Motion for Sanctions – Page 60 – Electronic Discovery Law

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

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

Harry Weiss, Inc. v. Moskowitz, — N.Y.S.2d —, 2013 WL 2341806 (N.Y. App. Ct. May 30, 2013)

Dec 01 2013

Key Insight: Sanction precluding plaintiff from presenting evidence or testimony in opposition to defendant?s defenses and counterclaims affirmed where plaintiff failed for two years to reveal that relevant ESI had been lost after it was allegedly printed; claimed that the relevant computer was ?broken? and had been discarded when defendant sought a forensic examination; and failed to issue a litigation hold; appellate court rejected contention that the disposal did not prejudice defendant because the files had been printed where that claim was contradicted at deposition and where hard copy did not contain metadata

Electronic Data Involved: ESI, hard drive/computer

Simms v. Deggeller Attractions, Inc., 2013 WL 49756 (W.D. Va. Jan. 2, 2013)

Dec 01 2013

Key Insight: In action arising from roller coaster accident, court denied motion to impose sanctions for failure to preserve potentially relevant photographs on roller coaster?s ?integrated photography system,? where there was no evidence presented explaining how long the photos were stored in the system (although Defendant ?appear[ed] to argue? that had been erased as early as two days after the accident) where there was no evidence of willful conduct, and where the prejudice was limited based on the availability of other evidence regarding whether other riders were wearing hats on the ride?an important question in the case

Nature of Case: Personal Injury (roller coaster accident)

Electronic Data Involved: Photographs

Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL, 2013 WL 3677203 (D. Nev. July 11, 2013)

Dec 01 2013

Key Insight: No sanctions for Defendant?s failure to produce a particular relevant email where the email was subject to Defendant?s automatic deletion policy and where the court ?was satisfied? that the email was in fact automatically deleted before Defendant was on notice that litigation was reasonably foreseeable

Nature of Case: Hostile Work Environment

Electronic Data Involved: Email subject to automatic deletion policy

EEOC v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166 (S.D. Ohio 2013)

Dec 01 2013

Key Insight: Defendant’s failure to establish a litigation hold and resulting loss of relevant data through routine purge was inexcusable and presented exceptional circumstances that removed such conduct from the protections provided by Rule 37(c); as sanction, court denied defendant’s motion for summary judgment which turned in part on skill login data, and would give permissive adverse inference instruction regarding the destroyed evidence at trial

Nature of Case: Sex discrimination claims

Electronic Data Involved: Skill login data

Tag:Motion for Sanctions