Motion for Sanctions – Page 79 – Electronic Discovery Law

Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 WL 1286366 (W.D.N.Y. Mar. 31, 2010)

Dec 01 2010

Key Insight: Court found destruction or loss of documents resulting from failure to issue a litigation hold grossly negligent but declined to recommend dismissal or an adverse inference where the record did not reveal actual or likely prejudice and held open defendant?s option to renew their request following re-depositions of the relevant custodian, the cost of which plaintiff was to bear; for the late production of responsive documents, court recommended additional depositions and for plaintiff to bear the cost and for plaintiff to bear defendants? costs associated with the instant motions; magistrate judge?s recommendations were affirmed by the district court in their entirety 2010 WL 4027780 (W.D.N.Y. Oct. 14, 2010)

Nature of Case: Claims arising from alleged defects in cellular towers designed and manufactured by defendant

Electronic Data Involved: ESI, email

United States v. Laurent, 2010 WL 2404419 (1st Cir. June 17, 2010):

Dec 01 2010

Key Insight: For the erasure of relevant surveillance tape pursuant to department practice, the trial court properly denied defendant?s request for dismissal absent evidence of destruction in bad faith because the evidence was not exculpatory but rather ?potentially useful?; for the delayed disclosure of the existence and subsequent destruction of the tape, trial court properly denied request for sanctions absent a showing of prejudice; trial court properly denied request for an adverse inference absent evidence of bad faith

Nature of Case: Criminal drug charges

Electronic Data Involved: Video surveillance tape

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Whited v. Motorists Mutual Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010)

Dec 01 2010

Key Insight: For plaintiff?s willful and bad faith violations of the court?s orders which resulted in prejudice to the defendants, including unexplained delays in production and intentional deletion of files on computers which the court had ordered no one to use, and where the court had previously warned that failure to comply could result in dismissal, court ordered dismissal of plaintiff?s claims

Nature of Case: Cross claims arising from insurance payments for home health care

Electronic Data Involved: ESI

VocalSpace, LLC v. Lorenso, 2010 WL 5247451 (E.D. Tex. Dec. 16, 2010)

Dec 01 2010

Key Insight: Where, despite a clear duty to preserve, defendant transferred relevant data to a new server and then erased and sold the old servers, and where, as a result, ?log files? were lost, the court found that the evidence ?falls short? of evidencing bad faith and declined to impose ?death penalty sanctions? but ordered that the admission of evidence of defendants? preservation efforts and evidence destruction was appropriate and ordered that evidence of the circumstances surrounding the destruction of the servers would be allowed at trial

Nature of Case: Copyright infringement, misappropriation of trade secrets, breach of fiduciary duty, etc.

Electronic Data Involved: ESI, “log files”

Nycomed U.S. Inc. v. Glenmark Generics, Ltd., 2010 WL 3173785 (E.D.N.Y. Aug. 11, 2010)

Dec 01 2010

Key Insight: For failing to abide by its good-faith discovery obligations by withholding from production, without justification, certain relevant ESI and ?willfully fail[ing] to search two important and obvious repositories for responsive ESI?, the court determined that ?substantial monetary fines, payable to Nycomed and to the Clerk of the Court, are appropriate sanctions, as they will adequately advance ?the prophylactic, punitive and remedial rationales? of discovery sanctions? and ordered Glenmark to pay $100,000 to Nycomed ?to cover a portion of its costs? and to pay an additional $25,000 to the Clerk of the Court

Electronic Data Involved: ESI

Mintel Int?l Group, Ltd. v. Neerghen, 2010 WL 145786 (N.D. Ill. Jan. 12, 2010)

Dec 01 2010

Key Insight: Court declined to grant spoliation sanctions for the destruction of metadata resulting from defendant?s continued use of his company-issued laptop where such use was not prohibited by the temporary restraining order and was not shown to destroy relevant evidence and where there was no evidence of defendant?s bad faith

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: Metadata

State v. Huggett, 783 N.W.2d 675 (Wis. App. Ct. 2010)

Dec 01 2010

Key Insight: Where police confiscated cell phones from the defendant and a key witness which contained highly relevant and exculpatory messages but failed to preserve them, court reasoned that ?[b]y creating an expectation of preservation [in the mind of the defendant], the State became responsible for ensuring that it occurred? and that its failure to do so deprived the defendant of due process such that dismissal with prejudice was appropriate

Nature of Case: Charges arising from shooting of intruder, allegedly in self defense

Electronic Data Involved: Voice mail and text messages on cell phones

CE Design Ltd. v. Cy?s Crabhouse N., Inc., 2010 WL 2365162 (N.D. Ill. June 11, 2010)

Dec 01 2010

Key Insight: Where defendant alleged plaintiff had violated the protective order by using information contained on a hard drive and backup tapes provided by a third party to initiate additional lawsuits, court denied defendant?s motion to dismiss absent evidence of prejudice but granted third party?s motion for protective order preventing such use going forward; for plaintiff?s failure to supplement discovery, court denied motion for dismissal but gave permission for defendant?s expert to supplement report based on newly-obtained information

Nature of Case: Violation of Telephone Consumer Protection Act

Electronic Data Involved: ESI contained on hard drive, backup tapes

Gallagher v. Magner, 2010 WL 3419820 (8th Cir. Sept. 1, 2010)

Dec 01 2010

Key Insight: District court upheld denial of sanctions for defendants? failure to preserve emails and other ESI where plaintiffs failed to establish the prejudice resulting from the failure to preserve by presenting nothing more than speculation and by failing to pursue other possible sources of discovery (which the court characterized as ?incongruent with Plaintiff?s claim of prejudice?) and where plaintiffs failed to demonstrate that defendant intentionally destroyed or withheld evidence to suppress the truth

Nature of Case: Claims alleging disparate treatment and impact arising from City’s enforecement of housing codes

Electronic Data Involved: Emails, other ESI

Tag:Motion for Sanctions