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Preservation

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

With No Intent or Duty to Preserve, Court Finds No Spoliation Occurred: eDiscovery Case Law

In Archer et. al. v. York City School District, et. al., No. 13-2826 (M.D. Pa., Dec. 28, 2016), Pennsylvania District Judge John E. Jones, III ruled that the plaintiffs had presented no evidence showing that the defendants acted with intent when they deleted the email account of the former Assistant Superintendent, nor had a duty to preserve arose prior to the deletion of the account.

Case Background

In this case brought forward in November 2013 by a group of students and parents suing the defendants to protest the decision not to renew their school’s charter based upon the performance of the school and the hardship on the city’s budget, the defendants filed a Motion for Summary Judgment.  In their opposition to the summary judgment motion, the plaintiffs alleged that the defendants spoliated evidence when they deleted the email account of former assistant superintendent Perry-Cross, who retired in February 2012.  Her email account was deleted afterward, with the defendants suggesting that this may have occurred as soon as ninety days after, while the plaintiffs alleging that her emails were “purged sometime after 2012” (though they failed to provide any evidence that pointed to this timeline).

The parties agreed that the first two elements of spoliation – that the emails were within the defendants’ control and they were relevant to the claims of the instant case – were not at issue.  But, the defendants disagreed with the last two elements, arguing that the emails were deleted as a matter of course, so the defendants were not attempting to suppress evidence and further arguing that at the time the emails were deleted, there was no reasonably foreseeable duty to preserve the account.

Judge’s Ruling

With regard to intent to destroy evidence, Judge Jones stated: “Plaintiffs here have presented no factual basis whatsoever in support of their allegations that Defendants’ intended to destroy evidence helpful to Plaintiffs’ claims. Rather, the District’s policy of purging former employees’ email accounts within ninety days, and the fact that litigation did not commence until well over a year after Defendant Perry-Cross left the District and potentially over a year after the deletion occurred amounts to evidence supporting the opposite conclusion. Defendants also point to their swift and prompt reaction to turn over newly discovered evidence in the form of another District employee’s email account after previously believing it was deleted…This compilation of evidence, taken as a whole, leads the Court to conclude that Plaintiffs have failed to support their allegation that Defendants acted with intent to spoil evidence when they deleted Defendant Perry-Cross’s email account.”

With regard to the defendants’ duty to preserve, Judge Jones stated: “Plaintiffs attempt to persuade the Court that ‘[t]here can be no credible argument that the defendants were not aware that the disruption of 700-800 children and tens of millions of dollars would not produce litigation’ such that Defendants should have been on notice of their duty to preserve Defendant Perry-Cross’ email account…We disagree. Plaintiffs’ argument that by the simple act of doing their jobs, Defendants should have been on notice of litigation that would not commence until nearly a full year later does not create knowledge that litigation is ‘pending or probable.’”

Finding that the plaintiffs “have failed to establish both the third and fourth elements of spoliation”, Judge Jones found that their allegation of spoliation had no merit and granted the defendants’ Motion for Summary Judgment in its entirety.

So, what do you think?  When did the duty to preserve data begin?  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

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.

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

With No Proof of Duty to Preserve or Bad Faith, Plaintiffs’ Request for Sanctions is Denied: eDiscovery Case Law

In Reyes et. al. v. Julia Place Condominiums Homeowners Association, Inc., et. al., No. 12-2043 (E.D.L.A., Oct. 7, 2016), 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”.

Case Background

In this class action lawsuit brought by condominium owners throughout New Orleans against their various condo associations alleging debt collection practices that violate state and federal law, the Court had previously certified a “a class of past and present condominium owners who have paid allegedly usurious late fees”.  During the course of the litigation, one of the defendants (Parkview Condominium Homeowners Association) filed a motion for summary judgment, stating that that the plaintiffs had not introduced any evidence that a current or former Parkview unit owner paid an allegedly usurious fee, so Parkview should be dismissed from the lawsuit.

In response, the plaintiffs argued that they were entitled to an adverse inference sanction due to Parkview’s “intentional” destruction of ledgers that would have proven Parkview condominium unit owners paid allegedly usurious late fees.  The plaintiffs had made a similar request for these ledgers and an adverse inference sanction in a motion to compel in Magistrate Court and that motion was denied.

Here, the plaintiffs claimed that they first requested this information in September 2012 and, in response to this request, “Parkview threatened sanctions . . . but never provided this critical evidence.”  The plaintiffs also argued that Parkview did not initially contend that the documents were lost or otherwise unavailable, but simply refused to comply with the plaintiffs’ request.  In response, Parkview stated it informed the plaintiffs that it was not in possession of that information, because the documents were “inadvertently destroyed prior to the commencement of this litigation. There were no backups of any of the files that were located on the damaged computer and hard drive.”  Parkview also contended that it had no duty to preserve that information, noting that it was unreasonable to believe that the originally named plaintiff, who was never an owner at Parkview, would sue Parkview and seek ledgers for the two years preceding the litigation.

Judge’s Ruling

In ruling on the plaintiff’s request for sanctions, Judge Barbier stated:

“Plaintiffs have failed to produce sufficient evidence proving that 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. Plaintiffs ask this Court to infer that Parkview intentionally, and in bad faith, destroyed its ledgers solely because Parkview did not initially tell Plaintiffs that it had inadvertently destroyed the ledgers prior to litigation…This is a leap this court is unwilling to make. Accordingly, the Court finds that Plaintiffs are not entitled to an adverse inference for purposes of this motion nor trial.”

Also, observing that “[n]otably absent from Plaintiffs’ evidence is anything demonstrating that a past or present condominium unit owner has paid an allegedly usurious late fee”, Judge Barbier granted Parkview’s Motion for Summary Judgment, dismissing Parkview from the case.

So, what do you think?  Did the plaintiff make too big a leap in assuming “intentional” destruction of the ledgers?  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 Failing to Preserve Text Messages and Failing to Produce Native Format Data: eDiscovery Case Law

In First Financial Security, Inc. v. Freedom Equity Group, LLC, No. 15-1893 (N.D. Cal., Oct. 7, 2016), 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.

Case Background

In this case, the plaintiff sued the defendant for intentional interference with contract and related violations of California’s Unfair Competition Law (“UCL”), alleging the defendant induced approximately 1,400 sales contractors to leave the plaintiff and join the defendant “en masse”.  The parties filed a Discovery Dispute Joint Report after the defendant had “concededly” failed to produce requested discovery materials, including: (1) text messages possessed by defendant principals; (2) employment applications submitted by former plaintiff contractors; (3) native-format copies of digital data related to the circumstances in which the defendant hired the former plaintiff contractors; and (4) phone records. The court, based on the defendant’s conceded failure to comply with its discovery obligations and absent any substantive opposition, ordered the defendant to produce the discovery materials requested.

After the defendant still failed to produce all of the above, the plaintiff filed its sanctions motion.  The defendant conceded in its opposition brief that the texts “were deleted”, but argued that these texts were “innocently” deleted by people who did not understand their discovery obligations. The defendant also asserted: (1) the phone records were deleted by the phone company because those records “are kept only for a year”; (2) there is no native-format data to produce, because the data “is a data base” that can be reviewed through “a query”; and (3) the defendant never possessed any employment applications, because the information in any given employment application is digitally submitted directly to a “data base” and no application document is separately retained.

After oral arguments where the defendant conceded it produced a physical spreadsheet instead of producing native-format copies of the underlying data; the court ordered the defendant to produce, instead, the native-format data.  In response, the defendant issued a declaration stating that it did not have possession of the data because it relied upon third party software service providers to receive and store the data, that it has changed providers and the original provider had no obligation to turn over the data without a court order.

Judge’s Ruling

Judge Lloyd, ruling that the duty to preserve evidence arose no later than January of 2014 (when the defendant warned its employees that there would be a lawsuit), was “persuaded that FEG had an obligation to preserve text messages in the anticipation or conduct of litigation, that FEG took no reasonable steps to preserve text messages,…that those messages cannot be restored or replaced through additional discovery and that FEG’s agents acted with the intent to deprive FFS of the use of the deleted text messages.”

Also, noting that “[t]he court twice ordered FEG to produce the native-format data sought by FFS”, Judge Lloyd determined that “FEG has misled and prejudiced FFS in the course of FFS’s attempts to discover native-format copies of electronically stored data” relating to the case, further noting that the defendant had raised the claim that it lacks possession, custody, and control of the data “far too late.”

As a result of the deletion of text messages and the failure to produce the native-format data, Judge Lloyd issued permissive adverse inference instruction sanctions against the defendant, “because mandatory inferences are not necessary to remedy the prejudice FFS has suffered.”  Judge Lloyd declined to issue sanctions with respect to the phone records and the employment applications, failing to find intent to deprive for the former and finding that actual documents were not created in the latter.

So, what do you think?  Was a permissive adverse inference instruction a severe enough sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

If you’re in Houston, don’t forget that tonight is “Drinks with Doug” at The Tasting Room – CityCentre.  Click here to find out how to RSVP.  Hope to see you there!

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.

This is a Non-Political Post: eDiscovery Trends

At the outset, I feel that I should state that, given that this post is about the Hilary Clinton emails and the FBI handling of them.

In his latest post (E-Discovery Lessons from the Huma Abedin E-Mails), Craig Ball takes a look at the eDiscovery implications regarding the handling of the Huma Abedin emails and his distaste for FBI Director James Comey’s handling of them.  Craig states: “‘Reckless’ doesn’t begin to describe Comey’s self-indulgent decision to release information about a situation he clearly does not yet grasp, in a manner that elevates Jim Comey above longstanding Justice Department policy and the integrity of a Presidential election.”

Nonetheless, regardless of political leanings, Craig notes that his post “will not be a political screed, so while I always welcome critical and substantive comments on anything I write, please hew to the e-discovery aspects of same.  Please.”  Of course, at least one commenter (so far) still questioned the political intent of his post, characterizing Craig’s comments as “partisan”.  Not surprisingly, there were already 20 total comments on Craig’s post in less than a full day (including mine).

Craig’s post, and the comments back and forth are well worth reading.  One of the eDiscovery discussion points related to the cross-collection correlation of email messages – which Craig wrote about here and we covered here, with back and forth discussion between Craig and our CTO, Bill David – and the challenge of doing that when the Clinton emails were produced to the State Department in paper (yes, paper) format.  There was also a discussion as to whether the Clinton claim that “more than 90% of those emails should have already been captured in the State Department’s email system” was true and could have eliminated most of the email matching effort to determine whether there is significant new information in the Abedin emails that bear investigating.

And, to think this latest round was initiated because of our social media gone wrong poster child, Anthony Weiner.  Some people never learn to think before they hit send.

Bill Dimm provided a link to Hilary Clinton’s fact sheet regarding the emails in one of his comments, which answered the question as to why Clinton produced printed copies to the State Department instead of ESI, noting that the Foreign Affairs Manual of the State Department provides this guidance with regard to how to preserve e-mail records:

“Until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed, those messages warranting preservation as records (for periods longer than current E-mail systems routinely maintain them) must be printed out and filed with related records.”  [5 FAM 443.3].

So, our government is just as behind as the rest of the legal profession (if not more) with regard to production formats.  Big surprise.

We’ve already discussed one area where eDiscovery might impact the coming election.  Maybe this is another.

So, what do you think?  Are you sick of hearing about the election yet?  Me too!  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

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), 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.

Case Background

The defendant filed an instant motion for dismissal based on destruction of electronically stored information (“ESI”).  The plaintiff contended that she was constructively discharged when she quit her job as an Assistant District Attorney due to sexual harassment by defendant and also claimed that defendant defamed her by telling others that she was fired for having a sexual relationship with a married member of the defense bar (which she admitted, but also contended was a falsely given reason for her termination).

The defendant contended that the text messages were lost in May 2014 when plaintiff dropped the cell phone in a bathroom and lost her text messages (a fact which the plaintiff did not deny) and that at the time the phone was destroyed, plaintiff and her counsel knew of the impending litigation, having threatened litigation in a letter nearly a year earlier, and that litigation was in fact filed the month following the phone’s destruction.  In arguing against dismissal, the plaintiff claimed that these texts were not relevant as the defendant did not read them until sometime after he decided to fire plaintiff (which he admitted, but claimed that his decision to fire the plaintiff came after the paramour’s spouse told him about the texts and the alleged affair).

In her affidavit, the plaintiff indicated that she no longer had the phone or the SIM card because when she broke her phone, she made a claim against her insurance, and her insurer required her to turn in both the broken phone and the SIM card (and the texts were not available from the provider).

Judge’s Ruling

In considering the defendant’s motion for dismissal, Judge Cogburn stated that “[u]nder recently revised Rule 37(e), the duty of a party to preserve ESI arises when litigation is ‘reasonably anticipated’ and the loss of ESI is sanctionable when ‘reasonable steps to preserve’ are not taken and such information cannot be restored or replaced through additional discovery.” However, he also noted that the “sanction of dismissal is not, however, a sanction of first resort” with Rule 37(e)(1) and Rule 37(e)(2) allowing the court “to take action no greater than necessary to cure the prejudice resulting from the loss” and that “Rule 37(e)(2) allows treatment of loss under spoliation only where party acted with an intent to deprive.”

While determining that “plaintiff and her counsel failed to take reasonable steps to preserve those texts as they apparently resided only on plaintiff’s phone”, Judge Cogburn said he “cannot conclude that plaintiff acted with an intent to deprive defendant of the ESI under Rule 37(e)(2); thus, spoliation does not yet come into play.”  However, noting that testimony could determine the content of those texts, Judge Cogburn indicated that the court “has not ruled out a spoliation or modified spoliation instruction, and reserved that for consideration after it has heard the evidence at trial.”

So, what do you think?  Would a dismissal sanction have been granted under the old rules?  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.