Motion for Sanctions – Page 97 – Electronic Discovery Law

L.H. v. Schwarzenegger, 2008 WL 2073958 (E.D. Cal. May 14, 2008)

Dec 01 2008

Key Insight: Where defendants converted ESI from their original format, which had been searchable and sortable, into PDF files which did not have these capabilities, court cited Advisory Committee Notes to the 2006 amendment to FRCP 34(a)(1)(A) and found that defendants violated Rule 34 by producing documents which were not searchable or sortable, notwithstanding that plaintiffs did not request the documents in native electronic format; court ruled on various other discovery disputes and awarded plaintiffs monetary sanctions in light of defendants’ “purposeful foot dragging on discovery” and resulting prejudice to plaintiffs

Nature of Case: Class action lawsuit regarding California’s treatment of juvenile wards and parolees

Electronic Data Involved: Databases and other ESI

Wong v. Thomas, 2008 WL 4224923 (D.N.J. Sept. 10, 2008) (Not for Publication)

Dec 01 2008

Key Insight: Where defendants were able to produce responsive emails from plaintiff?s email account, but could produce no other emails from accounts of various defendants or from Department of State due to routine ?purging? procedures that included closing individuals’ email accounts, deletion of files from their office computers after they leave employment, and routine deletion of files from State’s email servers, court denied plaintiff?s motion for spoliation sanctions finding that defendants had acted in good faith and that plaintiff had not met threshold showing of relevancy of any specific evidence that was lost

Nature of Case: Discrimination based on race and national origin, wrongful termination

Electronic Data Involved: Email

Ajaxo Inc. v. Bank of Am. Tech. and Operations, Inc., 2008 WL 5101451 (E.D. Cal. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to produce requested expert information in searchable format, pursuant to court order, until after defendants filed a motion for sanctions, but where plaintiffs failures were not willful and where prejudice to defendants was minimal, court ordered plaintiff to bear costs of defendants? motion to compel but declined to strike plaintiffs? expert or impose other severe sanctions

Nature of Case: Patent lawsuit

Electronic Data Involved: Expert’s report in searchable format

Tse v. UBS Fin. Servs., Inc., 2008 WL 463719 (S.D.N.Y. Feb. 19, 2008)

Dec 01 2008

Key Insight: Plaintiff’s grossly negligent failure to produce laptop computer earlier in litigation reflected blatant disregard of her discovery obligations; court granted post-trial motion for sanctions and awarded defendant its fees and costs for: drafting pre-trial spoliation motion concerning plaintiff?s laptop; addressing plaintiff’s last-minute discovery of laptop; submissions to court regarding data retrieval issues and how defendant?s pretrial spoliation motion was affected; and drafting a new motion for sanctions based on plaintiff’s misconduct with respect to laptop and prejudice to defendant

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop

U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)

Dec 01 2008

Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner

Nature of Case: Breach of contract, account stated, open account, and unjust enrichment

Electronic Data Involved: Computer hard drives of plaintiff’s employees

Sampson v. City of Cambridge, 251 F.R.D. 172 (D. Md. 2008)

Dec 01 2008

Key Insight: Where defendant’s failure to preserve emails was merely negligent and plaintiff did not establish that lost evidence would have supported her claims, court denied plaintiff?s motion for default judgment or adverse inference instruction as spoliation sanction; however, since second forensic examination of hard drive was necessitated solely by defendant’s misstatement, court ordered defendant to cover its cost

Nature of Case: Race discrimination and discrimination under ADA

Electronic Data Involved: Emails, hard drive

SD Protection, Inc. v. Del Rio, 587 F. Supp. 2d 429 (S.D.N.Y. 2008)

Dec 01 2008

Key Insight: Where, despite repeated court orders directing production, plaintiff failed to produce an un-redacted email upon which the case turned and claimed the email inaccessible because the computer on which it was stored had been destroyed and where plaintiff failed to pay court ordered sanctions for its failure to produce, court lifted earlier stay of dismissal and ordered plaintiff to pay additional $5000 sanction plus defendant?s attorneys fees and costs

Nature of Case: Breach of contract

Electronic Data Involved: Email

Advante Int’l Corp. v. Mintel Learning Tech., 2008 WL 928332 (N.D. Cal. Apr. 4, 2008)

Dec 01 2008

Key Insight: Where court had earlier ruled that defendant could recover attorney fees and costs relating to motion to compel and forensic inspection of plaintiff?s computer servers, court denied defendant?s subsequent request for $944,902 in attorneys? fees and instead awarded $105,000 as reasonable amount of attorneys? fees incurred; court further ordered plaintiff to pay neutral computer expert only for fees directly related to forensic inspection and not for those related to defendant’s advocacy in the action

Nature of Case: Misappropriation of intellectual property

Electronic Data Involved: Computer servers

Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)

Dec 01 2008

Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop hard drive, USB Thumb-Drive

Barrett v. Ambient Pressure Diving, Ltd., 2008 WL 4280360 (D.N.H. Sept. 16, 2008) (Unpublished)

Dec 01 2008

Key Insight: Sanction of dismissal not warranted where data stored on dive computers was lost when it could no longer be downloaded after one year, since plaintiff did not engage in deliberate destruction, she did not know whether data was helpful or hurtful to her case because she had not seen it, and she had not known that data would automatically become unavailable for download after one year; defendant?s entitlement to alternative relief to be decided at trial; court further granted plaintiff?s motion for summary judgment dismissing defendant?s counterclaims for ?fraud on the court? and ?spoliation of evidence?

Nature of Case: Negligence, product liability, wrongful death

Electronic Data Involved: Dive information stored on VR3 dive computers

Tag:Motion for Sanctions