Motion for Sanctions – Page 34 – Electronic Discovery Law

Venator v. Interstate Res., Inc., No. CV 415-086, 2016 WL 1574090 (S.D. Ga. Apr. 15, 2016)

Dec 01 2016

Key Insight: Court found defense counsel had committed two violations of Rule 26(g)?s obligation to conduct a reasonable inquiry where counsel simply provided discovery requests to Defendant?s HR manager who conducted an independent, but ultimately inadequate, search for responsive information and failed to properly supervise the search, involve the IT Department (a best practice, according to the court), or follow up to ensure the search was adequate. Discussing the lack of a ?reasonable inquiry,? the court instructed that a non-lawyer will typically require more guidance than merely providing the requests at-issue and noted that ?attorneys have a post-investigation obligation to make sure all responsive information is provided.? Court ordered counsel to pay the reasonable expenses and fees associated with the motion for sanctions and for Defendant to pay $1000 but declined further sanctions where Defendant supplemented its response to discovery when additional responsive information was located.

Nature of Case: Claims arising from an industrial accident

Electronic Data Involved: Emails, ESI

Muhammad v. Mathena, No. 7:14cv00529, 2016 WL 8116155 (W.D. Va. Dec. 12, 2016)

Dec 01 2016

Key Insight: Prison employees? failure to preserve surveillance footage of inmate altercation despite notice of the obligation to do so was negligent; negligence imputed to other employees named as Defendants in Eighth Amendment claim where, despite the lack of a conventional agency relationship, the negligent/spoliating non-parties were not merely ?disinterested third parties? but rather were employees of the institution(s) responsible for preserving evidence in prisoner litigation and where requiring a conventional agency relationship would ?present a dilemma in the context of prison litigation .. where responsibility for preserving evidence may be spread out among multiple officials within an institute and where the institutions themselves are typically immune from suit?; as sanction, court forbade Defendants from putting on evidence related to Plaintiff?s disciplinary charges and conviction or the actual contents of the video and indicated it would instruct the jury that Plaintiff had requested the footage be preserved and it was not and that ?the jurors should not assume that the lack of corroborating objective evidence? undermined Plaintiff?s ?version of events surrounding the fight?

Nature of Case: Pro se Eighth Amendment Claims (prison litigation)

Electronic Data Involved: Surveillance footage

Friedman v. Philadelphia Parking Auth., No. 14-6071, 2016 WL 6247470 (E.D. Pa. Mar. 10, 2016)

Dec 01 2016

Key Insight: Where Defendant failed to preserve relevant evidence for reasons including its failure to timely issue a litigation hold following receipt of a letter threatening litigation and its lack of understanding related to the migration of its data to a new archival system resulting in the loss of ESI (e.g., Defendant was notified of but failed to address an ?over limit folder problem? related to two custodians, failed to confirm that data had successfully migrated before instructing employees to delete information ,etc.) but where Defendant undertook SUBSTANTIAL efforts to address its discovery defects and Plaintiff was unable to identify any specific information that was lost (where much was received from third parties or eventually produced as a result of Defendant?s remedial efforts) or to establish an intent to deprive, the court declined to impose sanctions pursuant to recently amended Rule 37(e); instead, pursuant to Rule 37(a) the court ordered Defendant to reimburse Plaintiff?s reasonable attorney?s fees and expenses necessary to prepare and file their motion for sanctions; regarding Defendant?s lack of a document retention policies and potential loss of data before implementation of its archive after its duty to preserve was triggered, the court indicated that prejudice was ?speculative? but invited a motion from Plaintiff for ?evidentiary rulings? if desired

J&JB Timberlands, LLC v. Woolsey Energy II, LLC, No. 14-cv-01318-SMY-PMF, 2016 WL 4006671 (S.D. Ill. Apr. 28, 2016)

Dec 01 2016

Key Insight: Although the court found that Defendants breached their duty to preserve certain emails by (1) failing to take reasonable steps to preserve Kelley?s emails, (2) misrepresenting the manner in which the data was lost, (3) misrepresenting that the lost data could not be recovered, and (3) using the laptop in May and August, 2015, the court also found the breach was not intentional and that Plaintiff was only ?minimally harmed? and eventually able to obtain the missing information and thus declined to strike Defendants? pleadings but ordered that Defendants should compensate Plaintiff for the reasonable attorneys? fees and expenses incurred in obtaining the email

Electronic Data Involved: Emails

Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088 (RMB)(HBP), 2016 WL 616386 (S.D.N.Y. Feb. 2, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel a response to his second set of document requests (consisting of 168 pages and 1,027 individual requests), noting several procedural and ?substantive defects,? including that Plaintiff?s requests were ?grossly irrelevant? and sought ?numerous documents that ha[d] nothing to do with the claims or defenses? and disproportional to the case (citing Defendant?s prior production of approximately 1,000 pages of documents), even despite the ?strong federal policy against employment discrimination?; addressing defendant?s motion for sanctions, court concluded that ?Plaintiff?s Second Document Request was unquestionably prepared and served in bad faith and in a conscious effort to impose an unreasonable burden on defendants? and cited Plaintiff?s numerous document requests, violation of two prior discovery orders and other ?obstructive behavior? and granted a protective order relieving defendant of the obligation to respond and ordered that Plaintiff was prohibited from offering or using any document not already produced, that Plaintiff must submit to a medical exam (as was previously ordered) or suffer dismissal of his case, and that Plaintiff would be liable for the attorneys fees incurred by Defendants in addressing the motions resolved in this opinion

Nature of Case: Employment litigation (Title VII, Age Discrimination, ADA, etc.)

Electronic Data Involved: ESI

Konica Minolta Bus. Sols., U.S.A., Inc. v. Lowery Corp., No. 15-cv-11253, 2016 WL 4537847 (Aug. 31, 2016)

Dec 01 2016

Key Insight: Assessing motion for sanctions, court found that Plaintiff established Defendants? duty to preserve (preservation requests were sent to all defendants) and that ESI was lost but found that further discovery was needed to address whether two of four ?predicate elements? of Rule 37(e) were met, namely whether reasonable steps were taken to preserve and whether the lost ESI could be restored or replaced through additional discovery, reasoning that ?[a]bsent sufficient proof that reasonable steps were not taken, KMBS is not entitled to relief under 37(e), even if it is shown that the ESI was lost. Sanctions are not automatic? and that ?[f]urther, a party cannot be sanctioned where the ability exists to restore or replace the ESI from other sources.?

Electronic Data Involved: ESI

Browder v. City of Albuquerque, —F.Supp.3d—, 2016 WL 3397659 (D.N.M. May 9, 2016)

Dec 01 2016

Key Insight: Addressing loss of cellular phone(a tangible thing) belonging to officer involved in off-duty traffic accident despite a letter from plaintiff specifically requesting preservation and providing notice of imminent litigation, court found the city was at least grossly negligent in its failure to preserve and that Plaintiff was prejudiced as a result but fell short of finding that the loss was the result of bad faith and ordered production of documents previously withheld under claim of privilege and that the jury would be instructed that it may make ?any inference they believe appropriate in light of the spoliation?

Nature of Case: Traffic accident

Electronic Data Involved: Cellular Phone

Orchestratehr, Inc. v. Trombetta, —F. Supp. 3d—, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016)

Dec 01 2016

Key Insight: Where Defendant admitted to deleting emails while aware of potential litigation but claimed he thought the emails were backed up and that he never deleted anything from Plaintiff?s server, the court called the evidence ?troubling? but declined to impose spoliation sanctions because the evidence of bad faith was insufficient, citing in pat Defendant?s own equivocation for why he deleted the emails and his admitted practice of deleting emails in the ordinary course of business and the fact that the emails he admitted to forwarding to a personal account and then deleting were eventually produced

Electronic Data Involved: Email

In re Advanced Power Sols., Inc., —S.W.3d—, 2016 WL 3438249 (Tx. Ct. App. June 21, 2016)

Dec 01 2016

Key Insight: Where trial court granted a motion for spoliation sanctions and struck all of Defendant?s pleadings and ordered an adverse inference instruction, court of appeals took up the petition for a writ of mandamus and, addressing the standards for spoliation sanctions in detail, upheld the trial court?s finding that a duty to preserve the at-issue video showing the circumstances surrounding the underlying industrial accident arose from the date of the incident in light of the facts and circumstances of the case and that Defendant breached that duty to preserve through ?willful blindness? by failing to prevent the automatic overwriting of the video despite viewing the video, allowing Plaintiff to view the video while in the hospital, and relying on the video to reconstruct the accident and conduct ?experiments?; regarding the sanctions imposed, the appellate court concluded that the adverse inference was appropriate because of the direct relationship between the loss and the instruction and where the instruction was not excessive in light of the unique nature of the evidence; court granted petition, however, as to order to strike pleadings

Nature of Case: Industrial accident resulting in injuries

Electronic Data Involved: Video of underlying accident

Garcia v. City of Farmington, No. Civ. 12-383 JCH/SCY, 2016 WL 7438045 (D. N.M. Jul. 5, 2016)

Dec 01 2016

Key Insight: Plaintiff created audio recordings during her employment with Defendant, transcribing some of them and later deleting recordings she felt to be insignificant. Plaintiff also claimed her computer ?crashed? in 2011 or 2012 and that caused her to lose material (this issue not raised at previous deposition). After the close of trial, Defendant filed a Renewed Motion for Adverse Spoliation Inference and to Strike Testimony. The court found Plaintiff had a duty to preserve because she made the recordings after she filed a grievance and EEOC charge. Plaintiff admitted that the deleted recordings did not ?capture unfair and discriminatory treatment of her,? which the court found to ?cure any prejudice Defendant may have suffered.? The court found that Plaintiff?s actions ?were intentional and more than merely negligent, but she did not act with a sinister intent,? and that Plaintiff did not understand she needed to preserve all the recordings. The court will consider Defendant?s evidence of Plaintiffs spoliation when it weighs the evidence presented at trial, but otherwise denied Defendant?s request to impose sanctions.

Nature of Case: Renewed Motion for Adverse Spoliation Inference and to Strike Testimony, on underlying case of discrimination and retaliation

Electronic Data Involved: Audio recordings

Tag:Motion for Sanctions