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Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013)

In this case, the court imposed sanctions for discovery violations, including wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) addressing the appropriate format of production. Notably, the award was made jointly and severally against Plaintiff and counsel.

In response to each of Defendants’ Requests for Production, Plaintiff stated: “[Branhaven] will make the responsive documents available for inspection and copying at a mutually convenient time.”  The responses were signed by Plaintiff’s counsel pursuant to Rule 26(g), thus certifying that “the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.”  At the time of the response and certification, however, counsel had done little more than forward the requests to his client and had not yet been provided with any discovery responses.  Indeed, several of the primary sources for the ultimately produced data—two email servers and two laptops—had not yet been accessed, let alone searched.  Moreover, “counsel essentially admitted” that his response was intended to “buy time and technically comply with Rule 34” and also admitted that the “response was essentially meaningless in terms of identification and production of responsive documents.”

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Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Upon receipt of “dueling letters” concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered.  Indeed, the court identified the “one decretal paragraph” that stated that “Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ….“ and concluded that, “[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.”  (Emphasis added.)

Peerless Indus., Inc. v. Crimson AV, LLC, No. 1:11-cv-1768, 2013 WL 85378 (N.D. Ill. Jan. 8, 2013)

In this case, the court concluded that Defendants’ reliance on a vendor to accomplish collections from a non-party whose documents were in Defendants’ control was “insufficient” and granted Plaintiff’s motion for sanctions.  Specifically, the court ordered Defendants to “show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located," to "specifically verify what it is they cannot produce” and ordered Plaintiff to submit its bill of costs related to preparation of the motion.

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Garcia v. City of Laredo, —F.3d—, 2012 WL 6176479 (5th Cir. Dec. 12, 2012)

On appeal, the Fifth Circuit affirmed the district court’s interpretation of the Stored Communications Act (“SCA”) and concluded that it does not apply to data stored in a personal cell phone.

Plaintiff was previously employed as a police dispatcher for the City of Laredo.  On November 15, 2008, Plaintiff’s cell phone was removed from her unlocked locker by an officer’s wife who then shared its contents with the city’s deputy assistant city manger and the interim/assistant police chief because she believed that she had discovered evidence of Plaintiff’s violations of department policy.  Later, investigators successfully downloaded one video recording and more than thirty digital images from Plaintiff’s phone, but were unable to download text messages.  Following further investigation it was determined that Plaintiff had violated department rules and regulations and she was terminated from her employment.

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Micron Tech., Inc. v. Rambus, Inc., No. 00-792-SLR (D. Del. Jan. 2, 2013)

Following remand from the Federal Circuit, the District Court considered the question of “whether Rambus acted in bad faith when it engaged in spoliation and the nature and extent of any prejudice suffered by Micron as a result . . . .” and found that “Rambus’ spoliation was done in bad faith, that the spoliation prejudiced Micron, and that the appropriate sanction [was] to declare the patents-in-suit unenforceable against Micron.”

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Day v. LSI Corp., No. CIV 11-186-TUC-CKJ, 2012 WL 6674434 (D. Ariz. Dec. 20, 2012)

In this case arising from the alleged breach of an employment contract, discrimination, and related claims, the court found that Defendant was “at fault” for failing to preserve relevant evidence and imposed serious sanctions accordingly.  Notably, the court’s analysis focused significantly on the actions of Defendant’s General Counsel, who the court found had “at least acted willfully” in his failure to preserve particular evidence, and also relied, in part, on Defendant’s failure to follow its own document retention policies.

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