Motion for Sanctions – Page 66 – Electronic Discovery Law

Gottlieb v. Iskowitz, 2012 Wl 2337290 (Cal. Ct. App. June 20, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not abuse discretion in imposing terminating sanctions for plaintiff?s egregious and willful discovery violations, including repeated failure to produce responsive materials in violation of the court?s multiple orders and subsequent ?dump? of 15 million pages of uncategorized documents that were not Bates labeled or accompanied by a corresponding index and which appeared to be largely non-responsive based on a review of 10% of the documents (?A dump of disorganized documents by definition is non-compliant.?); trial court?s award of significant damages was reversed and remanded for a new default proveup hearing on damages

Nature of Case: Libel, intentional infliction of emotional distress, and related claims

Electronic Data Involved: ESI

Johnson v. Metro. Gov. of Nashville and Davidson Cnty., TN, 2012 WL 4945607 (6th Cir. Oct. 18, 2012)

Dec 01 2012

Key Insight: Reviewing District Court?s denial of spoliation sanctions for abuse of discretion, Circuit Court found that the at-issue information should have been preserved and was intentionally destroyed but upheld the denial of sanctions based on plaintiffs? inability to establish relevance, a necessary element of the test for determining whether sanctions are appropriate

Nature of Case: Employment discrimination

Electronic Data Involved: ESI (Survey results)

Lakes Gas Co. v. Clark Oil Trading Co., 875 F. Supp. 2d 1289 (D. Kan. June 21, 2012)

Dec 01 2012

Key Insight: In a brief discussion of spoliation, the court denied defendant?s motion for sanctions where, despite the fact that it ?seemed clear that there was some loss of evidence ? in the form of email and/or ?instant messages? ? at a time [Plaintiff] knew litigation was imminent,? the evidence suggested that the loss was inadvertent, there was no claim of bad faith or evidence to support such a finding, defendant?s claims of prejudice were largely speculative and defendant did not aggressively pursue the issue of spoliation; court?s analysis stated that ?in these circumstances? (referencing apparent inadvertence of the loss and lack of a claim of bad faith), ?the court looks to the culpability of those involved and the relevance of the proof to the issues at hand?

Nature of Case: Action to recover payment for propane transfers based on conversion and unjust enrichment theories

Electronic Data Involved: Email and/or instant messages

Am. Builders & Contractors Supply Co., Inc. v. Roofers Mart, Inc., No. 1:11-CV-19 (CEJ), 2012 WL 2992627 (E.D. Mo. July 20, 2012)

Dec 01 2012

Key Insight: Where Defendant reinstalled the operating system on his personal laptop two days after his first deposition (where he was informed a request for ESI would be forthcoming) claiming that he did so to ensure that he did not possess Plaintiff?s proprietary information, and where Defendant had previously deleted the information on a relevant flash drive, the court found Defendant had acted intentionally and that Plaintiff had been prejudiced by the loss and ordered an adverse inference allowing, but not requiring, the jury to infer that the deleted information was unfavorable to Defendant and also ordered Defendant to pay Plaintiff?s attorneys? fees and costs connected with bringing the motion for sanctions; court acknowledged applicability of agency law in determining whether to impose sanctions against a party for spoliation by its employees but declined to do so in the present case

Nature of Case: Breach of non-compete, misappropriation of trade secrets

Electronic Data Involved: ESI

FDIC v. Appleton, No. CV-11-476-JAK (PLAx), 2014 WL 10245383 (C.D. Cal. Nov. 29, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced Relativity database with some 700,000 documents culled from its main server using search terms, and defendants complained there was no apparent logic to database and they could not tell what documents were responsive to what requests, court sided with defendants and ordered plaintiff to create files in Relativity into which it would place documents responsive to each particular request

Nature of Case: Receiver brought action against former officers and directors of failed bank

Electronic Data Involved: ESI

Moore v. Gilead Sciences, Inc., No. C 07-03850 SI, 2012 WL 669531 (N.D. Cal. Feb. 29, 2012)

Dec 01 2012

Key Insight: Court granted in part defendant?s motion for sanctions and ordered an adverse inference where the court determined plaintiff had a duty to preserve and that the deliberate wiping of his hard drive was in bad faith but declined to impose monetary sanctions or dismissal where plaintiff?s actions were not found to be sufficiently egregious, where plaintiff was forthcoming about the spoliation and his reasons (to protect personal and privileged information contained on the work-issued laptop), and where defendant had a substantial amount of the deleted material on backup tapes, etc. because of its backup practices

Nature of Case: Employment litigation

Electronic Data Involved: ESI from laptop

Curcio v. Roosevelt Union Free Sch. Dist., — F. Supp. 2d —, 2012 WL 3236645 (E.D.N.Y. Aug. 10, 2012)

Dec 01 2012

Key Insight: Court noted 2d circuit?s rejection of premise that failure to issue a litigation hold constitutes gross negligence and declined to impose an adverse inference but did impose monetary sanctions for individual?s failure to preserve her own handwritten notes upon finding that she acted in a negligent manner in preserving those notes; court denied motion for spoliation sanctions against ?Roosevelt Defendants? (the District and the Board) for failure to preserve audio tapes that were contaminated with lead and asbestos while in storage and thus discarded ?through no fault? of the Defendants and imposed no sanctions for late production of relevant information

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tapes, handwritten notes, miscellaneous

Coral Group Inc. v. Shell Oil Co., No. 4:05-CV-0633-DGK, 2012 WL 4569468 (W.D. Mo. Sept. 30, 2012)

Dec 01 2012

Key Insight: For intentional spoliation resulting in irreparable prejudice, including a ?discernible pattern? of efforts to deprive Plaintiffs of relevant financial information contained on the computer of Plaintiff?s outside accountant and the failure to preserve other data, the court ordered that plaintiff?s claims were dismissed with prejudice

Nature of Case: Fraud, breach of contract

Electronic Data Involved: ESI

Apple, Inc. v. Samsung Co., Ltd., No. C 11-1846 LHK (PSG), 2012 WL 1595784 (N.D. Cal. May 4, 2012)

Dec 01 2012

Key Insight: For defendant?s significant delay in producing source code for ?design-around? products despite a court order compelling such production and because the delay resulted in prejudice to the plaintiff because of its inability to follow up (because the source code was produced after the close of discovery), the court imposed substantial sanctions and ordered that defendant would be precluded from offering ?design-around? evidence for three patents and from arguing that the design-arounds were in any way distinct from version of the code produced in accordance with the court?s order: ?Samsung must instead rely on versions of the code that were produced on or before December 31, 2011.?

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

Bobrick Washroom Equip., Inc. v. Am. Specialties, Inc., No. CV 10-6938 SVW (PLA), 2012 WL 3217858 (C.D. Cal. Aug. 8, 2012)

Dec 01 2012

Key Insight: Where Defendant (through counsel) revealed on third day of trial that prior representations were inaccurate and that certain discovery had not been produced, or even searched for, court continued trial and ordered appointment of expert to conduct search of Defendant?s servers and produce responsive materials and later found that cost of expert totaling $168,045, to be paid by Defendant, was a sufficient sanction for failure to timely produce relevant documents; where plaintiff sought spoliation sanctions for Defendant?s failure to timely issue a litigation and failure to sufficiently distribute that hold or to follow up with its employees as to their obligations, but where evidence of spoliation of relevant evidence was minimal, court imposed only monetary sanctions

Nature of Case: Trademark infringement

Electronic Data Involved: ESI

Tag:Motion for Sanctions