Motion for Sanctions – Page 82 – Electronic Discovery Law

Gallagher v. Magner, 2010 WL 3419820 (8th Cir. Sept. 1, 2010)

Dec 01 2010

Key Insight: District court upheld denial of sanctions for defendants? failure to preserve emails and other ESI where plaintiffs failed to establish the prejudice resulting from the failure to preserve by presenting nothing more than speculation and by failing to pursue other possible sources of discovery (which the court characterized as ?incongruent with Plaintiff?s claim of prejudice?) and where plaintiffs failed to demonstrate that defendant intentionally destroyed or withheld evidence to suppress the truth

Nature of Case: Claims alleging disparate treatment and impact arising from City’s enforecement of housing codes

Electronic Data Involved: Emails, other ESI

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Ferron v. Echostar Satellite, LLC, 2010 WL 5395716 (6th Cir. Dec. 28, 2010)

Dec 01 2010

Key Insight: Where defendants produced a CD containing responsive ESI, including links to relevant graphic images which plaintiff viewed, but where the links eventually ?expired? and the images could no longer be seen and where defendants thereafter refused to produce printed copies of the previously produced advertisements, the court denied plaintiff?s motion for sanctions where plaintiff had a duty to preserve relevant evidence in his possession but failed to take steps to preserve the images for future use

Nature of Case: Violations of Ohio Consumer Sales Practices Act

Electronic Data Involved: Expired links to relevant images

Nycomed U.S. Inc. v. Glenmark Generics, Ltd., 2010 WL 3173785 (E.D.N.Y. Aug. 11, 2010)

Dec 01 2010

Key Insight: For failing to abide by its good-faith discovery obligations by withholding from production, without justification, certain relevant ESI and ?willfully fail[ing] to search two important and obvious repositories for responsive ESI?, the court determined that ?substantial monetary fines, payable to Nycomed and to the Clerk of the Court, are appropriate sanctions, as they will adequately advance ?the prophylactic, punitive and remedial rationales? of discovery sanctions? and ordered Glenmark to pay $100,000 to Nycomed ?to cover a portion of its costs? and to pay an additional $25,000 to the Clerk of the Court

Electronic Data Involved: ESI

Delta Fin. Corp. v. Morrison, 894 N.Y.S.2d 437 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where, upon en camera review, the court determined that counsel could not support his claim of privilege as to 55 emails and therefore sanctioned counsel $5000, appellate court affirmed the order and found the lower court had exercised proper discretion ?because [counsel?s] claim that the 55 e-mails were privileged was completely without merit in law and could not be supported by any reasonable argument for the extension, modification, or reversal of existing law.?

Nature of Case: Action to recover damages for breach of contract

Electronic Data Involved: Emails

Potenza v. Gonzales, 2010 WL 890959 (N.D.N.Y. Mar. 8, 2010)

Dec 01 2010

Key Insight: Where plaintiffs? counsel admitted he had been in possession of the videotape of plaintiff?s interview with police following his arrest but that despite a diligent search he could not find it and could offer no explanation for why, court found spoliation sanctions were warranted, noting that the second circuit has recognized ?simple negligence? as a sufficiently culpable state of mind, and ordered an adverse inference; court rejected plaintiff?s argument that defendant should be sanctioned for failing to preserve the original despite plaintiff?s request to do so where plaintiff offered no evidence in support of their claim that defendant ever had control of the tape or played a role in its destruction

Nature of Case: Violation of Fourth Amendment right to be free from false arrest, malicious prosecution, and abuse of process

Electronic Data Involved: Videotape of police interview

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Johnson v. Metro. Gov. of Nashville, 2010 WL 3342211 (M.D. Tenn. Aug. 24, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion for default judgment or an adverse inference where, despite finding that the alleged spoliator had intentionally deleted data in violation of his statutory duty to preserve, the court was presented with no evidence of bad faith in the data?s destruction and nothing more than speculation as to the data?s relevance

Nature of Case: Employment discrimination

Electronic Data Involved: Employment records subject to retention by statute

Hare v. Opryland Hospitality, LLC, 2010 WL 3719915 (D. Md. Sept. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s alleged destruction of ?full and complete surveillance video? of the relevant incident but failed to establish that defendant had the burden to preserve any video aside from the portion produced or that any other relevant footage existed and was deleted and where plaintiff failed to establish the ?requisite state of mind?, the court denied plaintiff?s motion for sanctions

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance footage

Oce N. Am., Inc. v. Brazeau, 2010 WL 5033310 (N.D. Ill. Mar. 18, 2010)

Dec 01 2010

Key Insight: Court rejected objections to the Magistrate Judge?s recommendation that plaintiff?s motion for a preliminary injunction be denied and, addressing plaintiff?s assertions that an evidentiary gap regarding defendant?s alleged misappropriation of information could be filled by adverse inference resulting from defendant?s failure to preserve instant messages, declined to impose such an inference where defendant mistakenly believe that the messages were automatically preserved and, upon learning otherwise, made changes to preserve going forward and thus plaintiffs were unable to show a culpable state of mind and where the alleged spoliation caused little harm in light of the availability of other evidence

Nature of Case: Breach of non-competition agreement

Electronic Data Involved: Instant messages

Tag:Motion for Sanctions