Motion for Sanctions – Page 114 – Electronic Discovery Law

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 Dec. 11, 2006) (Unpublished)

Dec 01 2006

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)

Dec 01 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

Smoliak v. Greyhound Lines Inc., 2006 WL 1029643 (N.D. Fla. Apr. 19, 2006)

Dec 01 2006

Key Insight: Magistrate issued Certification of Facts for a Finding of Contempt relating to conduct of non-party Brett Cormier, a relative and employer of plaintiff who had consistently failed to comply with discovery orders or produce salary and employment records; court had previously stated: “The Court is still reluctant to order an inspection of Cormier’s computer, at his expense, to obtain this information since it seems an extreme, expensive, and unnecessarily invasive process to obtain what should be relatively easy information about Plaintiff’s income. However, Cormier must be more cooperative in producing the limited information requested of him or the Court may be left with no other option. . . . Work history and salary information is simple, straightforward information that every reputable business maintains in a variety of easily retrievable formats, and the Court simply does not accept the representations heretofore made for why Brett Cormier cannot locate this information. This issue is getting tiresome and has occupied far too much of this Court’s time and energy.”

Nature of Case: Personal injury

Electronic Data Involved: Salary and employment information

Tekena USA, LLC v. Fisher, 2006 WL 2536631 (N.D. Ill. Aug. 31, 2006)

Dec 01 2006

Key Insight: District court affirmed bankruptcy court’s orders appointing a receiver to monitor debtor’s operations in order to preserve debtor’s assets, and restraining debtor from destroying any records or computer files, where trustee showed that, among other discovery abuses, the debtor’s business data contained on hard drives had been destroyed

Nature of Case: Appeal from bankruptcy court ruling

Electronic Data Involved: Business data on hard drives

DE Techs., Inc. v. Dell Inc., 2006 WL 3500962 (W.D. Va. Dec. 4, 2006)

Dec 01 2006

Key Insight: Magistrate judge barred Dell from using certain documents at trial since plaintiff had no notice that the documents would be relied upon by Dell to support its defenses until the documents were specifically produced after the discovery deadline; court noted that, although the documents were among some 542,917 documents produced by Dell in electronic form and in a searchable format using a CaseData System, there was no evidence that Dell ever identified any of the documents provided on the CaseData System as responsive to any particular discovery request, and documents were neither produced as “kept in the ordinary course of business” nor as “ordinarily maintained”

Nature of Case: Patent infringement

Electronic Data Involved: Electronic documents produced in searchable database

Nichani v. United Tech. Corp., 2006 WL 1102761 (D. Conn. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel production of all documents prepared by four trial witnesses regarding accident investigation, as well as all email between or among them regarding the same matter, where discovery was closed and plaintiff had long known that four witnesses had potentially relevant information and plaintiff never followed up on general production requests nor sought discovery from witnesses directly; court further denied plaintiff’s alternative motion in limine precluding testimony of four individuals

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Buskey v. Boston Market Corp., 2006 WL 2527826 (E.D.N.Y. Aug. 14, 2006)

Dec 01 2006

Key Insight: Defendants’ failure to produce accident report amounted to spoliation of evidence and provided additional ground for denying defense motion for summary judgment

Nature of Case: Slip and fall personal injury

Electronic Data Involved: Accident report prepared by defendant

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

Global Compliance, Inc. v. Am. Labor Law Co., 2006 WL 1314171 (Cal. Ct. App. May 15, 2006) (Unpublished)

Dec 01 2006

Key Insight: Appellate court affirmed discovery sanctions imposed on two defendants for resisting production of electronic documents on CD, noting: “A CD is simply a copy of the electronic data on the computer. Just as photocopying is proper for copying a document in paper form, downloading computer files onto a CD is an appropriate means for copying the electronic data on a computer’s hard drive.”

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: CD-ROMs containing electronic documents

Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335 (M.D. La. 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions but not adverse inference instruction where defendant negligently failed to implement adequate litigation hold and preserve electronic evidence, but evidence was insufficient to show defendant acted in bad faith or with culpable state of mind or that plaintiff had suffered any prejudice

Nature of Case: Environmental litigation

Electronic Data Involved: Email and backup tapes

Tag:Motion for Sanctions