Motion for Sanctions – Page 53 – Electronic Discovery Law

Lovett v. Cole, No. 1:11-cv-277, 2014 WL 5426168 (S.D. Ohio Oct. 22, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff?s motion for sanctions based on correctional facility?s failure to preserve video surveillance footage of ?out-of-place? incident that preceded use of force incident, or digital versions of photographs taken of plaintiff?s injuries and cell after use of force incident, finding that plaintiff failed to establish a duty to preserve digital versions of photographs where hard copy photographs were preserved in accordance with the facility?s policy and procedure, and there was no evidence that defendants knew about the ?out-of-place? incident or recognized it as relevant to the use of force incident (the video footage of which was preserved); court further found that plaintiff failed to show that defendants deliberately lost or destroyed the evidence with a culpable state of mind

Nature of Case: Inmate sued correctional officers for use of excessive force

Electronic Data Involved: Video footage and digital information regarding plaintiff’s injuries and cell

Miller v. Experian Info. Solutions, Inc., No. 3:13-cv-90, 2014 WL 5513477 (S.D. Ohio Oct. 31, 2014)

Dec 01 2014

Key Insight: Noting that parties have no duty to create documents simply to comply with another party’s discovery request, court denied plaintiff’s motion seeking spoliation sanctions based on defendant’s alleged failure to preserve copies of plaintiff’s credit reports, as defendant provided third parties with only unformatted electronic data which the third party would then aggregate and format according to its needs — it did not create any hard copy documents in connection with the process; as such, defendant could not be sanctioned for failing to preserve documents it neither created nor possessed

Nature of Case: Fair Credit Reporting Act case

Electronic Data Involved: Copies of credit reports defendant provided to third parties during pendency of lawsuit

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

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

Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014)

Dec 01 2014

Key Insight: Although court found City’s preservation efforts “plainly deficient,” as City did not notify its IT department to suspend automatic procedure for eliminating deleted emails after 30 days, nor did it instruct its IT department to assist key individuals in collecting and preserving relevant email or provide assistance in doing so from the legal department, court decline to impose case-dispositive sanctions against City because plaintiff did not discuss the bad faith standard nor show how it was satisfied, and loss of only one email did not constitute significant prejudice where plaintiff collected and presented good deal of evidence on same issue; court granted plaintiff?s motion to compel production of unredacted versions of two litigation hold letters sent by the City to its employees

Nature of Case: Fire Captain alleged claims of retaliation in violation of the First Amendment and state law claims for defamation and injunctive relief

Electronic Data Involved: Email

M Seven Sys. Ltd. v. Leap Wireless Int?l, Inc., No. 12cv01424 CAB (RBB), 2014 WL 3942200 (S.D. Cal. Aug. 11, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for an order to show cause why the defendants should not be held in contempt for failing to all historical versions of source code for each cell phone model at issue, finding that magistrate judge’s discovery order did not preclude more than one reasonable interpretation of its scope, that defendants reasonably interpreted and substantially complied with the order by producing every version of the source code that they possessed

Nature of Case: Plaintiff alleged misappropriation of trade secrets, copyright infringement, violation of the Digital Millennium Copyright Act, violation of California Penal Code ? 502, unfair competition, civil conspiracy to misappropriate trade secrets, and civil conspiracy to unfairly compete

Electronic Data Involved: Various versions of source code

First Mariner Bank v. Resolution Law Group, P.C., No. MJG-12-1133, 2014 WL 1652550 (D. Md. Apr. 22, 2014)

Dec 01 2014

Key Insight: Recounting history of defendants? discovery misconduct, prior motions and orders, and finding that defendants? spoliation of evidence stored on individual defendant’s laptop computer and smartphone was willful and in bad faith and caused significant prejudice to plaintiff by eliminating the only identified source of defendants? business records, magistrate judge recommended that extreme sanction of judgment by default as to liability on all counts of the amended complaint be entered against defendants; magistrate further recommended that, pursuant to FRCP 55(b)(2), an evidentiary hearing be held to give plaintiff the opportunity to prove damages

Nature of Case: False advertising, unfair competition and defamation

Electronic Data Involved: ESI stored on laptop and smartphone

Las Vegas Sands Corp. v. Eighth Judicial Dist. Ct., 331 P.3d 876 (Nev. 2014)

Dec 01 2014

Key Insight: Nevada Supreme Court declined to intervene in discovery dispute scheduled for hearing by district court, concluding that the mere presence of a foreign international privacy statute did not itself preclude Nevada district courts from ordering litigants to comply with Nevada discovery rules — rather, the existence of such a statute would become relevant to the district court?s sanctions analysis in the event the discovery order was disobeyed; since district court had indicated it would balance defendant’s desire to comply with the privacy statute with other factors at the yet-to-be-held sanctions hearing, defendant failed to demonstrate that district court had exceeded its jurisdiction or exercised its discretion arbitrarily or capriciously and extraordinary relief was not warranted

Nature of Case: President and CEO of corporation brought action against foreign corporation alleging violation of employment agreement

Electronic Data Involved: Documents on hard drives, coipes of email

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Fog Cap Acceptance, Inc. v. Verizon Bus. Network Servs., Inc., No. 3:11-CV-724-PK, 2014 WL 6064217 (D. Or. Nov. 12, 2014)

Dec 01 2014

Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot

Nature of Case: Breach of contract, negligence, and violations of bailment

Electronic Data Involved: Source code, hard drives

Tag:Motion for Sanctions