Motion for Sanctions – Page 85 – Electronic Discovery Law

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

Oce N. Am., Inc. v. Brazeau, 2010 WL 5033310 (N.D. Ill. Mar. 18, 2010)

Dec 01 2010

Key Insight: Court rejected objections to the Magistrate Judge?s recommendation that plaintiff?s motion for a preliminary injunction be denied and, addressing plaintiff?s assertions that an evidentiary gap regarding defendant?s alleged misappropriation of information could be filled by adverse inference resulting from defendant?s failure to preserve instant messages, declined to impose such an inference where defendant mistakenly believe that the messages were automatically preserved and, upon learning otherwise, made changes to preserve going forward and thus plaintiffs were unable to show a culpable state of mind and where the alleged spoliation caused little harm in light of the availability of other evidence

Nature of Case: Breach of non-competition agreement

Electronic Data Involved: Instant messages

Herbert v. Baker, 2010 WL 5330050 (E.D. Mich. Dec. 21, 2010)

Dec 01 2010

Key Insight: District court reversed the order of the Magistrate Judge compelling production of certain videotape where defendant presented evidence that the video in question was not responsive to plaintiff?s narrow request; court denied sanctions where different and relevant video was automatically overwritten before the lawsuit was initiated, where plaintiff presented no evidence of defendant?s notice of litigation, and where the lost video was not the only evidence to support plaintiff?s position

Nature of Case: Claims arising from police department’s alleged failure to prevent an intoxicated person from driving which resulted in death

Electronic Data Involved: Video surveillance footage

County of Erie v. Abbot Labs., Inc., 913 N.Y.S.2d 482 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to take steps to preserve potentially relevant documents until approximately three and one half years after the lawsuit was initiated and was thus grossly negligent, the court granted an adverse inference and monetary sanctions equal to defendant?s reasonable fess and costs of making the motion for sanctions

Nature of Case: Suit alleging that drug companies had inflated average wholesale price for Medicaid drugs

Electronic Data Involved: ESI

Penberg v. Healthbridge Mgmt., No. 08 CV 1534(SJF), 2010 WL 2787616 (E.D.N.Y. Mar. 29, 2010)

Dec 01 2010

Key Insight: As sanction for plaintiff?s deliberate destruction of electronic documents in bad faith despite a duty to preserve triggered no later than his receipt of defendant?s affirmative defenses, court declined to order dismissal but ordered that plaintiff pay the attorneys fees and costs associated with defendant?s motion and the hiring of its forensics expert who established that spoliation had occurred; court denied motion to amend complaint to include cause of action for spoliation where ?such a claim is not cognizable under New York law?

Nature of Case: Disability discrimination, age discrimination, violations of FMLA

Electronic Data Involved: ESI, contents of computer

Partminer Worldwide, Inc. v. Siliconexpert Techs., Inc., No. 09-cv-00586-MSK-MJW, 2011 WL 587971 (D. Colo. Feb. 9, 2010)

Dec 01 2010

Key Insight: District Court declined to adopt recommendation for spoliation sanctions arising from defendant?s alleged bad faith destruction of a relevant email where the email was produced after the recommendation was made and thus ameliorated the need for finding of spoliation; in light of deficiencies revealed in defendants? search for responsive materials, court adopted recommendation that a forensic search of defendants? hard drives be undertaken, but reduced the scope of that search from all employees to those who ?received directly or indirectly, the customer information? at issue

Nature of Case: Claims arising from former employee?s alleged sharing of confidential information

Electronic Data Involved: Email

Voom HD Holdings LLC v. Echostar Satellite LLC, No. 600292/08 (N.Y. Sup. Nov. 3, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference for grossly negligent failure to preserve where defendant?s duty to preserve was triggered by its awareness that its decision to terminate an agreement with plaintiff would trigger litigation but where defendant failed to impose a litigation hold until after plaintiff?s complaint was filed and failed to discontinue its automatic deletion of emails which resulted in the loss of relevant emails; court?s analysis included discussion of prior sanctions against defendant for failure to preserve in Broccoli v. Echostar Commc’ns Corp., 229 F.R.D. 506 (D. Md. 2005)

Nature of Case: Breach of contract

Electronic Data Involved: Email

CE Design Ltd. v. Cy?s Crabhouse North, Inc., 2010 WL 3327876 (N.D. Ill Aug. 23, 2010)

Dec 01 2010

Key Insight: Court vacated prior order designating contents of relevant hard drive confidential where good cause was not established by the proffered reasons for the designation; addressing defendant?s motion to disqualify plaintiff?s counsel and bar its expert for failure to timely supplement discovery by producing a relevant hard drive, the court ruled that defendant failed to offer new information that would justify such a sanction (because this issue was previously considered) where the newly-discovered documents (on the late-produced hard drive) did not change the court?s analysis as to numerosity and certification of the class and where the expert was given the opportunity to supplement his report

Nature of Case: Violation of Telephone Consumer Protection Act

Diocese of Harrisburg v. Summix Dev. Co., 2010 WL 2034699 (M.D. Pa. May 18, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference in favor of defendant where plaintiff failed to preserve backup tapes which ?may have contained emails with evidence to support defendants? claims?, despite a duty to do so

Electronic Data Involved: Backup tapes

Medcorp, Inc. v. Ponpoint Tech., Inc., 2010 WL 2500301 (June 15, 2010)

Dec 01 2010

Key Insight: Where special master determined spoliation was ?willful in the sense that ?Plaintiff was aware of his responsibilities to preserve relevant evidence and failed to take necessary steps to do so? and thus ordered an adverse inference and for each party to bear half of defendant?s attorneys? fees and costs, magistrate judge affirmed the adverse inference upon determining it was the least harsh sanction that would provide an adequate remedy but vacated the award of half of defendant?s fees and, upon determining a reasonable amount, ordered plaintiff to pay the amount of $89,395.88

Electronic Data Involved: Hard drives

Tag:Motion for Sanctions