Tag:Motion for Sanctions

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JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 1989752 (S.D. Ohio July 9, 2007)
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Clearone Communications, Inc. v. Chiang, 2007 WL 3275300 (D. Utah Nov. 5, 2007)
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Williams v. ACS Consultant Co., Inc., 2007 WL 2822777 (E.D. Mich. Sept. 26, 2007)
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Select Med. Corp. v. Hardaway, 2006 WL 859741 (E.D. Pa. Mar. 24, 2006)
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Wachtel v. Health Net, Inc., 2006 WL 2506771 (D.N.J. Aug. 29, 2006)
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Burkybile v. Mitsubishi Motors Corp., 2006 WL 3191541 (N.D. Ill. Oct. 17, 2006)
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Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 1042359 (D. Idaho Apr. 18, 2006)
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Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006)
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Bedford, LLC v. Safeco Ins. Co., 2006 WL 3616434 (Wash. App. Dec. 11, 2006) (Unpublished)
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Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 1989752 (S.D. Ohio July 9, 2007)

Key Insight: After conducting de novo review of the matters raised by defendant’s objections to magistrate judge’s May 22, 2007 order, district court adopted magistrate judge’s recommended sanction (i.e., denying defendant’s motion to dismiss and imposing monetary sanctions) and ordered defendant to file answer to complaint within 10 days

Nature of Case: UCC claims arising from defendant’s Internet-based check service

Electronic Data Involved: Databases

Clearone Communications, Inc. v. Chiang, 2007 WL 3275300 (D. Utah Nov. 5, 2007)

Key Insight: Where object of two prior orders granting plaintiff’s motion for sanctions and to compel immediate backup and imaging of certain defendants’ computers was preservation of evidence, court denied plaintiff’s later motion for order adopting 170-word search protocol that was separate and apart from any particular discovery request, since prior orders did not “contemplate that ClearOne have carte blanche access to the electronic data filtered only by keyword searching and privilege objections”

Nature of Case: Misappropriation of trade secrets, breach of contract, conversion

Electronic Data Involved: Mirror images of hard drives

Williams v. ACS Consultant Co., Inc., 2007 WL 2822777 (E.D. Mich. Sept. 26, 2007)

Key Insight: Although spoliation was shown based on individual plaintiff’s failure to return laptop to defendant for approximately seven months after court first ordered him to do so, destruction of files and other information and use of file-deletion and free-space wiping products on laptop, court denied motion to dismiss complaint as spoliation sanction because prejudice to defendant was not established — three months of discovery remained and it was not clear that defendant would not be able to obtain much of the evidence sought

Nature of Case: Racial discrimination, retaliation, hostile work environment and wrongful termination

Electronic Data Involved: Employer-issued laptop

Select Med. Corp. v. Hardaway, 2006 WL 859741 (E.D. Pa. Mar. 24, 2006)

Key Insight: Court denied motion for spoliation inference based upon former employee’s deletion of files on home computer, since plaintiff could not demonstrate any prejudice resulting from alleged spoliation or show that former employee was “at fault” for deleting the files, i.e., that he intended to impair plaintiff’s ability to uncover evidence; employee claimed to have deleted the files to ensure that he no longer had access to plaintiff’s information after he resigned his employment

Nature of Case: Misappropriation of trade secrets, breach of non-competition agreement

Electronic Data Involved: Files on former employee’s home computer

Wachtel v. Health Net, Inc., 2006 WL 2506771 (D.N.J. Aug. 29, 2006)

Key Insight: Court granted plaintiffs’ appeal of magistrate’s order and would permit plaintiffs to raise evidentiary objections to certain evidence at trial, notwithstanding terms of pretrial order which required in limine motions to be filed by certain date, since defendants’ tardy production of hundreds of responsive emails and/or non-compliance with discovery orders made it impossible for plaintiffs to raise those objections as motions in limine

Nature of Case: Beneficiaries of employment benefit health plans asserted class action claims under ERISA

Electronic Data Involved: Email

Burkybile v. Mitsubishi Motors Corp., 2006 WL 3191541 (N.D. Ill. Oct. 17, 2006)

Key Insight: Court denied motion for entry of default as discovery sanction but ordered defendant to provide a printout of data relevant to the pertinent time period, noting that, although original printouts underlying certain reports no longer existed, the data used to create them still existed in the database and was accessible, and the reports could be recreated, even if not exactly. The court elaborated: “It may in fact be the database, like some sort of digital organism, changes over time. But it does not follow that the critical underlying information is no longer obtainable at all. Perhaps the information utilized . . . in preparing the reports can no longer be reproduced identically . . . But it does not follow that there cannot be some reasonable approximation that will give to the plaintiff the information ordered be produced.”

Nature of Case: Personal injury product liability

Electronic Data Involved: Database reports

Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 1042359 (D. Idaho Apr. 18, 2006)

Key Insight: Court denied parties’ cross-motions for sanctions based upon spoliation; deletion of software files was unauthorized act by an employee of plaintiff 14 months before case was filed and litigation was not yet reasonably foreseeable

Nature of Case: Contract breach and fraud involving leased software

Electronic Data Involved: Software files on computer hard drive

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006)

Key Insight: In follow-up to earlier decision awarding sanctions for discovery failings (Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)), court awarded Phoenix its attorney’s fees and costs associated with bringing the motion for sanctions in the amount of $45,162, to be paid equally by the SRC Defendants and their law firm; court further ruled that the SRC Defendants’ share ?may not be borne by their insurance carriers?

Nature of Case: Investment company sued former advisor for breach of fiduciary duty, common law fraud, and negligent misrepresentation

Electronic Data Involved: Computer hard drives and servers

Bedford, LLC v. Safeco Ins. Co., 2006 WL 3616434 (Wash. App. Dec. 11, 2006) (Unpublished)

Key Insight: Trial court did not err in denying motion for curative jury instructions, a sanction of default, and, after the verdict, a new trial, based upon defendant’s failure to produce a draft expert report; finding no misconduct, trial court had observed: “While I agree that . . . hard copies of draft [expert] reports are discoverable, I am aware of no legal principle that would require a testifying expert witness to separately retain all electronic drafts, including those that were overridden or subsumed during the drafting process.”

Nature of Case: Insurance coverage

Electronic Data Involved: Draft expert report

Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful

Nature of Case: Patent infringement

Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery

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