Motion for Sanctions – Page 90 – Electronic Discovery Law

S.E.C. v. Leslie, 2009 WL 4724242 (N.D. Cal. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where defendant produced responsive documents after the close of discovery and explained that he believed the documents had been previously produced by his prior employer based on his misunderstanding that all documents saved to his personal computer were also saved on the employer?s network (and thus collected from that source), the court reasoned that ?a trial on the merits of the case outweighs and prejudice to the plaintiff?, that the plaintiff had had more than a month to complete the review of the newly produced documents, and that defendant had fulfilled his obligation to supplement discovery and denied defendant?s motion to exclude plaintiff?s use of the documents; court allowed defendant to depose plaintiff for an additional two hours

Electronic Data Involved: Late produced ESI

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

Artie?s Auto Body, Inc. v. Hartford Fire Ins. Co., 2009 WL 1578251 (Conn. Super. Ct. May 7, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where defendant?s response to plaintiffs? discovery requests encompassed as many as 20 supplemental responses over 5 years, including the production of 1,487,824 pages of electronically unsearchable ESI 5 years after plaintiffs? first request (which plaintiffs paid to convert to a searchable format), court found defendant?s efforts ?did not represent a good faith effort to comply with the rules of practice or the case management orders of this court? and violated ? 13-14(a) of the Practice Book and accordingly ordered sanctions including allowing re-deposition of witnesses at defendant?s cost, reimbursement of plaintiffs for conversion costs, and payment of plaintiffs? attorney?s fees

Nature of Case: Class action

Electronic Data Involved: ESI

New Salida Ditch Co, Inc. v. United Fire and Cas. Ins. Co., 2009 WL 2399933 (D. Colo. July 31, 2009)

Dec 01 2009

Key Insight: Where defendant was successful in ?ascertaining with clarity whether it had any information responsive to the discovery dispute? only after months of delay and claims that it was unable to perform the requisite searches in its computer system, court ordered defendant to pay plaintiff?s fees and costs upon finding that defendant failed to show its behavior was ?substantially justified? or that sanctions would be ?unjust? and where plaintiff was ?the victor in the discovery dispute? and suffered prejudice by defendant?s delay, including ?unnecessary expenditure of time and expense?

Nature of Case: Insurance coverage

Electronic Data Involved: ESI

Laethem Equip. Co. v. Deere & Co., 2009 WL 3064663 (E.D. Mich. Sept. 21, 2009)

Dec 01 2009

Key Insight: Adopting magistrate?s recommendation, district court judge denied defendant?s motion for sanctions based upon plaintiff?s alleged discovery misconduct, including spoliation and delay, where defendant ?failed to establish that its defenses have been materially prejudiced? and where plaintiff ?refuted to [magistrate?s] satisfaction the contention of defense counsel that they engaged in spoliation of material?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., 2009 WL 1605118 (S.D. Ind. June 5, 2009)

Dec 01 2009

Key Insight: Court ordered terminating sanctions against defendant and for defendant and its defense firm to pay plaintiff?s attorney?s fees where client made repeated misrepresentations regarding the use of certain chemicals at issue and failed to disclose relevant evidence about the same and where counsel failed to provide adequate guidance regarding the need to locate and produce responsive materials and allowed defendant to make repeated misrepresentations despite significant evidence that those representations were untrue

Nature of Case: Claims of property contamination

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

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

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

Tag:Motion for Sanctions