Motion for Sanctions – Page 106 – Electronic Discovery Law

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F.Supp.2d 627 (E.D. Pa. 2007)

Dec 01 2007

Key Insight: Spoliation sanctions were not warranted for defendant’s failure to preserve copies of screenshots that may have been automatically stored in temporary cache files of defendant’s computers, since plaintiff’s counsel’s preservation letter said nothing about preserving temporary cache files, defendant had no reason to believe such files were relevant, files were deleted automatically and not through any affirmative action by defendant, defendant produced forensic images of its hard drives, and plaintiff established little if any prejudice from loss of cache files

Nature of Case: Copyright infringement and violations of the Computer Fraud & Abuse Act

Electronic Data Involved: Copies of archived website screenshots automatically stored in temporary cache files of defendant’s computers

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D. Fla. Oct. 25, 2007)

Dec 01 2007

Key Insight: Where witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Email

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

E.E.O.C. v. Boeing Co., 2007 WL 1146446 (D. Ariz. Apr. 18, 2007)

Dec 01 2007

Key Insight: Where court had previously denied plaintiff’s motion to compel on the grounds that defendant had made the showing, pursuant to Rule 26(b)(2)(C), that email sought was “not reasonably accessible because of undue burden or costs,” and because plaintiff had not shown good cause to justify the expense of the proposed discovery, court denied subsequent motion to compel defendant’s Rule 30(b)(6) designee to provide testimony on how email production cost estimate was determined

Nature of Case: Employment litigation

Electronic Data Involved: Email

Rafael Town Center Investors, LLC v. Weitz Co., LLC, 2007 WL 2261376 (N.D. Cal. Aug. 6, 2007)

Dec 01 2007

Key Insight: Court ruled plaintiff was entitled to monetary sanctions arising from defendant’s document production, stating: “It is undisputed that the first two productions were essentially unusable, and that as a result, plaintiff’s law firm wasted a considerable amount of time attempting to organize the electronic documents. It was the responsibility of defense counsel to ensure that the document production complied with Rule 34(b)(i), and to oversee the work of defendant’s document management company.”

Nature of Case: Construction litigation

Electronic Data Involved: Electronic documents

Benton v. Dlorah, Inc., 2007 WL 3231431 (D. Kan. Oct. 30, 2007)

Dec 01 2007

Key Insight: Magistrate judge ordered plaintiff to produce responsive emails, and if emails had been deleted, to produce for inspection her computer hard drive from which those emails were sent to allow defendants to use services of computer forensic specialist, if necessary, to retrieve them; request for sanctions denied without prejudice to a further request for a ?negative inference instruction? to be determined by trial judge

Nature of Case: Employment discrimination

Electronic Data Involved: Deleted email, hard drive of plaintiff’s personal computer

Claredi Corp. v. Seebeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007)

Dec 01 2007

Key Insight: Where plaintiff showed that defendant failed to produce hundreds of responsive emails which plaintiff ultimately obtained through third-party discovery, court found defendant’s discovery conduct to be dilatory and inadequate and imposed sanction of $54,000 for plaintiff’s attorneys’ fees, and another $20,000 payable to the court as sanction for unnecessarily prolonging and increasing the expense of the litigation

Nature of Case: Breach of contract

Electronic Data Involved: Email and other electronic documents

Palgut v. City Of Colo. Springs, 2007 WL 1238730 (D. Colo. Apr. 27, 2007)

Dec 01 2007

Key Insight: Finding that defendant’s failure to identify certain backup tapes in its initial disclosures was inadvertent and was not intentional, willful, or wanton, court ruled that defendant need not produce such backup tapes because production would be unduly burdensome and not reasonably calculated to lead to relevant information; court further found that inadvertent disclosures of protected work product by each of the parties did not effect waiver and prohibited defendant from using or referring to any ?embedded data? contained in plaintiff?s discovery requests and responses

Nature of Case: Employment discrimination

Electronic Data Involved: Backup tapes and embedded data

In re Tri-State Armored Servs., Inc., 366 B.R. 326 (D.N.J. 2007)

Dec 01 2007

Key Insight: District Court affirmed Bankruptcy Court’s ruling dismissing trustee’s claim for spoliation of evidence since the trustee failed to establish the fifth element of the claim

Nature of Case: Insurer brought adversary proceeding against Chapter 7 trustee

Electronic Data Involved: Email

In re Hawaiian Airlines, Inc., 2007 WL 3172642 (Bankr. D. Haw. Oct. 30, 2007)

Dec 01 2007

Key Insight: Finding that Mesa?s CFO deleted files that Mesa had duty to preserve, used special software to wipe hard drives and changed computer’s clock in an attempt to conceal what he had done, and that Mesa could have taken reasonable, inexpensive and non-burdensome steps that would have prevented or mitigated the consequences of CFO’s destruction of evidence, court concluded that adverse inference was appropriate and made certain findings of fact which were binding and conclusive for all purposes in the case

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

Tag:Motion for Sanctions