Motion for Sanctions – Page 64 – Electronic Discovery Law

915 Broadway Assocs. LLC v. Paul, Hastings Janofsky & Walker, LLP, No. 403124/08, 2012 WL 593075 (N.Y. Sup. Ct. Feb. 16, 2012)

Dec 01 2012

Key Insight: For egregious spoliation, including intentional deletions by key custodians, plaintiff?s failure to investigate storage practices or to ensure preservation, several custodians? failure to suspend auto-delete functions associated with their files, failure to suspend destruction of backup tapes, and replacement of relevant servers, the court ordered dismissal of plaintiff?s claims

Nature of Case: Legal malpractice

Electronic Data Involved: ESI

Sloan Valve Co. v. Zurn Indus., Inc., No. 10-cv-204, 2012 WL 1886353 (N.D. Ill. May 23, 2012)

Dec 01 2012

Key Insight: Finding defendants? search efforts inadequate, court ordered discovery re-opened and that defendant conduct specific additional discovery, including additional searches on specific repositories, and provide specific information regarding how its search efforts were conducted and by whom; the court also provided a good discussion of preservation obligations, but ultimately concluded that additional information was necessary to make a determination regarding the reasonableness of defendants efforts; ultimately, court declined to impose drastic sanctions, but ordered additional discovery and that defendants pay monetary sanctions (attorneys? fees and cost)

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 2072866 (N.D. Ill. June 8, 2012)

Dec 01 2012

Key Insight: Where defendants indicated that a relevant hard drive had crashed and been disposed of but that some relevant information had been recovered and where plaintiff was unable to establish that defendants acted in bad faith, court found defendants were grossly negligent in their failure to preserve the relevant hard drive which resulted in prejudice to the plaintiff and ordered a ?spoliation charge? allowing but not requiring the jury to determine whether the spoliation warranted an adverse inference; opinion includes comprehensive discussion of relevant law and standards surrounding spoliation

Nature of Case: Racketeering and fraud

Electronic Data Involved: Hard drive

In re Toyota Motor Corp. Unintended Acceleration Mktg. Sales Practices, and Prods. Liability Litig., —F. Supp. 2d—, 2012 WL 2146319 (C.D. Cal. June 11, 2012)

Dec 01 2012

Key Insight: Where Toyota conducted inspection of relevant Event Data Recorder without providing plaintiffs the opportunity to be present but where there was no showing of actual alteration or deletion of relevant data, court declined to impose terminating sanctions and ordered a cautionary instruction be given to the jury; court also credited plaintiff?s evidence regarding a dispute surrounding the location of a plastic piece in plaintiffs? engine, which was allegedly moved by Toyota representatives during their inspection, and ordered an evidentiary instruction stating that the Toyota representatives testimony regarding the plastic piece should be regarded with ?greater caution? than that of other witnesses

Nature of Case: Personal injury/product liability

Electronic Data Involved: Event Data Recorder data and plastic piece in engine

Tourgeman v. Collins Fin. Servs., Inc., No. 08cv1392-JLS(NLS), 2012 WL 28289 (S.D. Cal. Jan. 5, 2012)

Dec 01 2012

Key Insight: Where defendants? mistake in searching resulted in the failure to produce relevant documents and where plaintiff alleged that those documents would have established numerosity for purposes of his motion to certify (and where the motion was denied without them), court found that the mistake was not willful or in bad faith and that there was no prejudice where plaintiff was free to re-file his motion and thus, as a sanction, awarded limited attorneys? fees incurred as the result of defendants? mistake and noted plaintiff?s failure to timely review the documents produced by defendants, which may have alerted him to the problems prior to filing his motion for class certification

Nature of Case: Class action

Electronic Data Involved: ESI

Linnebur v. United Telephone Assoc., Inc., No. 10-1379-RDR, 2012 WL 2370110 (D. Kan. June 21, 2012)

Dec 01 2012

Key Insight: Where Plaintiff was able to establish that defendant destroyed ESI while under a duty to preserve but was unable to establish that she was actually prejudiced by the loss, the court denied Plaintiff?s motion for sanctions without prejudice and, noting that it was ?troubled? by Defendant?s preservation failures and counsel?s apparent failure to oversee his client?s discovery efforts, the court sua sponte reopened discovery solely as to the issue of spoliation

Nature of Case: Unlawful termination under Age Discrimination in Employment Act

Electronic Data Involved: Email, ESI

Kravtsov v Town of Greenburgh, No. 10-cv-3142 (CS), 2012 WL 2719663 (S.D.N.Y. July 9, 2012)

Dec 01 2012

Key Insight: Where defendant?s failure to preserve potentially relevant surveillance video despite notice of plaintiff?s claim and a request for preservation was at least grossly negligent in light of the failure to implement a litigation hold, the delay between the request for the video and efforts to retrieve it, and the ?collective ignorance? of the people who should have know how the surveillance system worked (the time stamp was set for the wrong time zone resulting in collection of the wrong footage?a mistake that was not discovered until the relevant footage had been recorded over) and where the court determined that because of the grossly negligent conduct, ?relevance [was] determined as a matter of law,? the court ordered sanctions, including an adverse inference and payment of related costs and attorneys? fees

Nature of Case: Claims of discrimination on the basis of disability, national origin, and religion, assault, unlawful imprisonment, and denial of a reasonable accommodation for Plaintiff?s disability

Electronic Data Involved: Video Surveillance

Gottlieb v. Iskowitz, 2012 Wl 2337290 (Cal. Ct. App. June 20, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not abuse discretion in imposing terminating sanctions for plaintiff?s egregious and willful discovery violations, including repeated failure to produce responsive materials in violation of the court?s multiple orders and subsequent ?dump? of 15 million pages of uncategorized documents that were not Bates labeled or accompanied by a corresponding index and which appeared to be largely non-responsive based on a review of 10% of the documents (?A dump of disorganized documents by definition is non-compliant.?); trial court?s award of significant damages was reversed and remanded for a new default proveup hearing on damages

Nature of Case: Libel, intentional infliction of emotional distress, and related claims

Electronic Data Involved: ESI

Curcio v. Roosevelt Union Free Sch. Dist., — F. Supp. 2d —, 2012 WL 3236645 (E.D.N.Y. Aug. 10, 2012)

Dec 01 2012

Key Insight: Court noted 2d circuit?s rejection of premise that failure to issue a litigation hold constitutes gross negligence and declined to impose an adverse inference but did impose monetary sanctions for individual?s failure to preserve her own handwritten notes upon finding that she acted in a negligent manner in preserving those notes; court denied motion for spoliation sanctions against ?Roosevelt Defendants? (the District and the Board) for failure to preserve audio tapes that were contaminated with lead and asbestos while in storage and thus discarded ?through no fault? of the Defendants and imposed no sanctions for late production of relevant information

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tapes, handwritten notes, miscellaneous

Bobrick Washroom Equip., Inc. v. Am. Specialties, Inc., No. CV 10-6938 SVW (PLA), 2012 WL 3217858 (C.D. Cal. Aug. 8, 2012)

Dec 01 2012

Key Insight: Where Defendant (through counsel) revealed on third day of trial that prior representations were inaccurate and that certain discovery had not been produced, or even searched for, court continued trial and ordered appointment of expert to conduct search of Defendant?s servers and produce responsive materials and later found that cost of expert totaling $168,045, to be paid by Defendant, was a sufficient sanction for failure to timely produce relevant documents; where plaintiff sought spoliation sanctions for Defendant?s failure to timely issue a litigation and failure to sufficiently distribute that hold or to follow up with its employees as to their obligations, but where evidence of spoliation of relevant evidence was minimal, court imposed only monetary sanctions

Nature of Case: Trademark infringement

Electronic Data Involved: ESI

Tag:Motion for Sanctions