Motion for Sanctions – Page 101 – Electronic Discovery Law

Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence

Nature of Case: Prisoner asserted ? 1983 action against various prison defendants

Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff

Yeisley v. PA State Police, 2008 WL 906465 (M.D. Pa. Mar. 31, 2008)

Dec 01 2008

Key Insight: Denying plaintiff?s motion for sanctions based on non-production of email, court ordered defendants to promptly undertake requisite search of electronic records and warned: ?To the extent that electronic records may have been lost during the pendency of this litigation as a result of the failure to conduct an adequate search of this font of information prior to this time, sanctions may be appropriate.?

Nature of Case: Civil rights litigation

Electronic Data Involved: Email

Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D. Tex. Aug. 8, 2008)

Dec 01 2008

Key Insight: For plaintiff?s and its principals? egregious discovery abuses and bad faith conduct, including intentional spoliation of ESI and willful deception and concealment, magistrate judge set out findings of fact and conclusions of law and recommended sanctions in form of adverse inference instruction and monetary sanctions representing all of defendants? fees and costs incurred in connection with sanctions motion; district court overruled plaintiff’s objections and adopted magistrate judge?s rulings

Nature of Case: Breach of fiduciary duty, breach of contract, RICO violations, negligence, gross negligence and injunctive relief

Electronic Data Involved: Hard drives, DVD, various ESI

Keithley v. Homestore.com, 2008 WL 4830752 (N.D. Cal. Nov. 6, 2008)

Dec 01 2008

Key Insight: Where late production of documents resulted in some prejudice to defendants but where prejudice was minor in light of limited relevance of the documents produced and their limited value to defendants? case and where defendants failed to show that documents missing from production were destroyed rather than ?simply lost? or a significant degree of resulting prejudice, court declined to impose dismissal or adverse inference but ordered monetary sanctions pursuant to Rule 37; monetary sanctions in the amount of $205,507.53 were subsequently ordered (Keithley v. Homestore.com, 2009 WL 55953 (N.D. Cal. Jan. 7, 2009))

Nature of Case: Patent Infringement

Electronic Data Involved: ESI, email

Keithley v. Homestore.com, 2008 WL 5234270 (N.D. Cal. Dec. 15, 2008)

Dec 01 2008

Key Insight: Rejecting each of defendant?s objections, court adopted Report and Recommendation of Magistrate Judge imposing monetary sanctions for discovery violations but did not adopt recommendation for adverse inference instruction because summary judgment in favor of defendant rendered issue moot

Nature of Case: Patent infringement

Electronic Data Involved: ESI, source code, document retention policies

Cyntegra, Inc. v. Idexx Labs., Inc., 2007 WL 5193736 (C.D. Cal. Sept. 21, 2007)

Dec 01 2007

Key Insight: Where plaintiff stored majority of its documents on third-party servers and failed to make payment to maintain the service, resulting in deletion of relevant documents, court declined to enter default judgment and monetary sanctions but instead would allow lesser sanction of adverse inference instruction, since (1) plaintiff had control, albeit indirectly, over destroyed information; (2) plaintiff was at least negligent in not taking any affirmative steps to preserve documents, and (3) evidence was relevant to defense

Nature of Case: Antitrust, tortious interference with contractual relations

Electronic Data Involved: Documents stored by plaintiff on third-party computer servers

Reino de Espana v. Am. Bureau of Shipping, 2007 WL 1686327 (S.D.N.Y. June 6, 2007)

Dec 01 2007

Key Insight: Declining to grant sanction of dismissal since there was insufficient evidence of intentional or bad faith conduct, or adverse inference instruction since it was unclear how relevant the missing email was, court awarded monetary sanctions since Spain?s failure to timely implement adequate litigation hold and failure to conduct timely and diligent search for electronic discovery was negligent and resulted in loss of email; court further directed Spain to complete its forensic search for email records and produce such records on rolling basis

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

Electronic Data Involved: Email

In re Graham, 363 B.R. 32 (Bkrtcy. D.N.H. 2007)

Dec 01 2007

Key Insight: Debtor’s liability to his former employer for willful and malicious misappropriation of trade secrets and for award of sanctions based on his spoliation of evidence were exempted from discharge in bankruptcy; court granted former employer’s motion to lift automatic stay so that trial court could determine the amounts for which debtor was liable and enter final judgment

Nature of Case: Bankruptcy

Electronic Data Involved: Email and confidential business data

Woodburn Const. Co. v. Encon Pacific, LLC, 2007 WL 1287845 (W.D. Wash. Apr. 30, 2007)

Dec 01 2007

Key Insight: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion

Nature of Case: Construction litigation

Electronic Data Involved: ESI

Fortis Corporate Ins., SA v. Viken Ship Mgmt. AS, 2007 WL 3287357 (N.D. Ohio Nov. 5, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff’s motion for spoliation sanctions, finding no basis in the record for concluding that defendant’s failure to preserve email and other materials was so blameworthy that defendant should be deprived, either in whole or part, of the opportunity to defend the case on the merits, and adding: “Perhaps in the fullness of time foreign-based companies doing business in the United States will be held to the same ‘litigation holds’ and other devices now routinely applied by litigants here to make sure pertinent documents and other materials are retained and produced. And perhaps they should be held to the same standards in an era of ever-expanding global trade. Increasingly negligence on the other side of the globe can cause injury locally.”

Nature of Case: Subrogation action against foreign-based shipowner

Electronic Data Involved: Email

Tag:Motion for Sanctions