Motion for Sanctions – Page 84 – Electronic Discovery Law

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

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Ferron v. Echostar Satellite, LLC, 2010 WL 5395716 (6th Cir. Dec. 28, 2010)

Dec 01 2010

Key Insight: Where defendants produced a CD containing responsive ESI, including links to relevant graphic images which plaintiff viewed, but where the links eventually ?expired? and the images could no longer be seen and where defendants thereafter refused to produce printed copies of the previously produced advertisements, the court denied plaintiff?s motion for sanctions where plaintiff had a duty to preserve relevant evidence in his possession but failed to take steps to preserve the images for future use

Nature of Case: Violations of Ohio Consumer Sales Practices Act

Electronic Data Involved: Expired links to relevant images

Jeanes-Kemp, LLC v. Johnson Controls, Inc., 2010 WL 3522028 (S.D. Miss. Sept. 1, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for protective order as to two inadvertently produced privileged documents where the production was inadvertent, where discovery was reviewed by three attorneys prior to production and thus efforts to prevent disclosure were reasonable, and where upon notice of disclosure, counsel took immediate steps to retrieve the documents; court declined to sanction defense counsel for threatening use of the inadvertently disclosed documents where plaintiff?s motion for protective order was granted and where defendants had not yet had the opportunity to use the documents as threatened

Electronic Data Involved: Inadvertently produced emails

Delta Fin. Corp. v. Morrison, 894 N.Y.S.2d 437 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where, upon en camera review, the court determined that counsel could not support his claim of privilege as to 55 emails and therefore sanctioned counsel $5000, appellate court affirmed the order and found the lower court had exercised proper discretion ?because [counsel?s] claim that the 55 e-mails were privileged was completely without merit in law and could not be supported by any reasonable argument for the extension, modification, or reversal of existing law.?

Nature of Case: Action to recover damages for breach of contract

Electronic Data Involved: Emails

Potenza v. Gonzales, 2010 WL 890959 (N.D.N.Y. Mar. 8, 2010)

Dec 01 2010

Key Insight: Where plaintiffs? counsel admitted he had been in possession of the videotape of plaintiff?s interview with police following his arrest but that despite a diligent search he could not find it and could offer no explanation for why, court found spoliation sanctions were warranted, noting that the second circuit has recognized ?simple negligence? as a sufficiently culpable state of mind, and ordered an adverse inference; court rejected plaintiff?s argument that defendant should be sanctioned for failing to preserve the original despite plaintiff?s request to do so where plaintiff offered no evidence in support of their claim that defendant ever had control of the tape or played a role in its destruction

Nature of Case: Violation of Fourth Amendment right to be free from false arrest, malicious prosecution, and abuse of process

Electronic Data Involved: Videotape of police interview

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Johnson v. Metro. Gov. of Nashville, 2010 WL 3342211 (M.D. Tenn. Aug. 24, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion for default judgment or an adverse inference where, despite finding that the alleged spoliator had intentionally deleted data in violation of his statutory duty to preserve, the court was presented with no evidence of bad faith in the data?s destruction and nothing more than speculation as to the data?s relevance

Nature of Case: Employment discrimination

Electronic Data Involved: Employment records subject to retention by statute

Hare v. Opryland Hospitality, LLC, 2010 WL 3719915 (D. Md. Sept. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s alleged destruction of ?full and complete surveillance video? of the relevant incident but failed to establish that defendant had the burden to preserve any video aside from the portion produced or that any other relevant footage existed and was deleted and where plaintiff failed to establish the ?requisite state of mind?, the court denied plaintiff?s motion for sanctions

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance footage

Tag:Motion for Sanctions