Motion for Sanctions – Page 100 – Electronic Discovery Law

Kinnally v. Rogers Corp., 2008 WL 4850116 (D. Ariz. Nov. 7, 2008)

Dec 01 2008

Key Insight: Where plaintiffs offered only an inference that evidence was destroyed based on ?the mere lack of evidence? produced by defendant and where plaintiffs failed to take timely action to address discovery disputes, court denied plaintiffs? motion for an adverse inference based on spoliation; addressing plaintiffs? argument that defendant?s failure to issue a timely litigation hold notice resulted in destruction of evidence, court noted, ?[w]hile a party must ?put in place a ?litigation hold? to ensure the preservation of relevant documents, there is no requirement that it must be written.? [citation omitted]

Nature of Case: Age discrimination

Electronic Data Involved: ESI, email

New Albertsons Inc. v. Superior Court, 86 Cal. Rptr. 3d 457 (Cal. Ct. App. 2008)

Dec 01 2008

Key Insight: Court issued writ of mandate vacating award of sanctions against defendant for spoliation of video and photographic evidence where trial court had no statutory or inherent authority to order sanctions absent defendant?s violation of a court order or sufficiently egregious or exceptional circumstances and, where by failing to timely move to compel further response upon Albertson?s alleged deficient production, plaintiffs waived their rights to do so

Nature of Case: Negligence and premises liability

Electronic Data Involved: Video and photographic evidence

Sharp v. City of Palatka, 2008 WL 89762 (M.D. Fla. Jan. 8, 2008)

Dec 01 2008

Key Insight: No adverse inference warranted for alleged spoliation of audio recordings, since plaintiff failed to establish first element that recordings ever existed; however, plaintiff would be free to elicit testimony concerning the alleged recordings at trial

Nature of Case: Employment litigation

Electronic Data Involved: Audio recordings of two conversations

Whitney v. JetBlue Airways Corp., 2008 WL 2156324 (E.D.N.Y. Apr. 29, 2008)

Dec 01 2008

Key Insight: Where handwritten IIR was included with numerous other similar documents and destroyed en masse by airline under document retention policy, court found that, although there was a ?disturbing amount of carelessness on defendant’s part? in its retention and production of the IIRs, plaintiff had not demonstrated that handwritten IIR would have been favorable to her case or that she was prejudiced by its absence; accordingly, court declined to impose any spoliation sanctions but awarded plaintiff her fees and costs in connection with motion

Nature of Case: Airline passenger allegedly injured by another passenger sued airline claiming negligent failure to protect and gross negligence

Electronic Data Involved: Original handwritten ?Inflight Irregularity Report? and conflicting electronic versions of same

Reino de Espana v. Am. Bureau of Shipping, 2008 WL 3851957 (S.D.N.Y. Aug. 18, 2008)

Dec 01 2008

Key Insight: District court overruled Spain’s objections to Magistrate Judge?s various orders of November 3, 2006, January 25, 2007 and June 6, 2007

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution

Nature of Case: Wrongful termination, discrimination

Electronic Data Involved: Laptop

Ogin v. Ahmed, 563 F.Supp.2d 539 (M.D. Pa. 2008)

Dec 01 2008

Key Insight: Where driver?s logs were relevant to plaintiff?s claims and defendants had notice of litigation and request to preserve them, but unilaterally determined that logs more than eight days prior to accident were irrelevant and destroyed them in the ?ordinary course of business,? court found that defendants actually suppressed and withheld driver’s logs and that adverse inference instruction was least severe and most appropriate sanction warranted under circumstances; court criticized defendants for not identifying date of destruction, individual responsible for such destruction, or time frame for such destruction pursuant to their retention policy and noted that defendants had not attached their retention policy as an exhibit to any filing or described any details of their retention policy

Nature of Case: Personal injury claims stemming from vehicle accident involving commercial tractor trailer and Jeep Wrangler

Electronic Data Involved: Computerized driver’s logs

Lessley v. City of Madison, Ind., 2008 WL 4977328 (S.D. Ind. Nov. 20, 2008)

Dec 01 2008

Key Insight: Where defendants failed to timely respond to discovery requests, failed to respond to two motions to compel, and where individual defendant testified he made no attempt to look for files or emails in response to discovery requests, Court granted motion for sanctions and issued order setting final deadline for production, barring all of defendants? objections to production except attorney-client privilege, fining defendants $1,000 and ordering payment of plaintiffs? attorney?s fees

Nature of Case: Suit for damages resulting from improper strip search

Electronic Data Involved: Emails, ESI

Orbit One Commc?ns, Inc. v. Numerex Corp., 2008 WL 4778133 (S.D.N.Y. Oct. 31, 2008)

Dec 01 2008

Key Insight: Where defendant/successor corporation acquired computer and server utilized by plaintiff/predecessor corporation in pre-acquisition operation of predecessor company but plaintiff asserted privilege as to certain pre-acquisition documents in response to subpoena from defendant, court ruled documents were protected by privilege, despite presence on acquired hardware, where plaintiff removed allegedly privileged and personal documents prior to defendant?s access and control of hardware and thus had a reasonable expectation of privacy; court ordered production of non-privileged materials and categorical privilege log and declined to sanction plaintiff for removal of documents from acquired hardware where plaintiff acted to preserve the documents and agreed to produce non-privileged material

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Grange Mut. Cas. Co. v. Mack, 2008 WL 744723 (6th Cir. Mar. 17, 2008)

Dec 01 2008

Key Insight: Sixth Circuit affirmed district court’s entry of default judgment and subsequent default award of $3,430,983.69 damages plus costs and attorneys’ fees as sanction for defendant’s egregious discovery abuse; among other things, defendant failed to comply with Parties? Agreed Order regarding electronic discovery, replaced company computers despite pending litigation, refused to produce home computer even though he admitted it had been used for business purposes, refused to produce key player?s computer, and failed to turn over all electronic evidence

Nature of Case: Fraud and RICO claims

Electronic Data Involved: Hard drives, email

Tag:Motion for Sanctions