Motion for Sanctions – Page 102 – Electronic Discovery Law

Digene Corp. v. Third Wave Techs., Inc., 2007 WL 4939048 (W.D. Wis. Oct. 24, 2007)

Dec 01 2007

Key Insight: Where discovery missteps which resulted in delayed production of notebooks were merely negligent and not reckless or intentional, court imposed penalty of cost-shifting and reimbursement in the amount of $50,000 and declined to impose any of the ?inquisitorial sanctions? demanded by plaintiff; court further ruled that ?no [defense] attorneys will be dragged behind a chariot outside the city’s walls.?

Nature of Case: Patent infringement and antitrust claims

Electronic Data Involved: Scientists’ notebooks that were converted into electronic format

McKenna v. Nestle Purina PetCare Co., 2007 WL 433291 (S.D. Ohio Feb. 5, 2007)

Dec 01 2007

Key Insight: Court denied without prejudice plaintiff?s motion for sanctions based upon defendant?s claimed inability to retrieve the contents of plaintiff?s email account, where defendant had identified several older emails at the time of plaintiff?s discharge (to support its termination of plaintiff) but represented in discovery that its employees’ email accounts were overwritten beginning on the eighth day after a message was either sent or received and that no additional emails existed beyond those produced; court suggested that defendant investigate the matter and be prepared, if requested in discovery, to provide a further explanation of the apparent discrepancy between its ability to retrieve emails at the time of plaintiff?s discharge and its current ability to do so

Nature of Case: Wrongful termination, employment discrimination

Electronic Data Involved: Email

PML N. Am., LLC v. ACG Enters. of NC, Inc., 2007 WL 925627 (E.D. Mich. Mar. 28, 2007)

Dec 01 2007

Key Insight: Further to its December 20, 2006 order granting plaintiff’s motion for sanctions, 2006 WL 3759914, court awarded plaintiff $134,373 representing reasonable attorneys’ fees and costs (including fees of computer forensics expert) incurred because of defendant’s discovery misconduct

Nature of Case: Insurance fraud

Electronic Data Involved: Hard drives

J.B. Hunt Transp., Inc. v. Adams, 2007 WL 2080391 (E.D. Mich. July 19, 2007)

Dec 01 2007

Key Insight: Court found that no adverse inference was warranted where plaintiff preserved driver logs and repair documents for the requisite amount of time provided in applicable federal regulations, then discarded them in accordance with its standard business practices, since other uncontroverted evidence existed which rebutted the requested adverse inference

Nature of Case: Insurance coverage

Electronic Data Involved: Driver logs and repair records for tractor and trailer involved in accident

Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 3101248 (D. Nev. Oct. 16, 2007)

Dec 01 2007

Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them

Nature of Case: Infringement litigation

Electronic Data Involved: Servers

Network Sys. Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. Ct. Dec. 6, 2007)

Dec 01 2007

Key Insight: Where former employee admitted using file shredder program on his NSA-issued laptop before returning it, and evidence showed use of file shredder program on competitor-issued laptop computer, court found defendants? conduct was ?egregious? and amounted to spoliation but denied plaintiff?s request for entry of default judgment; court instead ordered production of computer hard drive for further examination, dismissed defendants? counterclaims, and ordered defendants to pay attorneys? fees and expenses incurred as a result of defendants? misconduct

Nature of Case: Seller of computer hardware and software sued former employee and competitor for misappropriation of trade secrets, unfair competition and related claims

Electronic Data Involved: Laptop computers

Lamb v. Maloney, 850 N.Y.S.2d 138 (N.Y. App. Div. 2007)

Dec 01 2007

Key Insight: Trial court did not err in denying without prejudice plaintiff?s motion, based on spoliation of evidence, to strike defendants? answers or preclude defendants? use of office records to support their defenses; however, court did err in not granting alternative relief requested, i.e., compelling additional discovery, including depositions of certain witnesses, production of records, and inspection of computers, since such additional discovery was reasonably calculated to produce relevant and material evidence and defendants failed to demonstrate any prejudice as a result

Nature of Case: Medical malpractice

Electronic Data Involved: Office computer hard drive and information regarding its destruction

Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)

Dec 01 2007

Key Insight: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives

Autotech Techs. Ltd. P?ship v. Automationdirect.com, Inc., 2007 WL 2746650 (N.D. Ill. Sept. 17, 2007)

Dec 01 2007

Key Insight: Where defendant argued that extracting requested information regarding 56,000 to 60,000 customer invoices from computer system would cost as much as $80,000, and alternative method for extracting information proposed by plaintiff was unsuccessful, court held parties to their prior agreement and determined that reasonable allocation was for plaintiff to pay 62 percent and defendant to pay the remainder; court further ordered defendant to provide proof of actual cost and proof of actual payment and stated that, if defendant is able to extract information for less than $80,000 or if parties arrive at different cost-shifting formula, that will control

Nature of Case: Trademark infringement

Electronic Data Involved: Customer information stored in database

Citizens for Consumers v. Abbott Labs., 2007 WL 7293758 (D. Mass. Mar. 14, 2007)

Dec 01 2007

Key Insight: Where plaintiff Nevada admitted its negligence in failing to institute a litigation hold which resulted in the loss of information (which the court stated was ?the same as destroying them?) and where the loss was prejudicial to the defendants because of their inability to discovery ?marginalia or annotations? or introduce Nevada?s copies of the documents, among other things, the court granted defendants? request to establish certain facts for purposes of the litigation

Nature of Case: Claims that defendants defrauded Nevada by manipulating average wholesale prices of prescription drugs

Electronic Data Involved: ESI

Tag:Motion for Sanctions