Preservation

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), 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.

Case Background

In this defamation case, the plaintiff claimed to have lost his cell phone while out walking his dog. One of the defendants found the cell phone on his front lawn near an uprooted sign endorsing his co-defendant for public office. The defendants notified the media and the police that they found the cell phone near the sign and claimed that the plaintiff must have removed the sign, which he denied and, eventually, sued the defendants for defamation.

During deposition of the plaintiff when he was asked for a photo that he had taken the night he lost his phone, he admitted that he had since wiped the phone, stating that “I’ve completely wiped the phone, as I do – did many times working for Google, putting new operating systems on. So whatever photo is – if I have it, I’ll be happy to produce it, but it’s certainly not on the phone anywhere.”  He ultimately indicated that he wiped out the contents of the phone “[s]ometime in early 2012.” He said he did that because the phone was “broken” and he “had to reinstall the operating system”.  When the defendants requested to inspect the phone and arranged to do so, the phone was provided uncharged with the charging connector damaged so that it could not be connected and charged.  In April 2014, the defendants filed a joint motion for terminating sanctions.

Trial Court’s Ruling

The trial court observed that the defendants provided “ample evidence” to show that the plaintiff delayed and obstructed their ability to inspect the phone and, when finally allowed to inspect it, the phone battery was dead and the charging mechanism had been irreparably damaged preventing the phone from being plugged into a charger.  The court added: “What is most disconcerting, however, is the action taken by [Woodell] prior to filing the lawsuit, which included allegedly capturing for his own purpose information from the phone favorable to his position, and then completely wiping clean the operating system such that all potentially relevant information retained on the phone was destroyed.”

The trial court also noted that the plaintiff, in his deposition, stated that he “wiped clean” the phone because he had done that “many times working for Google” but in his declaration he stated that Google instructed him to wipe out the “corrupted system.” In assessing the contradictory evidence, the court found that the plaintiff “was contemplating legal action in 2011, well before he destroyed the contents of the phone in 2012.”  As a result, the trial court granted the defendants’ motion for terminating sanctions, determining that it was “patently unjust” to force the defendants to continue to defend an action when they had been denied potentially exculpatory evidence, and dismissed the plaintiff’s complaint with prejudice.

The plaintiff appealed the ruling, arguing that terminating sanctions were not appropriate because there was no pattern of conduct with regard to discovery and that the trial court committed prejudicial error when it made factual and credibility findings without holding an evidentiary hearing.

Appellate Court’s Ruling

Regarding the plaintiff’s argument that sanctions were not appropriate because there was no pattern of conduct with regard to discovery, the appellate court stated “It is undisputed that the phone Woodell produced no longer contained the critical data, and the production of the phone was of no value to defendants. Woodell’s argument that the law prevented the trial court from imposing terminating sanctions when there was no pattern of discovery abuse or no violation of a prior discovery order is incorrect.”  The appellate court also found that the trial court did not abuse its discretion in finding – without holding an evidentiary hearing – that the defendants met their burden of showing that the plaintiff deliberately removed the data from the phone in anticipation of litigation.  As a result, the appellate court affirmed the lower court’s ruling to dismiss the lawsuit.

So, what do you think?  Did the spoliation warrant termination 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.

Now, that we’ve recapped last year’s cases, let’s start covering cases for this year…

In Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, No. 654586/2012 (Supreme Court of New York, New York County, December 7, 2015), 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.

Case Background

In this action to recover principal distributions from the defendant, the defendant, at the direction of in-house counsel, distributed a written litigation hold notice to certain employees who were deemed likely to possess documents relevant to the dispute.  In addition, the defendant’s IT department saved emails in an enterprise email archiving system.  Despite the preservation, the defendant objected to the plaintiff’s discovery requests and did not produce any responsive documents during a period where disputes over the plaintiff’s motion for summary judgment were happening, until sometime after the court instructed the parties to go forward with discovery.  The defendant ultimately produced documents responsive to the plaintiff’s discovery requests.

However, several months into discovery, the defendant revealed that due to a “synchronization error,” emails that were preserved in the email archiving system that were subject to the ligation hold were accidentally purged, resulting in the content of 101 responsive emails being lost (though the defendant was able to recover and produce metadata from the lost emails).  Due to that issue and other instances of supposed spoliation by the defendant (including one email that was ultimately produced by another party that had communicated with the defendant), the plaintiff filed an instant motion for sanctions, asking the Court to strike the defendant’s affirmative defense of detrimental reliance, or, in the alternative, order a preclusion sanction or adverse inference.

Court’s Ruling

Finding that the duty to preserve began as early as April 2011 and no later than May 2011, the Court found “that OPERS’ had control of – and access to” lost or destroyed ESI in May 2011” and that the defendant wiped the computer of a key retired employee after the plaintiff had rejected a settlement offer from the defendant.  The court also found that the plaintiff had shown that at least some of the deleted ESI was relevant to the case.

Despite this, the court opted for the lesser sanction sought by the plaintiff, noting:

“Here, Ocwen has demonstrated prejudice as a result of OPERS’ failure to preserve France’s ESI and Bloomberg messages. However, the “extreme sanction” of striking OPERS’ affirmative defense is not appropriate in this case because Ocwen was able to obtain some evidence to disprove detrimental reliance, namely the August 2009 message sent from Gleacher to France…Since the loss of potentially relevant ESI is not fatal to Ocwen’s rebuttal of OPERS’ sixth affirmative defense, the imposition of an adverse inference as to that charge is appropriate and ‘reflects an appropriate balancing under the circumstances.’”

As a result, the court ordered an adverse inference instruction against the defendant and also ordered the defendant to pay the plaintiff’s attorneys’ fees and costs in preparing the instant motion for sanctions.

So, what do you think?  Was that the appropriate sanction?  Or should the defendant have been sanctioned at all?  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.

As we noted yesterday, Wednesday and Tuesday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to cooperation issues, social media and mobile phone 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 rest 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!

SPOLIATION / SANCTIONS

We covered the first ten cases related to requests for sanctions yesterday, here are the remaining eighteen cases that we covered last year:

Court Denies Plaintiff’s Request for Spoliation Sanctions, as Most Documents Destroyed Before Duty to Preserve: In Giuliani v. Springfield Township, et al., Pennsylvania District Judge Thomas N. O’Neill, Jr. denied the plaintiffs’ motion for spoliation sanctions, finding that the duty to preserve began when the case was filed and finding that “plaintiffs have not shown that defendants had any ill motive or bad intent in failing to retain the documents which plaintiffs seek”.

Judge Recommends Default Judgment Sanctions Against Defendants, Even Though Some Deleted Files Were Recoverable: In Malibu Media, LLC v. Tashiro, Indiana Magistrate Judge Mark J. Dinsmore issued a Report and Recommendation on Plaintiff’s Motion for Sanctions, recommending that the Court grant the plaintiff’s motion against the defendants for spoliation of evidence and perjury and enter default judgment against the defendants.

Similar Spoliation Case, Somewhat Different Outcome: In Malibu Media, LLC v. Michael Harrison (with the same plaintiff and issues as the case above in this list), Indiana District Judge William T. Lawrence denied the plaintiff’s motion for summary judgment, upholding the magistrate judge’s ruling which found an adverse inference instruction for destroying a hard drive with potentially responsive data on it to be not warranted, and ruled that “it will be for a jury to decide” if such a sanction is appropriate.

Plaintiff Once Again Sanctioned with an Adverse Inference Instruction, But Still No Complete Dismissal: In Lynn M. Johnson v. BAE Systems, Inc. et. al., District of Columbia District Judge Robert L. Wilkins granted the defendants’ motion for summary judgment with respect to the plaintiff’s claims for negligence, battery, and defamation, but chose to “impose lesser, but nonetheless severe, sanctions” in the form of an adverse inference instruction for her remaining claim for intentional infliction of emotional distress.

New York Supreme Court Sanctions Two Attorney Defendants for “Egregious Misconduct” in Spoliation of Data: In HMS Holdings Corp. v. Arendt, et al., the New York Supreme Court in Albany County ordered a mandatory adverse inference instruction so that the trier of fact could “draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence”. The court also awarded attorney fees, and forwarded a copy of the order regarding Defendant Lange to the New York State Committee on Professional Standards for attorneys.

Court Sanctions Plaintiff for Failing to Preserve Audio Recording: In Compass Bank v. Morris Cerullo World Evangelism, California Magistrate Judge William V. Gallo ruled that the plaintiff “wilfully engaged in the spoliation of relevant evidence”, and “has demonstrated a pattern of recalcitrant behavior during discovery in this litigation” and awarded an adverse inference jury instruction sanction against the plaintiff as well as defendant’s attorney fees and costs.

Court Orders Deposition of Expert to Evaluate Issues Resulting from Plaintiff’s Deletion of ESI: In Procaps S.A. v. Patheon Inc., Florida District Judge Jonathan Goodman ordered the deposition of a third-party computer forensic expert, who had previously examined the plaintiff’s computers, to be conducted in part by a Special Master that had been appointed to examine the eDiscovery and forensic issues in the case. The purpose of the ordered deposition was to help the Court decide the issues related to files deleted by the plaintiff and assist the defendant to decide whether or not to file a sanctions motion.

Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation: In Clear-View Technologies, Inc., v. Rasnick et al, California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of “transgressions” by the defendants and their prior counsel.

Appeals Court Upholds “Death Penalty Order” Sanction That Leads to Multi-Million Dollar Judgment: In Crews v. Avco Corp., a Washington Court of Appeals upheld a “death penalty order” against the defendant for discovery violations, including the failure to produce relevant information, but remanded for amendment of the final judgment of over $17.28 million to reflect any offsets for settlements with other defendants.

Denial of Motion for Spoliation Sanctions Leaves Plaintiff Less Than Glad: In Gladue v. Saint Francis Medical Center, Missouri District Judge Carol E. Jackson denied the plaintiff’s motion for evidentiary and monetary sanctions due to spoliation of evidence, finding that the defendant did not have a duty to preserve emails deleted as part of routine IT operations, had diligently attempted to recover deleted emails and that the plaintiff failed to show that any of the unrecovered emails were relevant to her claims.

How Blue Was My Valley? Not Blue Enough to Cite the Defendant for Discovery Violations: In Malone v. Kantner Ingredients, Nebraska Magistrate Judge Cheryl R. Zwart denied the plaintiffs’ motion to show cause, finding that the defendant “the plaintiffs have presented no evidence” that the defendant “destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI” in the case.

Discarding a Relevant Computer Results in Adverse Inference Sanctions, Not Default Judgment: In Grady v. Brodersen, Colorado Magistrate Judge Nina Y. Wang granted the plaintiff’s motion for sanctions against the defendant in part for failing to produce a computer that the defendant ultimately acknowledged that he discarded, but denied the plaintiff’s request for a default judgment sanction, opting for the less severe adverse inference instruction sanction.

Defendant Does Not Take the Fall for Spoliation in Slip and Fall Case: In Harrell v. Pathmark et al., Pennsylvania District Judge Gene E. K. Pratter, after a hearing to consider whether to draw an adverse inverse instruction due to the defendant’s possible spoliation of video evidence, determined that “a spoliation inference would not be appropriate here”. Finding that the plaintiff had presented no evidence that the defendant had constructive notice of a dangerous condition resulting in her slip and fall, Judge Pratter also granted the defendant’s motion for summary judgment.

Court Rules that Australian Company’s Duty to Preserve Only Begins when US Court Has Jurisdiction: In Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., Ohio District Judge Timothy S. Black ruled that the duty to preserve for the defendant (an Australian company with offices and facilities only in Australia) did not begin until the complaint was filed in US courts in December 2011, denying the assertion of the intervenor/counter defendant that the duty to preserve arose in 2002.

Court Awards Attorney Fees to Defendant After Delayed Production by Plaintiff: In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.

Plaintiffs Not Sanctioned for Late Production, Citing Their $29,000 Expense to Hire Experts to Assist: In Federico et al. v. Lincoln Military Housing LLC, et al., Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records”, except for a portion of the reasonable attorney’s fees associated with the original motion to compel.

Plaintiff Sanctioned for Late Production, But Not for Failure to Produce Data Held by Outside Vendor: In Ablan v. Bank of America, Illinois Magistrate Judge Daniel G. Martin recommended that the defendant’s Motion for Sanctions should be granted in part and denied in part, recommending that the plaintiffs be barred from using any new information at summary judgment or at trial that was contained on eight CD-ROMs produced late, but recommending no sanctions for failing to produce or make available documents held by the plaintiff’s outside vendor.

Payday Loan Company Sanctioned for Discovery Violations: In James v. National Financial LLC, Delaware Vice Chancellor Laster granted the plaintiff’s motion for sanctions after determining that the defendant’s “discovery misconduct calls for serious measures”. However, the plaintiff’s request for a default judgment was not granted, but lesser sanctions that included attorneys’ fees and a ruling that the lack of information contained in the requested document resulted in an admission.

Hope you enjoyed our recap of last year’s cases.  Next year, we’ll do it again for this year’s cases!

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

• 2014: Part 1, Part 2, Part 3, Part 4
• 2013: Part 1, Part 2, Part 3, Part 4
• 2012: Part 1, Part 2, Part 3, Part 4
• 2011: Part 1, Part 2, Part 3, Part 4

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.

In Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., No. 14-P-991 (Mass. App. Ct., Nov. 17, 2015), the Appeals Court of Massachusetts found that the default judge had not abused her discretion in ordering sanctions and assessing damages and ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

In this case, the plaintiffs sued their former legal counsel for overbilling after a former associate of the counsel firm notified the plaintiffs that his billing records had been altered without his knowledge.  The default judge found that throughout the proceedings, the defendants repeatedly abused the discovery process in various ways, including inappropriate subpoena of individuals for deposition who were not “relevant to the subject matter involved in the pending action,” seeking information not “reasonably calculated to lead to the discovery of admissible evidence.”

The defendants were also found to have “repeatedly stymied” the plaintiff’s efforts to gather discoverable information, by failing to respond to the plaintiff’s discovery requests and never producing the underlying metadata of the billing records despite court orders, using delay tactics and claiming several excuses such as privilege, the inability to separate the metadata from other client files, and missing multiple hearing dates without excuse.  In addition to the numerous discovery violations, the default judge determined that there was also strong evidence, albeit circumstantial, establishing spoliation.

On appeal, the defendant argued that the default judge should have allowed both his motion to stay and motion for reconsideration because the appearance of his new counsel required more time to brief the court why spoliation did not occur, that the damages judge erred in holding the assessment of damages hearing despite becoming aware that the plaintiff had litigated the case under a name that was not the real party in interest and that the default judge erred in preventing him from introducing specific expert testimony.  In response to each argument, the appeals court found that the default and damages judges did not abuse their discretion in ordering sanctions and assessing damages.  The appeals court also ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

So, what do you think?  Did the defendants’ actions warrant a default judgment against them?  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.

In West v. Talton, No. 13-338 (M.D. Ga., Nov. 2, 2015), Georgia District Judge C. Ashley Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation, reserving its ruling on the remaining issues in the Motion in Limine.

Case Background

In this employment discrimination case, during a deposition of defendants’ representatives in June 2014, the plaintiff discovered that the defendants failed to search and preserve some e-mail accounts as requested during discovery.  Based on this information, the Court granted the plaintiff’s motion to reopen discovery in September 2014. During the additional discovery period, the plaintiff discovered one individual defendant’s email account was deleted shortly after his resignation and backup tapes of the defendants’ server were written over as part of an automatic backup performed every six months which erased any backup of his email account.

Ultimately, the defendants were still able to retrieve the departed employee’s old computer and hire a third-party company to preserve and search the hard drive, from which they were eventually able to produce over a thousand documents and emails.  Nonetheless, the plaintiff sought a spoliation instruction to the jury regarding the deletion of emails, or in the alternative, an opportunity to present evidence of the defendants’ failure to preserve emails to the jury, claiming that he would have discovered more emails to support his claim had the defendants preserved the backup tapes and Holt’s email account.  The defendants argued that this evidence should be excluded because the emails were not deleted in bad faith, and they still retrieved the employee’s hard drive, which included the evidence the plaintiff requested.

Judge’s Ruling

After conducted a hearing to consider the arguments, Judge Royal stated:

“Based on the evidence presented during the hearing, it is not clear that Defendants’ failure to preserve Holt’s email account and the server’s backup tapes was a malicious act or done in bad faith. On the contrary, it appears Holt’s email was deleted pursuant to a routine procedure to delete an employee’s email account shortly after the employee left the Sheriff’s Department and to rewrite over the backup tapes of the server every six months. Plaintiff contends this procedure was more than just “mere negligence” because Defendants were on notice after receiving an EEOC complaint. However, even assuming Plaintiff’s contention is true, it is completely speculative Plaintiff was prejudiced by these events in any way. Defendants hired an outside company to restore Holt’s hard drive and recovered over 70,000 documents from the hard drive. The search terms used were broad and extensive and produced 1,205 hits. Indeed, Plaintiff received more information based on these search terms than what was originally requested during discovery. Further, the third-party company stated there was no evidence on the hard drive of any ‘mass destruction’ or ‘wiping.’”

Judge Royal rejected the plaintiff’s use of Woodward v. Wal-Mart Stores East, LP as an analogous case, noting in that case, the plaintiff did not have other evidence to replace a lost video tape.  Stating that “[t]he Court finds the danger of confusing the issues and misleading the jury outweighs the probative value of such evidence”, Judge Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation.

So, what do you think?  Should the court have allowed for a spoliation instruction to the jury or was the defendant’s efforts to provide ESI for the departed employee 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.