Motion for Sanctions – Page 113 – Electronic Discovery Law

Durdin v. Kuryakyn Holdings, Inc., 2006 WL 6040466 (W.D. Wis. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where defendant never attempted to preserve email related to disputed products, did not impose email preservation directive and did not suspend policy of destroying all email after 30 days, but asserted that no relevant email was destroyed because its employees never exchanged emails on topics relevant to lawsuit, court declined to enter default judgment absent stronger proof of bad faith intent and reserved decision on adverse inference instruction; court would allow parties to explore with witnesses at trial whether they exchanged and then destroyed relevant email

Nature of Case: Patent infringement

Electronic Data Involved: Email

Elion v. Jackson, 2006 WL 2583694 (D.D.C. Sept. 8, 2006)

Dec 01 2006

Key Insight: Where defendant did not produce a particular email in response to interrogatories or document requests and it only came to light during a deposition a few days before the close of all discovery, court granted plaintiff’s motion for sanctions under Rule 37(c)(1) and ordered that defendant be precluded from offering in evidence any and all documents not timely produced during discovery, including the subject email, and from offering the testimony of any witness with respect to the email or any other documents not timely disclosed

Electronic Data Involved: Email

Roberts v. Whitfill, 191 S.W.3d 348 (Tex. App. 2006)

Dec 01 2006

Key Insight: Reversing plaintiff’s $800,000 jury verdict on other grounds, state appellate court expressed concern about spoliation instruction given by trial court since plaintiff had not pursued motion to compel, there was doubt about the materiality and relevance of the data and how or if its absence seriously impaired plaintiff’s ability to present her case, defendant had provided an explanation for the data’s removal from his computer and had offered to produce at least some of the data in paper form or print specific reports, and spoliation instruction given appeared to be excessive based upon surrounding circumstances and spoliation instructions recently approved by Texas courts

Nature of Case: Former partner alleged antitrust violations, fraud and breach of fiduciary duty claims

Electronic Data Involved: QuickBooks data

Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL 2318803 (N.D. Cal. Aug. 10, 2006)

Dec 01 2006

Key Insight: Court denied motion to compel plaintiff to produce a witness for further deposition under FRCP 30(b)(6), stating that, although defendant “may have some basis for complaining about the timing and manner in which the spreadsheet was produced,” defendant did not demonstrate that additional testimony was necessary regarding the spreadsheet, or that there was any information that was more readily obtainable from a live witness than from the spreadsheet which had been produced in native format

Nature of Case: Trademark infringement

Electronic Data Involved: Excel spreadsheet

Goldman v. Healthcare Mgmt. Sys., Inc., 2006 WL 3589065 (W.D. Mich. Dec. 8, 2006)

Dec 01 2006

Key Insight: Court denied motion for sanctions based on spoliation of evidence, concluding that, although defendants may have been negligent in their deletion of lines of source code, the record did not support a finding of bad faith or prejudice

Nature of Case: Unfair competition

Electronic Data Involved: Source code

Select Med. Corp. v. Hardaway, 2006 WL 859741 (E.D. Pa. Mar. 24, 2006)

Dec 01 2006

Key Insight: Court denied motion for spoliation inference based upon former employee’s deletion of files on home computer, since plaintiff could not demonstrate any prejudice resulting from alleged spoliation or show that former employee was “at fault” for deleting the files, i.e., that he intended to impair plaintiff’s ability to uncover evidence; employee claimed to have deleted the files to ensure that he no longer had access to plaintiff’s information after he resigned his employment

Nature of Case: Misappropriation of trade secrets, breach of non-competition agreement

Electronic Data Involved: Files on former employee’s home computer

Wachtel v. Health Net, Inc., 2006 WL 2506771 (D.N.J. Aug. 29, 2006)

Dec 01 2006

Key Insight: Court granted plaintiffs’ appeal of magistrate’s order and would permit plaintiffs to raise evidentiary objections to certain evidence at trial, notwithstanding terms of pretrial order which required in limine motions to be filed by certain date, since defendants’ tardy production of hundreds of responsive emails and/or non-compliance with discovery orders made it impossible for plaintiffs to raise those objections as motions in limine

Nature of Case: Beneficiaries of employment benefit health plans asserted class action claims under ERISA

Electronic Data Involved: Email

Burkybile v. Mitsubishi Motors Corp., 2006 WL 3191541 (N.D. Ill. Oct. 17, 2006)

Dec 01 2006

Key Insight: Court denied motion for entry of default as discovery sanction but ordered defendant to provide a printout of data relevant to the pertinent time period, noting that, although original printouts underlying certain reports no longer existed, the data used to create them still existed in the database and was accessible, and the reports could be recreated, even if not exactly. The court elaborated: “It may in fact be the database, like some sort of digital organism, changes over time. But it does not follow that the critical underlying information is no longer obtainable at all. Perhaps the information utilized . . . in preparing the reports can no longer be reproduced identically . . . But it does not follow that there cannot be some reasonable approximation that will give to the plaintiff the information ordered be produced.”

Nature of Case: Personal injury product liability

Electronic Data Involved: Database reports

Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 1042359 (D. Idaho Apr. 18, 2006)

Dec 01 2006

Key Insight: Court denied parties’ cross-motions for sanctions based upon spoliation; deletion of software files was unauthorized act by an employee of plaintiff 14 months before case was filed and litigation was not yet reasonably foreseeable

Nature of Case: Contract breach and fraud involving leased software

Electronic Data Involved: Software files on computer hard drive

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006)

Dec 01 2006

Key Insight: In follow-up to earlier decision awarding sanctions for discovery failings (Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)), court awarded Phoenix its attorney’s fees and costs associated with bringing the motion for sanctions in the amount of $45,162, to be paid equally by the SRC Defendants and their law firm; court further ruled that the SRC Defendants’ share ?may not be borne by their insurance carriers?

Nature of Case: Investment company sued former advisor for breach of fiduciary duty, common law fraud, and negligent misrepresentation

Electronic Data Involved: Computer hard drives and servers

Tag:Motion for Sanctions