Motion for Sanctions – Page 89 – Electronic Discovery Law

Bolger v. D.C., 608 F. Supp. 2d 10 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where defendants admitted destroying relevant radio communications but argued that such destruction was not sanctionable because it unintentionally occurred as the result of a routine operation of the police communication systems and because the information destroyed was of minimal relevance, court found that defendants were under an obligation to preserve and had (at least) negligently destroyed the radio communications, but declined to order an adverse inference because plaintiff?s proffer of evidence regarding the communications? relevance and the proper inference from their destruction was ?too speculative?

Nature of Case: ? 1983 Action against D.C. police for constitutional violations

Electronic Data Involved: Radio communications (“radio runs”)

Artie?s Auto Body, Inc. v. Hartford Fire Ins. Co., 2009 WL 1578251 (Conn. Super. Ct. May 7, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where defendant?s response to plaintiffs? discovery requests encompassed as many as 20 supplemental responses over 5 years, including the production of 1,487,824 pages of electronically unsearchable ESI 5 years after plaintiffs? first request (which plaintiffs paid to convert to a searchable format), court found defendant?s efforts ?did not represent a good faith effort to comply with the rules of practice or the case management orders of this court? and violated ? 13-14(a) of the Practice Book and accordingly ordered sanctions including allowing re-deposition of witnesses at defendant?s cost, reimbursement of plaintiffs for conversion costs, and payment of plaintiffs? attorney?s fees

Nature of Case: Class action

Electronic Data Involved: ESI

Elec. Funds Solutions, LLC v. Murphy, 2009 WL 1717383 (Cal. Ct. App. June 19, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where terminating sanctions were ordered against defendants for the deliberate deletion/destruction of electronically stored information using wiping software but where the subsequent judgment of the trial court was reversed on appeal and remanded and where the trial court thereafter granted plaintiff?s motion for terminating sanctions, appellate court ruled that trial court did not err in granting plaintiff?s motion where the court?s previous discovery orders to produce information remained in effect and where defendants continued in their violation of such order by failing to produce relevant discovery because they had destroyed it; court stated: ?A continuing discovery violation does not end if the responding party is permanently unable to comply because that party intentionally destroyed the material it was ordered to produce.?

Nature of Case: Breach of fiduciary duty, conversion, intentional interference with economic relationships, etc.

Electronic Data Involved: ESI, hard drives

Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009)

Dec 01 2009

Key Insight: Where evidence indicated defendant wiped her computer?s hard drive days before producing it for inspection but where evidence also indicated that the wiping occurred prior to receipt of the subpoena seeking the computer?s production, appellate court acknowledged a reasonable basis to suspect intentional spoliation but found that there was not sufficiently compelling evidence to require such a finding and thus, the district court did not abuse its discretion in declining to impose spoliation sanctions

Nature of Case: Invasion of privacy

Electronic Data Involved: Computer hard drive

Commonwealth v. Lanana, 7 Pa. D. & C. 5th 225 (2009)

Dec 01 2009

Key Insight: Where school?s IT manager discovered child pornography on defendant?s personal computer and where upon opening those files the IT manager altered relevant metadata, appellate court upheld trial court?s denial of defendant?s motion for spoliation sanctions because the police did not commit the alleged destruction, because there was no evidence of the IT manager?s bad faith, because both parties had access to the same information, because defendant had an opportunity to explore the loss at trial and because defendant stipulated that the files were child pornography

Nature of Case: Possession of child pornography

Electronic Data Involved: Metadata

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Crews v. Fishburne, 2009 WL 946876 (Cal. Ct. App. Apr. 9, 2009) (Unpublished)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in ordering terminating sanctions where plaintiff (and plaintiff?s counsel) delayed production of discovery, made a ?meaningless production? of an unusable CD upon defendant?s motion to compel, redacted documents without notification to defendants and refused to produce court ordered privilege log, and refused to produce unredacted documents despite a court order

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2009 WL 1949124 (N.D. Cal. July 2, 2009)

Dec 01 2009

Key Insight: Stating ?Taishan did not even come close to making reasonable efforts to carry out its preservation of materials??, court ordered adverse inference and monetary sanctions (attorney?s fees and costs) for third-party defendant?s failure to preserve relevant evidence in violation of its litigation related duty to preserve and, in some instances, in violation of its own document retention policies

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: ESI

Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s objections to defendants? production in pdf format ?without merit? where plaintiff failed to specify the preferred format of production and where absent such specification ?pdf format?is presumptively a ?reasonably useable form?? and similarly dismissed plaintiff?s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff?s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Telequest Int?l Corp. v. Dedicated Business Sys., Inc., 2009 WL 690996 (D.N.J. Mar. 11, 2009)

Dec 01 2009

Key Insight: Where forensic examination of defendant?s hard drive revealed the deletion of electronic evidence using wiping software and where at the time of the deletion defendant was subject to a duty to preserve, court declined to impose default judgment but ordered an adverse inference and monetary sanctions in an amount to be determined

Nature of Case: Claims of fraud, misappropriation of confidential and proprietary information, breach of fiduciary duties, and breach of contract

Electronic Data Involved: ESI, contents of hard drive

Tag:Motion for Sanctions