Motion for Sanctions – Page 37 – Electronic Discovery Law

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

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

McQueen v. Aramark Corp. – 201611 (D. Utah, 2016)

Nov 29 2016

Key Insight: Sanctions imposed after defendant’s failure to preserve relevant ESI after receiving a preservation letter from plaintiff.

Nature of Case: Wrongful death.

Electronic Data Involved: ESI work orders and related paper records.

Keywords: Defendant acted with gross negligence, but without intent to deprive the plaintiff of the information’s use in the litigation.

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Tag:Motion for Sanctions