Lack of Cooperation / Inaccurate Representations

Bursztein v. Best Buy (S.D.N.Y. 2021)

May 17 2021

Key Insight:

Plaintiff moved to sanction Defendant for failure to comply with discovery obligations and spoliation of evidence in personal injury and premises liability litigation. The discovery requests that led to Plaintiff’s Motion were for video surveillance of, and facilities records and training manuals related to the “slip and fall” incident at issue in the litigation; the Defendant did not fully respond to the requests, and failed to preserve electronically stored information (ESI) relating to the incident.

The Court partially granted Plaintiff’s Motion for Sanctions, allowing Plaintiff to present evidence at trial regarding Plaintiff’s spoliation of the ESI, and awarding attorney’s fees and costs incurred in briefing the Motion. The Court found that the Defendant failed to preserve the surveillance footage as well as entries in its Facilities Request System. Moreover, the Defendant failed to produce the above mentioned facilities records and training manuals.

Nature of Case: Personal Injury, Premises Liability

Electronic Data Involved: Surveillance Video, Facilities Request System (Database)

Case Summary

Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.

The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.

Nature of Case: Employment

Electronic Data Involved: Text Messages, iMessages, Cellular Phone

Case Summary

Brown v. SSA Atlantic (S.D. Ga. 2021)

Mar 16 2021

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Cary v. Ne. Ill. Reg’l Commuter R.R. Corp. (N.D. Ill. Feb. 22, 2021)

Feb 22 2021

Key Insight: Court granted, in large part, plaintiff’s motion to compel ESI, requiring defendant to disclose data sources that may contain relevant ESI and refused to impose an “arbitrary limit of five or seven custodians” requested by defendants given the number of people identified as having potentially relevant information in their initial disclosures. The court urged the parties to agree upon search terms to less the burden of ESI searches and revisit an agreed time period in light of the court’s memorandum and order, rather than take “absolute line-in-the-sand positions” (citing Standing Order Relating to the Discovery of Electronically Stored Information at Principle 1.02 (Cooperation)). The court denied plaintiff’s request to produce the entire contents of her work email, finding the blanket request overbroad on its face.

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Case Summary

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

Feb 04 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

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)

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

Balderas v. Ill. Cent. R.R. Co. (N.D. Ill. Jan. 8, 2021)

Jan 08 2021

Key Insight:

Further discovery must be based on more than mere speculation or suspicion that additional documents exist. The moving party must make a case showing “it can be reasonably deduced that other documents exist[.]”

The Court was unable to reach a ruling regarding Plaintiff’s requested search terms due to insufficient information. While Defendants did reject the terms and did not provide alternatives, plaintiff did not say what the requested terms were or why they were rejected.

With regards to specific discovery requests, Defendants were ordered to search for and produce responsive documents. The Court noted “boilerplate” objections without further explanation are equivalent to making no objection at all and individual authorization to access electronic communications is not required when the individuals are parties to the case. Additionally, emails and texts messages party’s employee are a compelling form of evidence that can be particularly significant in litigation.

Nature of Case: Civil Rights, Employment Discrimination

Electronic Data Involved: Personnel Records, Business Records, Electronic Communications, Email, Texts, Voicemails, Instant Messages, Electronic Documents Generally

Case Summary

Marine Depot, Int’l, Inc. v. James River Grp., Inc. (S.D. Fla. Dec. 30, 2020)

Dec 30 2020

Key Insight: Defendant asked the court to compel plaintiff to search its computers and servers for responsive documents and contended certain documents should exist and have not yet been produced. The court noted “Rule 34 is silent as to how a party must locate these responsive documents, and the measures a party must take in conducting its search.” Further, defendants offered no case law that would require plaintiff to search a location it had no reason to believe responsive documents would be located. Absent any factual basis to believe that additional search of plaintiff’s server is necessary or to rebut plaintiff’s sworn testimony that there are no relevant, non-duplicative documents stored there that have not already been produced, no further search was ordered and sanctions were not appropriate.

Nature of Case: Breach of contract

Electronic Data Involved: Email

Case Summary

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

Oct 30 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

Tag:Lack of Cooperation / Inaccurate Representations