Tag:Motion for Sanctions

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Bruno v. Bozzuto?s, Inc., 850 F. Supp. 2d 462 (M.D. Pa. Feb. 6, 2012)
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United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)
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Pacific Coast Marine Windshields Ltd. v. Malibu Boats, LLC, No. 6:12-cv-33-Orl-28DAB, 2014 WL 10817204 (M.D. Fla. Nov. 30, 2012)
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Danny Lynn Elec. V. Veolia Es Solid Waste, No. 2:09CV192-MHT, 2012 WL 786843 (M.D. Ala. Mar. 9, 2012)
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Matteo v. Kohl?s Dept. Store, Inc., No. 09 Civ. 830 (RJS), 2012 WL 760317 (S.D.N.Y. Mar. 6, 2012)
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Dalcour v. City of Lakewood, No. 11-1117, 2012 WL 3156342 (10th Cir. Aug. 6, 2012)
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Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)
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Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)
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State Nat?l Ins. Co. v. Cnty. of Camden, No. 08-5128 (NLH)(AMD), 2012 WL 960431 (D.N.J. Mar. 21, 2012)
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Tracy v. NVR, Inc., No. 04-CV-6541L, 2012 WL 1067889 (W.D.N.Y. Mar. 26, 2012)

Bruno v. Bozzuto?s, Inc., 850 F. Supp. 2d 462 (M.D. Pa. Feb. 6, 2012)

Key Insight: Where plaintiffs destroyed paper copies of records that were also maintained in electronic format (by a third party) despite anticipation of litigation, court ordered discovery reopened for the purpose of allowing plaintiff to take the necessary action to acquire the electronic records and to provide them to defendant at their own cost and indicated that if the records were no longer in the third party?s possession, the court would ?reconsider its ruling? where the absence of those records would result in a greater degree of prejudice to the defendant

Nature of Case: Breach of contract

Electronic Data Involved: Electronic copies of hard copy records that had been destroyed

United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)

Key Insight: Court adopted lower court?s report and recommendation which denied defendant?s motion for sanctions related to the government?s discovery behaviors, including its production of ESI in searchable PDF but without the ability to manipulate the data, which defendant alleged failed to comply with the courts? prior order; court?s opinion, like prior opinions in this case, made clear the difficulties associated with a lack of controlling e-discovery case law/guidelines in criminal cases and put the Government ?on notice? that the Court would ?not hesitate to scrutinize the Government?s ESI discovery procedures to ensure responsiveness and fairness.?

Nature of Case: Criminal

Electronic Data Involved: Database, esi

Danny Lynn Elec. V. Veolia Es Solid Waste, No. 2:09CV192-MHT, 2012 WL 786843 (M.D. Ala. Mar. 9, 2012)

Key Insight: Court denied motion for spoliation sanctions where it was unclear that any spoliation had even occurred in light of defendants? backup system, where the court concluded that defendants had not acted in bad faith (but had instead ?expended great effort to insure that plaintiffs receive information from both their live and archived email system ??), and where the degree of prejudice was minimal (assuming spoliation occurred) in light of the significant other discovery that was produced

Electronic Data Involved: Email

Matteo v. Kohl?s Dept. Store, Inc., No. 09 Civ. 830 (RJS), 2012 WL 760317 (S.D.N.Y. Mar. 6, 2012)

Key Insight: Court denied plaintiff?s motion for an adverse inference for defendant?s loss of potentially relevant video surveillance tape where plaintiff failed to articulate how the tape would depict anything not already represented in available still photos and thus did not establish that the tape was sufficiently relevant to warrant the requested sanction; court ordered plaintiff was entitled to attorneys? fees and costs for the motion and for her efforts to determine whether the accident had been recorded

Nature of Case: Slip and Fall

Electronic Data Involved: Video surveillance tape

Dalcour v. City of Lakewood, No. 11-1117, 2012 WL 3156342 (10th Cir. Aug. 6, 2012)

Key Insight: Reviewing for abuse of discretion circuit court affirmed lower court?s denial of motion for an adverse inference based on loss of TASER records where the evidence indicated the loss resulted from a computer error or possibly negligence and where absent evidence of bad faith, no adverse inference was appropriate; court also recognized that allowing plaintiffs to question witnesses about the missing evidence amounted to a lesser sanction for spoliation

Nature of Case: ? 1983 claims

Electronic Data Involved: TASER records

Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)

Key Insight: Where defendant?s litigation specialist initially asserted that no responsive emails were uncovered but later testified that she had recently been told of a possible repository of archived emails and that search efforts there were ongoing and already had uncovered several relevant emails, Circuit court found no abuse of discretion in District Court?s refusal to impose an adverse inference which requires a showing of bad faith noting that the litigation specialist?s ?initial lack of knowledge? was ?carelessness at most? and further reasoning that the admission that relevant emails had been discovered was a further indication that the defendant was not acting in bad faith

Nature of Case: Fraud, breach of contract and similar claims related to plaintiff’s mortgage

Electronic Data Involved: Emails

Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)

Key Insight: Defendant?s lackluster effort to retrieve e-mail after hard drives crashed constituted a conscious disregard of its preservation obligations that could fairly be described as gross negligence or recklessness, and warranted sanctions in the form of an adverse inference instruction; court declined to impose sanctions for defendant?s failure to preserve telephone recordings since there was insufficient evidence that any relevant calls were actually recorded and should have been preserved

Nature of Case: Consumer Protection Procedures Act claims

Electronic Data Involved: E-mails and telephone call recordings

State Nat?l Ins. Co. v. Cnty. of Camden, No. 08-5128 (NLH)(AMD), 2012 WL 960431 (D.N.J. Mar. 21, 2012)

Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation

Electronic Data Involved: ESI

Tracy v. NVR, Inc., No. 04-CV-6541L, 2012 WL 1067889 (W.D.N.Y. Mar. 26, 2012)

Key Insight: Where plaintiffs sought to compel production of defendant?s litigation hold and a list of its recipients, court identified the underlying question as whether defendant?s duty to preserve extended to all potential opt-in plaintiffs and found that plaintiffs? significant delay in moving for conditional certification and the indirect nature of the evidence sought distinguished the case from Pippins v. KPMG and that plaintiffs failed to make the necessary preliminary showing of spoliation (which would justify production of the litigation hold notice) because they did not establish ?that documents that should have been preserved? were lost or destroyed; court granted defendant?s motion for sanctions for opt-in plaintiff?s spoliation of hard copy evidence (originals of a calendar indicating her daily activities, two disparate copies of which had been produced) and ordered that she be precluded from testifying as to her daily work activities during a three year period

Nature of Case: FLSA Class action

Electronic Data Involved: litigation hold notice, hard copy calendar

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