Tag:Lack of Cooperation / Inaccurate Representations

Key Insight: Court imposed sanctions for several discovery violations: 1) for failing to provide Plaintiffs with information regarding its process for scrubbing calling lists against the do not call list and for providing a deponent with insufficient knowledge of the issue, court characterized defendant?s behavior as ?obstructive, contumacious, and willful? and precluded the use of evidence about the creation and scrubbing of telemarketing campaign lists; 2) for failing to preserve ESI related to a particular calling campaign despite a duty to preserve, court issue finding of fact that the campaign was conducted for commercial purposes; 3) for obstructive behavior related to whether it shared lead lists to retailers, including inaccurate statements and for failing to preserve information related to the same, court imposed adverse inference

Electronic Data Involved: ESI

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

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)

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