Key Insight: if sanctions can be granted for inconsistent and incomplete response from opposing party
Nature of Case: violations of the Fair Labor Standards Act and the New York Labor Law
Electronic Data Involved: initial interrogatories and verifications
Keywords: spoliation, sanctions, default judgment, defunct business, unreachable party
Key Insight: Plaintiffs in this collective action sought spoliation sanctions for Defendants? failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc. Defendants objected to the motion on the grounds that ?all of their books, records and computers were seized? pursuant to the court?s order in a different case and that there was no time to make any copies or back ups. Accordingly, the court reasoned that Defendants had not destroyed their records and found that ?[u]nder the specific circumstances of this case ? Defendants did not have an obligation to copy their books and records before complying with the court?s order.? Plaintiffs? motion for sanctions was denied.
Nature of Case: Fair Labor Standards Act
Electronic Data Involved: Employment records (payroll, W-2s etc.)
Key Insight: For Defendants? discovery violations, including failure to adequately search for responsive evidence, failure to designate a 30(b)(6) representative for deposition, and admitted deletion of emails despite a duty to preserve, the court found that sanctions were warranted and imposed serious sanctions, including monetary sanctions, exclusion of evidence, and ?enforcing the judgement of the Taiwanese court? against Defendant, where Defendant?s litigation misbehavior may have rendered Plaintiff unable to prove its contractual claim in court
Nature of Case: Breach of contract
Electronic Data Involved: ESI, email
Key Insight: Appellate court affirmed in part and reversed in part the District Court?s imposition of monetary sanctions for Plaintiff?s many discovery violations, including repeated violation of the court?s orders resulting in belated production of relevant evidence, and found no abuse of discretion for awarding expenses related to Defendants? third motion to compel Plaintiff?s production of relevant hardware, expenses related to the forensic imaging of Plaintiff?s hard drive, expenses related to the redeposition of Plaintiff?s officers (after delayed production of relevant evidence), and litigation expenses as a sanction for withholding emails
Nature of Case: Defamation
Electronic Data Involved: ESI (calendar items, database contents, other)
Key Insight: For defendant?s intentional deletion of emails using cleaning software and misrepresentations intended to cover up the same as well as defendant?s failure to produce documents over which he was found to maintain control and misrepresentations related to the same, the magistrate judge recommended a permissive adverse inference and that defendant and counsel, who ?exacerbated? the effects of defendant?s misconduct through incomplete or misleading representations to the court, be jointly and severally liable for plaintiff?s attorneys fees and costs incurred in bringing the motion for sanctions; district court rejected objections to the recommendations and adopted them in full
Electronic Data Involved: Emails, ESI
Key Insight: Where plaintiffs intentionally destroyed all paper and electronic copies of relevant financial information despite a duty to preserve citing the burden of storage, the court found that the destruction was in bad faith, but that the prejudice was minimal where other sources of evidence provided sufficient information to support Defendant?s defenses and thus ordered an adverse inference at trial; where one plaintiff was a Certified Public Accountant, court considered her professional capacity when considering the willfulness of the destruction, noting that it ?strains credulity? that an accountant would throw away all financial documents because of ?storage space?
Nature of Case: Breach of Contract
Electronic Data Involved: ESI (financial data)
Key Insight: Where Defendant was unable to produce the original version of a particularly relevant document in native format and claimed the loss resulted from the automatic deletion of the original version pursuant to the company?s document retention policy, the court declined to impose sanctions reasoning that a later version of the document was provided to Defendant?s legal department, that it was ?not obvious? that prior versions needed to be preserved and that by the time Plaintiff filed his lawsuit following termination, a year had passed and the document would have been destroyed under the retention policy; the court further reasoned:? While this destruction still occurred during the litigation hold, the fact that Winn Dixie?s normal retention policy called for the document?s destruction undermines a finding of bad faith because Winn?Dixie?s failure to adjust the document retention system to comply with the litigation hold signified an omission, and not a commission. In other words, Winn?Dixie?s failure to retain the electronic document was not the result of a directed action to delete the document but rather a failure to turn off the automatic deletion mechanism. Such action, at best, amounts to negligence and does not rise to the level of bad faith.?
Nature of Case: Employment litigation
Electronic Data Involved: Original version of relevant ESI
Key Insight: Finding defendant and counsel in violation of Rule 26(g) for failing to adequately search for discovery (and for their misrepresentations about those efforts), court instructed that ?Rule 26(g) should not be treated like the proverbial stepchild? and that ?Lawyers should not act like ?potted plants? and accept implausible representations from clients . . . .? and also found that sanctions were warranted pursuant to Rule 37(b)(2) for defendant?s violation of the court?s order to produce; accordingly the court imposed sanctions and admonished defendant and counsel for their violation of Rule 26(g) and awarded Plaintiff their fees and costs incurred to obtain the discovery
Nature of Case: Claims arising from alleged plan to terminate franchise agreements
Electronic Data Involved: ESI, hard copy
Key Insight: Finding plaintiff responsible for his prior counsel?s deficient Facebook production, saying he ?voluntarily chose his prior counsel and cannot avoid the consequences for his attorney?s discovery failures? and also responsible for his current counsel?s deficient Twitter production, district court granted Motion for Sanctions filed by defendants in part and ordered plaintiff to produce the entirety of his Twitter profile with redactions for privilege and relevance and to produce a log for any social networking information withheld and to pay the reasonable expenses and attorney?s fees associate with the discovery dispute.
Nature of Case: Civil Rights
Electronic Data Involved: Social media postings
Key Insight: On motion for reconsideration of three discovery orders, the court found no error in the lower court?s determination that Plaintiff?s admitted contemplation of litigation was sufficient to trigger her obligation to preserve, noting the lower court?s reliance on case law that ?the knowledge of a potential ? claim is deemed sufficient to impose a duty to preserve evidence?; court indicated that evidence contradicting Plaintiff?s claim that a third party still maintained the at-issue records was sufficient to allow the court to revisit the issue and to find that plaintiff acted in bad faith and also noted that in the Third Circuit, bad faith was not required to impose an adverse inference; addressing prejudice, court dismissed the proposition that Defendant?s access to at-issue evidence years earlier was sufficient to undercut any prejudice, noting that Defendant?s experts had not had access to the evidence; court found no clear error in the imposition of monetary sanctions for spoliation of evidence prior to trial
Electronic Data Involved: ESI
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