Motion for Sanctions – Page 49 – Electronic Discovery Law

Connelly v. Veterans Admin. Hosp., No. 12-2660, 2014 WL 2003093 (E.D. La. May 15, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for an adverse inference instruction where plaintiff failed to demonstrate that, at point in time at which surveillance videotape was overridden pursuant to VA’s 30-day retention policy, VA was on notice that the surveillance tape was relevant to litigation; plaintiff also failed to show any bad faith with respect to the alleged destruction of video surveillance

Nature of Case: Federal Tort Claims Act claim for slip-and-fall injury

Electronic Data Involved: Surveillance video footage

In re Text Messaging Antitrust Litig., 46 F. Supp. 2d 788 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions against wireless carrier for employee’s deletion of particular email that referenced collusion, notwithstanding that deletion was intentional and done for the purpose of concealing the contents of the email, because record did not reflect that author of deleted email was in a position to have knowledge of or participate in any collusion between the wireless carriers, and thus plaintiffs could not show that missing email would have been adverse to wireless carrier

Nature of Case: Class action

Electronic Data Involved: Emails

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

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

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Dec 01 2014

Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop; text messages and other ESI on mobile phone

Riley v. City of Prescott, No. CV-11-08123-PCT-JAT, 2014 WL 641632 (D. Ariz. Feb. 19, 2014)

Dec 01 2014

Key Insight: Court applied five-part test to deny plaintiff’s motion for claim-dispositive sanctions but would allow reasonable attorneys’ fees and adverse inference instruction where city failed to suspend its 45-day retention policy for city employee email and defendant mayor apparently destroyed or failed to preserve relevant email in his private Gmail account, as numerous emails on which the mayor or his assistant were senders or recipients were discovered from third party sources, e.g., Google, Inc., but none were included in defendants’ production

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Pac. Packaging Prods., Inc. v. Barenboim, No. MICV200904320, 2014 WL 2766735 (Mass. Super. Ct. Jan 31, 2014)

Dec 01 2014

Key Insight: After ten days of hearings on Plaintiff?s Emergency Motion for Judgment on All Claims Based upon Defendants? Fraud Upon the Court, court found that defendants violated preservation order and deliberately ignored preliminary injunction requiring defendants to turn over all written or digital materials taken from or generated by plaintiff, or derived in whole or in part from documents generated by plaintiff, that contain customer lists, pricing information or similar information, and not to retain copies of such materials, and that defendants spoliated evidence and committed a fraud upon the court; appropriate sanction was the entry of default against defendants, dismissal of the defendants? counterclaims, and an order requiring defendants to compensate plaintiff for attorneys? fees and costs incurred in litigating the motion; parties to submit memoranda describing their views regarding the extent of the default established and the future course of the litigation

Nature of Case: Distributer sued former employees who formed competing company

Electronic Data Involved: Computers, laptops, hard drives and other electronic storage devices

Samuel v. United Corp., No. ST-12-CV-457, 2014 WL 2608839 (V.I. Super. Ct. May 21, 2014)

Dec 01 2014

Key Insight: Court declined to allow an adverse inference instruction as sanction for defendant’s alleged destruction of critical video footage that preceded her fall, and reiterated prior guidance from the Supreme Court of the Virgin Islands: “[U]pon reasonably foreseeable notice that evidence may be relevant to discovery, it is certainly not within the discretion of a store manager [or security officer] to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation, even where surveillance video does not clearly show the cause of the accident”; court commented that routinely preserving only a minute and a half of footage prior to an accident teeters on the edge of being unreasonable, and recommended preservation of at least five minutes of surveillance footage of the area prior to the accident

Nature of Case: Slip-and-fall

Electronic Data Involved: Surveillance video footage

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

Metro. Life Ins. Co. v. Ogandzhanova, No. CV-12-00372-PHX-GMS, 2014 WL 2616523 (D. Ariz. June 12, 2014)

Dec 01 2014

Key Insight: Where defendant had testified regarding frequent use of computers but the two computers she produced after being ordered by the court to do so showed very little activity, court found that defendant had willfully failed to comply with court’s order to identify and provide the computers she used during the relevant time period; court further found that defendant failed to produce relevant documents within her control and applied five-factor test to impose sanctions in the form of a permissive adverse inference instruction and payment of plaintiff?s attorneys’ fees and expenses incurred in bringing the motion

Nature of Case: Disability insurance dispute

Electronic Data Involved: Hard drives, ESI

Tag:Motion for Sanctions