Motion for Sanctions – Page 52 – Electronic Discovery Law

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

Siggers v. Campbell, No. 07-12495, 2014 WL 4978648 (E.D. Mich. Mar. 25, 2014)

Dec 01 2014

Key Insight: Notwithstanding that litigation hold was not put into place until more than four years after complaint was filed, court denied plaintiff?s motion for spoliation sanctions where there was no evidence that defendant deleted any documents or evidence, or acted with an intent to conceal or destroy evidence, there was no evidence that defendant routinely exchanged email correspondence about plaintiff with others, and the vigorous work of plaintiff?s appointed counsel led to only one responsive email being produced; plaintiff would be allowed to question defendant at trial about her failure to timely impose a litigation hold and about other matters related to plaintiff?s assertion that she must have had relevant email communications that no longer exist

Nature of Case: Pro se prisoner civil rights claims

Electronic Data Involved: Emails

Abcon Assocs., Inc. v. Haas & Najarian, No. CV 12-928(LDW)(AKT), 2014 WL 4981440 (E.D.N.Y. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where there was no evidence that plaintiff ever instituted litigation hold, and documents were either discarded during plaintiff?s office move or lost due to server failure and/or corruption, court found that a fair reading of the record overall indicated that plaintiff?s failure to preserve was at most negligent and not in bad faith, and that no sanctions were warranted given that the alleged relevance of the missing documents appeared purely speculative and conclusory

Nature of Case: Breach of legal services agreement

Electronic Data Involved: Documents concerning plaintiff’s liabilities and financial condition

Alter v. Rocky Pt. Sch. Dist., No. 13-1100 (JS)(AKT), 2014 WL 4966119 (E.D.N.Y. Sep. 30, 2014)

Dec 01 2014

Key Insight: Notwithstanding court?s finding that defendants lost materials due to their negligence in failing to: (1) institute a litigation hold until more than two years after plaintiff filed her notice of claim, (2) discuss a litigation hold with named individual defendants and other key players, (3) preserve all ESI regarding plaintiff from named individual defendants and all key custodians in separate backup tapes or in some other medium, or (4) preserve work-related ESI utilized by key players on their personal computers or other devices, court declined to impose spoliation sanctions as it found no intent on the part of defendants to spoliate material evidence and plaintiff failed to meet burden of showing with some degree of factual detail that lost materials were relevant or helpful in prosecuting her claim; court further denied plaintiff?s request for appointment of independent forensic computer expert, but did impose $1,500 sanction against school district and its counsel given that court found merit to some of plaintiff?s arguments

Nature of Case: Workplace discrimination claims

Electronic Data Involved: ESI, emails

Lewis v. Bay Inds., Inc., No. 12-C-1204, 2014 WL 4925483 (E.D. Wis. Sep. 30, 2014)

Dec 01 2014

Key Insight: Where defendant had taken “extraordinary step” of handing over to plaintiff’s computer expert a mirror image copy of the company’s email server so that expert could conduct his own search, and none of the mostly irrelevant emails retrieved by expert provided support for plaintiff?s claims, and plaintiff failed to offer convincing evidence that defendant violated an order of the court or intentionally destroyed or concealed relevant evidence, court rejected plaintiff?s motion for spoliation sanctions and ultimately granted summary judgment in favor of defendant, dismissing all of plaintiff?s claims

Nature of Case: Unlawful retaliation and wrongful discharge claims

Electronic Data Involved: Email

Eivaz v. Edwards, No. 12-C-910, 2014 WL 4698652 (E.D. Wis. Sep. 19, 2014)

Dec 01 2014

Key Insight: After considering the severity of plaintiff’s various discovery violations as well as the prejudice to defendants, and finding plaintiff’s violations of court order were willful and in bad faith, court: (1) granted defense motions for sanctions and dismissed plaintiff’s claims against defendants with prejudice, (2) ordered plaintiff to submit to a continued deposition for up to seven additional hours in the event defendant elected to pursue its counterclaim, and (3) ordered plaintiff and his attorney to pay additional attorneys’ fees and costs incurred by defendant in continuing plaintiff’s deposition and in bringing motion for sanctions

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

Electronic Data Involved: Emails, text messages, financial documents

Curtin v. Blair Bros. Contracting, Inc., No. 2012-1082, 2014 WL 4695980 (N.Y. Sup. Ct. Aug. 28, 2014) (unreported)

Dec 01 2014

Key Insight: Where defendants asserted they received only a “handful” of emails and argued that plaintiffs destroyed or otherwise failed to preserve relevant emails, court denied defendants’ motion for spoliation sanctions, finding that defendants failed to prove that the subject emails ever actually existed; court further rejected defense argument that missing emails were relevant to their counterclaim, observing that, to the extent the counterclaim sought payment for ?extras? performed by defendants, defendants presumably had their own records to support the counterclaim and did not need to rely on emails exchanged between plaintiffs and their architect, therefore even if spoliation did take place, the defendants were not prejudiced thereby

Nature of Case: Claims for breach of contract, fraudulent misrepresentation, unjust enrichment and conversion arising from residential construction

Electronic Data Involved: Email

BancorpSouth Bank v. Kleinpeter Trace, LLC, No. 2013 CA 1396, 2014 WL 4925698 (La. Ct. App. Oct. 1, 2014)

Dec 01 2014

Key Insight: Appellate court concluded that trial court did not err in ordering that adverse inference instruction be given to jury as to contents of particular file where plaintiff had notice that file, which was within plaintiff?s control, was relevant to pending litigation, it attempted to refer to contents of file in support of motion for summary judgment, and plaintiff?s explanation for loss of the file was pretextual and not reasonable; appellate court reversed trial court?s decision to impose ultimate sanction of dismissal because record did not support conclusion that plaintiff willfully or in bad faith failed to comply with trial court?s orders, since dismissal rested on conduct that did not relate to court-ordered discovery and in most instances occurred prior to the first discovery order; appellate court vacated trial court?s award of attorneys? fees in favor of defendant and remanded the matter to the trial court for a determination of reasonable expenses because the basis for the award was unclear and the award appeared to include other fees and costs unrelated to the particular discovery motion for which they were awarded

Nature of Case: Suit to enforce obligations arising out of promissory notes

Electronic Data Involved: ESI, email, spreadsheets

Ferriggi v. Best Yet Market of Astoria, Inc., No. 8564/2013, 2014 WL 5334000 (N.Y. Sup. Ct. Oct. 17, 2014)

Dec 01 2014

Key Insight: Court found that defendant was negligent in failing to preserve or to make diligent efforts to retrieve surveillance video, but that loss of video did not fatally deprive plaintiff of means to prosecute his action given that witness who viewed the videotape and grocery store worker who unpacked boxes near accident location were available to testify, and accident report and medical response reports provided plaintiff with ability to prove proximate cause of accident; trial court would fashion appropriate negative inference charge against defendant based upon its failure to preserve the videotape and defendant would be precluded from offering testimony at trial to contradict plaintiff’s claim of adequate notice or that defendant created the condition which caused plaintiff to slip and fall

Nature of Case: Slip and fall accident at supermarket

Electronic Data Involved: Surveillance video

Clauss Constr. v. UChicago Argonne, LLC, No. 13 C 5479, 2014 WL 5390665 (N.D. Ill. Oct. 20, 2014)

Dec 01 2014

Key Insight: Where plaintiff discovered numerous boxes of relevant or potentially relevant documents that had not been previously produced, but did not produce them in electronic format with Bates-labeling in accordance with parties’ agreed production protocol and instead provided photographs of the documents and boxes and some incomplete indexes, defendants successfully argued that plaintiff either should have to comply with parties’ agreement and produce material in correct format or nonconforming documents should be excluded; plaintiff chose to have newly discovered documents excluded from evidence; court found that monetary sanctions were appropriate and awarded defendant its attorneys’ fees and expenses incurred in filing the motion and attending hearing

Nature of Case: Breach of contract claims

Electronic Data Involved: Hard copy documents

Tag:Motion for Sanctions