Key Insight: Appellate court affirmed sanction of dismissal of plaintiffs? claims for spoliation where plaintiff was found to have undertaken ?knowing and willful? spoliation of ?pertinent? evidence resulting in prejudice to the defendant by destroying relevant hard drives
Nature of Case: Legal Malpractice
Electronic Data Involved: ESI, hard drives
Key Insight: For the City of Detroit?s bad faith spoliation of emails, the court declined to impose terminating sanctions but imposed a permissive adverse inference; for the City?s and its attorneys? ?bad faith disregard of their discovery obligations and the orders of this Court? which led to the destruction of evidence (including failing to disseminate a legal hold notice and Corporation Counsel?s ?utter delinquen[ce] in his duty to see that his clients complied with Judge Rosen?s orders?), the court ordered the city and Corporation Counsel to split plaintiffs? reasonable fees and costs; in its analysis related to an adverse inference, the court adopted the analysis of Forest Labs. Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. 2009), which held that an adverse inference may be appropriate in some cases involving the negligent destruction of evidence (as opposed to bad faith, which some courts have held is necessary)
Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence
Electronic Data Involved: Emails
Key Insight: Where relevant evidence found on defendants? hard drive ?challenge[d]? defendants? prior assertions that they had not retained copies of certain communications and defendant Walker?s ?self characterization as a peripheral observer?, the court concluded that Plaintiff had made a prima facie showing of fraud and that defendants therefore waived their attorney-client privilege as to communications with counsel regarding: ?preservation, destruction, or location of documents or discussion of discovery obligations?
Nature of Case: Conspiracy to defame and tortuously interfere with business relationships
Electronic Data Involved: ESI
Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act
Nature of Case: Copyright infringement
Electronic Data Involved: ESI
Key Insight: Highlighting that a party?s duty of preservation is owed to the court and not to a potential plaintiff, court found that defendant was grossly negligent in its failure to issue a litigation hold or take other efforts to ensure preservation of relevant evidence and ordered an adverse inference; court also found that defendant acted ?willfully in failing to timely and adequately respond to the document requests? where defendant?s search terms were not ?calculated to capture? relevant documents and where a court ordered (re)search resulted in production of thousands of documents only three days before the close of discovery and ordered defendant to reimburse plaintiff for expenses incurred as a result of the misconduct and for the reasonable attorney?s fees spent to challenge the misconduct, prepare for additional depositions, and bring the instant motion for sanctions; court?s opinion specifically declined to hold that a lack of written litigation hold was negligence per se
Nature of Case: Breach of contract, breach of fiduciary duty, etc. related to purchase of condominium
Electronic Data Involved: Emails, ESI
Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions
Nature of Case: Breach of contract
Electronic Data Involved: ESI
Key Insight: For defendants? discovery abuses, including spoliation or withholding of audio tapes of wiretapped conversations despite a court order to produce them; destruction of relevant hard drives and refusal to authorize release of copies of those drives from a third-party; and failure to produce other relevant evidence, court found that plaintiff had been prejudiced and ordered default sanctions
Nature of Case: Claims arising from fraudulent scheme to recover insurance reimbursements
Electronic Data Involved: Audio tapes, hard drives
Key Insight: For egregious discovery violations, including attempting to conceal relevant custodians, failure to issue litigation holds, spoliation, delay, and lack of candor, the court granted in part defendants? motion for terminating sanctions and dismissed plaintiff?s claim for business interruption losses?the claim most affected by the discovery abuse; court declined to dismiss all claims where, despite the discovery violations, defendants? were not sufficiently prejudiced to support terminating sanctions, but found an adverse inference instruction to be ?an adequate remedy?
Nature of Case: Complaint seeking payment of insurance claims; counterclaim for fraud
Electronic Data Involved: ESI
Key Insight: In three separate instances, court concluded plaintiff deliberately destroyed or failed to produce relevant electronic devices and documents; culpably contributed to the destruction of a relevant hard drive; and deliberately destroyed relevant financial information and ordered repayment of plaintiff?s attorneys? fees and costs related to the adjudication of their motions for sanctions and repayment of attorneys? fees and costs related to plaintiffs construction of evidence of relevant financial information, made much more difficult by defendant?s spoliation
Nature of Case: Breach of employment contract and related claims and cross claims related to theft and use of confidential information
Electronic Data Involved: ESI
Key Insight: Court found it ?more likely than not? that plaintiff?s fabrication of an exhibit was in bad faith and necessitated sanctions and ordered an evidentiary hearing where evidence revealed that plaintiff had significantly altered evidence and subsequently provided misleading information to opposing counsel and the court regarding the same
Electronic Data Involved: Fabricated evidence
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