Tag:Motion for Sanctions

Key Insight: Where a defendant negligently ?lost? his cellular phone and thus the text messages on it despite a duty to preserve, the court ordered that plaintiffs would be permitted to introduce evidence at trial of defendants? failure to preserve and to argue whatever inference they hoped the jury would draw, but defendants would be allowed to present an explanation and argue that no adverse inference should be drawn

Nature of Case: Antitrust and related claims; theft of trade secrets; intentional interference with a prospective business

Electronic Data Involved: Text messages

Key Insight: Court denied Plaintiff?s motion for an adverse inference for Defendant?s deletion of the ESI belonging to a former employee where despite a general duty to preserve, the defendant ?could not have reasonably known? of the potential relevance of the at-issue ESI; where the disposal of ESI was pursuant to a routine deletion policy and other communications from the at-issue employee were produced from other custodians ?which suggests that Cisco did not act with a conscious disregard;? and where the relevance of the documents was tentative and the court was ?hard-pressed? to find that Plaintiff was prejudiced by the loss

Nature of Case: Claims related to software development and licensing agreement

Electronic Data Involved: ESI belonging to former employee

Key Insight: Failure to institute litigation hold, which resulted in automatic deletion of relevant e-mails as part of defendant’s system-wide upgrade, and defendant’s excessive delay in disclosing such facts, constituted gross negligence; magistrate judge recommended that plaintiff’s motion for sanctions be granted and that trial court issue and adverse inference instruction regarding the destroyed e-mails and award plaintiff its costs in bringing the motion

Nature of Case: Insurance coverage dispute

Electronic Data Involved: E-mail

Key Insight: Court denied Plaintiff?s motion for default judgment for alleged spoliation of ?documents pertaining to his non-selections? (in hiring) where Plaintiff failed to present ?clear and convincing evidence? that the ?abusive behavior? occurred and failed to show why a lesser sanction would not sufficiently punish or deter Defendant?s behavior; court also addressed Plaintiff?s motion for an adverse inference as to several specific instances of spoliation and provided individual analysis for each piece of evidence and ultimately denied the adverse inference as to all evidence for reasons including the failure to establish that any documents were in fact destroyed and the court?s determination that an adverse inference would not rebut Defendant?s ?legitimate, nondiscriminatory reasons? for the alleged adverse employment actions

Nature of Case: Employment discrimination

Electronic Data Involved: ?Documents related to the hiring process for positions he was denied?

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

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