Tag: Spoliation

1
Optrics Inc. v. Barracuda Networks, Inc. (N.D. Cal. Feb. 4, 2021)
2
Liadis v. Suburban Mobility Authority for Regional Transportation (Mich. Ct. App. January 28, 2021)
3
Holloway v. County of Orange (C.D. Cal. 2021)
4
Cretacci v. Hare
5
DR Distributors v. 21 Century Smoking, Inc. (N.D. Ill. 2021)
6
Bruno v. Peak Resorts, Inc. (N.Y.A.D. Jan. 14, 2021)
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Charter Communications Operating, LLC v. Optymze, LLC (Del. Ch. 2021)
8
Laub v. Horbaczewski (C.D. Cal. 2020)
9
Milke v. City of Phoenix (D. Ariz. 2020)
10
Charlestown Capital Advisors, LLC v. Acero Junction, Inc. (S.D.N.Y. Sept. 30, 2020)

Optrics Inc. v. Barracuda Networks, Inc. (N.D. Cal. Feb. 4, 2021)

Key Insight: The Plaintiff in litigation over claims of trademark infringement, unfair competition and breach of contract failed to preserve and destroyed discoverable electronic data, and similarly, failed to prepare for 30(b)(6) depositions. Moreover, there were repeated delays (and time extensions) in Plaintiff responding to Defendant’s discovery requests. In doing so, the Plaintiff repeatedly disobeyed discovery orders issued by the Court.

The litigation settled while discovery was pending. The Defendant moved for sanctions against the Plaintiff for its conduct in discovery, and the Court, pursuant to FRCP 37(b), awarded sanctions against Plaintiff and its counsel, jointly and severally. Plaintiff’s former counsel subsequently claimed that it should not be held liable for the sanctions because it was unable to control the conduct of its client in responding to discovery order(s) and requests.

Nature of Case: Intellectual Property, Trademark Infringement, Contracts, Unfair Competition

Electronic Data Involved: Email, Electronic Files, Hard Drives.

Case Summary

Liadis v. Suburban Mobility Authority for Regional Transportation (Mich. Ct. App. January 28, 2021)

Key Insight: The trial court ordered plaintiff to produce her laptops to defendant’s computer forensic expert. In the days prior to turning over the laptops, about 41,000 unidentified files were deleted by a computer program called “CCleaner.” Defendant moved to dismiss plaintiff’s complaint based on spoliation and discovery violations and the trial court denied defendant’s motion. The Court of Appeals agreed with the trial court and found that plaintiff did not intentionally destroy evidence and it was unlikely that any evidence was in fact lost. Both sides’ forensic experts found the CCleaner was installed before the complaint was filed and was set to run automatically. The court was open to a lesser sanction than dismissal such as an adverse jury instruction should defendant request one.

Nature of Case: Personal Injury

Electronic Data Involved: Laptop files

Case Summary

Holloway v. County of Orange (C.D. Cal. 2021)

Key Insight: The court granted defendants’ motion for sanctions based on spoliation of evidence based on plaintiff’s deletion of his Facebook account. “Plaintiff had an obligation to preserve his Facebook account, he deleted the account with a culpable state of mind, and the account was relevant to Defendants’ claims.” The court further ordered that an adverse inference jury instruction was appropriate.

Nature of Case: Civil Rights

Electronic Data Involved: Social Media, Facebook

Case Summary

Cretacci v. Hare

Key Insight: A party must explicitly request all possible remedies it seeks. Courts will not impose unrequested sanctions even if it determines lesser sanctions were warranted. Plaintiff only requested a default judgment sanction which requires that Defendants intentionally lost or destroyed data so it could not be used in litigation. Because there was no finding of intent, a default judgment sanction could not be issued. A lesser sanction of “measures no greater than necessary to cure the prejudice” could have been imposed because Plaintiff was prejudiced by the loss of ESI and there is no intent requirement. However, no sanctions were issued because such sanctions were not requested.

Nature of Case: Civil Rights

Electronic Data Involved: Video

Case Summary

DR Distributors v. 21 Century Smoking, Inc. (N.D. Ill. 2021)

Key Insight: The court granted plaintiff’s motion for sanctions but declined to find “intent to deprive” under Rule 37(e), instead applying Rule 26(g) for failing “to make a reasonable investigation to ensure that [defendant] provided all available responsive information and documents.” The court issued sanctions and curative measures under Rules 37(a), 37(b), 37(c) and 37(e)(1). This 256-page sanctions opinion arises from ESI issues beginning at the outset of protracted litigation involving infringement claims over similar trademarks for e-cigarettes. Defendants and their counsel were sanctioned for multiple failures to preserve and collect ESI, including: failure to preserve messages from web-based email and chat applications; failure to turn off auto-delete functions on messages; defense counsel’s failure to follow-up with written hold instructions to preserve relevant ESI and take steps to collect messages from web-based applications; defense counsel’s failure to perform custodial interviews to identify likely sources of ESI; defense counsel’s failure to understand that relevant emails may be found in both corporate and personal email and mistakenly believed that data within the web applications would be saved to corporate hard drives; failure to disclose the existence of relevant ESI; defense counsel offered false testimony about the existence of ESI; and defense counsel’s failure to supervise defendants in self-collected ESI.

Nature of Case: Trademark infringement (Lanham Act)

Electronic Data Involved: Email, Instant messages

Case Summary

Bruno v. Peak Resorts, Inc. (N.Y.A.D. Jan. 14, 2021)

Key Insight: The trial court granted an adverse inference instruction and the appellate court affirmed, finding that plaintiff engaged in spoliation of evidence when he (1) posted a comment to a blog entry about trail conditions on the mountain on the date of his injuries and then later deleted the comment, and (2) belatedly produced Facebook posts relating to his injuries. Plaintiff failed to provide “accurate representations” regarding his posts. His deleted blog comment related to whether the ski trail where he sustained injuries was open or closed on the day of his accident and its subject matter went directly to defendants’ defenses.

Nature of Case: Negligence; Personal Injury

Electronic Data Involved: Blog Post

Case Summary

Charter Communications Operating, LLC v. Optymze, LLC (Del. Ch. 2021)

Key Insight: Defendant committed serious misconduct sufficient to justify dismissal of its counterclaims under Rule 41(b). Defendant refused the reasonable request for native files exchanged via Microsoft Teams. Defendant produced individual emails containing each message. In this format, the messages could not be reassembled into complete conversations. Defendant was compelled to produce the native files which revealed extensive spoliation of evidence. Defendant edited numerous chat messages in an effort to hide instructions to employees to take actions that violated court orders. Because all of the unaddressed misconduct related to Defendant’s counterclaims, dismissal of those counterclaims with prejudice and award of fees and expenses is an adequate remedy.

Nature of Case: Breach of Contract

Electronic Data Involved: Instant message

Case Summary

Laub v. Horbaczewski (C.D. Cal. 2020)

Key Insight: Plaintiffs sought Slack messages and defendants claimed they did not have access to the messages because of its level of Slack plan. The court instructed plaintiffs to pursue the Slack messages through a third party subpoena and defendants objected to the overbroad scope of the subpoena. The court concluded plaintiffs “credibly argued” that the Slack messages “may be relevant to the issues involved in this case,” but found that the request was not proportional to the needs of the case under the second prong of Rule 26(b)(1) because: (1) The defendants did not have access to the messages and requiring them to produce the messages would impose an undue burden and expense, and (2) the messages would likely be cumulative because the record was “replete with evidence of Plaintiffs’ involvement” and plaintiffs “offer no evidence that the private messages contain any novel or noteworthy information that warrant compelling their production.”

Nature of Case: Breach of contract

Electronic Data Involved: Instant messages

Case Summary

Milke v. City of Phoenix (D. Ariz. 2020)

Key Insight: The court dismissed plaintiff’s civil rights action based on spoliation of physical and ESI evidence, and for failure to submit complete and accurate discovery responses. The court previously sanctioned plaintiff for spoliation of evidence and determined that lesser sanctions short of dismissal could not cure the prejudice to defendant. Plaintiff, her agents, and her counsel failed to preserve website and social media sites and took affirmative steps on multiple occasions to destroy the evidence after litigation became reasonably foreseeable.

Nature of Case: Civil Rights Act

Electronic Data Involved: Social media and websites

Case Summary

Charlestown Capital Advisors, LLC v. Acero Junction, Inc. (S.D.N.Y. Sept. 30, 2020)

Key Insight: Sanctions against Defendants were warranted. Defendants had a duty to preserve relevant ESI at the time of their deletion which occurred a year into the litigation. Defendants failed to take reasonable steps to preserve relevant ESI. Defendants failed to suspend their routine document retention/destruction policy, Defendants’ counsel failed to oversee or play a role in preserving or attempting to reconstruct relevant ESI until 5 months after their deletion, and Defendants’ restoration attempts were inadequate.

Nature of Case: Breach of Contract

Electronic Data Involved: Email

Case Summary

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