Motion for Sanctions – Page 75 – Electronic Discovery Law

AMG Nat?l Trust Bank v. Ries, No. 06-CV-3061, 2011 WL 2912874 (E.D. Pa. July 21, 2011)

Dec 01 2011

Key Insight: Court granted motion for spoliation sanctions for defendant?s deletion of relevant computer files and ordered an adverse inference and payment of plaintiff?s attorney?s costs and fees but, because the extent of the prejudice could not be determined, indicated that the language of the inference would be withheld until defendant paid for a forensic examination of his computer to determine what, if any, evidence could be recovered and thus the extent of the prejudice suffered by the plaintiff

Nature of Case: Breach of employment contract, breach of fiduciary duties, and violation of Uniform Trade Secrets Act

Electronic Data Involved: ESI

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

Cook v. Olathe Health Sys., Inc., 2011 WL 346089 (D. Kan. Feb. 2, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions where plaintiff was unable to establish that the relevant hard drives were destroyed after the duty to preserve arose and where plaintiff was unable to establish that the in-car video at issue ever existed or was destroyed after the duty to preserve arose in light of defendants? testimony that because of a ?recorder malfunctioned? no video existed

Nature of Case: Civil claims arising from alleged mistreatment upon arrest

Electronic Data Involved: Four hard drives, officer’s in-car video

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, No. 09-23411-CIV, 2011 WL 772855 (S.D. Fla. Feb. 19, 2011)

Dec 01 2011

Key Insight: Where defendants ?failed to properly conduct complete, thorough and timely searches of ESI responsive to Plaintiffs? discovery requests,? which the evidence showed resulted from ?a lack of familiarity and/or training in searching and producing ESI?, the court declined to impose default judgment and instead recommended that defendants? Motions for Summary Judgment be denied and ordered that defendants retain a third party consultant or vendor to perform a search for responsive documents, that responsive ESI be produced in a prescribed format, and that defendants pay plaintiffs? attorneys fees and costs

Nature of Case: Claim for damages arising from defendants? alleged failure to provide proper ship management and care

Electronic Data Involved: ESI

Kosher Sports Inc. v. Queens Ballpark Co., LLC, No. 10-CV-2618 (JBW), 2011 WL 3471508 (E.D.N.Y. Aug. 5, 2011)

Dec 01 2011

Key Insight: Where plaintiff and counsel failed to disclose the existence of relevant audio recordings (of secretly recorded conversations) and attempted to conceal their existence (including by false certifications pursuant to Rule 26(g)), but where defendant was allowed to cure the prejudice through additional discovery, court ordered plaintiff and counsel to bear joint responsibility for payment of defendant?s expenses related to the delay and concealment; for destruction of relevant audio recordings with a ?sufficiently culpable? state of mind, court imposed an adverse inference instruction

Nature of Case: Contract dispute

Electronic Data Involved: Audio recordings

United States ex rel Berglund v. Boeing Co., 835 F.Supp.2d 1020 (D. Or. Dec. 2011)

Dec 01 2011

Key Insight: Where plaintiff altered and deleted emails and discarded potentially relevant hard drives the court undertook a substantial analysis of the relevant legal standards surrounding spoliation and, upon consideration of those standards, imposed two monetary sanctions requiring the plaintiff to pay for the reasonable costs and fees arising from his failure to produce a hard drive as he had been directed to do by the court and to pay for Boeing?s costs ?directly connected with the investigation and discovery of the altered emails?; the court also dismissed, with prejudice, plaintiff?s claim of retaliation

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Emails, hard drives

Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)

Dec 01 2011

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email

Ashton v. Knight Transp., Inc., No. 3:09-CV-0759-B, 2011 WL 734282 (N.D. Tex. Feb. 22, 2011)

Dec 01 2011

Key Insight: Where, in a case arising from a fatal accident, the court determined that defendants? failure to preserve the tires of the involved truck and Qualcomm messages between the driver and the truck company was in bad faith and where that failure resulted in prejudice to the plaintiff, the court ordered that defendants? pleadings and defenses to liability be struck and, ?because defendants? misconduct led to the late discovery of a potential claim for punitive damages,? granted plaintiff leave to file an amended her complaint to add such a claim

Nature of Case: Hit and run

Electronic Data Involved: Qualcomm messages (“email type messages”)

Chen v. LW Restaurant, Inc., No. 10 CV 200 (ARR), 2011 WL 3420433 (E.D.N.Y. Aug. 3, 2011)

Dec 01 2011

Key Insight: Court imposed sanctions, including preclusion of evidence/witnesses, an adverse inference instruction (upon plaintiffs? request) and payment of attorney?s costs and fees for defendant?s discovery violations, including repeated failure to produce evidence despite court orders, and ?loss? of a flash drive and its contents under circumstances which supported a finding of gross negligence or intentional spoliation; court invited plaintiffs to seek sanctions against defense counsel, too, for counsel?s egregious violations of his duties, including failure to issue a litigation hold, failure to be candid regarding the loss of evidence, and failure to ensure compliance with client?s discovery obligations, among others

Nature of Case: Employment litigation (wages)

Electronic Data Involved: Flash drive containing original payroll records for purpose of analyzing metadata

Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011)

Dec 01 2011

Key Insight: Where ?severe spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith,? the circuit court affirmed the lower court?s denial of plaintiff?s motion for spoliation sanctions where there was no evidence that the accused party intentionally destroyed the relevant video tape ?or acted with bad faith or gross negligence in respect to it?

Nature of Case: False arrest, defamation

Electronic Data Involved: Videotape

Tag:Motion for Sanctions