Motion for Sanctions – Page 49 – Electronic Discovery Law

Siani v. State Univ. of New York at Farmingdale, No. 2:09-CV-0407 (JFB) (WDW), 2014 WL 1260718 (E.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied motion for spoliation sanctions based on defendant campus counsel?s deletion of emails, because defendants produced emails from other custodians who did not delete them, and plaintiff failed to show that other deleted emails were relevant to the action and favorable to him; counsel?s deletion of email was not done in bad faith, but was instead part of his normal practice, he placed a litigation hold on the actual decisionmakers but did not include himself because he had a limited, non-decisive role, and, as an attorney, considered his own communications to be privileged and work product and any email not covered by these doctrines would be preserved by the parties subject to the litigation hold, making his own preservation redundant; court further denied plaintiff?s motion to compel production of emails withheld on the basis of privilege after conducting an in camera review and finding defendants? objections to be well-taken

Nature of Case: Age Discrimination in Employment Act claims

Electronic Data Involved: Email

Weitzman v. Maywood, Melrose Park, Broadview Sch. Dist. 89, No. 13 C 1228, 2014 WL 4269074 (N.D. Ill. Aug. 29, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff?s motion for an adverse inference instruction where school district destroyed clearly relevant recordings of school board?s closed session meetings by failing to suspend its usual document destruction policies after having notice of its duty to preserve, and where plaintiff suffered substantial prejudice as a result because she was deprived of perhaps the best evidence concerning school district?s real reasons for her termination; court further denied school district?s pending motion for summary judgment since, in light of the adverse inference against the school district, the material facts as to the district?s reasons for terminating plaintiff were, at a minimum, disputed, and in fact appeared to support plaintiff?s claim of discrimination

Nature of Case: Age Discrimination in Employment Act claim

Electronic Data Involved: Tape recordings of school board’s closed session meetings during which board members discussed the decision not to renew contracts of plaintiff and others

BancorpSouth Bank v. Kleinpeter Trace, LLC, No. 2013 CA 1396, 2014 WL 4925698 (La. Ct. App. Oct. 1, 2014)

Dec 01 2014

Key Insight: Appellate court concluded that trial court did not err in ordering that adverse inference instruction be given to jury as to contents of particular file where plaintiff had notice that file, which was within plaintiff?s control, was relevant to pending litigation, it attempted to refer to contents of file in support of motion for summary judgment, and plaintiff?s explanation for loss of the file was pretextual and not reasonable; appellate court reversed trial court?s decision to impose ultimate sanction of dismissal because record did not support conclusion that plaintiff willfully or in bad faith failed to comply with trial court?s orders, since dismissal rested on conduct that did not relate to court-ordered discovery and in most instances occurred prior to the first discovery order; appellate court vacated trial court?s award of attorneys? fees in favor of defendant and remanded the matter to the trial court for a determination of reasonable expenses because the basis for the award was unclear and the award appeared to include other fees and costs unrelated to the particular discovery motion for which they were awarded

Nature of Case: Suit to enforce obligations arising out of promissory notes

Electronic Data Involved: ESI, email, spreadsheets

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

State Farm Mut. Auto. Ins. Co. v. Physiomatrix, Inc., No. 12-cv-11500, 2015 WL 1029540 (E.D. Mich. Mar. 3, 2014)

Dec 01 2014

Key Insight: Court found an individual defendant had control over deleted emails in an account located on a Comcast server and that the deletion of the emails was not ?merely coincidental to the winding-down of the business operations? of Defendant but rather was intentional, ?to prevent the discovery of the evidence therein?; reasoning that Plaintiff was not prevent from proving its most crucial allegations, the court declined to impose ?case-terminating? sanctions, but did order monetary sanctions against the individual defendant who controlled the emails and that Defendants? would bear the cost of a forensic search of their computers; notably, the inspection would apply to all defendants? computers, despite the court?s finding that one individual defendant had no control over the deleted emails and could not be held responsible for the deletion where the court explained (in footnote) that the non-spoliating defendant?s email account (used by his clinic) was registered to the spoliating defendant and where the non-spoliating defendant testified that he had not conducted a proper search of his computers

Electronic Data Involved: Emails on third party (Cloud) server

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317-EJD (HRL), 2014 WL 580290 (N.D. Cal. Feb. 13, 2014)

Dec 01 2014

Key Insight: Litigation was reasonably foreseeable so as to trigger a duty to preserve evidence when plaintiff first acquired patents with an eye toward litigation, although company was analyzing defendant’s technology and openly discussing litigation months earlier; however, because plaintiff waited 11 days after filing suit to implement a legal hold and there was evidence that potentially relevant emails were deleted, court imposed monetary sanctions instead of the more severe sanctions requested given absence of substantial prejudice to defendant and fact that plaintiff’s conscious disregard of its duty to preserve was motivated by cost-saving

Nature of Case: Patent infringement

Electronic Data Involved: E-mails

U.S. Legal Support, Inc. v. Hofioni, No. 2:13-cv-1770 LLK AC, 2014 WL 172336 (E.D. Cal. Jan. 15, 2014)

Dec 01 2014

Key Insight: Motion for spoliation sanctions denied without prejudice where plaintiff argued that individual defendants violated their duty to preserve by continuing to use their personal electronic devices after receiving notice of the action and not “quarantining” the devices pending forensic imaging, as plaintiff did not make a specific showing that spoliation had, in fact, occurred; testimony of plaintiff’s forensic experts was mere speculation as neither expert identified any actual loss of data nor provided any forensic analysis of the personal electronic devices at issue

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition

Electronic Data Involved: ESI stored on individual defendants’ personal electronic devices

Regulatory Fundamentals Group LLC v. Governance Risk Mgmt. Compliance, LLC, No. 13 Civ. 2493(KBF), 2014 WL 3844796 (S.D.N.Y. Aug. 5, 2014)

Dec 01 2014

Key Insight: Court imposed terminating sanctions for willful and bad faith spoliation on the part of the defendant (who also happened to be a lawyer), including manual deletion of relevant emails, closing an email account maintained by a third party service provider for the purpose of ensuring the deletions and undertaking significant efforts to cover his tracks (including creating a false paper trail attempting to shift the blame to the service provider), and making misrepresentations to the court and opposing counsel, among other things

Nature of Case: Breach of contract, copyright infringement

Electronic Data Involved: ESI, emails, emails maintained by third party service provider

Harrison v. Office of the Architect of the Capitol, No. 09-1364 (CKKK), 964 F.Supp.2d 81 (2013), reconsideration denied, 2014 WL 4696814 (D.D.C. Sep. 23, 2014)

Dec 01 2014

Key Insight: Denying defendant’s motion for terminating sanctions for plaintiff’s intentional destruction of digital tape recording device as dismissal would be disproportionate to prejudice to defendant caused by misconduct, court ruled that strong adverse inference was appropriate and, for purposes of resolving the parties’ cross motions for summary judgment, court would assume that the recording device would have revealed the plaintiff was intentionally recording conversations of co-workers without their consent

Nature of Case: Hostile work environment and retaliation claims

Electronic Data Involved: Digital recording device and tape

Riley v. Marriott Int?l, Inc., No. 12-CV-6242P, 2014 WL 4794657 (W.D.N.Y. Sep. 25, 2014)

Dec 01 2014

Key Insight: Where hotel’s security system recorded elevator area before, during and after plaintiff’s fall, but hotel produced only seven minutes of footage, which began about one minute before the accident and ended before plaintiff was removed from the ground and placed into a wheelchair, and hotel offered no sworn facts concerning the circumstances under which the footage was destroyed, court found hotel was grossly negligent at minimum and concluded that permissive adverse inference instruction was appropriate and sufficient to deter hotel from similar future conduct and restore plaintiff’s position in the litigation

Nature of Case: Slip and fall

Electronic Data Involved: Security camera footage of area before, during and after plaintiff’s fall

Tag:Motion for Sanctions