Motion for Sanctions – Page 58 – Electronic Discovery Law

Valentini v. Citigroup, Inc., No. 11 Civ. 1355(JMF), 2013 WL 4407065 (S.D.N.Y. Aug. 16, 2013)

Dec 01 2013

Key Insight: Court declined to dismiss complaint or grant adverse inference instruction as sanction for plaintiffs’ blatant disregard of the discovery process as there was no evidence of willfulness or maliciousness, and instead awarded all attorneys’ fees and costs that defendants incurred as a result of plaintiffs’ dilatory conduct; court further ordered parties to brief issue of whether more severe sanctions should be imposed against plaintiff entity that had failed to produce a single document from its files

Nature of Case: Fraud and related claims

Electronic Data Involved: ESI

Dunbar v. Google, Inc., No. C 12-330, 2013 WL 1346597 (N.D. Cal. Apr. 2, 2013)

Dec 01 2013

Key Insight: Absent evidence that the failure to preserve prior versions of relevant documents was the result of a ?culpable state of mind,? the court declined to impose spoliation sanctions

Int?l Bus. Machs. Corp. v. BGC Partners, Inc., No. 10 Civ. 128(PAC), 2013 WL 1775373 (S.D.N.Y. Apr. 25, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s failure to collect information regarding its utilization of the at-issue software, the court refused to grant spoliation sanctions upon finding that defendant did not have an obligation to compile information related to its use of the at-issue software where such information was not typically collected in the usual course of business and where parties are only required to produce documents that exist and have no obligation to create documents to support their adversary?s theory of the case; where plaintiff sought spoliation sanctions for defendant?s migration from the at-issue software to another, the court declined to impose sanctions citing the fact that plaintiff had itself instructed defendant to destroy all copies of the at-issue software and that plaintiff failed to present any evidence that it had requested defendant halt its migration prior to filing a motion for sanctions

Electronic Data Involved: ESI

Braun v. Toyota Motor Sales, U.S.A., Inc., No. B234212, 2013 WL 520030 (Cal. Ct. App. Feb. 13, 2013)

Dec 01 2013

Key Insight: Where plaintiff failed to substantiate his privacy objections and provided the court with no information to weigh against defendant?s stated need for discovery, the trial court did not abuse its discretion by ordering the production of plaintiff?s home computer, which contained relevant photographic evidence; trial court did abuse its discretion when it ordered terminating sanctions for plaintiff?s intentional deletion of allegedly private information before producing his computer for inspection where Toyota offered only speculation as justification for such a serious sanction (e.g., ??we will never know? what was destroyed?) and where plaintiff did produce more than 13,000 photographs for inspection; case was remanded for consideration of serious sanctions short of terminating plaintiff?s case

Nature of Case: Sexual harassment, wrongful termination

Electronic Data Involved: Selected contents of home computer, photographs

Kirgan v. FCA LLC, No. 10-1392, 2013 WL 1500708 (C.D. Ill. Apr. 10, 2013)

Dec 01 2013

Key Insight: Where an employee of Defendant first denied he kept a calendar and then testified that he kept a daily electronic calendar but routinely deleted information after a day had passed and that he had continued such deletions even after being told that the entries were sought by the plaintiff in discovery, the court found that Defendant was culpable for the employee?s actions and for its own failure to notify its employees of the duty to preserve and imposed sanctions including an adverse inference, preclusion of the use of certain evidence, and monetary sanctions equal to double the amount incurred for preparation of the sanctions motion

Nature of Case: Wrongful termination

Electronic Data Involved: Calendar entries

Hart v. Dillon Cos., Inc., No. 12-CV-00238-RM-DW, 2013 WL 3442555 (D. Colo. July 9, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought sanctions for former employer?s spoliation of a tape containing a secretly recorded conversation ?which in part? led to Plaintiff?s termination, the court found that the tape was relevant, that Defendant had an obligation to preserve it (citing the fact that ?it knew that litigation was imminent? and a federal statute requiring the preservation of employment records concerning a terminated employee for 1 year from the date of termination), and that Plaintiff was prejudiced by the spoliation; in concluding that sanctions were warranted, court noted Defendant?s four month delay in issuing a litigation hold and indicated that ?[a]fter the duty to preserve attaches, the failure to collect taped recording from a key player is grossly negligent or willful?; what specific sanction would be imposed was not determined

Nature of Case: Employment Discrimination

Electronic Data Involved: Tape of secretly recorded conversation

Stirling v. St. Louis Cnty. Police Dept., No. 4:11CV01932, 2013 WL 2244638 (E.D. Mo. May 21, 2013)

Dec 01 2013

Key Insight: Where an individual defendant?s emails were deleted pursuant to the county?s ?routine system updates? and were therefore unavailable when requested, the court clarified that the duty to preserve arises ?when the party has notice that the evidence is relevant to litigation?most commonly when suit has already been filed ?? and NOT when a request is served and ordered defendants to search all available sources where the emails may still exist, including backup files, and to file a notice with the court advising it of such sources and that defendants must show cause why they should not be required to retrieve and produce such documents

Electronic Data Involved: Email

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv58, 2013 WL 458532 (E.D. Va. Feb. 6, 2013)

Dec 01 2013

Key Insight: For spoliation addressed in E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011), court awarded DuPont attorneys? fees in the amount of $2,428,733.90 and costs in the amount of $2,068,313.60; costs/expenses included those paid to three outside vendors, including for forensic analysis services and for providing contract attorneys to review and analyze documents

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI

Stream Cos., Inc. v. Windward Adver., No. 12-cv-4549, 2013 WL 3761281 (E.D. Pa. July 17, 2013)

Dec 01 2013

Key Insight: Magistrate judge addressed accusations of spoliation and violation of court orders and found that monetary sanctions were appropriate for defendants? spoliation of emails which were deleted (as evidenced by forensic investigation) after the duty of preservation arose but declined to find spoliation had occurred as to defendants? laptops or external storage devices where Plaintiff presented little more than evidence of Defendants? lack of credibility; magistrate judge imposed sanctions for violation of court?s orders where Defendants made unilateral decisions not to produce certain electronic devices but gave numerous assurances that everything had been produced; magistrate judge found Plaintiff had established a prima facie case of defendants? contempt of the court?s discovery orders and preliminary injunction order and certified certain underlying facts for consideration by the District Court

Nature of Case: Violations of Computer Fraud and Abuse Act, Copyright Act, PA Wiretap Act, state trade secret law, duty of loyalty

Electronic Data Involved: Email, storage devices (iPad, iPhone, thumb drives), personal computers

Sung v. Mission Valley Renewable Energy, LLC, No. CV-11-5163-RMP, 2013 WL 4523561 (E.D. Wash. Aug. 27, 2013)

Dec 01 2013

Key Insight: Where defendants received plaintiff?s production of approximately 3,600 electronic documents less than two weeks before trial was to begin, and defendants were only able to obtain the documents after they arranged for an independent electronic discovery review in response to plaintiff?s prior discovery abuses, court found that the circumstances of case were extraordinary, that plaintiff acted willfully and in bad faith in violating FRCP 26, 37 and the court?s scheduling order, and that analysis of the five relevant factors warranted dismissal of plaintiff?s claims against each defendant with prejudice

Nature of Case: Washington State Securities Act claims, breach of fiduciary duty, negligence, and related claims

Electronic Data Involved: 3,600 electronic documents which, if printed out, would total more than 10,000 pages

Tag:Motion for Sanctions