Motion for Sanctions – Page 46 – Electronic Discovery Law

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685 (N.D.N.Y. Jan. 13, 2014)

Dec 01 2014

Key Insight: District court adopted magistrate judge?s recommendation (at 2013 WL 6992130) that plaintiff?s motion for adverse inference instruction be granted as sanction for defendant?s grossly negligent failure to preserve internal emails in violation of its own retention policy; court deferred ruling on the language of the jury instruction until the filing of pretrial memoranda so as to consider proposed jury instructions as a whole

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Internal emails

Novick v. AXA Network, LLC, No. 07-CV-7767 (AKH)(KNF), 2014 WL 5364100 (S.D.N.Y. Oct. 22, 2014)

Dec 01 2014

Key Insight: Court found that defendants? repeated failure to properly search for, locate and produce audio recordings, their inability to account for the audio recordings? disappearance, and their conflicting representations to the court and plaintiff about the existence of the recordings, as well as their deliberate and unjustified failure to search for and locate email messages and their lack of explanation for the ?human error? they claimed was responsible for the delay, warranted a finding of bad faith conduct that prejudiced plaintiff; court declined to impose extreme sanction of striking defendants? pleadings and instead imposed an adverse inference jury instruction concerning the spoliated audio recordings, monetary sanctions representing plaintiff?s reasonable attorneys? fees and costs incurred in connection with motion, and the retaking of certain depositions at defendants? expense

Nature of Case: Breach of contract and various business torts

Electronic Data Involved: Audio recordings, email

Shlian v. Shoppers Food Warehouse Corp., No. BPG-13-954, 2014 WL 1320102 (D. Md. Mar. 31, 2014)

Dec 01 2014

Key Insight: Spoliation sanction of a negative inference jury instruction based on defendant?s failure to preserve CCTV tape that recorded plaintiff?s fall was not warranted, since defendant had no duty to preserve the tape because it had no reason to anticipate litigation, and defendant lacked the requisite mental state as the incident footage was taped over in the normal course of business and not through an intentional act

Nature of Case: Slip and fall personal injury

Electronic Data Involved: Closed-circuit TV tape

Knickerbocker v. Corinthian Colleges, No C12-1142JLR, 2014 WL 1356205 (W.D. Wash. Apr. 7, 2014)

Dec 01 2014

Key Insight: Court found that Defendant and its counsels? ?lackluster search for documents, failure to implement a litigation hold, deletion of evidence, refusal to cooperation with Plaintiffs in the discovery process (particularly as evidenced by its withholding of information regarding both the backup tapes and its interpretation of the parties? Stipulated Order), reliance on a recklessly false declaration, shifting litigation positions, and inaccurate representations to the court constitute bad faith or conduct tantamount to bad faith? and ordered payment of Plaintiffs? attorneys fees ?incurred due to Corinthian?s bad faith discovery practices? and also ordered fines against Defendant ($25,000) and its counsel ($10,000)

Nature of Case: Employment Litigation (discrimination, hostile work environment)

Electronic Data Involved: ESI, including email, ESI on backup tapes

United States v. Town of Colorado City, No. 3:12-cv-8123-HRH, 2014 WL 3724232 (D. Ariz. July 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions as plaintiff offered only “some slight evidence” that city acted with a culpable state of mind, most of the evidence did not support a conclusion that the city intentionally destroyed evidence, and any prejudice that plaintiff would suffer from not having the two dispatch calls was minimal

Nature of Case: Discrimination

Electronic Data Involved: Recordings of dispatch calls, police reports, officer meeting minutes

Schreane v. Beemon, 575 Fed. Appx. 486 (5th Cir. 2014)

Dec 01 2014

Key Insight: District court did not err in rejecting plaintiff?s request for spoliation inference based on erasure of surveillance tape where plaintiff failed to make the requisite showing of bad faith, as plaintiff offered no evidence that anyone who knew of his objections to the subject correctional officers? conduct was involved in the decision to record over the tape; court further noted that government produced what remained of requested tape (a few minutes of plaintiff?s assault), government provided affidavit of electronics technician who described prison?s general policy of automatically recording over surveillance video not marked for investigation within 15-30 days of recording, and there was no indication that any prison official even viewed the footage because it was not live-monitored 24 hours a day

Nature of Case: Prisoner brought Bivens action against correctional officer, alleging Eighth Amendment failure-to-protect claims

Electronic Data Involved: Surveillance tape

Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Dec 01 2014

Key Insight: Mandatory adverse inference instruction was not warranted by former Chairman’s admitted deletion of e-mails after his retirement despite written document preservation instruction from corporate counsel at the outset of litigation, as defendants did not have requisite culpable state of mind and there was insufficient evidence of relevance or prejudice; instead, permissive adverse inference instruction was appropriate

Nature of Case: Securities class action

Electronic Data Involved: E-mails of defendant Celestica’s former Chairman of the Board

Volcan Group Inc. v. Omnipoint Commc?ns, Inc., 552 Fed. Appx. 644 (9th Cir. Jan. 9, 2014)

Dec 01 2014

Key Insight: District court did not abuse discretion in dismissal of Plaintiff?s breach of contract action where Plaintiff failed to preserve (i.e., spoliated) relevant materials and where the record also suggested that certain evidence had been falsified

Nature of Case: Breach of contract, promissory estoppel, unjust enrichment

Electronic Data Involved: ESI

Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)

Dec 01 2014

Key Insight: Court granted plaintiff?s cross-motion for sanctions in the form of an adverse inference instruction, finding that it was particularly concerning that defendant Department of Education permitted surveillance video depicting at least some of the activity involved in litigation to be taped over where a police investigation immediately ensued, a Notice of Claim was filed by plaintiff, and the faculty of the school thought to view the video soon after the events occurred, and in the case of one teacher, prior to her deposition

Nature of Case: Student assaulted during school field trip sued for inadequate supervision and negligent hiring

Electronic Data Involved: Surveillance video

Am. Health, Inc. v. Chevere, No. 12-1678 (PG), 2014 WL 3955906 (PG), 2014 WL 3955906 (D.P.R. Aug. 14, 2014)

Dec 01 2014

Key Insight: Court found that entry of default was too harsh a punishment and that lesser sanction such as an adverse inference instruction was available and adequate to temper prejudice to plaintiffs resulting from individual defendant?s admitted deletion of e-mails containing plaintiff?s confidential information; court further ordered defendants to pay plaintiffs $2,500 for attorneys? fees no later than August 22, 2014

Nature of Case: Claims under the Computer Fraud and Abuse Act, Stored Wire and Electronic Communications and Transactional Records Access Act, and the Wire and Electronic Communications and Interception of Oral Communications Act

Electronic Data Involved: Email attachments

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