Motion for Sanctions – Page 70 – Electronic Discovery Law

Pringle v. Adams, No. SACV 10-1656-JST (RZx), 2012 WL 1103939 (C.D. Cal. Mar. 30, 2012)

Dec 01 2012

Key Insight: In copyright infringement action where the creation date of certain evidence was highly relevant, the court granted defendant?s motion for terminating sanctions for plaintiff?s spoliation where plaintiff had a duty to preserve but nonetheless spoliated relevant evidence by sending a relevant hard drive for ?repairs? and where he indicated he no longer had possession of another hard drive, without explanation for its unavailability, and where the court found that defendants were prejudiced by the loss of the hard drives

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drives containing information regarding creation date of allegedly infringed song

Tourgeman v. Collins Fin. Servs., Inc., No. 08cv1392-JLS(NLS), 2012 WL 28289 (S.D. Cal. Jan. 5, 2012)

Dec 01 2012

Key Insight: Where defendants? mistake in searching resulted in the failure to produce relevant documents and where plaintiff alleged that those documents would have established numerosity for purposes of his motion to certify (and where the motion was denied without them), court found that the mistake was not willful or in bad faith and that there was no prejudice where plaintiff was free to re-file his motion and thus, as a sanction, awarded limited attorneys? fees incurred as the result of defendants? mistake and noted plaintiff?s failure to timely review the documents produced by defendants, which may have alerted him to the problems prior to filing his motion for class certification

Nature of Case: Class action

Electronic Data Involved: ESI

Gerlich v. United Stated Dept. of Justice, 828 F. Supp. 2d 284 (D.D.C. 2011)

Dec 01 2011

Key Insight: Plaintiff argued that Department of Justice had destroyed records in violation of Federal Records Act but court clarified that Federal Records Act rather requires agencies to decide which materials must be preserved and reasoned that where DOJ decided not to require preservation of notes related to employment candidates and thus such information was destroyed, no spoliation could be found where the destruction was in accordance with policy and occurred prior to initiation of the relevant investigation and the subsequent lawsuit

Nature of Case: Claims alleging wrongful employment decisions based on political affiliation

Electronic Data Involved: Notes taken regarding applicants

Essenter v. Cumberland Farms, Inc., 2011 WL 124505 (N.D.N.Y. Jan. 14, 2011)

Dec 01 2011

Key Insight: Where a store employee attempted to copy the relevant surveillance footage but was unsuccessful and where the failure was not discovered until after the tape had been overwritten, the court found defendant?s loss of the relevant footage was negligent and imposed an adverse inference that the lost footage would have been unfavorable to the defendant

Nature of Case: Slip and fall

Electronic Data Involved: Video

Roth v. Sloan, No. 1:08 CV 1656, 2011 WL 1298498 (N.D. Ohio Mar. 31, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish that the accused spoliator had custody and control of the allegedly spoliated audiotape and where the plaintiff was not prejudiced in light of his receipt of a transcript of the tape

Nature of Case: Witness intimidation, retaliation, defamation or false-light invasion of privacy

Electronic Data Involved: Audio tape

United States v. Univ. Health Servs., Inc., No. 1:07cv000054, 2011 WL 2559552 (W.D. Va. June 28, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s failure to preserve video surveillance tape where the parties initially agreed that the tapes for the thirty days preceding the subpoena need not be saved, thus creating the understanding that tape recycling could proceed as usual, and where, as a result of this agreement, defendants could not be said to have failed to preserve in bad faith; court also declined to infer spoliation absent evidence that additional, relevant ESI existed that had not been produced

Nature of Case: Violation of False Claims Act and The VA Fraud Against Taxpayers Act

Electronic Data Involved: Video surveillance tape

Io Group, Inc. v. GLBT, Ltd., No. C-10-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

Dec 01 2011

Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

N.V.E. Inc. v. Palmeroni, No. 06-5455 (ES), 2011 WL 4407428 (D.N.J. Sept. 21, 2011)

Dec 01 2011

Key Insight: Court ordered adverse inference and monetary sanctions (in an amount to be established) where plaintiff was grossly negligent in its preservation, review and collection of documents, including by failing to issue a litigation hold and because of counsel?s failure to supervise the review and collection of documents, and where such failures resulted in the loss of relevant evidence; court denied request for preclusion of evidence where defendant failed to establish that plaintiff acted in bad faith; Motion for Reconsideration denied by District Judge 2012 WL 2020242 (D.N.J. June 5, 2012)

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3 :09cv58, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s alleged deletion of relevant ESI upon finding that because plaintiff would not have known of the relevance of information in the identified custodians? custody at the time ESI was lost, there was no duty to preserve and thus no spoliation; as to ESI alleged to have been deleted while a duty to preserve existed, the court denied sanctions absent evidence of relevance or that defendant was prejudiced by the alleged loss

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

Electronic Data Involved: ESI, emails

Kermode v. Univ. of Miss. Med. Ctr., No. 3:09-CV-584-DPJ-FKB, 2011 WL 2619096 (S.D. Miss. July 1, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions where plaintiff failed to establish the existence of the allegedly spoliated emails and where, if the emails had existed, they would have been automatically deleted prior to the trigger of defendant?s duty to preserve and thus would not have been lost in bad faith; court?s analysis included discussion of trigger of duty to preserve and reasoned that meetings between accused professor and his department head and/or program director regarding alleged unwanted interactions with student did not trigger university?s duty to preserve because there was no evidence to suggest that either the department head or program director should have reasonably anticipated litigation at that time (citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 for proposition that ?Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm wide duty to-preserve.?)

Nature of Case: Wrongful termination

Electronic Data Involved: Emails

Tag:Motion for Sanctions