Motion for Sanctions – Page 55 – Electronic Discovery Law

Taylor v. Shippers Transp. Express Inc., No. CV 13-02092 BRO (PLAx), 2014 WL 12560879 (C.D. Cal. Jul. 7, 2014)

Dec 01 2014

Key Insight: Court imposed sanctions, including an adverse inference and possible evidence preclusion (TBD after recovery efforts were exhausted), where Defendant failed to preserve its employees? text messages, including highly relevant text messages, by failing to implement a litigation hold and where despite Defendant?s attempts to recover the deleted information, the court deemed it ?very unlikely? that such efforts would result in full production; court also reasoned that even if all missing documents were produced, Plaintiffs would still be prejudiced in light of less time to review the evidence and prepare for trial

Nature of Case: Class action employment litigation

Electronic Data Involved: Text messages, ESI

Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2014 WL 439785 (S.D. W. Va. Feb 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs’ request for reasonable costs incurred in bringing the motion as plaintiffs demonstrated that Ethicon’s negligent loss of relevant evidence unduly complicated plaintiffs’ discovery and case preparation and unnecessarily increased the costs of litigation, but denied request for more serious spoliation sanctions since loss of evidence was not willful or deliberate and plaintiffs could not show irreparable prejudice; magistrate recommended that district judge allow plaintiffs the opportunity to introduce evidence regarding Ethicon’s loss of relevant documents on a case-by-case basis, and when appropriate, tender an adverse inference instruction

Nature of Case: Product liability

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

Ackerman v. PNC Bank, N.A., No. 12-CV-42 (SNR/JSM), 2014 WL 258565 (D. Minn. Jan. 23, 2014)

Dec 01 2014

Key Insight: District court rejected plaintiff’s appeal of magistrate judge’s order denying sanctions, as there was no evidence that defendants destroyed evidence or inadequately investigated for ESI; fact that evidence was not produced “in and of itself is not a basis for [the court] to conclude that there was unlawful destruction or spoliation”

Electronic Data Involved: ESI

Nat?l Jewish Health v. WebMD Health Servs. Grp., Inc., No. 12-cv-02834-WYD-MJW, 2014 WL 2118585 (D. Colo. May 21, 2014)

Dec 01 2014

Key Insight: Where Plaintiff maintained emails in Enterprise Vault with journaling capabilities (which captures and stores all emails in one place) and all ESI produced was searchable, sortable, paired with relevant metadata and included Concordance load files (and where emails were also produced with their attachments), the special master found the production met the requirements of 34(b)(2)(E)(ii) and was both properly produced in the form in which it was ordinarily maintained and in a reasonably usable form and further found that although 34(b)(2)(E)(i) did not apply to ESI, the production also satisfied the traditional requirement to produce documents (which ESI is not) in the manner in which it is kept in the usual course of business; special master made clear that a custodian need not be an individual and that ?[a] company, through an IT department, can serve as the custodian of electronic files kept on company servers.?

Electronic Data Involved: ESI, email

Black Diamond Mining Co. v. Genser, No. 12-125-ART, 2014 WL 3611329 (E.D. Ky. July 22, 2014)

Dec 01 2014

Key Insight: Court addressed motion for sanctions and found that accused spoliators had acted intentionally and/or negligently, but not in bad faith; court found that sanctions were ?unwarranted? for the negligent loss of certain email attachments because of defendant?s failure to ?access documents in an archive while gathering the original emails?- even despite finding that defendant acted with a ?culpable state of mind? – where plaintiff failed to produce any evidence of the attachments? relevance (court noted that defendant did not ?actively delete the attachments? but rather its agents ?forgot to take steps to preserve the documents before they were deleted from the archive?); for individual actors? negligent and intentional failures to preserve ESI and hard copy documents, the court found that the ?test of relevance [was] satisfied? and imposed a permissive adverse inference, but declined to order reimbursement of the Trustee?s fees or the costs of bringing the motion

Electronic Data Involved: Email attachments, ESI, hard copy

State Farm Mut. Auto. Ins. Co. v. Physiomatrix, Inc., No. 12-cv-11500, 2015 WL 1029540 (E.D. Mich. Mar. 3, 2014)

Dec 01 2014

Key Insight: Court found an individual defendant had control over deleted emails in an account located on a Comcast server and that the deletion of the emails was not ?merely coincidental to the winding-down of the business operations? of Defendant but rather was intentional, ?to prevent the discovery of the evidence therein?; reasoning that Plaintiff was not prevent from proving its most crucial allegations, the court declined to impose ?case-terminating? sanctions, but did order monetary sanctions against the individual defendant who controlled the emails and that Defendants? would bear the cost of a forensic search of their computers; notably, the inspection would apply to all defendants? computers, despite the court?s finding that one individual defendant had no control over the deleted emails and could not be held responsible for the deletion where the court explained (in footnote) that the non-spoliating defendant?s email account (used by his clinic) was registered to the spoliating defendant and where the non-spoliating defendant testified that he had not conducted a proper search of his computers

Electronic Data Involved: Emails on third party (Cloud) server

Stewart v. Nucor Corp., No. 3:13-cv-0057-KGB, 2014 WL 12611316 (E.D. Ark. Dec. 8, 2014)

Dec 01 2014

Key Insight: Defendant moved to strike Plaintiffs answer, enter default judgement and give an adverse inference jury instruction as sanctions for alleged spoliation of video footage. The court held that destruction of the footage was prejudicial to Plaintiff, being the only recording of the accident. Defendant did not have an official retention policy and indicated the video at issue was overwritten ?within weeks of the accident through routine system operation.? However the court did not find Defendant acted in bad faith, and thus denied with prejudice Plaintiff?s motion to strike Defendant?s answer and enter default judgement. The court denied without prejudice Plaintiff?s request to strike the affirmative defense asserting Plaintiff?s fault as well as the request to prohibit Defendant from mentioning the tape/contents/employee statements regarding the tape during trial. Plaintiff may file a motion in limine to further pursue exclusion of evidence.

Electronic Data Involved: Video footage

Thompson v. Am. Family Mut. Ins. Co., No. 2:09-CV-905 JCM (NJK), 2013 WL 164245 (D. Nev. Jan. 15, 2013)

Dec 01 2013

Key Insight: District court adopted in its entirety the recommendation of the magistrate judge that Plaintiff?s amended complaint be dismissed and that her answer to defendants? counterclaims be stricken as a sanction for willful and bad faith spoliation where Plaintiff gave her relevant computers to her brother who then took them to Indonesia where he lived and where this spoliation resulted in severe prejudice to defendants; the opinion also upheld a prior order of the magistrate imposing sanctions in the form of findings detrimental to the plaintiff for ?ongoing and repetitive violations of discovery obligations?; as to both the recommendation adopted and the order upheld, the court granted defendant?s request for attorneys fees

Nature of Case: Alleged violation of restrictive covenant with prior employer

Electronic Data Involved: Two computers

Christou v. Beatport LLC, No. 10-cv-02912-RBJ-KMT, 2013 WL 248058 (D. Colo. Jan. 23, 2013)

Dec 01 2013

Key Insight: Where a defendant negligently ?lost? his cellular phone and thus the text messages on it despite a duty to preserve, the court ordered that plaintiffs would be permitted to introduce evidence at trial of defendants? failure to preserve and to argue whatever inference they hoped the jury would draw, but defendants would be allowed to present an explanation and argue that no adverse inference should be drawn

Nature of Case: Antitrust and related claims; theft of trade secrets; intentional interference with a prospective business

Electronic Data Involved: Text messages

Tag:Motion for Sanctions