Lack of Cooperation / Inaccurate Representations – Page 21

Linde v. Arab Bank, PLC, 706 F.3d 92 (2d Cir. 2013)

Dec 01 2013

Key Insight: On appeal from sanctions order against Arab Bank, court found it did not have jurisdiction over the order for sanctions and dismissed the appeal; court also found Arab Bank was not entitled to a writ of mandamus vacating the sanctions order and the petition for a writ of mandamus was therefore denied

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

Bradford Techs., Inc. v. NCV Software.com, No. C 11-04621 EDL, 2013 WL 4033840 (N.D. Cal. Aug. 6, 2013)

Dec 01 2013

Key Insight: Where Plaintiff was previously sanctioned for violating the stipulated protective order when Plaintiff?s President viewed Defendant?s source code; where Plaintiff?s president later deleted evidence related to his violation of the stipulated protective order despite a duty to preserve (arising from Defendant?s requests for preservation and two court orders requiring the same), made no effort to preserve the other contents of his laptop, and made ?inconsistent representations to the court?; and where a second employee claimed he was not notified of his preservation obligations and thus wiped the contents of his laptop (at a ?suspicious? time), including a relevant power point, the court declined to impose terminating sanctions absent a showing of prejudice and upon its determination that the orders requiring preservation were arguably ambiguous (?insofar as they required Plaintiff to preserve evidence while at the same time ordering Plaintiff to return discs and delete source code, as Defendants requested?) but did order a monetary award of reasonable expenses that the defendants incurred in taking expedited discovery regarding the source code violation and indicated that ?[t]he court may well allow? Plaintiff?s President?s credibility to be impeached at trial regarding his violation of the protective order

Nature of Case: Breach of contract, misappropriation of trade secrets

Electronic Data Involved: ESI, contents of laptop(s)

Master Hand Contractors, Inc. v. Convent of the Sacred Heart of Chicago, No. 1-12-3788, 2013 WL 5940641 (Ill. App. Ct. Nov. 4, 2013)

Dec 01 2013

Key Insight: Trial court did not err in dismissing mechanics lien case with prejudice as sanction for plaintiff’s failure to comply with its discovery obligations for approximately 18 months and its violations of seven orders of the court, including three expressly final deadlines to produce electronic discovery materials, as the trial court applied progressive discipline to coerce compliance and gave plaintiff ample opportunities to escape possible discovery sanctions; appellate court criticized plaintiff?s approach to the ESI request, ?under which the company owner — who called himself a ?computer idiot? in open court — self-selected emails relating to the Sacred Heart project instead of using a search tool to find them, and printed them out one at a time, all without supervision of counsel.?

Nature of Case: School building construction litigation

Electronic Data Involved: ESI, including email

Moore v. Citgo Refining & Chemicals Co., 735 F.3d 309 (5th Cir. Nov. 12, 2013)

Dec 01 2013

Key Insight: No abuse of discretion in dismissal of 17 plaintiffs who violated two court orders to preserve where willfulness was inferred from their disregard of the courts orders, where the failure to seek clarification weighed against any claimed confusion, where the evidence lost was unique and where no lesser sanction would have sufficed (plaintiffs were warned of the possibility of dismissal before it was imposed); no abuse of discretion for dismissal of four additional plaintiffs for failure to preserve emails despite an explicit court order

Nature of Case: FLSA (employment)

Electronic Data Involved: ESI, emails, handwritten notes

Valentini v. Citigroup, Inc., No. 11 Civ. 1355(JMF), 2013 WL 4407065 (S.D.N.Y. Aug. 16, 2013)

Dec 01 2013

Key Insight: Court declined to dismiss complaint or grant adverse inference instruction as sanction for plaintiffs’ blatant disregard of the discovery process as there was no evidence of willfulness or maliciousness, and instead awarded all attorneys’ fees and costs that defendants incurred as a result of plaintiffs’ dilatory conduct; court further ordered parties to brief issue of whether more severe sanctions should be imposed against plaintiff entity that had failed to produce a single document from its files

Nature of Case: Fraud and related claims

Electronic Data Involved: ESI

Sung v. Mission Valley Renewable Energy, LLC, No. CV-11-5163-RMP, 2013 WL 4523561 (E.D. Wash. Aug. 27, 2013)

Dec 01 2013

Key Insight: Where defendants received plaintiff?s production of approximately 3,600 electronic documents less than two weeks before trial was to begin, and defendants were only able to obtain the documents after they arranged for an independent electronic discovery review in response to plaintiff?s prior discovery abuses, court found that the circumstances of case were extraordinary, that plaintiff acted willfully and in bad faith in violating FRCP 26, 37 and the court?s scheduling order, and that analysis of the five relevant factors warranted dismissal of plaintiff?s claims against each defendant with prejudice

Nature of Case: Washington State Securities Act claims, breach of fiduciary duty, negligence, and related claims

Electronic Data Involved: 3,600 electronic documents which, if printed out, would total more than 10,000 pages

In re Heinz, 501 B.R. 746 (Bankr. N.D. Ala. 2013)

Dec 01 2013

Key Insight: Although court found that evidence compelled conclusion that debtor?s spoliation of electronic evidence, failure to preserve both ESI as well backup paper documentation, and failure to produce thumb drive was willful and intentional given the timing during imminent or ongoing litigation, court declined to impose a specific sanction against the debtor such as a default judgment and instead drew an adverse inference against debtor to the extent it impacted the debtor?s overall credibility; court ultimately found that plaintiffs? claim against the debtor for $39,296, stemming from judgment obtained by plaintiffs against debtor for breach of contract, was not dischargeable

Nature of Case: Complaint to determine dischargeability

Electronic Data Involved: Thumb drive containing financial information from 2009 through 2011

IBM Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880 (Ind. Ct. App. 2013)

Dec 01 2013

Key Insight: Trial court did not abuse its discretion when it awarded third party some, but not all, of its discovery costs under court rule where court awarded all costs of non-party?s e-discovery vendor ($355,329) and one-half of non-party?s costs for dedicated document review team ($354,070), basing the 50% reduction on non-party?s ?largely unexplained? delay in producing documents and principles of general equity; nor did trial court abuse its discretion when it awarded IBM $425,179 in sanctions against same third party representing some, but not all, attorneys? fees and other costs IBM incurred as a result of non-party?s failure to comply with discovery orders, as court had authority under court rules and its inherent power to issue sanctions against non-parties, non-party?s resistance to or failure to comply with discovery orders was not substantially justified and sanctions were not otherwise unjust, and non-party?s conduct was sanctionable as IBM filed multiple motions to compel, trial court found that non-party?s opposition was not reasonable, and trial court intervened numerous times in the discovery process to secure non-party?s compliance

Nature of Case: IBM and the State of Indiana filed lawsuits against one another related to the State’s Family and Social Services Administration modernization initiatives

Electronic Data Involved: ESI

Thompson v. Am. Family Mut. Ins. Co., No. 2:09-CV-905 JCM (NJK), 2013 WL 164245 (D. Nev. Jan. 15, 2013)

Dec 01 2013

Key Insight: District court adopted in its entirety the recommendation of the magistrate judge that Plaintiff?s amended complaint be dismissed and that her answer to defendants? counterclaims be stricken as a sanction for willful and bad faith spoliation where Plaintiff gave her relevant computers to her brother who then took them to Indonesia where he lived and where this spoliation resulted in severe prejudice to defendants; the opinion also upheld a prior order of the magistrate imposing sanctions in the form of findings detrimental to the plaintiff for ?ongoing and repetitive violations of discovery obligations?; as to both the recommendation adopted and the order upheld, the court granted defendant?s request for attorneys fees

Nature of Case: Alleged violation of restrictive covenant with prior employer

Electronic Data Involved: Two computers

Tag:Lack of Cooperation / Inaccurate Representations