Motion for Sanctions – Page 115 – Electronic Discovery Law

Ryan v. Staten Island Univ. Hosp., 2006 WL 3497875 (E.D.N.Y. Dec. 5, 2006)

Dec 01 2006

Key Insight: Where defendant failed to timely disclose that it was withholding certain information from production and defense counsel made representations several times to plaintiff and to court that she had provided full and complete discovery, court: (1) granted motion to compel production of database in hard copy and in electronic form with specific redactions noted and included in revised privilege log; (2) extended discovery cut-off date; and (3) awarded sanctions solely against defense counsel (and not client) for costs of motion

Nature of Case: Fraud and medical malpractice

Electronic Data Involved: Database

Kimbrough v. City of Cocoa, 2006 WL 3500873 (M.D. Fla. Dec. 4, 2006)

Dec 01 2006

Key Insight: Court denied plaintiffs’ motion for spoliation sanctions based upon defendant’s failure to produce complete copy of particular monthly medical report where plaintiffs failed to show that duty to preserve attached to the report, or that report was crucial to their claims, and there was no evidence of bad faith, especially since defendant had gone to “extraordinary lengths” to attempt to retrieve a copy of the complete report

Nature of Case: Civil rights, excessive force

Electronic Data Involved: Monthly medical report

Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful

Nature of Case: Patent infringement

Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery

Wells v. Orange County Sch. Bd., 2006 WL 4824479 (M.D. Fla. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where defendant’s initial email search was not appropriate and incomplete and court observed that ?better communications and diligence ? e.g., through personal interaction rather than email between general counsel and the IT director ? would have avoided one year?s delay in producing relevant documents,? court denied motion to compel since record indicated that further searches would be futile, but awarded plaintiff costs of motion

Nature of Case: Wrongful termination, employment discrimination

Electronic Data Involved: Email

Optowave Co., Ltd. v. Nikitin, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where, despite repeated warnings not to destroy relevant evidence, defendant allowed another party to reformat hard drives of his employees’ computers without first preserving relevant files contained on computers to be reformatted, resulting in loss of crucial electronic evidence, court found that adverse inference instruction was appropriate sanction

Nature of Case: Breach of contract

Electronic Data Involved: Email and customer files

Leon v. IDX Sys. Corp., 2004 WL 5571412 (W.D. Wash. Sept. 30, 2004), affirmed, 464 F.3d 951 (9th Cir. 2006)

Dec 01 2006

Key Insight: Where plaintiff deleted whole directories without looking at their contents and designed drive wiping program to write over data indiscriminately after he had notice of the pendency of the litigation, court concluded that ?the extreme nature? of plaintiff?s bad faith behavior, combined with harm done to defendants, merited dismissal of plaintiff?s claims with prejudice; court further ordered plaintiff to pay defendants $65,000 to reimburse them for expenses incurred in investigating and litigating spoliation issue

Nature of Case: Retaliation under False Claims Act and other federal statutes, and Washington state law claims

Electronic Data Involved: Laptop

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

Barker Capital LLC v. Rebus LLC, 2006 WL 247114 (Del. Super. Ct. Jan. 12, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court directed plaintiff’s counsel to submit an affidavit re attorneys’ fees and expenses incurred in connection with certain depositions and three motions to compel, where defendants produced certain corporate minutes and other documents after the close of discovery, and where defendants had failed to produce emails and other electronic documents from all available sources despite their general counsel’s earlier affidavit to the contrary

Electronic Data Involved: Emails and other electronic documents

Waltzer v. Tradescape & Co., L.L.C., 819 N.Y.S.2d 38 (N.Y. App. Div. 2006)

Dec 01 2006

Key Insight: Defendants’ failure to comply with six separate court orders to produce personal documents and electronic documents in the possession of two law firms that had formerly represented defendants, coupled with inadequate excuses for those defaults, warranted striking of their answer

Electronic Data Involved: CDs containing electronic documents

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

Tag:Motion for Sanctions