Motion for Sanctions – Page 77 – Electronic Discovery Law

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

In re Venom. Inc., 2010 WL 892203 (Bankr. E.D. Pa. Mar. 9, 2010)

Dec 01 2010

Key Insight: Court found plaintiff primarily responsible for breakdown of discovery for failing to produce requested ESI or to provide satisfactory explanation of the problems precluding production but declined to order exclusion of all evidence supporting ?diminution in value? claim where plaintiff produced substantial financial information and produced the requested ESI in hard copy, where plaintiffs violated no court order, where the failure to produce was temporally limited to two ?short periods of time?, and where plaintiffs apparent ability to produce the requested ESI would prevent any prejudice; court gave defendant option of receiving ESI on ?searchable CD? or receiving the computer on which the ESI was stored for expert examination

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Financial data in electronic format

Edington v. Madison Coal & Supply Co., Inc., 2010 WL 2244078 (E.D. Ky. June 4, 2010)

Dec 01 2010

Key Insight: Finding ?there [was] no evidence that the electronic data was ever created, much less?discarded?, court denied plaintiff?s motion for spoliation sanctions where defendant presented evidence that the relevant GPS system had to be activated in order to record data and that the system was not activated on the date of the accident, and where no regulation or law required the GPS be activated or recording

Nature of Case: Personal Injury

Electronic Data Involved: GPS data

Pitney Bowes Gov. Solutions, Inc. v. United States, 94 Fed. Cl. 1 (Fed. Cl. 2010)

Dec 01 2010

Key Insight: Where, despite the destruction of relevant ESI, defendant was able to restore the relevant documents from backup tapes and produce them, but where the metadata was different such that the author of the documents was listed as one person rather than the many who had actually authored them, the court accepted the explanation that the author reflected in restored documents had received each document as an email attachment and saved those documents to her hard drive, thus changing the metadata, and further found that plaintiff made no showing that the documents were otherwise modified and denied the motion for sanctions

Nature of Case: Bid Protest

Electronic Data Involved: ESI

Cenveo Corp. v. S. Graphic Sys., Inc., 2010 WL 3893709 (D. Minn. Sept. 30, 2010)

Dec 01 2010

Key Insight: For CFO?s intentional destruction of evidence to defeat litigation despite a duty to preserve, the district court judge adopted the magistrate judge?s recommendation and imposed a $100,000 fine and found that more drastic sanctions were not warranted where the resulting prejudice was mitigated by the availability of all the defendants and other witnesses for questioning

Nature of Case: Tortious interference with business relationships, misappropriation of trade secrets, unfair competition

Electronic Data Involved: Emails

Union Pump Co. v. Centrifugal Tech., Inc., 2010 WL 186616 (5th Cir. Dec. 16, 2010)

Dec 01 2010

Key Insight: Noting the need to wield a court?s inherent power to impose sanctions with ?great restraint?, the appellate court found the trial court did not abuse its discretion in declining to impose attorney?s fees as an additional sanction for defendant?s spoliation where the court provided an adverse inference instruction to the jury and where the trial court found the jury?s verdict provided ?adequate compensation? for plaintiff?s claims; appellate court noted plaintiff?s failure to renew its request for fees based on spoliation following the jury?s verdict

Nature of Case: Misappropriation of trade secrets, unfair competition

Electronic Data Involved: ESI, hard drives, backup tapes

Tag:Motion for Sanctions