Motion for Sanctions – Page 34 – Electronic Discovery Law

Botey v. Green, No. 3:12-CV-01520, 2016 WL 1337665 (M.D. Pa. April 4, 2016)

Dec 01 2016

Key Insight: In this case, the court granted in part Plaintiff?s motion for sanctions where ESI was automatically destroyed despite a duty to preserve as the result of Defendant?s employees? failure to forward Plaintiff?s notice of litigation and request for preservation to corporate headquarters. Declining to impose an adverse inference, the court ordered that Defendants would not be allowed to rely on the destroyed records or other evidence designed to show their contents.

Nature of Case: Claims arising from traffic accident

Electronic Data Involved: ESI

Feist v Paxfire, Inc., No. 11-CV-5436 (LGS) (RLE), 2016 WL 4540830 (S.D.N.Y. Aug. 29, 2016)

Dec 01 2016

Key Insight: Where Plaintiff?s internet browsing history was highly relevant to her claims and to establish damages but was lost as the result of her computer crashing and the use of a cleaning program after the duty to preserve arose, the court did not conclude that Plaintiff acted intentionally to deprive Defendant of the information (citing a lack of evidence to dispute Plaintiff?s claim that she regularly cleaned her hard drives prior to litigation) but did find that sanctions were warranted to cure prejudice and indicated that the court would ?presume that the absence of any cookies is unfavorable to Feist in that she cannot attribute a specific number of redirections to Paxfire? and precluded Feist from arguing in favor of statutory damages for specific internet searches or proffering evidence of specific violations

Nature of Case: Wiretap Act violations

Electronic Data Involved: Internet history

Delphi Commc?ns. Inc. v. Advanced Computing Techs. Inc., No. A15A1655, 2016 WL 1176998 (Ga. Ct. App. Mar. 28, 2016)

Dec 01 2016

Key Insight: Appellate court upheld trial court?s decision to strike defendants? answer and enter default judgment (as to one claim) as a spoliation sanction for Defendants? failure to preserve an image of their hard drives

Nature of Case: Claims against former employees and thier employer alleging copying of Plaintiff’s software products and solicitation of Plaintiff’s customers without consent

Electronic Data Involved: ESI

Marshall v. Dentfirst, P.C., No. 1:14-cv-2421-WSD, 2016 WL 1222270 (N.D. Ga. Mar. 24, 2016)

Dec 01 2016

Key Insight: Plaintiff seeks sanctions for Defendant allegedly failing to preserve ESI including browsing history, emails and pretreatment documents on Plaintiff?s work computer. The court quotes Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012), ?it is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party.? Plaintiff failed to show that the alleged spoliated information existed at the time Defendant reasonably could have anticipated litigation but that the Defendant failed to preserve it. The court continued its analysis, finding that ?even if the evidence existed at the time Defendant had a duty to preserve it,? Plaintiff failed to show prejudice (which could have been mitigated through depositions) or bad faith on the part of Defendant. The court denied Plaintiff?s motion.

Electronic Data Involved: Internet browsing history, emails

Lexpath Techs. Holdings, Inc., N0. 13-cv-5379-PGS-LHG, 2016 WL 4544344 (D.N.J. Aug. 30, 2016)

Dec 01 2016

Key Insight: Where Defendant used CCleaner on his work laptop and failed to produce three thumb drives, court concluded that the relevance prong of its analysis was satisfied (noting Plaintiff?s lack of credibility), that there was a duty to preserve, and that information was actually suppressed or withheld and, citing Rule 37(e,) imposed a presumptive adverse inference upon the determination that the loss was intentional, based on the timing of the spoliation (shortly following receipt of a cease and desist letter, including Plaintiff?s potential claims), among other things

Nature of Case: Claims arising from employee’s departure and start of competing business

Electronic Data Involved: ESI

Moore v. Lowe?s Home Centers, LLC, No. 2:14-cv-01459 RJB, 2016 WL 3458353 (W.D. Wash. June 24, 2016)

Dec 01 2016

Key Insight: No sanctions imposed for Defendant?s deletion of Plaintiff?s email in accordance with Defendant?s email retention policy following her termination where Plaintiff?s emails to HR and management ?did not raise ?potential claims? but rather raise Plaintiff?s concerns about workplace gossip and challenging relationships? and where other ?low-level employees? general awareness that Plaintiff was rumored to pursue litigation? did not result in a duty to preserve

Nature of Case: Employment litigation

Electronic Data Involved: Emails of departed/terminated employee

GN Netcom v. Plantronics, Inc., No. 12-1318-LPS, 2016 WL 3792833 (D. Del. July 12, 2016)

Dec 01 2016

Key Insight: Where a senior executive deleted massive amounts of email and instructed others to do the same despite a duty to preserve and the company?s issuance of a litigation hold, the court indicated that the company?s efforts did not absolve it of all responsibility for the failures of a member of its senior management (and noted the company?s own bad conduct in litigating the deletion issue, including its initial refusal to disclose the identity of its forensic expert) and concluded that reasonable steps were not taken to preserve and found that the deletions were in bad faith and prejudicial to the Plaintiff and imposed sanctions including monetary sanctions in the form of reasonable fees and costs, punitive sanctions in the amount of $3 million and a permissive adverse inference

Nature of Case: Antitrust

Electronic Data Involved: email

First Amer. Title Ins. Co. v. N.W. Title Ins. Agency, LLC, No. 2:15-cv-00229, 2016 WL 4548398 (D. Utah Aug. 31, 2016)

Dec 01 2016

Key Insight: Court concluded that Defendants ?taking steps? to start a competing company even if it was known that starting the company ?would be contentious and actively opposed? was insufficient to establish imminent litigation triggering a duty to preserve (note that imminence is the test in the 10th Cir.); court assessed requests for sanctions as to multiple sources of ESI and largely denied those motions absent evidence of prejudice or that the information could not be restored or replaced but did impose sanctions for non-party employee of Defendants? loss of potentially relevant ESI and hard copy taken from Plaintiff (both assessed ?under the same rubric of Rule 37?) and ordered that the parties would be permitted to present evidence of the spoliation to the jury

Electronic Data Involved: ESI & hardcopy

Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 WL 4544052 (S.D. Miss. Aug. 31, 2016)

Dec 01 2016

Key Insight: Applying 5th Circuit common law (but acknowledging the outcome of the motion would not change under recently-amended Rule 37(e)), the court declined to impose sanctions for the destruction of relevant documents pursuant to Defendant?s document retention policy at a time when there was no duty to preserve and, in its discussion of bad faith, noted that the court ?does ?not draw an inference of bad faith when documents are destroyed under a routine policy??

Nature of Case: Product liability

Electronic Data Involved: ESI, including committee minutes and product testing documents

Browder v. Albuquerque, No. CIV 13-0599 RB/KBM, 2016 WL 3946801 (D.N.M. July 20, 2016)

Dec 01 2016

Key Insight: Where relevant video was lost as a result of mistakes made by representatives of the defendant who were attempting to pull and preserve the video from the recording system for the first time and where CDs with the footage ?vanished,? the court reasoned that the errors were symptoms of a ?larger problem: an inadequate information management and evidence retention policy? (a point it relied on significantly in its discussion of culpability) and also found that the plaintiff was prejudiced and imposed sanctions allowing Plaintiff to present evidence that the video existed and was lost through negligence and indicated that if Defendant attempted to elicit testimony from a deputy regarding what he saw on the video (that was viewed by several of defendant?s representatives before it was lost), the jury would be instructed to make any inference they believed was appropriate; the court also ordered Defendant to pay Plaintiff?s expenses and fees incurred in bringing the motion

Nature of Case: Traffic accident involving a police officer

Electronic Data Involved: Video footage

Tag:Motion for Sanctions