Archive - 2009

Green v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009)

Upon one of the defendant’s revelation that she had lost all original versions of electronic files when she transferred those files to CD and then reinstalled her operating system, plaintiff filed a motion for sanctions.  Finding that the defendant and counsel violated their duty to preserve evidence, the court authorized additional discovery and awarded plaintiff his costs, including attorney’s fees, to be paid by the defendant and her counsel.

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Coburn Group, LLC v. Whitecap Advisors, LLC, 640 F. Supp. 2d 1032 (N.D. Ill. 2009)

In this case, defendant, Whitecap Advisors LLC (“Whitecap”), sought to compel the return of one privileged email and to strike deposition testimony regarding the same.  Plaintiff, Coburn Group, LLC (“Coburn”), resisted returning the email arguing that it was not protected work product, that privilege was waived by production, and that Coburn was “entitled” to the email because it revealed that Whitecap had mislead the court.  Finding that the email was protected as work product and that no waiver occurred, the court granted Whitecap’s motion.

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Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009)

In this case, plaintiff Bray & Gillespie Management, LLC (“B&G”) sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004.  Defendant, Lexington Insurance Company (“Lexington”), refused payment for several reasons, including its belief that the damages alleged were caused by two prior hurricanes and that the hotel at issue was not open at the relevant time.  In this opinion, one of several addressing discovery issues in this ongoing litigation, the court addressed Lexington’s motion for sanctions following numerous discovery violations on the part of B&G and its counsel.  The alleged violations revolved around the untimely production of “room folios” – evidence which would have shown who, if anyone, had stayed at the hotel following Hurricane Jeanne, and thus, the extent of the business interruption losses sustained.  Finding in favor of Lexington, the court prohibited B&G from presenting evidence in support of their claim for business interruption losses, struck the portions of their expert’s report addressing that claim, and ordered B&G and counsel jointly and severally liable for Lexington’s reasonable expenses.

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Ferron v. Echostar Satellite, LLC, 2009 WL 2370623 (S.D. Ohio July 30, 2009)

Plaintiff’s 1300-page complaint alleged numerous violations of the Ohio Consumer Sales Practice Act against multiple defendants for sending email messages which conveyed a commercial advertisement and displayed the name and/or logo of “Dish Network.”  In the course of discovery, Plaintiff sought sanctions for three defendants’ alleged failure to preserve website links to images contained in those messages.  Because paper copies of the messages were preserved and available and because Plaintiff did not establish defendants’ duty to maintain certain websites, the court found Plaintiff failed to establish bad faith.  Moreover, Plaintiff failed to establish that the images at issue were necessary or relevant to his claims.  Accordingly, Plaintiff’s motion for sanctions was denied.  [Note:  Defendant E-Management Group, Inc. (“E-Management”) was the only defendant to respond to Plaintiff’s motion(s). Nonetheless, the court denied sanctions as to all three accused defendants upon analysis of E-Management’s arguments and defenses.]

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Sonomedica, Inc. v. Mohler, 2009 WL 2371507 (E.D. Va. July 28, 2009)

In this case, the court adopted the recommendation of the magistrate judge and found third parties in contempt for violation of the court’s orders, including the spoliation of electronically stored information on hard drives they were ordered to produce, and ordered them to pay plaintiff’s attorney’s fees and costs in the amount of $108,212.15 and for the case to be referred to the United States Attorney for investigation of possible criminal sanctions.

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Southeastern Mech. Servs., Inc. v. Brody, 2009 WL 2242395 (M.D. Fla. July 24, 2009)

Defendant Thermal Engineering Construction Services, Inc. (“TEI”) moved for spoliation sanctions alleging that plaintiff failed to adopt a proper litigation hold procedure which resulted in the automatic deletion of email and other electronically stored information (“ESI”) from plaintiff’s backup tapes.  Specifically, plaintiff failed to preserve information from Defendant Norman Brody following his last day of employment with plaintiff.  Despite finding that plaintiff had a duty to preserve relevant evidence at the time of the loss, the court declined to impose sanctions absent a showing of bad faith and denied TEI’s motion.

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Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009)

In this case, defendant Manpower, Inc. (“Manpower”) failed to distribute the litigation hold notice that was provided to it by counsel and failed to monitor compliance with oral instructions to some managers.  As a result, “possibly relevant emails were destroyed.”  Despite significant efforts, the deleted data could not be recovered from the system.  Approximately 700 emails were recovered from their recipients, however, and the emails’ attachments were preserved on “another server.”  Plaintiff sought sanctions against Manpower and its counsel.  Specifically, plaintiff sought default judgment or an adverse inference instruction.  The court denied plaintiff’s motion as to counsel, but agreed that some sanctions were warranted against Manpower.  Accordingly, the court’s order allowed plaintiffs to re-open depositions to address the late production and to seek additional relief if the need arose and ordered Manpower to contribute $2500 to the local bar association to support a seminar on litigation hold orders and preservation of electronic data.

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Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Sup. Ct. 2009)

Reversing the trial court, the appellate court found that an employee’s communications with her attorney via her personal email account were privileged despite the use of her work computer to send those communications.  The trial court previously ruled that the communications were not privileged as a result of the employee’s use of her work computer, in light of her employer’s policy that, according to the trial court, “put plaintiff on sufficient notice that her emails would be viewed as company property.”  In reversing the trial court, the appellate court found that “the policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation.” 

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KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009)

Plaintiff moved the court for default judgment, sanctions, or an adverse inference instruction based on defendant Vanaire’s spoliation of evidence, including the deletion of software and electronically stored information (“ESI”) from its computers.  Specifically, following a phone call from plaintiff’s president indicating his belief that Vanaire was using plaintiff’s software, defendant Guillermo Vanegas instructed Vanaire employees to delete any software “that he did not purchase or did not own.”  Additionally, even after plaintiff filed its complaint and sent an evidence-preservation letter, Vanaire failed in its duty to preserve “by continuing to delete and overwrite” ESI.

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U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)

In this case, the Government sought to discover the contents of defendant’s email sent or received at a Microsoft/MSN Hotmail account. Accordingly, the Government executed a trial subpoena seeking production of “‘the contents of electronic communications (not in ‘electronic storage’ as defined by 18 U.S.C. § 2510(7)’ and specified that the ‘[c]ontents of communications not in ‘electronic storage’ include the contents of previously opened or sent mail.’”  Microsoft declined to produce the content of previously accessed, viewed, or downloaded emails that had been stored for fewer than 181 days citing precedent from the Ninth Circuit Court of Appeals that such production would require a warrant.  Because Microsoft is located within the Ninth Circuit, it felt it must comply.  The Government sought to compel production.

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