Motion for Sanctions – Page 36 – Electronic Discovery Law

Core Labs. LP v. Spectrum Tracer Servs., LLC, No. CIV-11-1157-M, 2016 WL 879324 (W.D. Okla. Mar. 7, 2016)

Dec 01 2016

Key Insight: Where emails were lost in Defendant?s transition from one service provider to another, despite efforts to preserve, the court found that Plaintiff was prejudiced by the loss and found that a presumptive adverse inference was appropriate but declined to impose sanctions for Defendant?s deletion of ?personal? files prior to production of a hard drive for forensic analysis where the court found such deletion ?reasonable? and also declined to impose sanctions for the wiping of an at-issue computer where the court found no bad faith in light of the alleged ?computer problems? that the wipe was intended to address and Defendant?s claim that ?anything that needed to be kept? was exported first; notably court?s analysis included specific recognition of newly amended Rule 37(e) but also recognized a common law standard requiring only prejudice to impose a spoliation sanction

Electronic Data Involved: Emails, computer files, contents of hard drive

Accurso v. Infra-Red Servs., Inc., —F. Supp. 3d.—, 2016 WL 930686 (E.D. Pa. Mar. 11, 2016)

Dec 01 2016

Key Insight: Court denied motion for a negative inference for Plaintiff?s alleged deletion of emails evidencing Plaintiff?s intention of taking business from Defendants where Defendants provided no basis for the court to conclude: 1) that there was ?actual suppression or destruction of evidence, let alone that [Plaintiff] was responsible,? 2) that the evidence was not obtainable from other sources, or 3) that Defendant acted with the requisite intent to deprive under Fed. R. Civ. P. 37(e)

Nature of Case: Claims and counterclaims include: violations of Employee Polygraph Protection Act, breach of contract, intentional interference with contract, fraud, misappropriation of trade secrets

Electronic Data Involved: Emails

Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?

Nature of Case: Housing discrimination

Electronic Data Involved: facebook (social media / social network)

Whitesell Corp. v. Electrolux Home Prods., Inc., NO. CV 103-50, 2016 WL 1317673 (S.D. Ga. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where promised emails were not produced but Defendant ultimately produced all documents relevant to the alleged spoliation, including ?preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches,? and also submitted a representative for an extensive Rule 30(b)(6) deposition, the court found Plaintiff?s request to compel production of ?every privileged document described as concerning data collection?[wa]s overly broad, unduly burdensome and ha[d] not been shown to relate to the issue at the forefront of this entire exercise?the missing Leon emails? despite acknowledging that ?otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.?

Electronic Data Involved: Information related to preservation efforts, etc. where Plainitff alleged spoliation by Defendant and sought to compel production of privileged information

O?Berry v. Turner, Nos. 7-15-CV-00064-HL, 7:15:CV-00075-HL, 2016 WL 1700403 (M.D. Ga. Apr. 27, 2016)

Dec 01 2016

Key Insight: Where custodian printed single paper copy of relevant driver?s log and PeopleNet data to be maintained in the usual course of business, did nothing more upon receipt of a request for preservation and ultimately misplaced the envelope in which the information was maintained despite claiming to have done ?everything in his power to preserve evidence,? the court found that Defendant filed to take reasonable steps to preserve the data and acted with the intent to deprive Plaintiffs of the information in litigation, reasoning that it was ?simply irresponsible? to print a single paper copy for preservation and noting Defendant?s lack of a document preservation policy and the failure of counsel to contact the at-issue custodian for approximately two and one half years following receipt of the request to preserve, among other things: ?All of these facts, when considered together, lead the Court to conclude that the loss of the at-issue ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior can only lead to one conclusion?that ADM and Archer Daniel Midlands Company acted with the intent to deprive ??

Nature of Case: Automobile accident

Electronic Data Involved: Driver’s log, PeopleNet data

Cohn v. Guaranteed Rate, Inc., No. 1:14-cv-9369, 2016 WL 7157358 (N.D. Ill. Dec 8, 2016)

Dec 01 2016

Key Insight: Defendant sought production of Plaintiff?s emails, imposition of spoliation sanctions, and an extension of the discovery deadline. Plaintiff previously agreed to produce responsive documents from her Gmail and LinkedIn account, but failed to do so (later third party productions contained emails sent from her Gmail account). Plaintiff admitted she deleted emails from her Gmail account at various times, and evidence showed she instructed a subordinate to start using their personal email addresses and to delete various emails. The court found (i) a duty to preserve existed as of at least November 30, 2013, (ii) that Plaintiff breached that duty when she deleted emails, and (iii) there was a strong inference that the emails would have been unfavorable to Plaintiff because (iv) she deleted the emails in bad faith (to admittedly ?hide? the information). The court denied Defendant?s motion for equitable relief, but allowed Defendant?s alternate request that Plaintiff must provide full access to her Gmail account (details to be addressed in a meet-and-confer).

Nature of Case: Breach of contract and related claims

Electronic Data Involved: Emails (gmail)

Learning Care Grp. v. Armetta, No. 3:13-cv-1540 (VAB), 2016 WL 4191251 (D. Conn. June 17, 2016)

Dec 01 2016

Key Insight: Where Defendant destroyed laptop of departed employee (a ?key point of contact? for Plaintiffs in their relationship with Defendant) in accordance with its usual course of business despite a duty to preserve, court found that the information lost was relevant and that prejudice resulted, but found that Defendant was merely negligent and that awarding attorneys? fees and costs was an appropriate sanction (not default judgment or an adverse inference as had been requested); court declined to consider the newly amended rules of procedure where the parties first raised the issue in September 2015, before the application of the new rules

Electronic Data Involved: Contents of laptop of departed employee

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

Tag:Motion for Sanctions