) for failing to provide Plaintiffs with information regarding its process for scrubbing calling lists against the do not call list and for providing a deponent with insufficient knowledge of the issue, court characterized defendant?s behavior as ?obstructive, contumacious, and willful? and precluded the use of evidence about the creation and scrubbing of telemarketing campaign lists; 2) for failing to preserve ESI related to a particular calling campaign despite a duty to preserve, court issue finding of fact that the campaign was conducted for commercial purposes; 3) for obstructive behavior related to whether it shared lead lists to retailers, including inaccurate statements and for failing to preserve information related to the same, court imposed adverse inference

Electronic Data Involved: ESI

Stream Cos., Inc. v. Windward Adver., No. 12-cv-4549, 2013 WL 3761281 (E.D. Pa. July 17, 2013)

Dec 01 2013

Key Insight: Magistrate judge addressed accusations of spoliation and violation of court orders and found that monetary sanctions were appropriate for defendants? spoliation of emails which were deleted (as evidenced by forensic investigation) after the duty of preservation arose but declined to find spoliation had occurred as to defendants? laptops or external storage devices where Plaintiff presented little more than evidence of Defendants? lack of credibility; magistrate judge imposed sanctions for violation of court?s orders where Defendants made unilateral decisions not to produce certain electronic devices but gave numerous assurances that everything had been produced; magistrate judge found Plaintiff had established a prima facie case of defendants? contempt of the court?s discovery orders and preliminary injunction order and certified certain underlying facts for consideration by the District Court

Nature of Case: Violations of Computer Fraud and Abuse Act, Copyright Act, PA Wiretap Act, state trade secret law, duty of loyalty

Electronic Data Involved: Email, storage devices (iPad, iPhone, thumb drives), personal computers

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

Linde v. Arab Bank, PLC, 706 F.3d 92 (2d Cir. 2013)

Dec 01 2013

Key Insight: On appeal from sanctions order against Arab Bank, court found it did not have jurisdiction over the order for sanctions and dismissed the appeal; court also found Arab Bank was not entitled to a writ of mandamus vacating the sanctions order and the petition for a writ of mandamus was therefore denied

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

Bradford Techs., Inc. v. NCV Software.com, No. C 11-04621 EDL, 2013 WL 4033840 (N.D. Cal. Aug. 6, 2013)

Dec 01 2013

Key Insight: Where Plaintiff was previously sanctioned for violating the stipulated protective order when Plaintiff?s President viewed Defendant?s source code; where Plaintiff?s president later deleted evidence related to his violation of the stipulated protective order despite a duty to preserve (arising from Defendant?s requests for preservation and two court orders requiring the same), made no effort to preserve the other contents of his laptop, and made ?inconsistent representations to the court?; and where a second employee claimed he was not notified of his preservation obligations and thus wiped the contents of his laptop (at a ?suspicious? time), including a relevant power point, the court declined to impose terminating sanctions absent a showing of prejudice and upon its determination that the orders requiring preservation were arguably ambiguous (?insofar as they required Plaintiff to preserve evidence while at the same time ordering Plaintiff to return discs and delete source code, as Defendants requested?) but did order a monetary award of reasonable expenses that the defendants incurred in taking expedited discovery regarding the source code violation and indicated that ?[t]he court may well allow? Plaintiff?s President?s credibility to be impeached at trial regarding his violation of the protective order

Nature of Case: Breach of contract, misappropriation of trade secrets

Electronic Data Involved: ESI, contents of laptop(s)

Master Hand Contractors, Inc. v. Convent of the Sacred Heart of Chicago, No. 1-12-3788, 2013 WL 5940641 (Ill. App. Ct. Nov. 4, 2013)

Dec 01 2013

Key Insight: Trial court did not err in dismissing mechanics lien case with prejudice as sanction for plaintiff’s failure to comply with its discovery obligations for approximately 18 months and its violations of seven orders of the court, including three expressly final deadlines to produce electronic discovery materials, as the trial court applied progressive discipline to coerce compliance and gave plaintiff ample opportunities to escape possible discovery sanctions; appellate court criticized plaintiff?s approach to the ESI request, ?under which the company owner — who called himself a ?computer idiot? in open court — self-selected emails relating to the Sacred Heart project instead of using a search tool to find them, and printed them out one at a time, all without supervision of counsel.?

Nature of Case: School building construction litigation

Electronic Data Involved: ESI, including email

Moore v. Citgo Refining & Chemicals Co., 735 F.3d 309 (5th Cir. Nov. 12, 2013)

Dec 01 2013

Key Insight: No abuse of discretion in dismissal of 17 plaintiffs who violated two court orders to preserve where willfulness was inferred from their disregard of the courts orders, where the failure to seek clarification weighed against any claimed confusion, where the evidence lost was unique and where no lesser sanction would have sufficed (plaintiffs were warned of the possibility of dismissal before it was imposed); no abuse of discretion for dismissal of four additional plaintiffs for failure to preserve emails despite an explicit court order

Nature of Case: FLSA (employment)

Electronic Data Involved: ESI, emails, handwritten notes

Valentini v. Citigroup, Inc., No. 11 Civ. 1355(JMF), 2013 WL 4407065 (S.D.N.Y. Aug. 16, 2013)

Dec 01 2013

Key Insight: Court declined to dismiss complaint or grant adverse inference instruction as sanction for plaintiffs’ blatant disregard of the discovery process as there was no evidence of willfulness or maliciousness, and instead awarded all attorneys’ fees and costs that defendants incurred as a result of plaintiffs’ dilatory conduct; court further ordered parties to brief issue of whether more severe sanctions should be imposed against plaintiff entity that had failed to produce a single document from its files

Nature of Case: Fraud and related claims

Electronic Data Involved: ESI

Tag:Lack of Cooperation / Inaccurate Representations