Motion for Sanctions – Page 114 – Electronic Discovery Law

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

Bedford, LLC v. Safeco Ins. Co., 2006 WL 3616434 (Wash. App. Dec. 11, 2006) (Unpublished)

Dec 01 2006

Key Insight: Trial court did not err in denying motion for curative jury instructions, a sanction of default, and, after the verdict, a new trial, based upon defendant’s failure to produce a draft expert report; finding no misconduct, trial court had observed: “While I agree that . . . hard copies of draft [expert] reports are discoverable, I am aware of no legal principle that would require a testifying expert witness to separately retain all electronic drafts, including those that were overridden or subsumed during the drafting process.”

Nature of Case: Insurance coverage

Electronic Data Involved: Draft expert report

DE Techs., Inc. v. Dell Inc., 2006 WL 3500962 (W.D. Va. Dec. 4, 2006)

Dec 01 2006

Key Insight: Magistrate judge barred Dell from using certain documents at trial since plaintiff had no notice that the documents would be relied upon by Dell to support its defenses until the documents were specifically produced after the discovery deadline; court noted that, although the documents were among some 542,917 documents produced by Dell in electronic form and in a searchable format using a CaseData System, there was no evidence that Dell ever identified any of the documents provided on the CaseData System as responsive to any particular discovery request, and documents were neither produced as “kept in the ordinary course of business” nor as “ordinarily maintained”

Nature of Case: Patent infringement

Electronic Data Involved: Electronic documents produced in searchable database

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006)

Dec 01 2006

Key Insight: Court directed defendants to confirm in writing whether it searched particular email accounts or conduct such search if it had not already done so; court further denied plaintiff’s request for spoliation sanctions based upon defendant’s alleged failure to preserve chat room comments since it was highly unlikely that any comments by members of the public that would be pertinent to the lawsuit would have been received, since chat room was opened after relevant time period and technology to save chat room comments was not installed until over a year later

Nature of Case: Trademark infringement

Electronic Data Involved: Chat room comments; email

Malletier v. Dooney & Bourke, Inc., 2006 WL 3476735 (S.D.N.Y. Nov. 30, 2006)

Dec 01 2006

Key Insight: Where plaintiff provided only partial production and made false representations to court about non-existence of responsive documents, court imposed monetary sanctions and would deem as true certain contentions

Nature of Case: Trademark infringement

Electronic Data Involved: Email concerning customer communications

Jacobson v. Starbucks Coffee Co., 2006 WL 3146349 (D. Kan. Oct. 31, 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions, ordered defendant to submit to Rule 30(b)(6) deposition regarding its efforts to locate and produce responsive documents, and ordered defendant to produce key player’s computer for inspection by plaintiff, where evidence showed that the home and/or work computers of a key player and several witnesses had not been searched for responsive documents

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive; computerized records

Angelotti v. Roth, 2006 WL 3666849 (S.D. Fla. Nov. 17, 2006)

Dec 01 2006

Key Insight: Court denied request for sanctions or adverse inference instruction based on absence of video footage of plaintiff after arrest since there was no evidence of bad faith and video security system had experienced a number of unexplained problems

Nature of Case: Plaintiff alleged use of excessive force

Electronic Data Involved: Video surveillance footage

PML N. Am., LLC v. Hartford Underwriters Ins. Co., 2006 WL 3759914 (E.D. Mich. Dec. 20, 2006)

Dec 01 2006

Key Insight: Where one defendant failed to comply with court’s orders regarding forensic inspection and copying of hard drives, and there was evidence of data spoliation and physical tampering with computer hardware, court concluded that default judgment was appropriate sanction and also ordered the defendant to pay the reasonable attorney fees and costs that its misbehavior caused plaintiff to incur

Nature of Case: Insurance fraud, insurance coverage

Electronic Data Involved: Various hard drives and backup drives

MGE UPS Sys., Inc. v. Titan Specialized Servs., Inc., 2006 WL 3524502 (M.D. Tenn. Dec. 6, 2006)

Dec 01 2006

Key Insight: Where evidence showed that defendant had not fully complied with preliminary injunction and had continued to retain and use disputed software, court ordered defendant to produce all of its computers for inspection by plaintiff’s computer expert to ensure that all plaintiff’s software and trade secrets were removed; court further ordered defendant to bear costs of expert’s work and to pay plaintiff its reasonable fees and expenses in bringing the motion

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Software programs, disks, hard drives

Tag:Motion for Sanctions