Motion for Sanctions – Page 74 – Electronic Discovery Law

In re Hitachi Television Optical Block Cases, No. 08cv1746 DMS (NLS), 2011 WL 3263781 (S.D. Cal. Aug. 12, 2011)

Dec 01 2011

Key Insight: Despite the intentional deletion of ESI by defendant?s employee, court declined to impose evidentiary sanctions where there was no showing of prejudice (because the vast majority of deleted ESI was recovered); court also denied request for attorneys? costs and fees pursuant to its inherent authority or under Rule 37

Nature of Case: Putative Class Action alleging a product defect

Electronic Data Involved: Emails

Buonauro v. City of Berwyn, No. 08 C 6687, 2011 WL 3754820 (N.D. Ill. Aug. 25, 2011)

Dec 01 2011

Key Insight: Where defendant destroyed relevant audio recordings of City Council meetings despite anticipation of litigation but argued that the destruction was allowed under state law (which controlled the relevant retention period for such recordings), among other things, the court found that the tapes had been destroyed ?with a reckless disregard? of the duty to preserve which constituted bad faith and ordered an adverse inference establishing that if the tapes were available, they would have contained evidence favorable to the plaintiff

Nature of Case: Land Use/Zoning

Electronic Data Involved: Recordings of City Council meetings

Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., No. C09-0175, 2011 WL 4499259 (N.D. Iowa Sept. 27, 2011)

Dec 01 2011

Key Insight: Where plaintiffs alleged that examination of defendant?s laptop and other storage devices revealed evidence of spoliation and filed a motion for default judgment, the court reasoned that the evidence did not support a finding of intentional spoliation or bad faith, that the risk of prejudice to plaintiffs was small, that there was plenty of information for plaintiffs to utilize to pursue their claims, that public policy favored disposition on the merits, and that a less drastic sanction was available (namely a possible adverse inference instruction), and denied plaintiffs? motion; the recommendation of the Magistrate Judge was adopted by the District Court 2011 WL 5975127

Nature of Case: Claim for damages arising from property development

Electronic Data Involved: ESI

Estate of Wilson v. Addison, 258 P.3d 410 (Mont. 2011)

Dec 01 2011

Key Insight: Where medical facility destroyed medication records in accordance with its records-retention policy, despite a pending claim, but where the destruction was in not bad faith or an attempt to shield plaintiff from the truth and where there was no showing of prejudice, District Court did not abuse its discretion in denying plaintiff?s request for sanctions

Nature of Case: Medical Malpractice

Electronic Data Involved: Medication Records

Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634249 (E.D. Mich. Aug. 3, 2011); Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634245 (E.D. Mich. Oct. 5, 2011)

Dec 01 2011

Key Insight: For the City of Detroit?s bad faith spoliation of emails, the court declined to impose terminating sanctions but imposed a permissive adverse inference; for the City?s and its attorneys? ?bad faith disregard of their discovery obligations and the orders of this Court? which led to the destruction of evidence (including failing to disseminate a legal hold notice and Corporation Counsel?s ?utter delinquen[ce] in his duty to see that his clients complied with Judge Rosen?s orders?), the court ordered the city and Corporation Counsel to split plaintiffs? reasonable fees and costs; in its analysis related to an adverse inference, the court adopted the analysis of Forest Labs. Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. 2009), which held that an adverse inference may be appropriate in some cases involving the negligent destruction of evidence (as opposed to bad faith, which some courts have held is necessary)

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

Io Group, Inc. v. GLBT, Ltd., No. C-10-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

Dec 01 2011

Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Osborne LLC v. C.H. Robinson Co., No. 08 C 50165, 2011 WL 5076267 (N.D. Ill. Oct. 25, 2011)

Dec 01 2011

Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Miller v. Four Winds Int. Corp., No. 2:10-cv-00254-CWD, 2011 WL 5080032 (D. Idaho Oct. 25, 2011)

Dec 01 2011

Key Insight: Where plaintiff testified in deposition that she had saved relevant voice messages two years prior and that they were still available but later indicated that the messages were lost as a result of water damage to her phone and the passage of time (her service carrier indicated the messages were automatically deleted after a certain time), the court found that because she had previously indicated that the messages were available and because there was no evidence presented of when the messages became inaccessible, spoliation had occurred; court indicated an adverse inference ?may be appropriate? but withheld a final determination until it could consider the evidence offered at trial

Nature of Case: Product liability

Electronic Data Involved: Voicemail

Felman Prod., Inc. v. Indus. Risk. Insurers, No. 3:09-0481, 2011 WL 4547012 (S.D.W. Va. Sept. 29, 2011)

Dec 01 2011

Key Insight: For egregious discovery violations, including attempting to conceal relevant custodians, failure to issue litigation holds, spoliation, delay, and lack of candor, the court granted in part defendants? motion for terminating sanctions and dismissed plaintiff?s claim for business interruption losses?the claim most affected by the discovery abuse; court declined to dismiss all claims where, despite the discovery violations, defendants? were not sufficiently prejudiced to support terminating sanctions, but found an adverse inference instruction to be ?an adequate remedy?

Nature of Case: Complaint seeking payment of insurance claims; counterclaim for fraud

Electronic Data Involved: ESI

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

Tag:Motion for Sanctions