Motion for Sanctions – Page 88 – Electronic Discovery Law

Gotlin v. Lederman, 2010 WL 2843380 (E.D.N.Y. Sept. 1, 2009)

Dec 01 2009

Key Insight: As sanction for plaintiff?s delayed production of untranslated medical records after the close of discovery, court precluded use of the late-disclosed records upon reasoning that the late disclosure was not substantially justified and resulted in prejudice to the defendants and upon reasoning that to allow such disclosure would result in continued delay of the proceedings in light of likely need to re-open expert disclosure, among other things

Electronic Data Involved: Late produced CD containing untranslated medical records

Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)

Dec 01 2009

Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, database information, back up tapes

Elec. Funds Solutions, LLC v. Murphy, 2009 WL 1717383 (Cal. Ct. App. June 19, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where terminating sanctions were ordered against defendants for the deliberate deletion/destruction of electronically stored information using wiping software but where the subsequent judgment of the trial court was reversed on appeal and remanded and where the trial court thereafter granted plaintiff?s motion for terminating sanctions, appellate court ruled that trial court did not err in granting plaintiff?s motion where the court?s previous discovery orders to produce information remained in effect and where defendants continued in their violation of such order by failing to produce relevant discovery because they had destroyed it; court stated: ?A continuing discovery violation does not end if the responding party is permanently unable to comply because that party intentionally destroyed the material it was ordered to produce.?

Nature of Case: Breach of fiduciary duty, conversion, intentional interference with economic relationships, etc.

Electronic Data Involved: ESI, hard drives

Espy v. Info. Tech., 2009 WL 2912506 (D. Kan. Sept. 9, 2009)

Dec 01 2009

Key Insight: In an opinion addressing several discovery disputes, court granted plaintiff?s motion to compel and ordered defendants to produce a CD containing the contents of a secure website related to defendant?s attempt to sell the company following an in camera review of the same; rejecting defendant?s arguments that 28,000 pages of uncategorized electronic documents without bates stamps were produced as kept in the usual course of business, court ordered defendant?s to identify ?by index or otherwise? specific documents responsive to plaintiff?s request

Nature of Case: Suit seeking commission for sales made as employee of defendant

Electronic Data Involved: ESI

DeBakker v. Hanger Prosthetics & Orthotics E., 2009 WL 5031319 (E.D. Tenn. Dec. 14, 2009)

Dec 01 2009

Key Insight: Where, to obtain an adverse inference the moving party must establish ?that the party having control over the evidence had an obligation to preserve it at the time it was destroyed,? and where plaintiff failed to establish the individual defendant?s control of the spoliated medical notes and failed to establish the facility?s duty to preserve, court denied plaintiff?s motion for sanctions; in so holding, court declined to find a duty to preserve based on the facility?s own document retention policy and stated, ?the mere existence of a document retention policy does not give rise to a duty to preserve every document generated under that policy. The duty to preserve arises only when a party becomes ?reasonably aware of the possibility of litigation

Nature of Case: Action arising from allegations that defective leg brace caused a fall resulting in permanent injury

Electronic Data Involved: Medical notes

Moore v. Am. Family Mut. Ins. Co., 2009 WL 886848 (D. Ariz. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where defendants recreated documents sought by plaintiff using raw data after destroying copies of the original document pursuant to its document retention policy and where plaintiff offered no evidence to ?reasonably question? such a practice or that any data was destroyed in anticipation of litigation, court found insufficient evidence to support an adverse inference

Nature of Case: Breach of contract claims arising from denial of insurance claim

Electronic Data Involved: Original declaration sheet

Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009)

Dec 01 2009

Key Insight: Where evidence indicated defendant wiped her computer?s hard drive days before producing it for inspection but where evidence also indicated that the wiping occurred prior to receipt of the subpoena seeking the computer?s production, appellate court acknowledged a reasonable basis to suspect intentional spoliation but found that there was not sufficiently compelling evidence to require such a finding and thus, the district court did not abuse its discretion in declining to impose spoliation sanctions

Nature of Case: Invasion of privacy

Electronic Data Involved: Computer hard drive

Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel upon finding that defendant ?did not timely comply with its discovery obligations? including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney?s fees

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: ESI

Jneid v. Tripole Corp., 2009 WL 4882654 (Cal. Ct. App. Dec. 17, 2009)

Dec 01 2009

Key Insight: Appellate court reversed the judgment of the trial court and remanded the case for a new trial upon finding that defendant ?did not act intentionally? when if failed to produce certain documents before trial and that the evidentiary and issue sanctions imposed, including preclusion of use of certain documents, preclusion from introducing certain evidence, preclusion of certain arguments, and an adverse jury instruction, were ?more severe than necessary? where an order for defendant to pay all costs incurred by the completed trial (as suggested by defendant) was sufficient to rectify the prejudice to the plaintiff; on remand, court ordered trial court to determine the cost incurred by plaintiffs and cross-complainant in connection with trial and the costs incurred because of the late production of documents and for defendant to pay such costs

Nature of Case: Breach of employment contracts

Electronic Data Involved: Computer embedded information

Superior Prod. P?ship d/b/a PBSI v. Gordon Auto Body Parts Co, Ltd, 2009 WL 690603 (S.D. Ohio Mar. 12, 2009)

Dec 01 2009

Key Insight: Acknowledging the reasonableness of plaintiff?s suspicion that information may have been lost in light of defendants? failure to immediately institute a litigation hold and in light of their admitted failure to immediately search all potentially relevant sources of responsive material, court nonetheless denied plaintiff?s motion for sanctions where plaintiff failed to present evidence that any relevant information had actually been lost or destroyed as a result of defendants? failures and in light of defendants? remedial efforts, including conducting additional searches and notifying employees of the litigation hold

Nature of Case: Predatory pricing

Electronic Data Involved: Email, ESI

Tag:Motion for Sanctions