Motion for Sanctions – Page 66 – Electronic Discovery Law

Edwards v. Ford Motor Corp., 2012 WL 553383 (S.D. Cal. Feb. 17, 2012)

Dec 01 2012

Key Insight: Court found defendant?s arguments failed to establish undue burden and reasoned that defendant could not escape its discovery obligations ?because it has chosen to store those documents in a way that makes it difficult for Defendant to search for them,? that defendant?s estimations were based on ?a wider scope of documents than what Plaintiff is seeking,? and that defendant failed to provide sufficient detail to evaluate its argument

Electronic Data Involved: Employer issue laptop and contents

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

Dec 01 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

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

Perez-Garcia v. Puerto Rico Ports Auth., No. 08-1448 (GAG), 2012 WL 2553274 (D.P.R. July 3, 2012)

Dec 01 2012

Key Insight: Court found request for sanctions for defendant?s failure to retain records dating back to 1995 was not supported by the rules or the case law on the subject and stated that ?Corporations may maintain their records according to their business practices, so long as the record keeping does not afoul [sic] of the rules outlined by the Federal Rules of Civil Procedure, the Federal Rules of Evidence and judicially created rules of the court.? Addressing plaintiff?s citation to an Eighth Circuit case ?that states that a negative inference can be given when the company?s policy for retention of documents is unreasonable or in bad faith,? (Remington Arms Co. , 836 FRD 1103 (8th Cir. 1988)) the court found that defendant?s policy was neither unreasonable nor in bad faith

Nature of Case: Claims arising from crash of golf cart perhaps related to faulty emergency brake

Electronic Data Involved: ESI

Banks v. Enova Fin., No. 10 C 4060, 2012 WL 5995729 (N.D. Ill. Nov. 30, 2012)

Dec 01 2012

Key Insight: Magistrate Judge did not act contrary to law by ordering that, as a sanction for grossly negligent spoliation of audio tapes pursuant to Defendant?s retention policy, there would be a presumption of a factual dispute at the summary judgment state as to whether Plaintiff hung up on a customer and that if the case proceeded to trial, the court should instruct the jury with a ?spoliation charge? ?not an adverse inference?which would allow but not require the jury to presume that the lost evidence was relevant and favorable to the innocent party; District Court acknowledged that bad faith was necessary to impose an adverse inference, but found that this was not an adverse inference and was therefore within the court?s discretion

Nature of Case: wrongful termination

Electronic Data Involved: Audio tapes of relevant phone calls

Davis v. Rouse, No. WDQ-08-cv-3106, 2012 WL 3059569 (D. Md. July 25, 2012)

Dec 01 2012

Key Insight: Where defendant produced more than 61,000 pages of emails but, when faced with Plaintiff?s motion for spoliation sanctions, could not explain how the search for ESI had been conducted (by a vendor) and subsequently produced only 11,411 pages of emails after being ordered to re-run the search, the court imposed sanctions of reasonable attorneys? fees and costs incurred by Plaintiff?s counsel to review the initial large production of emails containing many non-responsive documents and found counsel for plaintiff was also entitled to recover ?some proportional and reasonable? attorneys? fees and costs for litigating the underlying motion for sanctions which brought the overproduction to light

Nature of Case: Allegations of assault pursuant to 42 USC 1983

Electronic Data Involved: Emails

Brigham Young Univ. v. Pfizer, Inc., No. 2:06-cv-890 TS, 2012 WL 1302288 (D. Utah Apr. 16, 2012)

Dec 01 2012

Key Insight: Denying plaintiffs? motion for sanctions the court distinguished the cases of Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009), found the defendant had not acted in bad faith, and rejected plaintiffs assertions that the duty to preserve arose from obligations to maintain information pursuant to corporate policy or an obligation to the government; noting that most relevant documents were from the 1990?s, the court also acknowledged that even where a preservation obligation exists, the passage of time can result in the inadvertent destruction or misplacement of evidence and the fading of human memories

Electronic Data Involved: Unspecified in opinion

Gonzalez v. Las Vegas Police Dept., No. 2:09-cv-00381-JCM-PAL, 2012 WL 1118949 (D. Nev. Apr. 2, 2012)

Dec 01 2012

Key Insight: Where video surveillance tape was destroyed in contravention of duty to preserve, the court nonetheless denied plaintiff?s motion for sanctions (an adverse inference) where it determined that there was no prejudice to plaintiff because defendants identified the three officers/employees who processed plaintiff on the night of the allegedly wrongful arrest and because defendants conceded that the initial booking processes indicated that plaintiff was not the person sought by the relevant warrant

Nature of Case: Violation of civil rights (wrongful arrest) and related claims

Electronic Data Involved: Video surveillance

EEOC v. New Breed Logistics, No. 10-2696 STA/TMP, 2012 WL 4361449 (W.D. Tenn. Sept. 25, 2012)

Dec 01 2012

Key Insight: Upon Plaintiff?s motion for spoliation sanctions, court recognized two relevant trigger dates, the second of which expanded the initial scope of preservation, and found that Defendant was negligent in its failure to preserve relevant emails but declined to impose an adverse inference and instead ordered Defendant to bear the cost of restoring 33 backup tapes to determine if relevant information was contained thereon

Nature of Case: Sexual harassment

Electronic Data Involved: Emails

Cytec Carbon Fibers LLC v. Hopkins, No. 2:11-0217-RMG-BM, 2012 WL 6044778 (D.S.C. Oct. 22, 2012)

Dec 01 2012

Key Insight: Where defendant lost relevant text messages while trying to transfer them to from his phone to his computer during the time when he had an obligation to preserve them, court found that the loss was negligent?a level of culpability sufficient to impose sanctions?and that a reasonable factfinder could conclude that the messages would have supported Plaintiff?s claims and found that ?an adverse inference instruction is the most appropriate sanction to be imposed?

Nature of Case: Fraud, RICO, unfair trade practices and related claims

Electronic Data Involved: Text messages

Tag:Motion for Sanctions