Close
Enter your
text here

Case Law

Forgetting about the Other Side of the Law is Criminal: eDiscovery Case Law

In our webcast on Wednesday titled What Every Attorney Should Know About eDiscovery in 2017 (if you missed it, you can watch it here), we covered (as we always do) several key cases that established eDiscovery best practices and trends (and a few with litigants behaving badly).  One of the questions from the audience was to ask whether we could provide any eDiscovery case law related to criminal cases.  Apparently, every example we provided was a civil case.

We will have to add in coverage of criminal cases the next time we conduct a presentation like that.  Regardless, I told the audience that I could send them some links to criminal cases we’ve covered if they wanted to send me an email and a few of the attendees did so.  As a result, I performed a search on the blog (after all, it is a knowledge base with the entire 6+ year history of posts) to look for criminal cases that we’ve covered in the past.

Here are seven posts relating to criminal cases – it’s not an exhaustive list, but it does provide at least a sampling of cases that we’ve covered over the years (#7 is my favorite):

Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: In United States v. Meredith, Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Court Rules that Judges Can Consider Predictive Algorithms in Sentencing: Score one for big data analytics.  According to The Wall Street Journal Law Blog, the Wisconsin Supreme Court ruled last week that sentencing judges may take into account algorithms that score offenders based on their risk of committing future crimes.

Was Spoliation Intentional? Court Will Let Jury Decide: In Cahill v. Dart, Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

Government Ordered to Maintain Expensive Custom Database Shared with Criminal Defendant: In the criminal case of United States v. Shabudin, California Magistrate Judge Nandor J. Vadas ordered the Government to continue to provide access to a Relativity Database used by the parties to review documents produced by the Government, instead of discontinuing access for the defendants several weeks before trial was to begin due to budgetary issues.

Hard Drive Turned Over to Criminal Defendant – Eight Years Later: As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

Court Denies Criminal Defendant’s Attempt to Quash Twitter Subpoena: In People v. Harris, Criminal Court Judge Matthew A. Sciarrino, Jr. ruled that the defendant lacked standing to move to quash the prosecution’s subpoena served upon Twitter, a third-party in the case, for records of the defendant’s Twitter account. The defendant was a protester arrested during a march on the Brooklyn Bridge as part of the Occupy Wall Street movement, and in prosecuting the case, the prosecution sought his Twitter records for the time period relevant to the defendant’s involvement in the march.

Free Trojans with Your Document Production: An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.

If you know of a recent criminal case (with eDiscovery implications) that you’d like for us to cover, feel free to send me a link to it and I’ll see about covering it.

So, what do you think?  Do you practice law in criminal courts and feel that there’s not enough discussion about eDiscovery for your cases?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Plaintiff to Produce Native Format Version of Email Potentially Altered: eDiscovery Case Law

In Lifetouch National School Studios, Inc. v. Roles, No. 3:15-cv-234 (W.D. P.A., Dec. 15, 2016), Pennsylvania District Judge Kim R. Gibson granted the portion of the defendant’s motion to compel associated with the request for the plaintiff to produce all copies of a potentially altered email in native format circulated within its organization or any of its agents.

Case Background

In this breach of contract case, the plaintiff alleged that the defendant had accepted a sales position with a competitor of the plaintiff company (Strawbridge Studios, Inc.) and solicited the plaintiff’s employees and customers in violation of her employment agreement.  During discovery, two different versions of a particular email were produced: one received by a client where the client wrote “Strawbridge[,] No contract.” and the other received by Strawbridge forwarded by an employee (Joseph Segall) of the plaintiff where the client had written “Strawbridge[,] No contract. Beth Roles.”

Both individuals who wrote the emails testified under oath that they did not include the defendant’s name in the emails, leaving the defendant to request leave to amend her counterclaim, alleging that the Strawbridge email was altered by the plaintiff to interfere with her employment at Strawbridge.  The Court granted as unopposed the defendant’s motion for leave to amend.  The defendant then filed a motion to compel production of, among other things, copies of the email in native format from all individuals at the plaintiff’s organization to whom it was forwarded or sent.

Judge’s Ruling

Judge Gibson first commented on the relevancy of the email, stating “Based on Roles’s counterclaims, this information falls within the scope of relevant material. Roles’s counterclaims are premised on the allegation that Lifetouch intentionally altered the August 25, 2015 email. Documents illustrating how that email was circulated within Lifetouch relate to whether Lifetouch did in fact alter the August 25, 2015 email, and—if so—how that alteration occurred.”

When assessing the appropriateness of discovery of the emails, Judge Gibson, noting that the plaintiff appeared to have abandoned earlier privilege objections for the emails, noted “Lifetouch appears to argue that it has already produced enough information regarding the emails. Lifetouch states that Roles ‘already has a copy of the email from Segall to Strawbridge,’ and Lifetouch goes on to explain that it has produced PDF versions of the email and the native form of the email as forwarded from Segall to Strawbridge. Further, Lifetouch argues that ‘a copy of that email in native form is not only unreasonable, but not likely to lead to the discovery of admissible information based on those emails that have already been produced.’”

In response, Judge Gibson said “These arguments are insufficient to avoid discovery. As an initial matter, the fact that Roles already has a copy of the August 25, 2015 email has no bearing on whether Lifetouch altered the email. The relevance of the documents Roles seeks is derived from their circulation within Lifetouch; a complete picture of how the email was received, discussed, and ultimately sent—or even discussed after it was sent—would be relevant to Roles’s claims. Thus, the fact that Roles already has a copy of the email is irrelevant. And Lifetouch’s argument that it should not have to produce these documents because it already produced a copy of the email from Segall to Strawbridge is unpersuasive for the same reasons.”

Judge Gibson also noted that, while arguing that production in native format is unreasonable, “Lifetouch does not explain what about native production would be unreasonable. Furthermore, Lifetouch specifically agreed ‘to produce . . . electronic documents in native format’ in the parties’ Rule 26(f) Report.”

As a result Judge Gibson granted the portion of the defendant’s motion to compel associated with production of the potentially altered email in native format and also ruled that “attorneys’ fees for this portion of Roles’s Motion to Compel are proper” and ordered the defendant to submit an affidavit detailing the attorneys’ fees she incurred in bringing her Motion to Compel.

So, what do you think?  Was it appropriate to order production of the email in native format?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Judge Cuts Over $10M from Attorney Fees Due to Use of Temporary Attorneys for Document Review: eDiscovery Case Law

The use of temporary associates for document review (and billing at normal staff associate rates) caused a federal judge in Manhattan to reduce the request for attorney fees by $10.3 million in a settlement of a securities case against Bank of America.

According to The New York Law Journal (Judge Slashes $10M in Fees Over Firm’s Use of Temporary Associates, written by Scott Flaherty), while Southern District Judge William Pauley III signed off on a $335 million settlement between Bank of America and a certified class of investors, he questioned the request for $51.6 million in fees by plaintiffs lawyers at Pennsylvania-based Barrack, Rodos & Bacine.  One of Judge Pauley’s primary issues with the request was “the use of temporary associates for the bulk of document discovery at standard associate hourly rates”.

While acknowledging that the use of less-costly associates or temporary contract attorneys “is common practice”, Judge Pauley stated that he found “troublesome” the “practice of ‘gear[ing] up’ for discovery by hiring a large group of temporary ‘associates’ and billing them at the firm’s standard rates for what this Court must assume was first-cut document review.”  Barrack had hired sixteen temporary attorneys in 2013 and 2014 to work exclusively on the matter at a blended rate of $362.50 per hour.

Even though the attorneys were “full-time [Barrack] associate attorneys” who were eligible to participate in the firm’s health insurance and 401(k) plans, they had all since left the firm.  Judge Pauley observed that “hiring a group of temporary associates and billing them out at more than $350 per hour for work that is typically the domain of contract attorneys or paralegals seems excessive.”  As a result, he concluded “that a reduction in the requested fees is warranted to avoid a windfall to Barrack for charging more than $350 per hour for associates who are contract attorneys in all but name, while simultaneously overstaffing the substantive legal work with high-priced partners.”

Judge Pauley determined that “the simplest resolution is to reduce the lodestar multiplier from 1.5 to 1.2, resulting in attorneys’ fees of $41,340,835.80, or 12 percent of the Fund.”

The New York Law Journal provided a link to the ruling here.

So, what do you think?  Should law firms bill full associate rates for document review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

2016 eDiscovery Case Law Year in Review, Part 4

As we noted yesterday, Tuesday and Monday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to social media discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.  Today, let’s take a look back at the remaining cases related to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

But first, if you want to learn more about what every attorney should know about eDiscovery in 2017, click here.

SPOLIATION / SANCTIONS

As we mentioned yesterday, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues (24 out of 62 total cases for 38.7% of all cases covered).  Here are the remaining sixteen cases related to spoliation and sanctions that we covered last year, including one where the spoliating party received punitive sanctions of $3,000,000:

Beep, Beep! Terminating Sanctions against Defendant for Spoliation Affirmed on Appeal: In Roadrunner Transportation Services, Inc. v. Tarwater, the Ninth Circuit affirmed the district court’s entry of default judgment and award of attorneys’ fees in favor of the plaintiff, ruling that the district court did not abuse its discretion by entering default judgment as a sanction for the defendant’s deletion of data from his laptop computers.  The Ninth Circuit also affirmed the district court’s award of $325,000 in attorneys’ fees to the plaintiff and also affirmed the lower court ruling to limit the plaintiff’s compensatory damages to the four customers specifically identified in the First Amended Complaint.

Defendant Sanctioned for Loss of Emails During Provider Switch, But No Sanction For Wiped Hard Drive: In Core Laboratories LP v. Spectrum Tracer Services, LLC et. al., Oklahoma District Judge Vicki Miles-LaGrange granted the plaintiff’s motion for sanctions for emails that were not preserved during an email provider switch via an adverse inference instruction, but denied the plaintiff’s motion for sanctions for deleting files and for wiping the computer of one of its employees.

Failure to Extend Preservation Hold to Headquarters Does Not Lead To Adverse Inference Sanction: In Botey v. Green, et. al., Pennsylvania District Judge Robert D. Mariani denied the plaintiff’s request for an adverse inference sanction for the defendants’ failure to preserve trucking logs related to an accident between the plaintiff and a truck driver working for the defendant’s company, but did agree not to allow the defendants to prove the contents of the destroyed documents by other means or argue their contents in dispositive motions or at trial.

Court Rules Lack of Bad Faith in Denying Sanctions for Defendants’ Deletion of ESI: In Martin v. Stoops Buick, Inc. et. al., Indiana Chief District Judge Richard L. Young ruled that the plaintiff did not carry her burden of proving that the defendants’ deliberately destroyed evidence in bad faith; therefore, he denied her Motion for Sanctions Against Defendants for the Spoliation of Evidence.

Defendant Requests Terminating Sanctions for Plaintiff, but Court Opts for Lesser Sanctions: In Applied Underwriters, Inc. v. American Employer Group, Tennessee Magistrate Judge C. Clifford Shirley, Jr., ruling on several motions, granted in part and denied in part the defendant’s motion for sanctions, agreeing that the plaintiff’s numerous discovery deficiencies warranted sanctions, but not the dismissal that the defendant requested, opting instead to require the plaintiff to pay attorney’s fees for filing the motion.

Court Sanctions Plaintiff for Failing to Preserve Customer Communications: In Matthew Enterprise, Inc. v. Chrysler Group, LLC, California Magistrate Judge Paul S. Grewal, in one of his last orders before leaving the bench, determined that there was “no question that spoliation has occurred” and granted the defendant’s motion for sanctions for spoliation, “in its entirety, except for the proposed remedy”, opting for a middle ground between the parties’ proposals on what the remedy should be.

Appeals Court Reverses Terminating Sanctions Against Plaintiff for Deletion of Emails: In Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc. et. al., the Court of Appeals of California, Second District determined that the trial court “abused its discretion” by “granting terminating sanctions in a case in which the prejudice to the non-offending party can be ameliorated by a more limited remedy”.  As a result, the appeals court reversed the judgment and remanded it back to the trial court with a lesser sanction, prohibiting the plaintiff “from offering evidence of acts, events, or communications occurring during the period” when one of the plaintiffs deleted emails.

Court Assesses $3 Million Punitive Sanction to Defendant for “Bad Faith” Deletion of Emails: In GN Netcom, Inc. v. Plantronics, Inc., Delaware District Judge Leonard P. Stark, finding a high degree of fault, bad-faith intent to deprive the plaintiff of responsive documents and prejudice caused to the plaintiff’s case, imposed several sanctions against the defendant, including “punitive sanctions in the amount of $3,000,000” for the “intentional and admitted deletion of emails” by the defendant’s Senior Vice President of Sales.

Court Declines to Sanction Defendant for Deletion of Former Employee’s Email Account: In Moore v. Lowe’s Home Centers, LLC, Washington District Judge Robert J. Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence for deleting her email account after she was terminated, finding a lack of duty preserve or bad faith on the defendant’s part and minimal (if any) prejudice to the plaintiff.

Defendant Receives Terminating Sanctions and More for “Persistent Contemptuous Behavior”: In Teledyne Technologies Inc. v. Shekar, Illinois District Judge Ronald A. Guzmàn, finding that the defendant “has failed to purge himself of contempt for the repeated refusal to comply with this Court’s orders”, entered judgment against the defendant, dismissed his counterclaims, and directed him to pay the plaintiff’s reasonable attorney’s fees and costs incurred as a result of having to pursue relief for the defendant’s “persistent contemptuous behavior”.

Appeals Court Upholds Default Judgment for Discovery Violations, Including Wiping Files from Laptop: In Trude et. al. v. Glenwood State Bank, et. al., a Minnesota Appeals Court affirmed the trial court’s entry of default judgment for repeated discovery violations, including using data wiping software to permanently delete more than 20,000 files from a laptop just hours before it was turned over for forensic examination.

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): In Shaffer v. Gaither, North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was disproportionate and denied the defendant’s Motion for Sanctions.

Searching Only File Names is Not the “Safe Way” to Avoid Sanctions: In Rodman v. Safeway, California District Judge Jon S. Tigar ordered the defendant to pay plaintiff’s Class Counsel $688,646 as a discovery sanction under Rule 26(g), ruling that “failure to search within the contents of the legacy drive constituted an unreasonable inquiry”, but denied without prejudice the plaintiff’s request for a negative jury instruction.

With No Proof of Duty to Preserve or Bad Faith, Plaintiffs’ Request for Sanctions is Denied: In Reyes et. al. v. Julia Place Condominiums Homeowners Association, Inc., et. al., Louisiana District Judge Carl J. Barbier, in denying the plaintiffs’ request for sanctions, stated that the plaintiffs “have failed to produce sufficient evidence proving that [defendant] Parkview had a duty to preserve the ledgers, that Parkview acted in bad faith in destroying the ledgers, and that the destroyed evidence was relevant to Plaintiffs’ claim”.

Defendant Sanctioned for Spoliation of Physical Evidence, But Not ESI: In Reed v. Kindercare Learning Centers et. al., Washington District Judge Benjamin H. Settle (yes, that’s his real name!) granted the plaintiff’s motion for discovery sanctions with respect to spoliation of physical evidence in the form of the facility where the plaintiff worked, but denied the plaintiff’s motion with regard to spoliation of ESI.

Was Spoliation Intentional? Court Will Let Jury Decide: In Cahill v. Dart, Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

Want to take a look at cases we covered the previous five years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

2016 eDiscovery Case Law Year in Review, Part 3

As we noted yesterday and Monday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes, privilege disputes and (once again) the ubiquitous Apple v. Samsung case.  Today, let’s take a look back at cases related to social media discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

But first, if you want to learn more about what every attorney should know about eDiscovery in 2017, click here.

SOCIAL MEDIA DISCOVERY

In addition to our usual cases where defendants want to discover social media data of the plaintiffs suing them, we have two heavyweight companies that wanted to mine for prospective jurors’ social media information (until the judge stepped in, that is).  Here are three cases related to discovery of social media data:

If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: When the big guys sue each other, the cases last forever.  We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on.  Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too.  In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.

Court Orders Plaintiff to Perform a “Download Your Info” From Facebook: In Rhone v. Schneider Nat’l Carriers, Inc., Missouri Magistrate Judge Noelle C. Collins ordered the plaintiff to disclose a complete list of her social media accounts to the defendant and also provide a “Download Your Info” report from her Facebook account from June 2, 2014 to the present within fourteen days and ordered the defendant to disclose to the plaintiff any and all posts, photos or other media from the report it intends to use in support of its defense.

Court Compels Plaintiff to Provide Social Media Account and Activity Data: In Waters v. Union Pacific Railroad Co., Kansas Magistrate Judge Kenneth G. Gale granted the defendant’s motion to compel the plaintiff to produce account information associated with his social media accounts as well as postings from the dates he missed work in conjunction with his injury claims against the defendant.  Judge Gale also granted most of the components of the plaintiff’s motion to compel against the defendant for various discovery requests.

TECHNOLOGY ASSISTED REVIEW

Quite an active year with regard to cases involving technology assisted review (TAR), with the first English case approving the use of TAR and the judge in the first ever TAR case refusing to order a party to use TAR among the cases.  Here are five cases related to TAR:

Predictive Coding is Officially Approved in First English Case: Last month, in Pyrrho Investments Ltd v MWB Property Ltd, citing the landmark DaSilva Moore case (among other authorities), Master Matthews approved the use of predictive coding, due to the “enormous” expense of manually searching through the three million electronic documents associated with the case.  This is the believed to be the first time an English court has approved the use of predictive coding.

Cooperation in Predictive Coding Exercise Fails to Avoid Disputed Production: In Dynamo Holdings v. Commissioner of Internal Revenue, Texas Tax Court Judge Ronald Buch ruled denied the respondent’s Motion to Compel Production of Documents Containing Certain Terms, finding that there is “no question that petitioners satisfied our Rules when they responded using predictive coding”.

Judge Peck Refuses to Order Defendant to Use Technology Assisted Review: In Hyles v. New York City, New York Magistrate Judge Andrew J. Peck, indicating that the key issue before the court in the discovery dispute between parties was whether (at the plaintiff’s request) the defendants can be forced to use technology assisted review, refused to force the defendant to do so, stating “The short answer is a decisive ‘NO.’”

English Court Rules that Respondents Can Use Predictive Coding in Contested Case: In Brown v BCA Trading, et. al., Mr. Registrar Jones ruled that, with “nothing, as yet, to suggest that predictive coding will not be able to identify the documents which would otherwise be identified through, for example, keyword search”, “predictive coding must be the way forward” in this dispute between parties as to whether the Respondents could use predictive coding to respond to eDisclosure requests.

Defendant Not Required to Use Predictive Coding by Court: In the case In re Viagra Products Liability Litigation, California Magistrate Judge Sallie Kim, noting that other courts had declined to force a party to use predictive coding, denied the plaintiff’s motion to force the defendant to use predictive coding instead of its preferred approach using search terms.

SPOLIATION / SANCTIONS

Of course, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues (24 out of 62 total cases for 38.7% of all cases covered).  Are there really more of these cases or do I just find them more interesting?  You decide.  Anyway, here are the first eight cases, including one where the sanction was reversed after the adoption of Rule 37(e):

Court Orders Sanctions Against Defendant for Spoliation of Emails and Other Documents: In Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, the Court, determining that the defendant had spoliated data, found that the plaintiff had not demonstrated sufficient facts to warrant striking the defendant’s affirmative defenses, but opted to order an adverse inference instruction and also ordered the defendant to pay the plaintiff’s attorneys’ fees and costs in preparing the instant motion for sanctions.

Court Gives Plaintiff 21.5 Million Reasons for Not Spoliating Emails: In Hausman v. Holland America Line-U.S.A., et al., Washington District Judge Barbara Jacobs Rothstein vacated a $21.5 million verdict awarded to a man injured by a closing cruise-ship door in 2011 and ordered a new trial, after the plaintiff’s former assistant alleged that he deleted emails that could hurt his case.

Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone: In Woodell v. Bernstein, et. al., the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case.

Changes in Federal Rules Result in Reversal of Adverse Inference Sanction: In Nuvasive, Inc. v. Madsen Med. Inc., California Chief District Judge Barry Ted Moskowitz, considering new standards imposed under recently amended Federal Rule of Civil Procedure 37(e), granted the plaintiff’s motion for an order vacating the Court’s previous order granting (in part) the defendants’ Motion for Sanctions for Spoliation of Evidence.

Alteration of Domain in Produced Emails Leads to Sanctions for Plaintiffs: In CAT3, LLC v. Black Lineage, Inc., New York Magistrate Judge James C. Francis IV, ruling that emails produced by the plaintiffs were “intentionally altered”, ordered that the plaintiffs would be precluded from relying on their version of those emails to demonstrate their case and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: In Stinson v. City of New York, New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants.

Court Rules Plaintiff’s Duty to Preserve Did Not Extend to Employee’s Internet History: In Marten Transport, Ltd. V. Plattform Advertising, Inc., Kansas Magistrate Judge Teresa J. James denied the defendant’s Motion for Spoliation Sanctions, ruling that, although the plaintiff had a duty to preserve relevant ESI as of Fall 2013, that duty to preserve did not extend to the internet history of one of its employees until June 2015, and by then the internet history was lost.

Defendants Claim of Lightning Strike and Power Surge Doesn’t Save Them from Sanctions: In InternMatch, Inc. v. Nxtbigthing, LLC, et. al., California District Judge Jon S. Tigar, finding that the defendants “consciously disregarded their obligations to preserve relevant evidence” when they discarded various electronic devices after experiencing an alleged power surge without checking to see if they could recover any files from them, granting an adverse inference instruction sanction and plaintiff’s attorneys’ fees.

Tomorrow, we will cover the remaining cases related to sanctions and spoliation.  Stay tuned!

Want to take a look at cases we covered the previous five years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

2016 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and proportionality.  Today, let’s take a look back at cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes, privilege disputes and (once again) the ubiquitous Apple v. Samsung case.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

But first, if you want to learn more about what every attorney should know about eDiscovery in 2017, click here.

COOPERATION

Why can’t we all just get along?  There were several instances where parties couldn’t agree and had to kick issues up to the court for resolution, here are four such cases:

Withheld Evidence Leads to New Trial, Resignation of Senior City Attorney: In Colyer v. City of Chicago, Illinois District Judge Edmond E. Chang granted in part the plaintiff’s post trial motion, denying the plaintiffs’ request for a directed verdict, but granting their request for a new trial after it was discovered that the defendants’ attorney had “intentionally” withheld the recording of a police dispatcher’s description of a possible suspect that was key in determining whether Chicago police officers acted with excessive force in killing a suspect in a traffic stop.  The plaintiffs also were awarded their attorneys’ fees and costs expended on preparing for the first trial, conducting the trial itself, and conducting the post-trial discovery and briefing.

Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: In Gardner et. al. v. Continental Casualty Company, Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Plaintiff Must Cooperate on Search Terms, Says Court: In Pyle v. Selective Insurance Company of America, Pennsylvania Senior District Judge Terrence F. McVerry granted the defendant’s Motion to Compel Plaintiff to Provide ESI Search Terms “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”

Court Orders Defendant to Produce Additional ESI Responsive to 78 “Unopposed” Search Terms: In Venturdyne, Ltd. d/b/a Scientific Dust Collectors v. Carbonyx, Inc., d/b/a Carbonyx Carbon Technologies, et. al., Indiana District Judge John E. Martin ordered the defendant to produce additional ESI to the plaintiff to be retrieved via 78 “unopposed” search terms that neither party objected to during negotiation over the plaintiff’s original list of 126 search terms.

DISPUTES ABOUT DISCOVERY

Here’s one case from this past year that was a general dispute about discovery:

Plaintiff’s Failure to Demonstrate Allegations Leads to Summary Judgment for Defendant: In Malibu Media, LLC v. Doe, in a case of dueling summary judgment motions, Illinois Magistrate Judge Geraldine Soat Brown denied the plaintiff’s motion for summary judgment, but granted the defendant’s summary motion in its entirety, concluding that the plaintiff had not presented sufficient evidence to prove its allegations of illegally downloading movies.

EDISCOVERY COST SHARING AND REIMBURSEMENT

This year, the two cases we covered related to eDiscovery cost reimbursement were split – sort of.  In the case where the request for eDiscovery cost reimbursement was upheld, the decision was made after the defendants conceded much of the storage and hosting costs they had claimed, leaving less costs to uphold.

Court Denies Request for Cost Reimbursement for Hosted eDiscovery Database: In Associated Electric & Gas Insurance Services, et. al. v. BendTec, Inc., Minnesota District Judge Michael J. Davis found that the decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. to deny certain eDiscovery costs to be persuasive and ruled that “the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)”, denying the prevailing defendant’s request for reimbursement of over $123,000 in costs to maintain their ESI database.

Appeals Court Upholds Defendant’s Request for eDiscovery Cost Reimbursement: In Deere & Co. v. Duroc, LLC et. al., after the defendants conceded much of the storage and hosting costs they had claimed, the Federal Circuit Court of Appeals affirmed the district court ruling to uphold cost taxation requested by the defendants, including eDiscovery costs.

PRODUCTION FORMAT DISPUTES

We had three cases this year involving production format disputes, including one that led to sanctions for the defendant for failing to produce native format data (among other violations):

Court Denies Plaintiff’s Request for Native ESI Format, Approves Request for Index: In Stormo v. City of Sioux Falls, et. al., South Dakota District Judge Karen E. Schreier, ruling on several motions, denied the plaintiff’s motion to compel with regard to requiring the defendants to provide electronically stored information in its native format and metadata for these documents, but granted it with regard to providing an index explaining information about the documents.

Court Orders Defendant to Re-Produce Selected Documents in Native Format: In Spring v. Board of Trustees of Cape Fear Community College et. al., North Carolina Magistrate Judge James E. Gates, in ruling on several discovery disputes between the parties, granted the plaintiff’s motion to compel in part, ordering the plaintiff to identify documents to be re-produced in native format and for the defendant to re-produce those documents or move for appropriate relief after conferring with plaintiff if it deemed the number of documents identified to be unjustifiably large.

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: In First Financial Security, Inc. v. Freedom Equity Group, LLC, California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the defendant for deleting relevant text messages “with the intent to deprive” the plaintiff of the use of those text messages and for failing to produce native-format data that it was repeatedly ordered to produce.  Judge Lloyd declined to sanction the defendant for spoliation of phone records or employment applications.

PRIVILEGE DISPUTES

As usual, there were cases where there were disputes regarding privilege designations and privilege logs.  Here are three cases:

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: In Moore v. Lowe’s Home Ctrs., Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Court Denies Defendant’s Motion for Production of Documents for In Camera Review: In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was inadequate and ordered the plaintiff to provide to the defendant a metadata log for all documents withheld or redacted, affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties and a list of anticipated litigation(s) for the documents withheld on the basis of work product protection.

APPLE V. SAMSUNG

The case that never dies.  Just when Apple finally thought it was going to get a great big check, the Supreme Court told the federal appeals court to try again when determining an award for patent infringement:

Supreme Court Gives Samsung an Early Christmas Present – For Now: As reported by Greg Stohr of Bloomberg Law (Supreme Court Orders New Look at Apple’s Award From Samsung), the Supreme Court, in a unanimous opinion (8-0) told a federal appeals court to take another look at a $399 million award won by Apple from Samsung for copying the design of the iPhone.

Tomorrow, we will cover cases related to social media discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation (yes, there were that many).  Stay tuned!

Want to take a look at cases we covered the previous five years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

2016 eDiscovery Case Law Year in Review, Part 1

It’s that time again!  Time for our annual review of eDiscovery case law!  Once again, we had plenty of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI) and even a few landmark cases regarding technology assisted review.  So, as we have done for the last five years, let’s take a look back at 2016!

Last year, eDiscoveryDaily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had over 500 lifetime case law posts, covering over 380 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND PROPORTIONALITY

This year, there were more disputes than ever about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are sixteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: In Matthew Enterprise, Inc. v. Chrysler Group, LLC, California Magistrate Judge Paul S. Grewal denied the defendant’s motion to compel production from personal email accounts of the plaintiff’s employees because the plaintiff did not have legal control of the emails.  However, he granted the defendant’s motion to compel production from the plaintiff’s customer communications database operated by a third party vendor, noting that the plaintiff did have control of that data, having already produced data from this source.

Citing Proportionality Concerns, Court Grants Plaintiff’s Motion for Protective Order: In Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., Indiana Magistrate Judge Debra McVicker Lynch, citing proportionality concerns, granted the plaintiff’s motion for a protective order and ordered that the defendant was prohibited from obtaining the discovery sought by the defendant’s subpoenas from a major shareholder of the plaintiff.

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: In Digital Ally, Inc. v. Utility Associates, Inc., Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Plaintiffs Ordered to Produce a Copy of Access Database for Forensic Analysis: In Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Court Limits Scope of Search Terms Requested by Plaintiff: In AVM Technologies, LLC v. Intel Corp., Delaware Magistrate Judge Mary Pat Thynge granted in part the plaintiff’s request for the defendant to perform a database search of four terms and their synonyms, but limited the scope of that search to one specific defendant database, not the variety of sources requested by the plaintiff to be searched.

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: In Bruner v. American Honda Motor Co., Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Court Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Court Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: In Al-Ameri et. al. v. Johns Hopkins Hospital, Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Court Settles Dispute Between Parties on Number of Custodians to Search and Produce: In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., Connecticut Magistrate Judge Sarah A. L. Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from additional custodians, finding that “three of the six proposed custodians’ files are likely to include information relevant to this matter, and defendant has not met its burden of showing that inclusion of these three individuals would be unduly burdensome”.

Court Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: In Gade v. State Farm Mutual Automobile Insurance Co., Vermont Chief District Judge Christina Reiss denied the plaintiff’s motion for an order requiring the defendant to pay expenses and fees that she incurred in opposing the defendant’s motion to compel production of an Excel spreadsheet from the plaintiff’s expert.

Court Grants Discovery on Individual Defendants’ Personal Computers and Email: In Sunderland v. Suffolk County et. al., New York Magistrate Judge A. Kathleen Tomlinson, determining that the plaintiff’s request for individual defendants to search for and produce certain documents from their personal computers and email accounts was not “unduly intrusive or burdensome” because the request was limited in time frame and the parties had agreed to search terms, granted the plaintiff’s motion to compel.

Court Rules Government’s Use of Stingray to Locate Suspect Was Unwarranted: In United States v. Lambis, New York District Judge William H. Pauley, III granted the defendant’s motion to suppress evidence obtained by law enforcement agents in connection with a search of his apartment because the apartment was located via the use of a “Stingray” cell-site simulator to identify the location of the defendant’s phone without a warrant.

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: In Blodgett et. al. v. Siemens Industry, Inc., New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Defendant Not Required to Produce All Documents Responsive to Search Terms: In Bancpass, Inc. v. Highway Toll Administration, LLC, Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: In Elkharwily v. Franciscan Health Sys., Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Court Orders Forensic Examination of Key Custodian Computers: In Davis v. Crescent Electric Company et. al., South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes and the ubiquitous Apple v. Samsung case.  Stay tuned!

Want to take a look at cases we covered the previous five years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Plaintiff’s Intentional Deletion of Emails to Competitors Leads to Order to Produce Gmail Account: eDiscovery Case Law

In Cohn et. al. v. Guaranteed Rate, Inc., No. 14-9369 (N.D. Ill., Dec. 8, 2016), Illinois District Judge John Robert Blakey granted in part and denied in part the defendant’s motion to compel discovery, for spoliation sanctions, and to extend the discovery deadline, finding that the defendant’s request for dismissal of the plaintiff’s claims and entry of default judgment or issuance of an adverse inference instruction was “not commensurate with the harm implicated here”, opting instead to require the plaintiff to provide full access to her Gmail account to the defendant.

Case Background

In this breach of contract case, the plaintiff was originally hired by the defendant in 2012, which also purchased the assets of the plaintiff’s company.  Part of the employment agreement executed by the plaintiff “expressly prohibited” her from using or disclosing confidential information or from soliciting employees or customers of the defendant.  By November 2013, the relationship between the parties had deteriorated, with the plaintiff referencing an expected lawsuit and indicating that she had retained counsel over perceived breaches of the agreement by the defendant; the plaintiff’s counsel also sent a letter to the defendant in February 2014 regarding those perceived breaches.  In turn, the defendant’s counsel sent letters to the plaintiff, also threatening litigation.  The plaintiff left the defendant’s employment in August 2014 and filed suit against the defendant in November 2014.

The defendant requested documents from the plaintiff (including emails from her Gmail and LinkedIn accounts) reflecting the plaintiff’s communications with any of the defendant’s competitors.  The plaintiff responded that, to the extent documents responsive to those requests existed, they would be produced; however, she did not produce a single message from her Gmail account with any of those competitors.

The plaintiff’s failure to produce this material forced the defendant to serve third party discovery requests on a number of its competitors, and those competitors’ document productions contained numerous messages to and from the plaintiff that she had never produced.  In conversations with one competitor, the plaintiff “ask[ed] that [they] turn to [her] gmail account” and she instructed the competitor to “Hide the info I sent was [sic] the max that my atty will allow—well actually more. I simply cannot put more in writing.”  The plaintiff also instructed her subordinate to begin communicating using their personal email addresses and to “delete our grate [Guaranteed Rate] emails to permanent tras[h].”

The defendant filed the present motion, requesting the dismissal of the plaintiff’s claims, entry of default judgment, or the issuance of adverse inference instructions at trial. Alternatively, the defendant requested native production of the plaintiff’s entire Gmail account, production of her Gmail log-in and password credentials, production of her work and personal computers to enable pursuit of a forensic inspection, and issuance of an injunction preventing the plaintiff from altering, destroying, or modifying any evidence in any way.  The plaintiff, in responding, admitted that she “deleted the subject emails with third-parties from her personal Gmail account in November of 2013, April-June of 2014, and July of 2014.”

Judge’s Ruling

Relying on Federal Rule 37(e) and considering the plaintiff’s duty to preserve, Judge Blakey stated “The Court finds that Cohn had a duty to preserve her communications with GRI’s competitors by at least November 30, 2013. By that point Cohn was making explicit references to legal action against GRI and its officers, and she had retained the attorney who represents her in this lawsuit…She was also making overtures to certain of GRI’s competitors by that time…In light of those facts and her clear obligations under the APA and BMA, Cohn and her counsel should have been able to ‘foresee’ by November of 2013 that her communications with GRI’s competitors ‘would be material (and thus relevant) to a potential legal action.’”

Judge Blakey also referenced the plaintiff’s admission of email deletions as “an obvious breach of her duty”.  As for proof of harm suffered by the defendant, Judge Blakey indicated that the “prevailing rule is that bad faith destruction of a document relevant to proof of an issue at trial gives rise to a strong inference that production of the document would have been unfavorable to the party responsible for its destruction.”  And, Judge Blakey, referencing the plaintiff’s instructions to one of the competitors to “hide the info” she sent, ruled that the information was deleted in bad faith.

With regard to remedy, however, Judge Blakey ruled that “GRI’s request for the dismissal of Cohn’s claims and entry of default judgment is not commensurate with the harm implicated here”, ordering instead “that, at a minimum, GRI must be given full access to Cohn’s Gmail account.”  He also denied the defendant’s request for an adverse inference instruction without prejudice, hoping the production of Cohn’s full Gmail account will “obviate the need for such instructions”.

So, what do you think?  Did the court go far enough in its sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Was Spoliation Intentional? Court Will Let Jury Decide: eDiscovery Case Law

In Cahill v. Dart, No. 13-cv-361 (N.D. Ill. Dec. 2, 2016), Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

Case Background

In this case involving state claims for false arrest and malicious prosecution and a federal claim for violation of the Fourth Amendment, the plaintiff was initially arrested on December 15, 2011 by police officers with the Cook County Sheriff’s Office, for driving on a suspended license.  He was transferred to the lockup for processing and patted down by one of the officers, who claimed that he saw the plaintiff drop a small, tissue-wrapped, white package to the floor which turned out to be cocaine.  The plaintiff denied that he dropped the package and denied that he was ever in possession of cocaine, but was charged with possession based on the officers’ accounts.

There were surveillance cameras present and the plaintiff’s criminal defense attorney acted quickly after the arrest to attempt to obtain all video footage of his client’s time at the lockup, sending a subpoena to the Sheriff’s Office and also the County legal department.  A lieutenant with the Sheriff’s Office also took action to preserve the video, submitting a hold request shortly before the video was scheduled to be destroyed.  Despite that, the video was initially thought to have been destroyed, but some of it was preserved, but only after the package had already been dropped.  After viewing the video, the Assistant Cook County State’s Attorney handling the case concluded that the state would not be able to prove the charges against the plaintiff and dismissed the charges. The plaintiff then brought this lawsuit.

In his Motion for Sanctions for Spoliation of Evidence, the plaintiff contended that the defendants had a duty to preserve the entire video footage and intentionally failed to do so because the video would have proven his innocence, by showing that someone other than him dropped the cocaine.  The plaintiff’s motion proposed sanctions ranging from default judgment to an adverse inference instruction, a prohibition on defendants’ use of certain evidence and attorney fees related to the filing of the motion.

Magistrate Judge Cox held a hearing on the motion and heard from numerous witnesses, including James Collins, the technician who had provided a copy of the video.  In her Report and Recommendation, Judge Cox concluded that (1) Defendants were under a duty to preserve the evidence; (2) their allowing the video to be destroyed was grossly negligent, though not intentional based on the evidence presented; (3) Cahill “suffered substantial prejudice” from the loss of this “essential” evidence; and (4) a sanction was appropriate, which was determined to be to bar Defendants “from making any arguments or presenting evidence stating that the lost portion of the videotape showed Plaintiff dropping cocaine on the Maywood Lockup floor, including, but not limited to, Collins’s notes or any testimony from Collins relating to what he saw on the video other than the portion of the video that was preserved.”  In response, the plaintiff filed timely objections, arguing that the sanction Judge Cox recommended was insufficient to counter the prejudice he will suffer from the loss of video that he says would have shown someone else dropping the cocaine.

Judge’s Ruling

Judge Lee indicated that the defendants proposed that the jury should be informed simply “that only a portion of the video exists,” and each party should then be allowed to present “their theory of what is on the missing video”, but that suggestion was at odds with Judge Cox’s Report and Recommendation.  So, “having conducted an independent review”, Judge Lee adopted Judge Cox’s Report and Recommendation “with modifications”, concluding that, “at the very least, the jury should be informed that the video is missing because Defendants failed to fulfill their duty to preserve it.”

As for whether the plaintiff was entitled to the adverse inference instruction he seeks, Judge Lee stated that “[a]lthough the Court disagrees with Judge Cox that Cahill presented no evidence of intent, the question is a close one.”  Because “evidence not directly tied to the fate of the video could nevertheless illuminate Defendants’ intent regarding the video”, Judge Lee decided that “that the best course is for the jury to decide the question of intent.”

As a result, Judge Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

So, what do you think?  Should juries be left to decide whether spoliation of evidence is intentional?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Sanctioned for Spoliation of Physical Evidence, But Not ESI: eDiscovery Case Law

In Reed v. Kindercare Learning Centers et. al., No. 15-5634 (W.D. Wash., Nov. 17, 2016), Washington District Judge Benjamin H. Settle (yes, that’s his real name!) granted the plaintiff’s motion for discovery sanctions with respect to spoliation of physical evidence in the form of the facility where the plaintiff worked, but denied the plaintiff’s motion with regard to spoliation of ESI.

Case Background

In this disability discrimination case, the plaintiff had previously filed a Motion to Compel production of documents, which had been granted by the court (with certain limitations). After the defendants did not comply with the order, the plaintiff filed a motion for sanctions as well as a motion to compel entry upon land to inspect the facility where the plaintiff worked.  The plaintiff argued that, after she served the defendants with a notice of entry upon land to inspect the center where the plaintiff had worked, the defendants closed the center without notice and informed the plaintiff that the center had closed and that an inspection would not be possible, eventually informing the plaintiff that the fixtures/furniture were removed from the center and an inspection would not be possible, offering another center with a similar layout as an alternative.

The plaintiff also argued that Defendants “(a) failed to secure relevant email accounts prior to destruction; (b) searched for email and other records for the first time in response to this motion; and (c) possess dozens of relevant documents that were never produced or listed on a privilege log.”

The defendants filed a response to the motion for sanctions and also filed a motion for clarification or reconsideration of the granted motion to compel.

Judge’s Ruling

With regard to the request for the Court to clarify or reconsider its order based on the scope of the production and the deadline for production, Judge Settle, in denying the request, stated that “Defendants do not show a manifest error of law and, at most, submit new evidence that could have been brought to the Court’s attention earlier. Defendants previously argued, without support, that the requested production would not be proportional to the needs of the case. The Court dismissed this argument because it declined to evaluate proportionality in the absence of actual evidence. Thus, the fact that production may be disproportionate to the needs of the case is not an issue the Court will reconsider.”

With regard to the request for sanctions regarding spoliation of physical evidence (i.e., the center where the plaintiff had worked), Judge Settle stated “These facts show that Defendants have acted in at least a grossly negligent, irresponsible and cavalier manner with regard to the Notice of Entry upon the Lakewood center. Accordingly, the Court finds that an adverse instruction may be appropriate. The language of any instruction will be determined after Reed collects evidence from KinderCare’s other centers because, at this time, the Court is unable to properly weigh the prejudice Reed has suffered.”  Judge Settle also granted the plaintiff’s motion to inspect two other defendant locations, rejecting the defendant’s objection that the motion was untimely.

With regard to the request for sanctions for spoliation of ESI, Judge Settle stated that “[w]hile Defendants could have implemented better retention policies and more actively searched for electronically stored information, Reed has failed to show that Defendants have spoiled any evidence. In fact, Defendants have recently discovered and produced a relevant employee file.”

So, what do you think?  Was the Court’s argument for denying the ESI spoliation claim sufficient?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.