Motion for Sanctions – Page 91 – Electronic Discovery Law

DeBakker v. Hanger Prosthetics & Orthotics E., 2009 WL 5031319 (E.D. Tenn. Dec. 14, 2009)

Dec 01 2009

Key Insight: Where, to obtain an adverse inference the moving party must establish ?that the party having control over the evidence had an obligation to preserve it at the time it was destroyed,? and where plaintiff failed to establish the individual defendant?s control of the spoliated medical notes and failed to establish the facility?s duty to preserve, court denied plaintiff?s motion for sanctions; in so holding, court declined to find a duty to preserve based on the facility?s own document retention policy and stated, ?the mere existence of a document retention policy does not give rise to a duty to preserve every document generated under that policy. The duty to preserve arises only when a party becomes ?reasonably aware of the possibility of litigation

Nature of Case: Action arising from allegations that defective leg brace caused a fall resulting in permanent injury

Electronic Data Involved: Medical notes

Superior Prod. P?ship d/b/a PBSI v. Gordon Auto Body Parts Co, Ltd, 2009 WL 690603 (S.D. Ohio Mar. 12, 2009)

Dec 01 2009

Key Insight: Acknowledging the reasonableness of plaintiff?s suspicion that information may have been lost in light of defendants? failure to immediately institute a litigation hold and in light of their admitted failure to immediately search all potentially relevant sources of responsive material, court nonetheless denied plaintiff?s motion for sanctions where plaintiff failed to present evidence that any relevant information had actually been lost or destroyed as a result of defendants? failures and in light of defendants? remedial efforts, including conducting additional searches and notifying employees of the litigation hold

Nature of Case: Predatory pricing

Electronic Data Involved: Email, ESI

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

Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel upon finding that defendant ?did not timely comply with its discovery obligations? including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney?s fees

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: ESI

Jneid v. Tripole Corp., 2009 WL 4882654 (Cal. Ct. App. Dec. 17, 2009)

Dec 01 2009

Key Insight: Appellate court reversed the judgment of the trial court and remanded the case for a new trial upon finding that defendant ?did not act intentionally? when if failed to produce certain documents before trial and that the evidentiary and issue sanctions imposed, including preclusion of use of certain documents, preclusion from introducing certain evidence, preclusion of certain arguments, and an adverse jury instruction, were ?more severe than necessary? where an order for defendant to pay all costs incurred by the completed trial (as suggested by defendant) was sufficient to rectify the prejudice to the plaintiff; on remand, court ordered trial court to determine the cost incurred by plaintiffs and cross-complainant in connection with trial and the costs incurred because of the late production of documents and for defendant to pay such costs

Nature of Case: Breach of employment contracts

Electronic Data Involved: Computer embedded information

Mintel Int?l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D. Ill Apr. 17, 2009)

Dec 01 2009

Key Insight: District Court found Magistrate Judge?s decisions denying plaintiff?s motions to compel third-party?s production of forensic image of its computer systems or a report from those systems ?were neither clearly erroneous or contrary to law? where Magistrate denied the motions in light of plaintiffs lack of diligence, contradictory opinions from experts, and factual evidence indicating a minimal amount of relevant data on third-party?s system and where Magistrate was therefore within the scope of her discretion

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

Electronic Data Involved: ESI, forensic image of 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

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.

Nature of Case: Failure to accomodate

Electronic Data Involved: Email

Bensel v. Allied Pilots Assoc., 263 F.R.D. 150(D.N.J. 2009)

Dec 01 2009

Key Insight: Despite acknowledging that ?defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data,? the court found that plaintiffs failed to identify any specific document that was lost or destroyed, failed to establish destruction of documents in bad faith and failed to specify any prejudice arising from the alleged bad behavior and denied plaintiff?s motion for spoliation sanctions; in so holding, court noted plaintiff?s reliance on speculation and ?vague statements? which did not ?rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation.?

Nature of Case: Allegations of breach of duty of fair representation

Electronic Data Involved: ESI

Am. Family Mut. Ins., Co. v. Roth, 2009 WL 982788 (N.D. Ill. Feb. 20, 2009)

Dec 01 2009

Key Insight: Where defendant discarded a hard drive that had been ordered produced for inspection, court rejected evidence of defendant?s lack of ?know-how? or ?resources? to maintain the hard drive in light of the lack of expense or effort required beyond physical retention and held defendant in contempt of court; court also found grounds for contempt where evidence ordered destroyed or turned over to plaintiffs was discovered on defendants? hard drives upon forensic inspection; where plaintiffs presented ?clear and convincing evidence? that defendants intentionally destroyed evidence by discarding relevant hard drives subject to a duty to preserve, court found spoliation had occurred and ordered an adverse inference instruction but declined to order default judgment where prejudice did not render plaintiffs unable to prove their case

Nature of Case: Misappropriation of customer information

Electronic Data Involved: Hard drives, ESI

Tag:Motion for Sanctions