Lack of Cooperation / Inaccurate Representations – Page 20

United States v. Simpson, No. 12-10574, 2014 WL 148654 (5th Cir. Jan. 15, 2014)

Dec 01 2014

Key Insight: Appellate court upheld conviction for obstruction of justice based on deletion of email, where defendant admitted deleting email in response to being told about the execution of search warrants at a co-conspirator’s home and office, and there was evidence that defendant did more than simply delete emails but had also tampered with the drive from which the emails had been deleted

Nature of Case: Criminal case involving wire and mail fraud conspiracy and obstruction of justice convictions

Electronic Data Involved: Deleted email

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Dec 01 2014

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

First Senior Fin. Group LLC v. ?Watchdog,? No. 12-cv-1247, 2014 WL 1327584 (E.D. Pa. Apr. 3, 2014)

Dec 01 2014

Key Insight: Court applied four-part test to determine that defendant acted intentionally and in bad faith to suppress or withhold relevant evidence, but because the prejudice to plaintiffs resulting from the spoliation appeared minimal and plaintiffs did not present any arguments as to how the spoliation prejudiced the ultimate merits of their case, court would only require defendant to pay the cost of the independent computer forensics expert and attorneys’ fees associated with plaintiffs’ motion for spoliation sanctions; court denied all other relief and sanctions sought by plaintiffs

Nature of Case: Defamation, tortious interference with business relationships, civil conspiracy, violations of the Lanham Act

Electronic Data Involved: ESI, computer hard drive

James v. Nat?l Fin. LLC, No. 8931-VCL, 2014 WL 6845560 (Del. Ch. Dec. 5, 2014)

Dec 01 2014

Key Insight: Where defendant failed to provide all the information required by the court’s first discovery order, then failed to comply with second discovery order that required production of an updated spreadsheet with an affidavit from defendant?s IT consultant explaining how the consultant extracted data from defendant’s systems and imported the data into the updated spreadsheet, and where defendant made numerous misrepresentations to plaintiff and to the court regarding the data and defendant?s efforts to comply with the orders, court declined to enter default judgment as a discovery sanction and instead ordered that certain facts adverse to defendant were to be deemed established; court further awarded plaintiff her expenses, including attorneys? fees, to be paid by both defendant and its counsel

Nature of Case: Putative class action alleging that defendant’s loan practices were unconscionable and its loan terms unenforceable

Electronic Data Involved: Spreadsheet containing loan history information

Regulatory Fundamentals Group LLC v. Governance Risk Mgmt. Compliance, LLC, No. 13 Civ. 2493(KBF), 2014 WL 3844796 (S.D.N.Y. Aug. 5, 2014)

Dec 01 2014

Key Insight: Court imposed terminating sanctions for willful and bad faith spoliation on the part of the defendant (who also happened to be a lawyer), including manual deletion of relevant emails, closing an email account maintained by a third party service provider for the purpose of ensuring the deletions and undertaking significant efforts to cover his tracks (including creating a false paper trail attempting to shift the blame to the service provider), and making misrepresentations to the court and opposing counsel, among other things

Nature of Case: Breach of contract, copyright infringement

Electronic Data Involved: ESI, emails, emails maintained by third party service provider

Pettit v. Smith, No. CV-11-02139-PHX-DGC, 2014 WL 4425779 (D. Ariz. Sep. 9, 2014)

Dec 01 2014

Key Insight: Granting in part plaintiff’s motion for spoliation sanctions, court ruled that under the special circumstances of the case and notwithstanding that it was not a party to the litigation, Arizona Department of Corrections had duty to preserve the missing evidence, its failure to do so was at least grossly negligent, evidence was plainly relevant and plaintiff was clearly prejudiced by its loss; court declined to impose case-terminating sanctions against individual defendants but would allow parties to present evidence and argument about the lost evidence and would instruct jury that ADC had a duty to preserve evidence, ADC did not preserve the evidence, and jurors may infer that lost evidence would have been favorable to plaintiff

Nature of Case: Inmate alleged correctional officers used excessive force

Electronic Data Involved: Videotape of event, photograph of plaintiff’s hand, and other documentary evidence

Ablan v. Bank of Am. Corp., No. 11 CV 4493, 2014 WL 6704293 (N.D. Ill. Nov. 24, 2014)

Dec 01 2014

Key Insight: Adopting magistrate judge’s report and recommendation, district court granted defendants? motion to strike plaintiffs? additional damages claim as sanction for plaintiffs? tardy production of documents relating to additional damages claim, which production occurred more then three months after discovery period closed, as plaintiffs offered no justification for failing to timely produce the documents and defendants would be prejudiced if plaintiffs were allowed to rely on the new evidence to defeat summary judgment or at trial; court further awarded defendants their attorneys? fees incurred in filing the motion, but denied defendants? request for expert costs associated with reviewing the new information because defendants? experts would have reviewed any new information even if it had been timely, and there was no evidence that defendants? experts had to revise their expert reports due to the belated production, and therefore no excess expert costs resulted from the late production

Nature of Case: Breach of contract

Electronic Data Involved: Documents on eight CD-ROMS

Stream Cos., Inc. v. Windward Adver., No. 12-cv-4549, 2013 WL 3761281 (E.D. Pa. July 17, 2013)

Dec 01 2013

Key Insight: Magistrate judge addressed accusations of spoliation and violation of court orders and found that monetary sanctions were appropriate for defendants? spoliation of emails which were deleted (as evidenced by forensic investigation) after the duty of preservation arose but declined to find spoliation had occurred as to defendants? laptops or external storage devices where Plaintiff presented little more than evidence of Defendants? lack of credibility; magistrate judge imposed sanctions for violation of court?s orders where Defendants made unilateral decisions not to produce certain electronic devices but gave numerous assurances that everything had been produced; magistrate judge found Plaintiff had established a prima facie case of defendants? contempt of the court?s discovery orders and preliminary injunction order and certified certain underlying facts for consideration by the District Court

Nature of Case: Violations of Computer Fraud and Abuse Act, Copyright Act, PA Wiretap Act, state trade secret law, duty of loyalty

Electronic Data Involved: Email, storage devices (iPad, iPhone, thumb drives), personal computers

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

Tag:Lack of Cooperation / Inaccurate Representations