Other Federal Rule(s) of Civil Procedure and/or Evidence Rule: FRCP 37(b)

Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).

Key Insight: Plaintiff sought a motion for spoliation sanctions based on defendant’s failure to prepare its Rule 30(b)(6) deponent to testify on topics related to ESI preservation and collection, and for spoliation sanctions related to the failure to preserve ESI. The court granted sanctions for defendant’s failure to prepare its 30(b)(6) designee, finding: “The production of an unprepared witness is tantamount to a failure to appear, and warrants the imposition of sanctions.” Defendant offered its head of IT as the corporate designee. He received the deposition notice less than 72 hours before the deposition, spent about 6 hours preparing to testify (approximately 10 minutes per topic), did not review any documents other than his own emails, and did not speak or communicate with other employees to gather information on the topics he was supposed to testify about. The court ordered a second 30(b)(6) deposition, required defendant to pay the reasonable costs and expenses associated with attending the second deposition and fees for plaintiff’s ESI consultant to attend, and awarded fees associated with having to bring the motion to compel. On the issue of failure to preserve ESI evidence, the court concluded it was premature to address this issue until the second 30(b)(6) deposition, which would cover topics relating to defendant’s litigation hold efforts.

Nature of Case: Breach of contract

Electronic Data Involved: ESI business documents and electronic devices

Case Summary

Bursztein v. Best Buy (S.D.N.Y. 2021)

May 17 2021

Key Insight:

Plaintiff moved to sanction Defendant for failure to comply with discovery obligations and spoliation of evidence in personal injury and premises liability litigation. The discovery requests that led to Plaintiff’s Motion were for video surveillance of, and facilities records and training manuals related to the “slip and fall” incident at issue in the litigation; the Defendant did not fully respond to the requests, and failed to preserve electronically stored information (ESI) relating to the incident.

The Court partially granted Plaintiff’s Motion for Sanctions, allowing Plaintiff to present evidence at trial regarding Plaintiff’s spoliation of the ESI, and awarding attorney’s fees and costs incurred in briefing the Motion. The Court found that the Defendant failed to preserve the surveillance footage as well as entries in its Facilities Request System. Moreover, the Defendant failed to produce the above mentioned facilities records and training manuals.

Nature of Case: Personal Injury, Premises Liability

Electronic Data Involved: Surveillance Video, Facilities Request System (Database)

Case Summary

Optrics Inc. v. Barracuda Networks, Inc. (N.D. Cal. Feb. 4, 2021)

Feb 04 2021

Key Insight: The Plaintiff in litigation over claims of trademark infringement, unfair competition and breach of contract failed to preserve and destroyed discoverable electronic data, and similarly, failed to prepare for 30(b)(6) depositions. Moreover, there were repeated delays (and time extensions) in Plaintiff responding to Defendant’s discovery requests. In doing so, the Plaintiff repeatedly disobeyed discovery orders issued by the Court.

The litigation settled while discovery was pending. The Defendant moved for sanctions against the Plaintiff for its conduct in discovery, and the Court, pursuant to FRCP 37(b), awarded sanctions against Plaintiff and its counsel, jointly and severally. Plaintiff’s former counsel subsequently claimed that it should not be held liable for the sanctions because it was unable to control the conduct of its client in responding to discovery order(s) and requests.

Nature of Case: Intellectual Property, Trademark Infringement, Contracts, Unfair Competition

Electronic Data Involved: Email, Electronic Files, Hard Drives.

Case Summary

Alsadi v. Intel Corporation (D. Ariz. 2020)

Jul 17 2020

Key Insight: The meaning of ESI is expansive, includes any type of information stored electronically, and is not limited to data stored on a computer system. Rule 37(e), not inherent authority, is the legal standard for determining whether and what sanctions are appropriate for the loss of discoverable ESI. A negative inference sanction with only be imposed if the spoliating party intentionally lost or destroyed data so it could not be used in litigation.

Nature of Case: Tort

Electronic Data Involved: Detector Device Data

Case Summary

Tag:Other Federal Rule(s) of Civil Procedure and/or Evidence Rule: FRCP 37(b)