Motion for Sanctions – Page 88 – Electronic Discovery Law

Realnetworks, Inc. v. DVD Copy Control Assoc., Inc., 2009 WL 1258970 (N.D. Cal. May 5, 2009)

Dec 01 2009

Key Insight: Where, despite plaintiffs? failure to specify each technology individually, plaintiffs? preservation order was deemed sufficient because the instructions to preserve utilized terminology customarily used within the company to refer a category of technologies, including those at issue, court nonetheless ordered parties to negotiate stipulated Preservation Order going forward; court ordered monetary sanctions for failure to preserve prior employee?s notebook, but declined to order sanctions for plaintiff?s alleged instructions to employees to delete emails absent evidence that employees willfully deleted emails after the preservation order was issued and where one employee at issue testified that emails subject to preservation were not among those deleted and where a second employee at issue deleted emails prior to duty to preserve and subsequently located back up drive with substantial number of non-email documents

Nature of Case: Declaratory judgment

Electronic Data Involved: Email, ESI

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Reeves v. Case W. Univ., 2009 WL 3242049 (N.D. Ohio Sept. 30, 2009)

Dec 01 2009

Key Insight: Where it remained ?entirely unclear? that defendant performed a ?full and thorough search? for responsive ESI, court ordered defendant to perform a ?comprehensive examination of all electronic storage? and to provide certification of the search to plaintiff; as sanction for ?failing to even search for certain evidence,? court prohibited defendant from re-filing its motion for summary judgment as to two of plaintiff?s claims

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Loius Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., 2009 WL 1312898 (N.D. Cal. May 12, 2009)

Dec 01 2009

Key Insight: Where plaintiff?s initial investigation into publicly posted Internet content evidencing offers for counterfeit products revealed that several previously identified addresses belonged to the same individual and where plaintiff identified additional potentially infringing sites, court granted plaintiff?s motion to modify the court ordered inspection protocol to allow investigation beyond the 67 websites previously identified; court rejected defendants? argument that modification should be denied as burdensome where plaintiff was to bear the cost of the searching and rejected defendants privacy concerns in light of expert?s articulated methodology for pinpointing only potentially relevant material

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Website Content

Crews v. Fishburne, 2009 WL 946876 (Cal. Ct. App. Apr. 9, 2009) (Unpublished)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in ordering terminating sanctions where plaintiff (and plaintiff?s counsel) delayed production of discovery, made a ?meaningless production? of an unusable CD upon defendant?s motion to compel, redacted documents without notification to defendants and refused to produce court ordered privilege log, and refused to produce unredacted documents despite a court order

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Transcap Assoc., Inc. v. Euler Hermes Am. Credit Indemnity Co., 2009 WL 3260014 (N.D. Ill Oct. 9, 2009)

Dec 01 2009

Key Insight: Where defendant ?produced? archived marketing materials by directing plaintiff to website commonly known as the Way Back Machine (which itself warned of missing links and image in webpages) and did not establish or allege that it maintained material on the Way Back Machine in the ordinary course of business, and where the court determined defendant had not adequately investigated the existence of responsive documents in paper form, court granted motion to compel and ordered defendant to conduct ?a thorough search? for responsive documents and to produce them in paper or electronic format within 14 days; court ordered plaintiff to pay attorneys fees and costs and imposed monetary sanctions against plaintiff for the numerous discovery violations addressed in the opinion

Nature of Case: Insurance coverage action

Electronic Data Involved: Way Back Machine

GW Equity LLC v. Xcentric Ventures LLC, 2009 WL 62168 (N.D. Tex. Jan. 9, 2009)

Dec 01 2009

Key Insight: Court adopted magistrate judge?s recommendations and denied plaintiff?s motion for sanctions for intentional spoliation of website content, despite defendants’ failure to suspend its policy allowing content to be edited, where evidence showed that no edits were made to the content at issue and thus plaintiff suffered no prejudice

Nature of Case: Defamation

Electronic Data Involved: Website contents

Phillips v. Potter, 2009 WL 1362049 (W.D. Pa. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants failed to timely place a litigation hold and where electronic evidence was subsequently destroyed by an automatic deletion system, court declined to impose sanctions upon plaintiff?s failure to show that the evidence destroyed was relevant to her claims

Nature of Case: Violations of Title VII and breach of contract

Electronic Data Involved: ESI

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2009 WL 1949124 (N.D. Cal. July 2, 2009)

Dec 01 2009

Key Insight: Stating ?Taishan did not even come close to making reasonable efforts to carry out its preservation of materials??, court ordered adverse inference and monetary sanctions (attorney?s fees and costs) for third-party defendant?s failure to preserve relevant evidence in violation of its litigation related duty to preserve and, in some instances, in violation of its own document retention policies

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: ESI

Estrada v. Dehli Cmty. Ctr., 2009 WL 3359194 (Cal. App. Ct. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court imposed terminating sanctions against plaintiff and monetary sanctions upon counsel for egregious discovery abuses; client?s abuses included refusal to produce relevant information despite agreement and/or a court order to do so and willful installation of a new operating system on a computer subject to preservation and production, among other things; counsel?s abuses included delay in responding to discovery, misrepresentations to the court and opposing counsel, and refusal to produce relevant information despite a court order

Nature of Case: Wrongful termination/ sexual harassment

Electronic Data Involved: ESI

Tag:Motion for Sanctions