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Preservation

Defendant Does Not Take the Fall for Spoliation in Slip and Fall Case: eDiscovery Case Law

In Harrell v. Pathmark et al., Civil Action No. 14-5260 (E.D.Penn. Feb. 26, 2015), 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.

Case Background

The plaintiff filed suit claiming the defendant’s negligence “resulted in her slipping on a dangerously slick surface” in the defendant’s store in May 2013. The defendant moved for summary judgment arguing that the plaintiff failed to prove that the defendant had actual or constructive notice of the wet condition of the floor.

The plaintiff’s memorandum opposing the summary judgment noted that the defendant had working security cameras in the store, but the video footage from the time and date of the accident was recorded over and not preserved. As a result, the Court sua sponte scheduled a hearing to prompt the parties to address the issue on whether the Court could or should draw an adverse spoliation inference due to the absence of video evidence.

Judge’s Opinion

Stating that “Ms. Harrell has not presented the Court with evidence from which a reasonable jury could infer that Pathmark had constructive notice of the wet condition of the floor”, Judge Pratter turned to the potential spoliation of video evidence, noting that “although Ms. Harrell does not specifically invoke the issue, one could read the concluding paragraphs of her Memorandum opposing summary judgment as contending that the Court should draw an adverse spoliation inference against Pathmark.”

Judge Pratter found that the plaintiff “has not satisfied her burden of demonstrating that the video footage would have been relevant” and also determined that the court “cannot conclude based on the evidence before it that the video evidence was actually suppressed or withheld. Nor can it conclude that litigation was reasonably foreseeable at a time when the video footage presumably still existed.” His ruling quoted Bull v. United Parcel Service, Inc., 665 F.3d 68, 77 (3d Cir. 2012) as follows:

“Ordinary negligence does not suffice to establish spoliation. The party asserting spoliation must prove that evidence was intentionally withheld, altered, or destroyed. Thus, no unfavorable inference of spoliation arises if the evidence was lost, accidentally destroyed, or where the failure to produce it is otherwise properly accounted for.”

With regard to this case, Judge Pratter remarked “Here, Ms. Harrell has not presented evidence of bad faith. Even in a highly litigious community or culture, just because a person falls in a grocery store does not mean that litigation is imminent. Here, the lawsuit was not filed until August 2014, over a year after the incident and far past the maximum of about 90 days that the video footage would have survived before being automatically re-recorded. While the incident itself did cause Mr. Lewis to create an incident report, nothing about it was so immediately dramatic to create an objectively foreseeable likelihood of litigation…Pathmark’s actions, in this context, appear to the Court to be at the very most mere inadvertent negligence.”

Therefore, Judge Pratter determined that “a spoliation inference would not be appropriate here” and with no evidence to support the plaintiff’s claim, granted the defendant’s motion for summary judgment.

Click here and here for a couple of previous slip and fall cases we’ve covered where potential spoliation of video evidence was debated.

So, what do you think? Was the court right to grant the motion for summary judgment? 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 Rules that Australian Company’s Duty to Preserve Only Begins when US Court Has Jurisdiction: eDiscovery Case Law

In Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., No. 1-11-cv-824 (S.D. Ohio Feb. 12, 2015), 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.

Case Background

The intervenor/counter defendant alleged that the defendant refused to fully comply with the court’s October 2014 discovery order by failing to preserve, or satisfactorily search for and produce, evidence relating to the case and requested sanctions including striking the defendant’s counterclaims and what amounted to a summary judgment in favor of the plaintiff for $24.7 million.

With regard to the duty to preserve, the intervenor/counter defendant argued that the defendant’s duty to preserve began no later than October 1, 2002, about a month after the License had been signed, when an email from an executive at the defendant company questioned ownership of the assets and intellectual property associated with the license and the intervenor/counter defendant claimed that, from at least that date, the parties were in constant dispute over the existence of, and the defendant’s compliance with, the License.

The defendant argued that any duty to preserve under U.S. law could not have arisen before August 3, 2012, the date when the defendant answered the complaint and consented to U.S. jurisdiction, and, even if it had, it was not before the defendant was served on December 8, 2011. The defendant also noted that, throughout the nine years prior to Plaintiffs’ filing of this lawsuit, the plaintiffs continued to accept regular royalty payments of over $1.6 million for the first five years, took no action for another four years while the defendant continued to use the IP and never sent a dispute notice or termination notice during that time.

Judge’s Opinion

Citing In re Uranium Antitrust Litigation, 480 F. Supp. 1138 (N.D. Ill. 1979) in a footnote, Judge Black stated the following:

“The power of a U.S. Court to require compliance with U.S. discovery obligations does not arise until and unless the Court has jurisdiction.”

Judge Black noted that the defendant “is an Australian company with offices and facilities only in Australia”, that “Australian Law governs the License and was the anticipated jurisdiction for License-related disputes” and that “[n]o significant sales of Licensed Products were made into the U.S.” While acknowledging that the defendant “is not excused from an obligation to preserve evidence simply because it is a foreign company”, Judge Black ruled that “the only place litigation might at some point have been anticipated was in New South Wales, Australia—not Ohio or anywhere else in U.S. Accordingly, notwithstanding the fact that it may not have had jurisdiction over the PFCP until 2012, and in the absence of evidence that PFCP should have reasonably anticipated litigation in the United States any earlier, the Court finds that the duty to preserve began on December 8, 2011.”

So, what do you think? Do you agree that the defendant did not have a duty to preserve any earlier than the filing of the complaint? 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.

Alon Israely, Esq., CISSP of BIA: eDiscovery Trends

This is the third of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Alon Israely. Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA. Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and corporations on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security. Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

I didn’t get to spend as much time on the floor and in the sessions as I would like because, for me, LTNY has become mostly meetings. On the one hand, that doesn’t help me answer your question as completely as I could but, on the other hand, it’s good for ALM because it shows that there’s business being conducted. A big difference between this year and last year (which may be reflective of our activity at BIA, but others have said it as well), is that there has been more substantive discussions and deal-making than in the past. And, I think that’s what you ultimately want from an industry conference.

Also, and I’m not sure if this is because of attrition or consolidation within the industry, but there seems to be more differentiation among the exhibitors at this year’s show. It used to be that I would walk around LegalTech with outside investors who are often people not from the industry and they would comment that “it seems like everybody does the same thing”. Now, I think you’re starting to see real differentiation, not just the perception of differentiation, with exhibitors truly offering solutions in niche and specialized areas.

As for whether ALM should consider moving the show, absolutely! It seems as though the last few years that has been one of the conversation topics among many vendors as they’re setting up before LegalTech as they ask “why is this happening again” with the snow and what-not. We’ve certainly had some logistics problems the past couple of years.

I do think there is something nice about having the show early in the year with people having just returned from the holidays, getting back into business near the beginning of Q1. It is a good time as we’re not yet too distracted with other business, but I think that it would probably be smart for ALM to explore moving LTNY to maybe the beginning of spring. Even a one-month move to the beginning of March could help. I would definitely keep the show in New York and not move the location; although, I would think that they could consider different venues besides the Hilton without affecting attendance. While some exhibitors might say keep it at this time of year to coordinate with their release schedules, I would say that’s a legacy software answer. Being in the SaaS world, we have updates every few weeks, or sooner, so I think with the new Silicon Valley approach to building software, it shouldn’t be as big a deal to match a self- created release schedule. Marketing creates that schedule more than anything else.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I think that they’re going to pass Congress. I’ve been focusing on the changes related to preservation as it seems that most noteworthy cases, especially those involving Judge (Shira) Scheindlin, involve a preservation mistake somewhere. For us at BIA, we feel the Rules changes are quite a validation of what we’re doing with respect to requiring counsel to meet early to discuss discovery issues, and to force the issue of preservation to the forefront. Up until these changes, only savvy and progressive counsel were focused on how legal hold and preservation was being handled and making sure, for example, that there wasn’t some question eight months down the road about some particular batch of emails. The fact that it is now codified and that’s part of the pre-trial “checklist” is very important in creating efficiencies in discovery in general and it’s great for BIA, frankly, because we build preservation software. It validates needing an automated system in your organization which will help you comply.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I hate to sound pessimistic, and obviously I’m generalizing from my experience, but it feels like attorneys are less interested in learning about eDiscovery and more interested in being able to rely on some sort of solution, whether that solution is software or a service provider, to solve their problems. It’s a little bit of a new “stick your head in the sand” attitude. Before, they ignored it; now, they just want to “find the right wrench”. It’s not always just one wrench and it’s not that easy. It is important to be able to say “we use this software and that software and this vendor and here’s our process” and rely on that, but the second step is to understand why you are relying on that software and that vendor. I think some lawyers will just say “great, I’ll buy this software or hire this vendor and I’m done” and check that check box that they now have complied with eDiscovery but it’s important to do both – to purchase the right software or hire the right vendor AND to understand why that was done.

Certainly, vendors may be part of the problem – depending upon how they educate. At BIA, we promote TotalDiscovery as a way of not having to worry about your preservation issues, not having data “fall through the cracks” and that you’ll have defensible processes. We do that but, at the same time, we also try to educate our clients too. We don’t just say “use the software and you’re good to go”, we try to make sure that they understand why the software benefits them. That’s a better way to sell and attorneys feel better about their decision to purchase software when they fully understand why it benefits them.

What are you working on that you’d like our readers to know about?

As I already mentioned, BIA has TotalDiscovery, our SaaS-based preservation software and we are about to release what we call “real-time processing”, which effectively allows for you to go from defensible data collections to searching that collected data in minutes. So, you can perform a remote collection and, within a few minutes of performing that collection, already start to perform eDiscovery caliber searches on that data. We call it the “time machine”. In the past, you would send someone out to collect data, they would bring it back and put it into processing software, then they would take the processed data and they’d search it and provide the results to the attorneys and it would be a three or four week process.

Instead, our remote collection tool lets you collect “on the fly” from anywhere in the world without the logistics of IT, third-party experts and specialized equipment and this will add the next step to that, which is, after collecting the data in a forensically sound manner, almost immediately TotalDiscovery will allow you to start searching it. This is not a local tool – we’re not dropping agents onto someone’s machine to index the entire laptop, we’re collecting the data and, using the power of the cloud and new technology to validate and index that data at super high speeds so that users (corporate legal departments and law firms) can quickly perform searches, view the documents and the hit highlights, as well as tag and export documents and data as needed. It changes the way that the corporate user handles ECA (early case assessment). They get defensible collection and true eDiscovery processing in one automated workflow. We announced that new release here at LegalTech, we’ll be releasing it in the next few weeks and we’re very excited about it.

Thanks, Alon, for participating in the interview!

And to the readers, 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine™. Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions. He’s also my boss! 🙂

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

LTNY seemed reasonably well attended this year and I think it was a good show. I have noticed a drop in the number of listed exhibitors though, from 225 a couple of years ago to 199 this year. Not sure if that’s a reflection of consolidation in the industry or providers simply choosing to market to prospects in other ways. I guess we’ll see. Nonetheless, I thought there were several good sessions, especially the three judges’ sessions that addressed key cases, the rules changes and general problems with discovery. I liked the fact that those were free and available to all attendees, not just paid ones. Not surprisingly, those sessions were very well attended.

Overall, I thought the primary focus of this show’s curriculum in three areas: information governance (which had its own educational track at the show), cybersecurity and data privacy. With the amazing pace at which Big Data is growing, I expect information governance to be a major topic for some time to come, especially with regard to the use of technology to manage growing data volumes. And, as we discussed in this blog a couple of weeks ago, data breaches continue to be on the rise and we’ve already had a major one involving over 80 million records this year. That’s also going to continue to be a major focus.

One issue at the show that I think affected several attendees was the sudden lack of meeting space. The Hilton got rid of its lobby lounge, replacing it with a smaller executive lounge limited to hotel guests. And, ALM booked up the Bridges Bar for private events throughout the show. Meetings and discussions are a big part of LTNY and I hope ALM will take that into account next year and at least make the Bridges Bar available for meetings.

As for whether ALM should consider moving LTNY to a different time of year, there are pros and cons to that. As a person who missed the show entirely last year due to weather and travel issues and was delayed a few hours this year, it would be nice to minimize the chance of weather delays. On the other hand, I suspect that part of the reason that the show is in the winter is that it’s less costly to host then. Certainly, vendors would need an advanced heads up of at least a year if ALM were to decide to move the show to a different time of year. I don’t expect that to happen, despite the recent travel issues for remote attendees.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I’m not an attorney and am no expert on the rules, but, based on everything that I’ve heard, it sounds as though they should pass. I know that large organizations are counting on Rule 37(e) to reduce their preservation burden. I think whether it will or not will depend on judges’ interpretation of Rule 37(e)(2) (which enables more severe sanctions “only upon finding that the party acted with the intent to deprive another party of the information’s use”). That section may result in lesser sanctions in at least some cases, but we’ll see. At eDiscovery Daily, we’ve covered over 60 cases per year each of the past three years, so at some point in a year or two, it will be interesting to look back at trends and what they show.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think it’s still a battle. We continue to work with a lot of firms whose attorneys lack basic eDiscovery fundamentals and we continue to provide education through this blog and consulting to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production to them, native files with included metadata. I think it’s imperative for providers like us to continue to do what we can to simplify the discovery process for our clients – through education and through streamlining of processes and process improvement. That’s what our corporate mission is and it continues to be a major focus for CloudNine.

What are you working on that you’d like our readers to know about?

Well, speaking of has “anything been done in the past year to improve the situation”, in November, we released CloudNine’s new easy-to-use Discovery Client application to automate the processing and uploading of raw native data into our CloudNine platform. Many of our clients have struggled with having data dumped on their desk at 4:00 on a Friday afternoon and having to fill out forms, swap emails and play phone tag with vendors to get the data up quickly so that they can review it over the weekend. With CloudNine’s Discovery Client, they can get data processed and loaded themselves without having to contact a vendor, whether it is load ready or not.

The application will extract data from archives such as ZIP and PST files, extract metadata, extract and index text (and OCR documents without text) render native files to HTML and identify duplicates based on MD5HASH value. The application will also generate key data assessment analytics such as domain categorization to enable attorneys to develop an understanding of their data more quickly. And, we are just about to release a new version of the Discovery Client that will enable clients to simply process the data and retrieve the processed data to load into their own preferred platform (if it’s not CloudNine), so we can support you even if you use a different review platform.

Our do-It-yourself features such as loading your own data, adding your own users and fields, accessing audit logs and setting user rights gives our clients unique control of their review process and makes it easier for them to understand eDiscovery and feel in control of the process. Simplifying discovery and taking the worry out of it (as much as possible) is what CloudNine is all about.

Thanks, Brad, for participating in the interview!

And to the readers, 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The First 7 to 10 Days May Make or Break Your Case: eDiscovery Best Practices

Having worked with a client recently that was looking for some guidance at the outset of their case, it seemed appropriate to revisit this topic here.

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data. Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data. Some of these employees may no longer be with your organization, so you may have to determine whether their data is still available and where.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun. Hold notices must be issued ASAP to all parties that may have potentially responsive data. Once the hold is issued, you need to track and follow up to ensure compliance. Here are a couple of posts from 2012 regarding issuing hold notices and tracking responses.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case. They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers). Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process. It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation. Are you using internal resources, outside counsel or a litigation support vendor? Will the data be collected via an automated collection system or manually? Will employees “self-collect” any of their own data? If so, important data may be missed. Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think? How quickly do you decide whether to litigate or settle? 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Expanded Sources of ESI May Leave You “Fit” to be Tied – eDiscovery Trends

One of the items that I bought my wife for Christmas (which she really wanted) was an UP 24™ Fitness Tracker, which is a wristband that tracks a variety of fitness metrics, including steps taken, workouts logged and calories burned (not to mention sleep cycles) and enables you to share and compare your stats with your friends via an app on your mobile device. Another example of a similar device is a Fitbit®. Based on a recent case, these devices are just another example of new devices from which relevant ESI may be collected for discovery.

In the recent Forbes article (Fitbit Data Now Being Used In The Courtroom, written by Parmy Olson), a law firm in Calgary is working on the first known personal injury case that will use activity data from a Fitbit to help show the effects of an accident on their client.

As the article notes, “The young woman in question was injured in an accident four years ago. Back then, Fitbits weren’t even on the market, but given that she was a personal trainer, her lawyers at McLeod Law believe they can say with confidence that she led an active lifestyle. A week from now, they will start processing data from her Fitbit to show that her activity levels are now under a baseline for someone of her age and profession.

It will ‘back up what she’s been saying,’ says her lawyer, Simon Muller of McLeod Law.

The lawyers aren’t using Fitbit’s data directly, but pumping it through analytics platform Vivametrica, which uses public research to compare a person’s activity data with that of the general population.”

More and more, everyday objects are able to connect to the Internet and these devices are gathering, sending and receiving data. Glasses, fitness wristbands, even your thermostat is sending and receiving data. On one hand, the “Internet of Things” is making our lives easier by enabling us to access more information than ever, but, it also increases data security and privacy risks, not to mention potentially complicates discovery from an information governance, collection and preservation standpoint. Now, in certain types of cases, we may need to collect or request data from devices never before considered as discoverable.

So, what do you think? What’s the most unusual device that you have ever had to collect potentially responsive ESI? 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2014 eDiscovery Case Law Year in Review, Part 4

As we noted yesterday, Wednesday and Tuesday, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute. Today, let’s take a look back at 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!

SPOLIATION / SANCTIONS

I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues. Of the 68 cases we covered this past year, 28 percent of them (19 total cases) related to sanctions and spoliation issues. Sometimes requests for sanctions are granted, sometimes they’re not. Here they are.

Plaintiff Sanctioned After its “Failure to Take the Most Basic Document Preservation Steps”: In SJS Distribution Systems, Inc. v. Sam’s East, Inc., New York Magistrate Judge Robert M. Levy found the plaintiff’s failure to take “the most basic document preservation steps,” including issuing a litigation hold – “even after it discovered the packaging nonconformities and filed this action” – constituted gross negligence. As a result, an adverse inference instruction sanction was issued against the plaintiff and the defendant was awarded its costs and attorney’s fees associated with its motion to compel.

Sanctions Awarded when Defendant Failed to Preserve Relevant Evidence: In Zest IP Holdings, LLC v. Implant Direct Manufacturing, LLC., California Magistrate Judge William V. Gallo granted the Plaintiff’s motion for sanctions because parties are “required to preserve evidence relevant to litigation and to prevent spoliation.” Judge Gallo found that the Defendant “failed to preserve multiple documents that are relevant to Plaintiff’s claims with the requisite culpable state of mind to support a finding of spoliation of evidence”.

Search Process for ESI Called into Question, but Court Denies Sanctions for Plaintiff: In Brown v. West Corp., the plaintiff filed a motion to compel, claiming the defendant had been insufficient in its handling of searching for Electronically Stored Information (ESI) relevant to discovery. The plaintiff additionally contested a prior order from a magistrate judge, requiring the defendant to explain its search processes to the defendant. Ultimately, Nebraska Senior District Judge Lyle E. Strom denied the requested sanctions and rejected the challenge to the prior order.

Bad Faith Violations in Discovery Lead to Sanctions for Defendant: Regarding the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, the defendants’ repeated failure to preserve and produce documents during discovery was found to be in bad faith. The defendants were ordered to produce the documents, or to explain why they couldn’t be produced, and to pay a hefty fine plus the plaintiff’s costs and fees for pursuing discovery motions. The order left room for additional future sanctions, should the bad faith behavior continue.

Clawback Rights Upheld and Plaintiff Sanctioned for Refusal to Comply Concerning Inadvertently Produced Privileged Documents: In RIPL Corp. v. Google Inc., seven discovery-related motions were heard concerning this trademark infringement action. The various motions to seal, compel, enforce, and sanction were filed after the parties had entered into a stipulated protective order. Washington District Judge Ricardo S. Martinez granted in part, denied in part, and deferred in part the various motions.

Sanctions Denied over Destruction of Audio Evidence in Discrimination Lawsuit: In Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, the plaintiff filed a motion for default and sanctions relating to spoliation of evidence with a federal court, after a district court issued a Report and Recommendation (R&R) to deny the motion. Illinois Senior District Judge Joe Billy McDade ultimately declined to impose sanctions, due to a lack of evidence regarding the timing of alleged spoliation, and the plaintiff’s inability to establish bad faith on the part of the defendants.

Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit: In Calderon v. Corporacion Puertorrique a de Salud, the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant: In T&E Investment Group, LLC v. Faulkner, Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

Defendants – and Defendants’ Counsel – Sanctioned for Delays in Producing ESI: In Knickerbocker v Corinthian Colleges, Washington District Judge James L. Robart imposed sanctions against the defendants and the defendants’ counsel for their delays in producing Electronically Stored Information (ESI) during discovery, despite the fact that spoliation of evidence was ultimately avoided.

Court Refuses to Dismiss Spoliation Claim Due to Defendant’s Failure to Produce Key Native File with Metadata: In Raines v. College Now Greater Cleveland, Inc., Ohio District Judge James S. Gwin refused to dismiss the plaintiff’s claim of tortious spoliation of evidence due to the defendant’s failure to produce the metadata associated with a key report authored by the plaintiff.

Court Denies Sanctions for Deletion of “Smoking Gun” Email, Grants Defendants’ Motion for Summary Judgment: In the case In re Text Messaging Antitrust Litig., Illinois District Judge Matthew F. Kennelly not only denied the plaintiffs’ request for an adverse inference sanction against the defendants for destroying emails, but also granted the defendants’ motion for summary judgment, as the plaintiffs failed to provide any supporting circumstantial evidence to meet their burden of proof.

Failure to Preserve Cloud-Based Data Results in Severe Sanction for Defendant: In Brown v. Tellermate Holdings, Magistrate Judge Terence Kemp granted plaintiffs’ motion for judgment and motion to strike, ruling that the defendant could not “present or rely upon evidence that it terminated the Browns’ employment for performance-related reasons” and enabling the plaintiffs to use documents produced by the defendant “designated as attorneys’-eyes-only” to be used by the plaintiffs “without restriction”, due to the defendant’s failure to preserve or produce data from their Salesforce.com database.

Texas Supreme Court Reverses Spoliation Ruling, Remands Case for New Trial: In Brookshire Bros., Ltd. v. Aldridge, the Supreme Court of Texas determined “that imposition of the severe sanction of a spoliation instruction was an abuse of discretion” in the trial court, reversed the court of appeals’ judgment and remanded the case for a new trial.

Circuit Court Affirms Denial of Sanctions Over Spoliation by Defendant: In Automated Solutions Corp. v. Paragon Data Sys., Inc., the Sixth Circuit court affirmed the holdings of the district court, rejecting the plaintiff’s arguments that the district court abused its discretion by denying plaintiff’s motion for spoliation sanctions due to defendant’s failure to preserve information on a hard drive and server. The circuit court also affirmed the ruling by both the magistrate and district judge that the defendant’s back-up tapes were not subject to the duty to preserve.

Court Grants Motion for Spoliation Sanctions Due to Data that is “Less Accessible”: In Mazzei v. Money Store, New York Magistrate Judge Ronald L. Ellis granted the plaintiff’s motion for spoliation sanctions against the defendant, ordering the defendant to bear the cost of obtaining all the relevant data in question from a third party as well as paying for plaintiff attorney fees in filing the motion.

Failure to Preserve Data on Various Devices Causes Special Master to Recommend Default Judgment: In Small v. University Medical Center of Southern Nevada, Special Master Daniel B. Garrie, calling the defendant’s widespread failure to preserve data a “mockery of the orderly administration of justice”, recommended that the court enter an order of default judgment, along with further sanctions, in favor of the plaintiffs.

Plaintiff Slips, But Defendant Takes the Fall: In Riley v. Marriott Int’l, New York Magistrate Judge Marian W. Payson agreed with the plaintiffs that spoliation of data had occurred when the defendant failed to preserve video surveillance and “sweep logs” after one of the plaintiffs slipped and fell in the defendant’s hotel garage and that the defendant was at least grossly negligent for not preserving the information. However, the judge denied the plaintiffs request for summary judgment, granting an adverse inference instruction instead.

The Watergate 18 Minute Gap in Audio Recordings Has Nothing on This Case: In Novick v. AXA Network, LLC, New York Magistrate Judge Kevin Nathaniel Fox granted the plaintiff’s request for sanctions against the defendant, awarding an adverse inference jury instruction for several weeks of spoliated audio recordings and also awarding “reasonable attorney’s fees and costs” associated with the motion as well as retaking several depositions.

Finding Defendant’s Destruction of Documents to be “Planned, Repeated and Comprehensive”, Court Awards Judgment to Plaintiff: In Regulatory Fundamentals Group v. Governance Risk Management Compliance, New York District Judge Katherine B. Forrest granted the plaintiff’s motion for sanctions and ordered that judgment be entered for the defendant’s “planned, repeated, and comprehensive” destruction of highly-relevant documents.

That concludes our look back at 68 cases from last year – the most we’ve ever covered! Do you think discovery issues are being disputed more than ever before? If so, do you think the new Federal rules changes (once they’re implemented) will reverse that trend? 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2014 eDiscovery Case Law Year in Review, Part 1

It’s time for our annual review of eDiscovery case law!  We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, and production formats, even disputes regarding eDiscovery fees.  So, as we did last year and the year before that and also the year before that, let’s take a look back at 2014!

Last year, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! 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

As always, there are numerous disputes about data being produced and not being produced and whether the costs to do so are overly burdensome. Here are twelve cases related to admissibility, the duty to preserve and produce ESI and the proportionality for preserving and producing that ESI:

Split Decision between Plaintiff and Defendant Regarding Search Terms: In Federal Deposit Insurance Corp. v. Giannoulias, Illinois District Judge John F. Grady resolved several motions regarding discovery proceedings in a $114 million lawsuit. Two of the motions concerned search terms for documents and electronically stored information (ESI), in which the plaintiff opposed the defendants’ request for six additional terms to be included in retrieving discovery documents. The court ruled that four additional search terms would be added, while two would be excluded.

Court Grants Motion to Compel Defendant to Produce Documents as Requested and Chronicle Approach: In Home Instead, Inc. v. Florance, following a motion to compel discovery on behalf of the plaintiff, Nebraska Magistrate Judge Cheryl R. Zwart ordered the defendant to produce documents requested during discovery and required the defendant to produce a sworn affidavit chronicling the methods used in their search for production of the discovery documents.

Electronic Discovery Dispute Sees Court Requesting Cooperation from Both Parties to Avoid “Court-Ordered Middle Ground”: In Fort Worth Employees’ Retirement Fund v. J.P. Morgan Chase & Co., a complex discovery dispute arose during the process of this securities action lawsuit revolving around the defendants’ loan products and offerings with regards to a specific consumer class, in which the plaintiffs filed a motion to compel an expanded discovery.

Definition of “Electronic Storage” Considered in Invasion of Privacy Lawsuit: In Cheng v. Romo, the interpretation of laws enacted prior to the modern Internet age served as a deciding factor in the outcome of this invasion of privacy lawsuit, which alleged a violation of the Stored Communications Act (SCA).

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.

Portions of Plaintiff’s Motion to Compel eDiscovery Ruled as “Overbroad” and “Moot” Reaffirmed by District Court: In Elkharwily v. Mayo Holding Co., Minnesota District Judge David S. Doty overruled the plaintiff’s objection to a magistrate judge’s order that denied in part the plaintiff’s motion to compel discovery, labeling some requests as overbroad or moot, particularly after the defendant contended it had already produced the requested discovery materials.

Court Denies Defendant’s Request to Image Plaintiff’s PCs Three Years after Termination: In Downs v. Virginia Health Systems, Virginia Magistrate Judge James G. Welsh, citing proportionality and privacy concerns, denied the defendant’s motion to compel the mirror imaging of the Plaintiff’s personal computers nearly three years after she had been terminated.

Court Denies Plaintiff’s Fallback Request for Meet and Confer after Quashing its Subpoena: In Boston Scientific Corporation v. Lee, California Magistrate Judge Paul S. Grewal found time to preside over a case other than Apple v. Samsung and granted the motion to quash the plaintiff’s subpoena for the defendant’s laptops, refusing the plaintiff’s fallback position to meet and confer and referencing Leave it to Beaver in the process.

Court Rules to Limit Scope of Discovery, Noting that “Searching for ESI is only one discovery tool”: In United States v. Univ. of Neb. at Kearney, Nebraska Magistrate Judge Cheryl R. Zwart denied the government’s motion to compel discovery, finding that “ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks” and stating that searching for ESI “should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions”.

Defendant Ordered to Produce Archived Emails Even Though Plaintiff Failed to Produce Theirs: In Finjan, Inc. v. Blue Coat Systems, California Magistrate Judge Paul S. Grewal granted the plaintiff’s motion ordering the defendant to produce relevant emails from its eight custodians, even though the plaintiff was unable to provide its own archival emails.

Court Determines that Software License Agreement Does Not Eliminate Production Obligation of Video: In Pero v. Norfolk Southern Railway, Co., Tennessee Magistrate Judge C. Clifford Shirley, Jr. granted the plaintiff’s motion to compel discovery of a video declining to require the plaintiff to view the video at the defendant’s counsel’s office or obtain a license for the proprietary viewing software, ordering the defendant instead to either produce a laptop with the video loaded on it or to reimburse the plaintiff for the cost of a software license.

Image Isn’t Everything, Court Says, Denying Plaintiff’s Request for Imaging on Defendant’s Hard Drives: In Design Basics, LLC. v. Carhart Lumber Co., Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff’s motion to compel “full disk imaging of Defendant’s hard drives, including Defendant’s POS server, secretaries’ computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).

DISCOVERY ON DISCOVERY

Some cases are becoming so contentious that parties (or sometimes the courts themselves) are requesting for discovery on their opponent’s discovery process. Sometimes those requests were granted, sometimes not. Here were six cases in 2014 which involved requests for “discovery on discovery”:

‘Discovery About Discovery’ Motions Lead to Unusual Court Decision: In Ruiz-Bueno v. Scott, a discovery dispute in this wrongful death case arose, leading Ohio Magistrate Judge Terence P. Kemp to arrive at the unusual decision to direct a party to provide ‘discovery about discovery.’

Ruling on ESI Discovery Dispute Delayed as Court Requests Specific Information: In Worley v. Avanquest North America Inc., a putative class action involving PC security software, California Magistrate Judge Laurel Beeler required the defendant to produce further information related to discovery disputes before a ruling would be issued.

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery: In In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Plaintiffs Denied Motion to Depose Defendants Regarding ESI Processes Prior to Discovery Requests: In Miller v. York Risk Servs. Grp., Arizona Senior District Judge John W. Sedwick denied the plaintiffs’ Motion to Compel, requesting permission to conduct depositions in order to determine the defendant’s manner and methods used for storing and maintaining Electronically Stored Information (ESI) prior to submitting their discovery requests.

Court Denies Defendant’s Request for Deposition Regarding Plaintiff’s Discovery Search Tools: In Koninklijke Philips N.V. v. Hunt Control Sys., Inc., New Jersey Magistrate Judge James B. Clark III granted the plaintiff’s protective order to prevent the defendant from proceeding with a new deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery,” after the requested discovery documents had already been produced.

Despite 18 Missing Emails in Production, Court Denies Request for “Discovery on Discovery”: In Freedman v. Weatherford Int’l, New York Magistrate Judge James C. Francis, IV denied the plaintiff’s request to, among other things, require the defendant to produce “certain reports comparing the electronic search results from discovery in this action to the results from prior searches” – despite the fact that the plaintiff identified 18 emails that the defendant did not produce that were ultimately produced by a third party.

We’re just getting started! Tomorrow, we will cover cases related to eDiscovery cost reimbursement, fee disputes and production format disputes. Stay tuned!

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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Image Isn’t Everything, Court Says, Denying Plaintiff’s Request for Imaging on Defendant’s Hard Drives – eDiscovery Case Law

In Design Basics, LLC. v. Carhart Lumber Co., 8:13CV125 (D. Neb. Nov. 24, 2014), Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff’s motion to compel “full disk imaging of Defendant’s hard drives, including Defendant’s POS server, secretaries’ computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).

In this design misappropriation case, the plaintiff filed the motion to compel, arguing “that it is entitled to a full forensic image of the defendant’s server, and every computer or computer data storage device or location used by the company and any of its employees”.  The plaintiff’s counsel stated that he litigates design misappropriation cases nationwide, and he always (except perhaps in a rare case) is granted the right to image a defendant company’s entire computer system. Judge Zwart noted that, after being afforded an opportunity to brief the issue and submit further evidence, the plaintiff’s counsel cited no cases supporting this argument.

The defendant filed a motion for protective order seeking relief from that request and arguing that it had determined that the secretaries’ computers did not contain relevant information.

In issuing her ruling denying the plaintiff’s motion to compel and granting the defendant’s motion for protective order, Judge Zwart stated:

“Plaintiff’s demand for all of the defendant’s computer data is consistent with the position of its expert, but it is not consistent with the balancing required under Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure.  Based on the arguments of counsel held today and the evidence of record, Defendant’s counsel has provided both electronic and paper copies of all blue prints, has performed Plaintiff’s requested search on the emails copied from the 11 computers, and has already invested many hours reviewing thousands of documents for privilege. Defense counsel offered to produce the nonprivileged emails to Plaintiff’s counsel for his review, and has provided dates for taking the deposition of Defendant’s president. Plaintiff’s counsel has neither reviewed the emails nor deposed anyone. This case is more than 18 months old.

In the end, the plaintiff failed to show good cause why additional computer data must be collected from the defendant. Taking into consideration the factors listed in Fed. R. Civ. P. 26(b)(2)(C), the court is convinced that allowing imaging of every computer or data storage device or location owned or used by the defendant, including all secretaries’ computers, is not reasonable and proportional to the issues raised in this litigation.”

So, what do you think?  Was the plaintiff overreaching in its request?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Finding Defendant’s Destruction of Documents to be “Planned, Repeated and Comprehensive”, Court Awards Judgment to Plaintiff – eDiscovery Case Law

In Regulatory Fundamentals Group v. Governance Risk Management Compliance, 13 Civ. 2493 (KBF) (S.D.N.Y. Aug. 5, 2014), New York District Judge Katherine B. Forrest granted the plaintiff’s motion for sanctions and ordered that judgment be entered for the defendant’s “planned, repeated, and comprehensive” destruction of highly-relevant documents.

Case Background

In this copyright infringement action, after the parties engaged in limited discovery, the defendant informed the plaintiff that it “might be missing certain emails.” The defendant later revealed that he had canceled his email account with a third-party vendor, which had hosted his corporate defendants’ websites and email domains.  After the plaintiff noticed the defendant for a deposition to investigate the cancellation and he failed to appear, the plaintiff filed a motion for sanctions alleging that the defendant had engaged in spoliation.

Judge’s Ruling

Judge Forrest began her ruling this way:

“A party to a lawsuit may not destroy relevant evidence without consequence. The nature and magnitude of the consequence follows from the level of culpability. Was, for instance, the destruction of evidence inadvertent and the result of an oversight? Or was it the product of a plan?

The individual defendant in this lawsuit destroyed a large number of highly relevant documents — preventing plaintiff and any finder of fact from ever knowing the full truth of what occurred. Following discovery, lengthy briefing, and an evidentiary hearing, the Court has found that defendant’s destruction was planned, repeated, and comprehensive. It was malicious. This finding is particularly unfortunate in light of the plain fact that the spoliation has turned what was a straightforward commercial dispute into a far more serious issue.

The spoliator here — defendant Gregory V. Wood — is a graduate of Cornell Law School and a member of the bar of the State of New York. His conduct has resulted in entry of judgment against him.”

Judge Forrest noted that “to support the imposition of sanctions, ‘the innocent party must prove the following three elements: that the spoliating party (1) had control over the evidence and an obligation to preserve it at the time of destruction or loss; (2) acted with a culpable state of mind upon destroying or losing the evidence; and that (3) the missing evidence is relevant to the innocent party’s claim or defense.’”

Finding that all three elements were satisfied in this case caused Judge Forrest to issue the following analysis:

“RFG has clearly been prejudiced by Wood’s intentional spoliation. The Court has considered whether sanctions less severe than termination are warranted. For example, the Court has considered monetary sanctions or the imposition of an adverse inference. Neither would be sufficient under the circumstances. The lack of emails prevents RFG from proving the full extent or scope of Wood’s conduct.

Wood’s deletion of emails and his attempted cover-up put RFG in an untenable litigation position — the evidence of the scope of defendants’ alleged misconduct is gone forever. Any sanction short of a terminating sanction would fail to account for the prejudice or to sufficiently penalize Wood or deter others from engaging in such misconduct. Accordingly, the Court grants RFG’s request for a terminating sanction.”

So, what do you think?  Did the defendant’s actions justify the ultimate sanction?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.