Motion for Sanctions – Page 36 – Electronic Discovery Law

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

Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)

Dec 01 2016

Key Insight: Where Defendant explained that certain emails were not produced because he lost access to the account which subsequently expired and thus the emails were not in his possession custody or control, the court concluded that the duty to preserve was triggered prior to the expiration of the account by the filing of a separate lawsuit involving the same at-issue property in which the parties to this case were codefendants and explained in footnote that it could locate no case law limiting the duty to preserve to an adversary as opposed to all parties to litigation and noted that the duty to preserve ?may carry over to subsequent lawsuits involving the same subject matter?; finding the spoliation was prejudicial but not intentional, the court ordered the jury be informed of the failure to preserve, but not instructed to presume anything about the content of the emails

Nature of Case: Breach of Settlement Agreement

Electronic Data Involved: e-mail

Rodman v. Safeway, Inc., No. 11-cv-03003-JST, 2016 WL 5791210 (N.C. Cal. Oct. 4, 2016)

Dec 01 2016

Key Insight: Where an initial search of file names on a legacy drive (as opposed to the contents of the drive) did not identify ten responsive documents that were eventually produced after the close of discovery and a mere 7 days prior to trial, the court found that the search was an unreasonable inquiry under Rule 26(g) citing counsel?s failure to guide or monitor the employee conducting the search; the at-issue employee?s lack of experience conducting searches of large document repositories and the failure of counsel to ask the IT department to assist; and the objective unreasonableness of the search in light of the initial failure to search within the contents of the legacy drive and imposed monetary sanctions to address Plaintiff?s increased efforts as a result of the failure to timely produce the documents but reduced the award by 1/3 where Plaintiff would have had to expend some of the at-issue resources regardless and where Plaintiff failed to follow up when the employee who conducted the search indicated he did not know if he had searched within the files themselves

Electronic Data Involved: ESI from legacy drive

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

Tag:Motion for Sanctions