Archive - 2011

Thorncreek Apartments III, LLC v. Vill. of Park Forest, Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011)

The court held that privilege was waived as to inadvertently produced documents where defendants failed to take reasonable steps to prevent disclosure and failed to rectify the error in a timely way.  In so finding, the court cited defendants’ failure to conduct a final check before production, the failure of the process to protect any privilege (all privileged documents were produced), the nine months between production and discovery of the disclosure, and the failure to timely produce a privilege log, among other things.

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United States v. Universal Health Servs., Inc., No. 1:07cv000054, 2011 WL 3426046 (W.D. Va. Aug. 5, 2011)

Here, the Commonwealth sought to avoid producing allegedly inaccessible information.  The court declined to excuse production, reasoning in part that it was the Commonwealth’s own “negligent failure to take steps to adequately preserve information” which rendered the information "less accessible."  Instead, the court indicated that it would order the backup tapes and forensic images be produced to defendants “for use by a commercial vendor” to retrieve the information “in a format usable by the Commonwealth” and that defendants would bear the costs, subject to a motion seeking reimbursement.

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E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011)

The court found that defendant breached its preservation duty when key employees intentionally deleted ESI in bad faith.  Acknowledging Kolon’s (insufficient) attempts to place a litigation hold, the court declined to impose default judgment, but ordered sanctions in the form of attorneys’ fees, expenses and costs related to the motion, and an adverse inference instruction.  In so doing, the court rejected arguments that plaintiff suffered no prejudice and that because many of the files were recovered, there was no spoliation.

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Am. Nat’l Prop. & Cas. Co. v. Campbell Ins., Inc., No. 3:08-cv-00604, 2011 WL 3021399 (M.D. Tenn. July 22, 2011)

In this case, the court denied plaintiff’s Motion for Sanctions for Spoliation of Evidence as untimely, citing the facts that it had been 14 months since the alleged spoliation was discovered, that discovery had already closed, and that trial was weeks away.  In reaching its conclusion, the court relied heavily on the summary of the law regarding the timeliness of spoliation motions laid out by the court in Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009).

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In re Toft, No. 11-11049 (ALG), 2011 WL 3023544 (Bankr. S.D.N.Y. July 22, 2011)

In this case, a foreign applicant, Dr. Martin Prager, sought recognition and enforcement of a German court’s “Mail Interception Order” which authorized Prager, as insolvency administrator, to intercept the debtor’s postal and electronic mail.  The court, following its determination that there was a sufficient basis to exercise jurisdiction, denied the application upon finding that the relief requested was manifestly contrary to U.S. public policy.

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Genger v. TR Investors, LLC, No. 592,2010, 2011 WL 2802832 (Del. July 18, 2011)

As previously summarized on this blog (here), the Delaware Court of Chancery ordered sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction.  On appeal, the Delaware Supreme Court upheld the sanctions, citing the defendant’s intentional, affirmative actions to destroy documents, and clarified that it did not “read the Court of Chancery’s Spoliation Opinion to hold that as a matter of routine document retention procedures, a computer hard drive’s unallocated free space must always be preserved.”

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PIC Group, Inc. v. LandCoast Insulation, Inc., No. 1:09-CV-662-KS-MTP, 2011 WL 2669144 (S.D. Miss. July 7, 2011)

A Special Master determined that defendant’s discovery failures were largely the result of a “callous and careless attitude” rather than a “craven effort to hide or destroy information”, save one instance of intentional deletion by defendant’s Manager of Legal Affairs.  Adopting in part the Special Master’s recommendations, the court ordered sanctions, including production of the non-privileged contents of the manager’s hard drive and payment of plaintiff’s attorney’s costs and fees, with the condition that payment be rendered by defendant, not its insurance company.

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Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011)

In this case, plaintiff came to believe, based on defendant’s comments and refusal to issue a litigation hold, that relevant evidence would be destroyed.  Accordingly, plaintiff moved for an Order to Preserve Evidence.  Following consideration of the relevant factors and upon rejecting defendant’s arguments that plaintiff’s motion was improper prior to the parties’ Rule 26(f) conference, the court granted the motion and ordered defendant to implement a litigation hold on information that may reasonably be related to the pending litigation.

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