Catagory:Case Summaries

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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Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. June 22, 2011)

In this case arising from a car accident which the plaintiff claimed resulted in physical and psychological injuries, the parties invited the court to conduct a review of Plaintiff’s social networking accounts “in order to determine whether certain information contained within Plaintiff’s accounts is properly subject to discovery.”  Using Plaintiff’s log-in information, the court reviewed Plaintiff’s Facebook account, including “a thorough review of Plaintiff’s ‘Profile’ postings, photographs, and other information.”  (Plaintiff’s MySpace account was not searched as it had not been accessed since November 2008 and Plaintiff could not locate the log-in information.)  The court then identified potentially relevant information to be produced, including, for example, photos and updates indicating recent motorcycle trips and “photographs and comments suggesting that he may have recently ridden a mule.”  In finding that some of the “public information contained in Plaintiff’s account is properly subject to limited discovery in this case,” the court noted Plaintiff’s acknowledgment that “limited [relevant] ‘public’ information is clearly discoverable under recent case law.”

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Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 10 Civ. 3488 (SAS) (S.D.N.Y. June 17, 2011)

On February 7, 2011, Judge Scheindlin issued an opinion in which she concluded that “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’”  (See a summary of that opinion here.)  The opinion also provided substantial guidance regarding the “minimum fields of metadata that should accompany any production of a significant collection of ESI."  That opinion has now been withdrawn.

The text of the Order withdrawing the opinion is short, and is provided below:

This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).

A copy of the opinion is also available here.

Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662 (D. Md. June 15, 2011)

In another chapter of the Victor Stanley saga, the defendant objected to payment of the remaining balance of the monetary sanction ordered as a result of its spoliation of evidence (see Victor Stanley II).  Specifically, the defendant had been ordered to pay a monetary sanction “equivalent to Plaintiff’s fees and costs ‘associated with all discovery that would not have been un[der]taken but for Defendant’s spoliation, as well as the briefings and hearing regarding Plaintiff’s Motion for Sanctions.’”  The total award of sanctions amounted to $1,049,850.04.  Defendant objected to payment of fees which it alleged were unrelated to its spoliation.  The District Court disagreed and found that the recommended award was proper.  Accordingly, defendant was ordered to pay the remaining balance of the sanction, $571,440.12, by July 15, 2011.

A copy of the order is available here.

Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011)

For discovery violations, including (among others) false certification that all relevant records were kept in paper format, delayed and inadequate production and failure to search for documents in a timely manner, and counsel’s failure to adequately familiarize himself with his client’s document retention practices or to assist in the production of documents, the court imposed monetary sanctions equal to the amount expended because of plaintiff’s discovery abuses, to be born by plaintiff and its counsel jointly and severally.

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