Motion for Sanctions – Page 47 – Electronic Discovery Law

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317-EJD (HRL), 2014 WL 580290 (N.D. Cal. Feb. 13, 2014)

Dec 01 2014

Key Insight: Litigation was reasonably foreseeable so as to trigger a duty to preserve evidence when plaintiff first acquired patents with an eye toward litigation, although company was analyzing defendant’s technology and openly discussing litigation months earlier; however, because plaintiff waited 11 days after filing suit to implement a legal hold and there was evidence that potentially relevant emails were deleted, court imposed monetary sanctions instead of the more severe sanctions requested given absence of substantial prejudice to defendant and fact that plaintiff’s conscious disregard of its duty to preserve was motivated by cost-saving

Nature of Case: Patent infringement

Electronic Data Involved: E-mails

U.S. Legal Support, Inc. v. Hofioni, No. 2:13-cv-1770 LLK AC, 2014 WL 172336 (E.D. Cal. Jan. 15, 2014)

Dec 01 2014

Key Insight: Motion for spoliation sanctions denied without prejudice where plaintiff argued that individual defendants violated their duty to preserve by continuing to use their personal electronic devices after receiving notice of the action and not “quarantining” the devices pending forensic imaging, as plaintiff did not make a specific showing that spoliation had, in fact, occurred; testimony of plaintiff’s forensic experts was mere speculation as neither expert identified any actual loss of data nor provided any forensic analysis of the personal electronic devices at issue

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition

Electronic Data Involved: ESI stored on individual defendants’ personal electronic devices

Regulatory Fundamentals Group LLC v. Governance Risk Mgmt. Compliance, LLC, No. 13 Civ. 2493(KBF), 2014 WL 3844796 (S.D.N.Y. Aug. 5, 2014)

Dec 01 2014

Key Insight: Court imposed terminating sanctions for willful and bad faith spoliation on the part of the defendant (who also happened to be a lawyer), including manual deletion of relevant emails, closing an email account maintained by a third party service provider for the purpose of ensuring the deletions and undertaking significant efforts to cover his tracks (including creating a false paper trail attempting to shift the blame to the service provider), and making misrepresentations to the court and opposing counsel, among other things

Nature of Case: Breach of contract, copyright infringement

Electronic Data Involved: ESI, emails, emails maintained by third party service provider

Nieman v. Hale, No. 3:12-cv-2433-L-BN, 2014 WL 1577814 (N.D. Tex. Apr. 21, 2014)

Dec 01 2014

Key Insight: Finding that plaintiff failed to meet the high burden of proof required to justify spoliation sanctions under Rule 37 and/or the court’s inherent powers, as plaintiff’s briefing was “entirely devoid of evidence, either direct or circumstantial, that would establish the bad faith required,” court denied plaintiff’s motion for sanctions and further noted that Rule 37(e) protected defendants from sanctions to the extent that the entries allegedly missing from defendants’ privilege log resulted from a server crash

Nature of Case: Retaliation claims

Electronic Data Involved: Email

Pettit v. Smith, No. CV-11-02139-PHX-DGC, 2014 WL 4425779 (D. Ariz. Sep. 9, 2014)

Dec 01 2014

Key Insight: Granting in part plaintiff’s motion for spoliation sanctions, court ruled that under the special circumstances of the case and notwithstanding that it was not a party to the litigation, Arizona Department of Corrections had duty to preserve the missing evidence, its failure to do so was at least grossly negligent, evidence was plainly relevant and plaintiff was clearly prejudiced by its loss; court declined to impose case-terminating sanctions against individual defendants but would allow parties to present evidence and argument about the lost evidence and would instruct jury that ADC had a duty to preserve evidence, ADC did not preserve the evidence, and jurors may infer that lost evidence would have been favorable to plaintiff

Nature of Case: Inmate alleged correctional officers used excessive force

Electronic Data Involved: Videotape of event, photograph of plaintiff’s hand, and other documentary evidence

Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)

Dec 01 2014

Key Insight: Where plaintiff ran software to permanently erase all information on his computer then drilled a hole in his hard drive and threw it away, and completely erased and reformatted all data on recording device, and most of recordings produced by plaintiff had been edited, all at a time when plaintiff knew he had an obligation to preserve evidence, court found that plaintiff engaged in willful spoliation of highly relevant evidence, that plaintiff acted in bad faith, that defendants were severely prejudiced by the loss of evidence, that less drastic sanctions would not sufficiently compensate for plaintiff’s widespread destruction of evidence and that, given the extensive spoliation of relevant evidence by plaintiff, it would not be possible to fairly evaluate the case on the merits; court concluded that dismissal was the only appropriate sanction

Nature of Case: Retaliation and wrongful termination

Electronic Data Involved: Plaintiff’s personal computer, email, recordings made by plaintiff of his interactions with other employees

Domanus v. Lewicki, —F.3d—, 2014 WL 408723 (7th Cir. Feb. 4, 2014)

Dec 01 2014

Key Insight: Circuit court found no abuse of discretion for District Court?s imposition of default judgment (or its prior finding of contempt) – which was a more drastic sanction than was originally imposed by the magistrate judge – where Defendants? discovery behaviors, including failing to produce documents as ordered, avoiding depositions, and failing to preserve potentially relevant ESI (and providing conflicting stores about what happened to the hard drive, including that it had been taken apart and given to a defendant?s children to play with) justified the harsh sanction imposed

Nature of Case: Fraud

Electronic Data Involved: ESI on hard drive (emails), bank records

Didier v. Abbott Labs, No. 13-2046-JWL, 2014 WL 219851 (D. Kan. Jan. 21, 2014)

Dec 01 2014

Key Insight: Finding that steps taken by defendants to locate responsive documents and their continued effort to work with plaintiff and supplement their production appeared sufficient, court declined to impose drastic sanctions requested by plaintiff but did allow plaintiff to re-depose particular witness as to emails that were produced after the witness’s deposition since plaintiff may have been prejudiced by her inability to question the witness regarding the content of those emails

Nature of Case: Employment discrimination

Electronic Data Involved: ESI including text messages

McCann v. Kennedy Univ. Hosp., Inc., Civil No. 12-1535 (JBS/JS), 2014 WL 282693 (D.N.J. Jan. 24, 2014)

Dec 01 2014

Key Insight: Applying Third Circuit’s four-factor test for evaluating spoliation claims, court denied plaintiff’s motion for sanctions, finding that plaintiff failed to establish that defendant acted in bad faith by allowing the tapes to be automatically taped over as a matter of routine, since there was no evidence that defendant’s employees knew or anticipated that plaintiff’s claims would require the retention and production of emergency room lobby videotape footage from the night plaintiff was treated

Nature of Case: Emergency Medical Treatment and Labor Act claims

Electronic Data Involved: Security videotapes of emergency room lobby

Quantlab Techs. Ltd. (BGI) v. Godlevsky, No. 4:09-cv-4039, 2014 WL 651944 (S.D. Tex. Feb. 19, 2014)

Dec 01 2014

Key Insight: After two-day evidentiary hearing, court analyzed conduct of various individuals and inferred bad faith as to each based on particular facts and concluded generally that lost evidence was moderately relevant and loss was moderately prejudicial; without stronger showing of bad faith or more definitive demonstration of relevance and prejudice, court declined to impose litigation-ending sanctions but would give spoliation instruction to be crafted at the same time as jury instructions

Nature of Case: Copyright infringement, breach of contract, misappropriation of trade secrets, fraud

Electronic Data Involved: Developer work stations, hard drives, flash drives, source code

Tag:Motion for Sanctions