Motion for Sanctions – Page 73 – Electronic Discovery Law

Greene v. Netsmart Techs., No. CV 08-4971(TCP)(AKT), 2011 WL 2225004 (E.D.N.Y. Feb. 28, 2011)

Dec 01 2011

Key Insight: Where there was a delay in plaintiff?s production of relevant evidence and where handwritten notes and certain audio tapes were negligently destroyed but where no unique evidence was ultimately lost because the information was transferred to another source before its destruction, court declined to dismiss the case or to impose an adverse inference but, noting that there was ?clearly a breakdown in communication between Plaintiff and his counsel regarding document preservation and collection,? imposed monetary sanctions equal to defendant?s expenses related to efforts to obtain the relevant evidence, to be shared 50/50 by plaintiff and his counsel; Recommendation adopted by the District Court: 2011 WL 2193399

Nature of Case: Employment discrimination

Electronic Data Involved: Audio Tapes, handwritten notes

Vieste v. Hill Redwood Dev., No. C-09-0424 JSW (MSR), 2011 WL 2198257 (N.D. Cal. June 6, 2011)

Dec 01 2011

Key Insight: Court ordered defendants to pay sanctions equal to ?reasonable attorneys? fees and costs incurred [by Plaintiffs] in bringing this motion? where defendants were ordered to provide a detailed explanation of their preservation and collection processes but instead submitted declarations which failed to answer basic questions, answered others with minimal information, and relied on conclusory statements; court denied motion for spoliation sanctions where, despite the court?s ?serious concerns? about a certain custodian?s preservation and collection efforts, spoliation was not established, and as to other specific evidence for which the evidence of spoliation was not clear, ordered that if it had not previously been produced, defendants would be barred from its use

Nature of Case: Brach of contract and fraud

Electronic Data Involved: Email, ESI

United States v. Univ. Health Servs., Inc., No. 1:07cv000054, 2011 WL 2559552 (W.D. Va. June 28, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s failure to preserve video surveillance tape where the parties initially agreed that the tapes for the thirty days preceding the subpoena need not be saved, thus creating the understanding that tape recycling could proceed as usual, and where, as a result of this agreement, defendants could not be said to have failed to preserve in bad faith; court also declined to infer spoliation absent evidence that additional, relevant ESI existed that had not been produced

Nature of Case: Violation of False Claims Act and The VA Fraud Against Taxpayers Act

Electronic Data Involved: Video surveillance tape

Kermode v. Univ. of Miss. Med. Ctr., No. 3:09-CV-584-DPJ-FKB, 2011 WL 2619096 (S.D. Miss. July 1, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions where plaintiff failed to establish the existence of the allegedly spoliated emails and where, if the emails had existed, they would have been automatically deleted prior to the trigger of defendant?s duty to preserve and thus would not have been lost in bad faith; court?s analysis included discussion of trigger of duty to preserve and reasoned that meetings between accused professor and his department head and/or program director regarding alleged unwanted interactions with student did not trigger university?s duty to preserve because there was no evidence to suggest that either the department head or program director should have reasonably anticipated litigation at that time (citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 for proposition that ?Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm wide duty to-preserve.?)

Nature of Case: Wrongful termination

Electronic Data Involved: Emails

Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011)

Dec 01 2011

Key Insight: Where plaintiff failed to timely produce relevant evidence despite two court orders and then wrongly certified that the production was complete, the district court granted defendant?s motion to dismiss; on appeal, the circuit court affirmed the sanction (in a colorful opinion full of quotable quotes), holding that ?no one . . . should count on more than three chances to make good on a discovery obligation? and that the district court was within its considerable discretion in granting dismissal

Nature of Case: Breach of contract

Electronic Data Involved: Tax records

AMG Nat?l Trust Bank v. Ries, No. 06-CV-3061, 2011 WL 2912874 (E.D. Pa. July 21, 2011)

Dec 01 2011

Key Insight: Court granted motion for spoliation sanctions for defendant?s deletion of relevant computer files and ordered an adverse inference and payment of plaintiff?s attorney?s costs and fees but, because the extent of the prejudice could not be determined, indicated that the language of the inference would be withheld until defendant paid for a forensic examination of his computer to determine what, if any, evidence could be recovered and thus the extent of the prejudice suffered by the plaintiff

Nature of Case: Breach of employment contract, breach of fiduciary duties, and violation of Uniform Trade Secrets Act

Electronic Data Involved: ESI

Kosher Sports Inc. v. Queens Ballpark Co., LLC, No. 10-CV-2618 (JBW), 2011 WL 3471508 (E.D.N.Y. Aug. 5, 2011)

Dec 01 2011

Key Insight: Where plaintiff and counsel failed to disclose the existence of relevant audio recordings (of secretly recorded conversations) and attempted to conceal their existence (including by false certifications pursuant to Rule 26(g)), but where defendant was allowed to cure the prejudice through additional discovery, court ordered plaintiff and counsel to bear joint responsibility for payment of defendant?s expenses related to the delay and concealment; for destruction of relevant audio recordings with a ?sufficiently culpable? state of mind, court imposed an adverse inference instruction

Nature of Case: Contract dispute

Electronic Data Involved: Audio recordings

Chen v. LW Restaurant, Inc., No. 10 CV 200 (ARR), 2011 WL 3420433 (E.D.N.Y. Aug. 3, 2011)

Dec 01 2011

Key Insight: Court imposed sanctions, including preclusion of evidence/witnesses, an adverse inference instruction (upon plaintiffs? request) and payment of attorney?s costs and fees for defendant?s discovery violations, including repeated failure to produce evidence despite court orders, and ?loss? of a flash drive and its contents under circumstances which supported a finding of gross negligence or intentional spoliation; court invited plaintiffs to seek sanctions against defense counsel, too, for counsel?s egregious violations of his duties, including failure to issue a litigation hold, failure to be candid regarding the loss of evidence, and failure to ensure compliance with client?s discovery obligations, among others

Nature of Case: Employment litigation (wages)

Electronic Data Involved: Flash drive containing original payroll records for purpose of analyzing metadata

Britton v. Wal-Mart Stores East, L.P., No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)

Dec 01 2011

Key Insight: Where defendant?s employee(s) were found to have allowed the loss of relevant video surveillance tape, despite repeated notification of its relevance and requests for preservation, and to have done so intentionally and in bad faith, court declined to enter default judgment but precluded defendant?s presentation of certain defenses and ordered payment of attorney?s costs and fees related to the motion for sanctions and payment of half of such costs and fees related to a prior motion in which defendant?s dishonesty regarding the existence of the at issue vide resulted in costs to the plaintiffs

Nature of Case: Claims arising from alleged wrongful detention of teens for shoplifting

Electronic Data Involved: Video surveillance

English v. Wal-Mart Stores, Inc., No. 3:10-cv-00080-ECR-VPC, 2011 WL 3496092 (D. Nev. Aug. 10, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for loss of surveillance tape where duty to preserve arose upon request for the evidence-three months after the fall occurred- and where plaintiff did not show that defendant destroyed or lost the video and photographs with ?culpable intent or in a negligent and possibly reckless manner after Defendant?s duty to preserve the evidence arose.?

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance

Tag:Motion for Sanctions