Motion for Sanctions – Page 57 – Electronic Discovery Law

Clay v. Consol Penn. Coal Co., No. 5:12CV92, 2013 WL 4854746 (N.D. W. Va. Sep. 11, 2013)

Dec 01 2013

Key Insight: Where defendants were dilatory in participating in discovery and did not begin searching for ESI until plaintiff was on the brink of filing his second motion to compel, district court affirmed magistrate judge?s recommendation that plaintiff?s motion for default judgment be denied because there was no showing of bad faith on the part of defendants and prejudice to plaintiff could be alleviated through imposition of less drastic sanctions, such as allowing plaintiff to re-depose certain witnesses at defense expense, allowing plaintiff to exceed the deposition limit, and awarding plaintiff reasonable expenses (including attorneys’ fees) of the motion

Nature of Case: Race discrimination

Electronic Data Involved: ESI

Master Hand Contractors, Inc. v. Convent of the Sacred Heart of Chicago, No. 1-12-3788, 2013 WL 5940641 (Ill. App. Ct. Nov. 4, 2013)

Dec 01 2013

Key Insight: Trial court did not err in dismissing mechanics lien case with prejudice as sanction for plaintiff’s failure to comply with its discovery obligations for approximately 18 months and its violations of seven orders of the court, including three expressly final deadlines to produce electronic discovery materials, as the trial court applied progressive discipline to coerce compliance and gave plaintiff ample opportunities to escape possible discovery sanctions; appellate court criticized plaintiff?s approach to the ESI request, ?under which the company owner — who called himself a ?computer idiot? in open court — self-selected emails relating to the Sacred Heart project instead of using a search tool to find them, and printed them out one at a time, all without supervision of counsel.?

Nature of Case: School building construction litigation

Electronic Data Involved: ESI, including email

Fairview Ritz Corp. v. Borough of Fairview, No. 09-875 (JLL), 2013 WL 5435060 (D.N.J. Sept. 27, 2013)

Dec 01 2013

Key Insight: Upon motion for reconsideration based on Plaintiff?s location and production of a document previously found to have been spoliated, court found that an adverse inference and monetary sanctions predicated on the finding of spoliation were no longer appropriate but ordered Plaintiff?s counsel to show cause why monetary sanctions should not be imposed for the delay and Defendants? protracted efforts to procure the document?s production

Electronic Data Involved: Single document (ESI)

Slovin v. Target Corp., No. 12 CV 863(HB), 2013 WL 840865 (S.D.N.Y. Mar. 7, 2013)

Dec 01 2013

Key Insight: Court found Target was at least grossly negligent for failing to preserve all portions of relevant surveillance footage (capturing Plaintiff?s fall and the surrounding circumstances) and thus imposed an adverse inference and monetary sanctions, but declined to strike Target?s answer or preclude use of the at-issue video excerpts and photographs

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Surveillance footage

Gilley v. Eli Lilly & Co., No. 3:10-CV-251, 2013 WL 1701066 (E.D. Tenn. Apr. 2, 2013)

Dec 01 2013

Key Insight: Where plaintiff failed to preserve digital images which she claimed she took with her cell phone and her daughter?s cell phone and which she claimed to have received from her daughter via email and later forwarded to her attorney (resulting in several electronic copies of the image(s)), the court found that plaintiff had the obligation to preserve the evidence, that she knew or should have known that the images were relevant, that the images and metadata were in fact relevant, and that sanctions were appropriate and thus imposed a permissive adverse inference

Nature of Case: wrongful termination

Electronic Data Involved: Digital images

Jackson v. Target Corp., No. 12-12190, 2013 WL 3771354 (E.D. Mich. July 28, 2013)

Dec 01 2013

Key Insight: Where Defendant preserved a portion of the relevant surveillance video following Plaintiff?s fall but, upon being ordered to preserve substantially more, could not comply because the video had been automatically overwritten by that time and could not be recovered, the court declined to impose an adverse inference absent evidence of a culpable mindset

Nature of Case: Premises liability (slip and fall)

Electronic Data Involved: Surveillance video

Anderson v. Sullivan, No. 1:07-cv-111-SJM, 2013 WL 4455602 (W.D. Pa. Aug. 16, 2013)

Dec 01 2013

Key Insight: After granting summary judgment in favor of all defendants, court retained ancillary jurisdiction to adjudicate plaintiff?s motion for spoliation sanctions; court conducted seven-day evidentiary hearing on the motion, ultimately rejecting plaintiff’s various claims of spoliation

Nature of Case: Pennsylvania Whistleblower Act claims

Electronic Data Involved: Email, computer hard drives

Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2013 WL 9447569 (E.D.N.Y. Sep. 23, 2013)

Dec 01 2013

Key Insight: Where plaintiff did not institute a written litigation hold despite its duty to preserve having arisen when it threatened to sue defendants, and, instead of producing the original of a particular thumb drive as ordered by the court, plaintiff copied contents of original thumb drive onto another (used) thumb drive and then deleted irrelevant files from thumb drive before producing drive to defendant, court found plaintiff was merely negligent and did not act in bad faith or with an intention of destroying or withholding relevant evidence; court declined to impose terminating sanctions or an adverse inference instruction given that defendant did not demonstrate severe prejudice, but ordered plaintiff to reimburse defendant for one-half of its costs, including attorneys? fees and expert costs, that it incurred in connection with litigating the spoliation issue

Nature of Case: Lawsuit arising out of the collapse of a commercial relationship between the parties relating to credit card processing services

Electronic Data Involved: Thumb drive, email, spreadsheets

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

United States ex rel King v. DSE Inc., No. 8:08-CV-2416-T-23EAJ, 2013 WL 610531 (M.D. Fla. Jan. 17, 2013)

Dec 01 2013

Key Insight: Where Relator withheld production of video diaries admittedly containing information damaging to his case and subsequently claimed the video was lost as the result of a burglary, court found overwhelming evidence of bad faith and that defendants had been prejudiced and thus dismissed Relator?s claims

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Video diaries recorded by Relator

Tag:Motion for Sanctions