Tag:Lack of Cooperation / Inaccurate Representations

Key Insight: Where defendant used special software to erase computer hard drives that allegedly contained infringing karaoke accompaniment tracks marked with plaintiffs’ registered trademarks, court determined that defendant acted willfully in destroying the evidence, which he knew to be especially relevant, and that his admitted spoliation of evidence severely impaired the plaintiffs’ ability to litigate the case; accordingly, court denied defendant?s motion for summary judgment based on lack of evidence, and granted summary judgment for plaintiffs on issue of liability, instructing that plaintiffs must still prove up damages

Nature of Case: Trademark and tradedress infringement

Electronic Data Involved: Unauthorized counterfeit duplicates of karaoke accompaniment tracks on hard drives

Key Insight: Court ordered dismissal of Plaintiff?s claims with prejudice and payment of Defendant?s attorney?s fees and costs incurred for numerous discovery motions and forensic inspection of Plaintiff?s electronic devices for Plaintiff?s bad faith spoliation including defiance of the court?s discovery orders by refusing to submit certain devices and accounts for forensic inspection and by refusing to produce certain information and the destruction of ESI by wiping both his iPhone and Blackberry device, among other things

Nature of Case: Employment litigation (harassment, retaliation)

Electronic Data Involved: ESI, forensic inspection of devices (iPhone, Blackberry)and accounts

Key Insight: District court judge adopted magistrate judge’s 2/27/2014 Report and Recommendations, except to the extent it found plaintiff had complied with prior discovery orders, and as sanction for failure to comply with orders, ordered plaintiff to pay defendants’ reasonable expenses and attorneys’ fees associated with briefing and hearings; judge further adopted in full magistrate judge’s 3/13/2014 Report and Recommendation which found that defendant failed to preserve or produce all documents it should have and recommended burden-shifting sanction rather than adverse inference instruction; judge awarded plaintiff its reasonable expenses and attorneys’ fees associated with its motion for sanctions

Nature of Case: Patent infringement and various violations of Illinois law

Electronic Data Involved: ESI

Key Insight: Recounting history of defendants? discovery misconduct, prior motions and orders, and finding that defendants? spoliation of evidence stored on individual defendant’s laptop computer and smartphone was willful and in bad faith and caused significant prejudice to plaintiff by eliminating the only identified source of defendants? business records, magistrate judge recommended that extreme sanction of judgment by default as to liability on all counts of the amended complaint be entered against defendants; magistrate further recommended that, pursuant to FRCP 55(b)(2), an evidentiary hearing be held to give plaintiff the opportunity to prove damages

Nature of Case: False advertising, unfair competition and defamation

Electronic Data Involved: ESI stored on laptop and smartphone

Key Insight: District court adopted magistrate judge?s recommendation (at 2013 WL 6992130) that plaintiff?s motion for adverse inference instruction be granted as sanction for defendant?s grossly negligent failure to preserve internal emails in violation of its own retention policy; court deferred ruling on the language of the jury instruction until the filing of pretrial memoranda so as to consider proposed jury instructions as a whole

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Internal emails