Preservation Archives

2017 eDiscovery Case Law Year in Review, Part 4

January 11, 2018

As we noted yesterday, Tuesday and Monday, eDiscovery Daily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to possession, custody and control, subpoena of cloud provider data, waiver of privilege and the first part of the cases relating to sanctions and spoliation. Today, let’s take a look back at the remaining sanctions and spoliation cases.

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

But first, it’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on TODAY’S webcast Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT). The webcast is CLE accredited in selected states, so come check it out!

SPOLIATION / SANCTIONS

Here are the remaining fifteen cases related to spoliation and sanctions below:

Court Says Rule 37(e) Doesn’t Apply When Recording Was Intentionally Deleted: In Hsueh v. N.Y. State Dep’t of Fin. Services, New York District Judge Paul A. Crotty relied upon inherent authority to impose sanctions and determined “that an adverse inference is the appropriate remedy” for the plaintiff’s deletion of a recorded conversation with an HR representative, agreeing with the defendants that “Rule 37(e) applies only to situations where ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording.”

Court Grants Summary Judgment After Plaintiff’s Spoliation Motion Denied: In Taylor v. Thrifty Payless, Inc., d/b/a Rite-Aid, Oregon District Judge Marco A. Hernandez granted the defendant’s motion for summary judgment after denying the plaintiff’s request for spoliation sanctions against the defendant for failing to preserve store videos that were taken on the day of her slip and fall in the defendant’s store.

Court Grants Motion for Terminating Sanctions Against Defendants for Intentional Spoliation: In Omnigen Research et. al. v. Wang et. al., Oregon District Judge Michael J. McShane granted the plaintiffs’ Motion for Terminating Spoliation Sanctions and agreed to issue an Order of Default Judgment in favor of the plaintiffs (while dismissing the defendants’ counterclaims) due to the defendants’ intentional destruction of evidence on several occasions.

With Ample Evidence of Bad Faith, Court Sanctions Defendant for Failure to Produce Documents: In CrossFit, Inc. v. Nat’l Strength and Conditioning Assn., California District Judge Janis L. Sammartino granted the plaintiff’s motion for several issue, evidentiary, and monetary sanctions, but denied the plaintiff’s request for terminating sanctions due to the defendant’s bad faith that resulted in the defendant’s failure to produce documents.

Court Declines to Impose Sanctions for Failure to Preserve Web History: In Eshelman v. Puma Biotechnology, Inc., North Carolina Magistrate Judge Robert B. Jones, Jr., among other rulings, denied the plaintiff’s motion for an order permitting a jury instruction in response to the defendant’s failure to preserve certain internet web browser and search histories, concluding that the plaintiff “is not entitled to a sanction pursuant to Rule 37(e)(1)” and that the plaintiff “is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”

Defendant Not Sanctioned Despite Use of Evidence Wiping Software: In HCC Ins. Holdings, Inc. v. Flowers, Georgia District Judge William S. Duffey, Jr. denied the plaintiff’s motion for adverse inference sanctions despite evidence that the defendant had used evidence wiping software twice after being ordered to produce her personal computer, stating that the plaintiff “offers only bare speculation that any of its trade secrets or other data were actually transferred” to the defendant’s laptop.

Plaintiff Sanctioned for Spoliation of Evidence in His Case Against Taylor Swift: In Mueller v. Swift, Colorado District Judge William J. Martinez ruled that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation [between the plaintiff and his supervisors] constitutes sanctionable spoliation of evidence”, but rejected the defendants’ request to make a finding of bad faith and to give the jury an adverse inference instruction, opting instead for permitting the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

Court Grants Defendant’s Request for $18.5 Million in Attorney Fees and Costs: In Procaps S.A. v. Patheon Inc., Florida District Judge Jonathan Goodman, in a very lengthy ruling, granted the defendant’s supplemental motion for attorney’s fees and non-taxable costs in the full amount requested of $18,494.846. We’ve covered this case several times over more than three years.

Court Grants Lesser Sanctions Against Defendant for Various Discovery Issues: In New Mexico Oncology v. Presbyterian Healthcare Servs., New Mexico Magistrate Judge Gregory B. Wormuth, detailing numerous defendant discovery deficiencies alleged by the plaintiff, ruled that the “harsh sanctions of default judgment or an adverse jury instruction” requested by the plaintiff “are not warranted” and instead opted to require the defendant to pay plaintiff costs related to activities resulting from defendants’ over-designation of documents as privileged and recommended that the defendants be ordered to pay the plaintiff 75% of the costs associated with its Motion for Sanctions including all fees paid to expert witnesses to prepare reports and testify at the motion hearing.

Court Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: In Barry v. Big M Transportation, Inc., et al., Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device. As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Plaintiff Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: In Mitcham v. Americold Logistics, LLC, Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a copy of a journal she kept while employed by the defendant and for her failure to produce the original copy of the journal by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction.

Court Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve web pages containing disputed images, and motion in limine to preclude the testimony of a defense expert witness for failing to list him in the defendant’s initial disclosures.

Court Denies Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: In Catrinar v. Wynnestone Communities Corp., et al., Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: In GN Netcom, Inc. v. Plantronics, Inc., Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the defendant’s spoliation for the “intentional and admitted deletion of emails” ruled on earlier, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial, rather than respond to the four spoliation-related questions posed by the plaintiff or defendant.

Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: In E.E.O.C. v. GMRI, Inc., Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion for sanctions for spoliation of paper applications, interview booklets, and emails. Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

That’s it for this year’s review. Tomorrow, we get started on cases we plan to cover this year! Stay tuned!

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

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

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Issues Adverse Inference Sanction for Failing to Preserve Non Party’s Text Messages: eDiscovery Case Law

December 13, 2017

This is a case from earlier this year that we never got around to covering. It’s hard to believe that it’s been over 40 years since the Lynyrd Skynyrd plane crash that took the life of lead singer and guitarist Ronnie Van Zant and five other people. To read a retrospective on one of rock music’s most notable airplane disasters, here’s a terrific article from Rolling Stone. To check out case law that relates to use of the band’s name – less dramatic, but still interesting (at least to some of us), read below.

In Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS) (S.D.N.Y. Aug. 28, 2017), New York District Judge Robert W. Sweet, among other rulings, issued an adverse inference sanction against one of the defendants for its failure to preserve text messages in the possession of a non-party, finding that defendant had control of the non-party’s text messages, given that he was contracted by the defendant and provided documents and gave a deposition during discovery.

Case Background

In this dispute over alleged violation of a Consent Order (which controlled the circumstances under which surviving band members could use the name Lynyrd Skynyrd) and efforts by Cleopatra Records to make a film about the crash (working with Artimus Pyle, the drummer for Lynyrd Skynyrd and a survivor of the 1977 crash, who was a signatory “under protest” to the Consent Order), the plaintiffs initially sent a cease and desist letter and ultimately filed suit against Pyle and Cleopatra alleging violation of the Consent Order.

Several weeks after the suit was filed and after filming of the disputed movie, Jared Cohn (who had been hired by Cleopatra as the director and screenwriter, but was a non-party to the litigation), switched cell phone providers and acquired a new phone. Some data, such as pictures, were transferred while other data, such as text messages (including those exchanged with Pyle) was not transferred and was lost. As a result, the plaintiffs sought an adverse inference sanction against Cleopatra for failure to preserve the text messages.

In response to the plaintiffs’ motion, Cleopatra argued that it could not be sanctioned for a non-party’s actions and that the phone was not within its control, that the plaintiffs’ had not issued a valid subpoena and that the plaintiffs had not shown prejudice because they could have acquired the text messages from Pyle and because Defendants have produced a large number of other documents, rendering the missing messages cumulative.

Judge’s Ruling

With regard to Cleopatra’s argument regarding lack of control over the text messages, Judge Sweet stated: “Here, while Cohn is a non-party, his text messages were, practically speaking, under Cleopatra’s control. Cohn was contracted by Cleopatra to work on the Film, and the evidence has establishes that he worked closely with Cleopatra for over the past year. Over the course of the instant litigation, Cohn has participated by providing documents and took a deposition sought by Plaintiffs during discovery…As has been found relevant in other cases determining the relationship between a party and non-parties, Cohn also has a financial interest in the outcome of this litigation, since he is entitled to a percentage of the Film’s net receipts, which would be zero should Plaintiffs prevail…In sum, while determining practical control is not an exact science, ‘common sense’ indicates that Cohn’s texts with Pyle were within Cleopatra’s control, and in the face of pending litigation over Pyle’s role in the Film, should have been preserved.”

Judge Sweet also rejected the argument that a subpoena was required, noting “what the rules require is independent of a proper subpoena and simply that the lost information ‘should have been preserved,’ and there has been no dispute that the missing texts would have been relevant to the instant matter.” He also rejected the lack of prejudice argument, indicating that, of the evidence already produced by Cleopatra, “none speak directly to an important piece of this puzzle that would have been covered by the texts: the quality of interaction between Pyle, the Consent Order’s signatory, and Cohn, the principal writer and singular director of the Film, a relationship that evidence established was principally developed through text messages.” In granting the motion for adverse inference sanction, Judge Sweet noted that Cohn’s actions of retaining his pictures but not his text messages “evince the kind of deliberate behavior that sanctions are intended to prevent and weigh in favor of an adverse inference.”

So, what do you think? Should the defendant have been sanctioned for the actions of a non-party? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: eDiscovery Case Law

December 7, 2017

In E.E.O.C. v. GMRI, Inc., No. 15-20561-CIV-LENARD/GOODMAN (S.D. Fla. Nov. 1, 2017), Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion for sanctions for spoliation of paper applications, interview booklets, and emails. Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

Case Background

In this age discrimination case filed by the Equal Employment Opportunity Commission (EEOC) against the defendant owner of a chain of restaurants, the investigation by the EEOC began as an investigation of two employee complaints against the defendant’s Coral Gables restaurant location in late 2010. At that time, the EEOC notified Seasons 52 (the restaurant chain owned by the defendant) of the charges and explained the EEOC’s recordkeeping regulations. Then, on August 31, 2011, the EEOC issued an “expansion letter” and notified Seasons 52 that it was expanding the investigation to include Seasons 52’s hiring practices throughout the nation as they affect a class of individuals, applicants for employment, because of their ages. The EEOC also sent a follow-up letter, dated the next day, which requested additional information and which referenced “expansion” of the case. In July 2013, the EEOC issued Letters of Determination finding that Seasons 52 had engaged in age discrimination and filed its complaint in February 2015.

However, there was dispute over the August 31 2011 letter, which the defendant, (during an October 11, 2017 evidentiary hearing) claimed it never received. The defendant acknowledged it did receive the September 1 2011 letter. Nonetheless, the defendant contended that it was under a duty to preserve for only one restaurant in Coral Gables because the two complaints that triggered the EEOC investigation concerned that sole location. However, the plaintiff contended that Seasons 52 had a duty to preserve for all restaurants in the country because the scope of the investigation expanded into a national investigation encompassing all Seasons 52 restaurants. So, while the defendant issued a litigation hold in Coral Gables in December 2010, it did not issue litigation holds for other locations until at least May 2015. As a result, the defendant failed to preserve paper applications, interview booklets and emails in most of its locations (the order has WAY more detail on the extent of the failure to preserve).

Stating that the plaintiff “has come up empty handed”, the defendant filed a summary judgment motion and the plaintiff filed its motion for sanctions shortly thereafter, which the defendant contended was a last minute attempt to save the case.

Judge’s Ruling

Judge Goodman began by referencing a song from John Hiatt, who wrote a song released in 1995 called Shredding the Document, as being “at the heart of the sanctions motion being considered here”. He rejected the defendant’s argument that the plaintiff’s motion was in direct response to the defendant’s summary judgment motion, noting that it was filed only two days after and it was “highly likely” that the plaintiff began preparing the sanctions motion long before it received the defendant’s summary judgment motion.

With regard to the dispute over the August 31 2011 letter, Judge Goodman, observing that “Seasons 52’s witnesses unequivocally testified that they never received it and that their records and databases do not contain it”, that “they concede receipt of other letters” and that the zip code on the letter was incorrect, ruled: “The EEOC has not established by a preponderance of the evidence that Seasons 52 received the so-called August 31, 2011 expansion letter.”

However, noting that “The September 1, 2011 letter made explicit reference to an ‘expansion’ of the case, and Seasons 52 was regularly forwarding information about 10 restaurants and then added another restaurant…to the ongoing production”, Judge Goodman found that “Seasons 52 was therefore under a duty to preserve relevant materials for those 11 restaurants” and found their “lack of logical follow-through to be unacceptable.”

Noting that “the EEOC’s expert witness was still able to reach conclusions even without certain paper applications and interview booklets”, Judge Goodman determined that “some prejudice” had occurred, but that “Seasons 52 certainly has a logical argument that the missing materials were not critical or crucial to the EEOC’s case, which is why the Undersigned is not now granting the EEOC harsh-type sanctions like a permissible adverse inference.” As a result, Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

So, what do you think? Should juries decide spoliation is unfavorable to a party without judicial instructions to that effect? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: eDiscovery Case Law

October 26, 2017

In GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS (D. Delaware, Oct. 5, 2017), Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the defendant’s spoliation for the “intentional and admitted deletion of emails” ruled on earlier, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial, rather than respond to the four spoliation-related questions posed by the plaintiff or defendant.

In this case with claims of monopolization, attempted monopolization and common-law tortious interference with business relations against the defendant, the defendant received “punitive sanctions in the amount of $3,000,000” for the “intentional and admitted deletion of emails” by the defendant’s Senior Vice President of Sales. After reviewing the parties’ joint status report, as well as other materials submitted throughout the case, and having discussed the issues with the parties on multiple occasions, including during the pretrial conference, Judge Stark chose to determine the preliminary and final jury instructions he would give, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial.

Judge Stark identified this language as the “preliminary instruction {that} will be provided to the jury”:

“SPOLIATION

The law requires that parties preserve relevant documents, including emails, when litigation is pending or contemplated. This is because, when one party sues another, each side has the right under the law to inspect or obtain production of internal documents and other evidence from the other party.

The destruction or material alteration of evidence or the failure to preserve documents or emails for another party’s use as evidence in pending or reasonably foreseeable litigation is referred to as “spoliation.”

In this case, it has been determined that Plantronics committed spoliation.

It has also been determined that Plantronics’ spoliation was not accidental and that evidence relevant to this case may have been destroyed by Plantronics. As such, during this trial, you may hear questions and answers from the parties referencing missing or destroyed emails and Plantronics’ spoliation of evidence. While the exact contents of the spoliated evidence are unknown, you, the jury, will be permitted – but not required – to infer that the lost documents were relevant and favorable to GN’s case and/or harmful to Plantronics’ case.

*3 You will learn during trial that Don Houston, a former employee at Plantronics, failed to preserve certain emails after his duty to preserve them arose. You will also hear that efforts were made to recover the emails that Mr. Houston failed to preserve and that additional emails were produced to GN through these recovery efforts.

I will have further instructions on these matters for you at the conclusion of the trial.”

Judge Stark identified this language as the “final instruction {that} will be provided to the jury”:

“SPOLIATION

I instruct you that Plantronics failed to preserve evidence after its duty to preserve arose. This failure to preserve is known as ‘spoliation of evidence.’ In other words, spoliation is the destruction or material alteration of evidence or the failure to preserve evidence for another’s use in pending or reasonably foreseeable litigation.

Based on Plantronics’ spoliation, you may, but are not required, to presume that the lost evidence would have been relevant and helpful to GN’s case and/or would have been harmful to Plantronics’ case. Alternatively, you may infer that the evidence not produced would merely have been duplicative of, or similar to, the evidence before you.

In other words, your role is to determine whether Plantronics’ spoliation tilted the playing field against GN. If so, the permission given to you by the Court to infer that the missing documents would have been relevant and helpful to GN and/or harmful to Plantronics is designed to allow you to balance that playing field, should you feel it is necessary.

It is up to you to decide the extent to which the lost evidence was relevant and helpful to GN and/or harmful to Plantronics. Of course, it is impossible to know exactly what evidence was lost – although the parties have tried – so you must make these determinations to the best of your ability based on all of the facts and circumstances of this case. You must then decide how much weight and effect to give to your belief about spoliation in reaching your verdict.”

Judge Stark also identified the 16 stipulations that he would read. Four of those stipulations would only be read “if, no later than Saturday, October 7 at 3:00 p.m., Plantronics submits an affidavit providing the evidentiary basis for the numerical figures contained in these paragraphs, all of which the Court adopted based on Plantronics’ representations.”

So, what do you think? Is a jury instruction a sufficient sanction for the “intentional and admitted” spoliation by the defendant? Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category! Thanks to whoever nominated us! We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame. You can cast a vote for the blog here. Thanks!

Case opinion link courtesy of eDiscovery Assistant.

Court Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: eDiscovery Case Law

October 16, 2017

In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017), New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve web pages containing disputed images, and motion in limine to preclude the testimony of a defense expert witness for failing to list him in the defendant’s initial disclosures.

Case Background

In this case regarding intellectual property claims against the defendant relating to the allegedly infringing use of certain celebrity photographs, the plaintiffs filed a motion for spoliation sanctions against the defendant for failing to preserve the “webpages” on which it had displayed the Images; and a motion in limine to preclude the trial testimony of a defense expert witness (Robert Coakley) after the defendant failed to list him in its initial disclosures.

Judge’s Ruling

Noting that the “Plaintiffs’ motions are without merit”, Judge Furman stated:

“Given the plain language of [Federal Rule 37(e)], Plaintiffs’ motion borders on frivolous, for the simple reason that they cannot even show that the evidence at issue was ‘lost.’ Several of the Images are still hosted on CMG’s websites…And the record makes clear that Plaintiffs themselves possess copies of the other Webpages—in the form of screen captures taken when they displayed the Images (the ‘Screenshots’)…In fact, Plaintiffs themselves list the Screenshots as trial exhibits…Given that (plus the fact that Defendant does not dispute the authenticity of the Screenshots…or deny that it hosted and displayed the Images…, there is no foundation to impose sanctions under Rule 37(e). And to the extent that there were a foundation, sanctions would be inappropriate because there is no evidence whatsoever that Defendant ‘acted with the intent to deprive another party of the information’s use in the litigation,’…, and Plaintiffs obviously cannot show prejudice ‘as [they] actually possess[ ] copies’ of the relevant evidence.”

As a result, Judge Furman denied the plaintiffs’ motion for sanctions and also denied the plaintiffs’ motion in limine to preclude the testimony of Coakley after the defendant’s failure to list him in the defendant’s initial disclosures, noting that violation was “plainly harmless and thus not a basis for preclusion”, but did note a concern regarding his testimony regarding Google Analytics data the judge deemed as “inadmissible hearsay” and instructed the parties to “be prepared to address that issue at the final pretrial conference”.

So, what do you think? Should parties be sanctioned for failing to preserve web pages? Should a screen capture copy of an image be treated differently than an imaged copy of a journal? Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category! Thanks to whoever nominated us! If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame. You can cast a vote for the blog here. Thanks!

Case opinion link courtesy of eDiscovery Assistant.

Plaintiff Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: eDiscovery Case Law

October 13, 2017

In Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW (D. Colo. Sept. 20, 2017), Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a copy of a journal she kept while employed by the defendant and for her failure to produce the original copy of the journal by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction.

Case Background

In this case in which the plaintiff claimed discrimination and improper termination for filing a formal complaint with a Human Resources hotline, the defendant requested (among other discovery requests) any “handwritten note, recorded communications, calendars, journals, diaries, logs, and the like” that related to the matter, but the plaintiff responded on two occasions that she had produced all such documents. However, at the plaintiff’s deposition on July 13, 2017, she disclosed that she kept a “journal” to document all conversations she had regarding this matter so that she could recall those conversations in the future should the need present itself. She also testified that she scanned the original copy of the journal and submitted it to her attorney, and then she shredded the original copy and acknowledged that it had not been previously produced. The plaintiff then produced a scanned copy of the journal two days later, after the completion of her deposition.

About a month later, in August, the defendant filed an instant Motion seeking fees and expenses incurred by having to re-depose the plaintiff and for filing the instant Motion, as well as an adverse inference instruction sanction against the plaintiff.

Judge’s Ruling

Noting that “both Plaintiff and her counsel certified under Rule 26(g) that Plaintiff’s initial disclosures and responses were complete and accurate; however, a ‘minimal inquiry’ by Plaintiff’s counsel would have revealed the existence of the journal and required its production”, Judge Wang stated that “Ms. Mitcham’s failure to disclose the notebook in a timely fashion as part of her Initial Disclosures or in response to written discovery was not substantially justified. Indeed, Ms. Mitcham offers no, and this court cannot itself ascertain, a plausible explanation that Plaintiff was unaware of the notebook or its relevance to this instant action….it appears that Ms. Mitcham was withholding information (whether intentionally or not) that has hindered the progress of discovery”.

With regard to producing a scanned copy of her journal instead of the original, Judge Wang stated: “Plaintiff argues that her shredding the original journal does not constitute destruction, because she ‘kept a journal in the ordinary court of business and transferred it to computerized form as a matter of routine.’…Plaintiff continues that this satisfies the requirements of Rule 34(b)(2)(E), and that she timely supplemented her incomplete discovery responses with the scanned journal…These arguments are unavailing. Plaintiff’s original journal does not constitute electronically stored information; thus, Rule 34(b)(2)(E) is inapplicable. And, as mentioned above, a Rule 26 violation occurred.”

Judge Wang also determined that the plaintiff “abdicated” her duty to preserve by shredding the original, stating “It is clear that Plaintiff retained counsel the day after her termination and that, at this point, had not yet destroyed her original journal. Though Plaintiff stresses the fact that the scanned copy is just as good as the original, I respectfully disagree. First and foremost, there is no way for this court or the Parties to independently confirm that the scanned copy includes all the pages of the original journal. There is also no opportunity for the court or the Parties to determine from the handwriting, the ink, or otherwise if there are timing differences as to when certain entries were written. Therefore, this court concludes that the destruction of the original was unreasonable under the circumstances, because Ms. Mitcham retained counsel prior to shredding the original, and then scanned and sent a copy of the original to Mr. Olsen {her counsel} at his behest.”

As a result, Judge Wang granted (in part) the defendant’s motion for sanctions by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction, determining that such a sanction is “not warranted at this time”.

So, what do you think? Should parties be sanctioned for failing to preserve original copies of documents or should the requesting party bear the burden of showing that the copy is not complete? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Court Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: eDiscovery Case Law

September 28, 2017

In Barry v. Big M Transportation, Inc., et al., No. 1:16-cv-00167-JEO (N.D. Ala. Sep. 11, 2017), Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device. As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Case Background

In this case arising out of a motor vehicle accident which was filed in Alabama state court and then removed to federal court, the plaintiffs sought to recover compensatory and punitive damages for their injuries and asserted claims against the trucking company and the driver of the truck. Both defendants filed a motion for summary judgment on the plaintiffs’ claims and the plaintiffs filed a motion for partial summary judgment on the defendants’ affirmative defenses of contributory negligence, assumption of the risk, and intervening cause, as well as a “spoliation sanction” in the form of either a default judgment on the defendants’ negligence liability or an order judicially establishing certain facts against the defendants.

As a part of their motion for partial summary judgment, the plaintiffs requested a spoliation sanction against the defendants for their failure to preserve the tractor’s ECM data following the accident (or the tractor for that matter, which was sold), moving for either a default judgment on the defendants’ negligence liability or an order by the Court establishing “the speed [at] which {the driver} was driving and the maneuvers he made in the light most favorable” to the plaintiffs. In response, the defendants argued that the failure to preserve the ECM data was “well-reasoned and justifiable” and even if seen as not reasonable, didn’t warrant the imposition of sanctions. In addition, the driver defendant argued that he had no duty to preserve the tractor’s ECM data at the time of the accident or had any custody or control over the tractor following the accident.

Judge’s Ruling

In considering the request for sanctions, Judge Ott found that “Big M—but not Shaffer—is guilty of spoliation. Big M’s corporate representative, Benton Elliott, confirmed that it is Big M’s normal practice to retrieve the ECM data from a tractor if they know a collision is severe, and he admitted that there was nothing preventing Big M from preserving the ECM data in this instance.”

However, Judge Ott indicated that he was “unwilling to impose either of the severe sanctions requested by the Barrys for a number of reasons”, including 1) he was “not convinced that Big M acted with the intent to deprive the Barrys of the use of the ECM data”, that 2) “it was Big M’s impression that the Barrys were at fault for the accident”, that 3) “the Barrys have not been prejudiced to such an extent that the severe sanctions they have requested would be warranted” and 4) “the Barrys have not shown that Shaffer bears any responsibility for the loss of the ECM data.”

As a result, Judge Ott ruled that “the Barrys’ request for spoliation sanctions will be denied to the extent they have asked the Court to enter a default judgment on the Defendants’ negligence liability or, alternatively, to enter an order judicially establishing the speed at which Shaffer was driving and the maneuvers he made prior to impact in the light most favorable to the Barrys. However, as an alternative sanction, the Court intends to tell the jury that the ECM data was not preserved and will allow the parties to present evidence and argument at trial regarding Big M’s failure to preserve the data.”

So, what do you think? Is that a sufficient sanction for failing to preserve the truck and the ECM data? Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category! Thanks to whoever nominated us! If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame. You can cast a vote for the blog here. Thanks!

Case opinion link courtesy of eDiscovery Assistant.

Court Grants Lesser Sanctions Against Defendant for Various Discovery Issues: eDiscovery Case Law

September 15, 2017

In New Mexico Oncology v. Presbyterian Healthcare Servs. No. 1:12-cv-00526 MV/GBW (D.N.M. Aug. 16, 2017), New Mexico Magistrate Judge Gregory B. Wormuth, detailing numerous defendant discovery deficiencies alleged by the plaintiff, ruled that the “harsh sanctions of default judgment or an adverse jury instruction” requested by the plaintiff “are not warranted” and instead opted to require the defendant to pay plaintiff costs related to activities resulting from defendants’ over-designation of documents as privileged and recommended that the defendants be ordered to pay the plaintiff 75% of the costs associated with its Motion for Sanctions including all fees paid to expert witnesses to prepare reports and testify at the motion hearing.

Case Background

In this case, the plaintiff, detailing numerous alleged defendant discovery deficiencies, filed a Motion for Sanctions, requesting that the Court sanction the defendants by ordering default judgment against them, or, alternatively that the Court sanction the defendants by ordering an adverse jury instruction. The allegations included:

Defendants failed to issue a proper litigation hold. The plaintiff alleged that the defendants’ original May 2012 litigation hold was inadequate because (1) it did not account for the “email jail,” a function which required that employees delete or archive emails when they run out of inbox space; (2) it covered only thirty-five employees and improperly excluded several key witnesses; (3) it allowed employees to determine which emails were irrelevant to the lawsuit and could be deleted; and (4) it did not apply to Defendants’ Live Exchange Server (a.k.a., the Transport Dumpster) and therefore did not preserve documents deleted by individual employees.
Defendants intentionally deleted discoverable emails received or sent by Dr. Dava Gerard. The two primary pillars of the plaintiff’s case for intentional deletion were: (1) the data found within the “free space” of the Gerard PST file (the PST file was 2 GB in size, but only 128 MB of materials were readable by native software when opened), and (2) data was found in the unallocated space on the hard drive on which the Gerard PST file was saved.
Defendants used privilege designations for the purpose of concealing documents and information. After the defendants produced their original privilege and redaction logs, the plaintiff objected to 2,831 of the 4,143 entries to which Defendants included in the logs. The defendants conducted a re-review and produced 1,095 documents which were originally listed on the privilege log and 864 documents which were originally listed on the redaction log. The plaintiff then objected to all 1,312 remaining listings on the privilege and redaction logs, stating that it no longer had confidence in Defendants’ privilege designations, leading to a second re-review, which led to an additional 861 documents produced. The plaintiff then filed a Motion to Compel and for Sanctions against Defendants, which included a request “that the Court appoint a Special Master to conduct an independent in camera review” of the remaining records withheld and redacted – that review led to 197 additional documents ordered to be produced.

The plaintiff also complained that the defendants failed to produce usable billing and claims data in a timely manner, produced ESI for the wrong custodian named Mike West and did not properly collect hard copy documents in discovery. As Frank Costanza would say at the Airing of Grievances during Festivus, “I got a lot of problems with you people”.

Judge’s Ruling

Judge Wormuth, reviewing the allegations in considerable detail, determined the following:

Improper litigation hold: Judge Wormuth acknowledged that “Without question, Plaintiff points out some imperfections with the litigation hold and its implementation” and he detailed several of those. However, he also explained that “Plaintiff failed to establish that these imperfections were a result of bad faith or that they resulted in the spoliation of evidence.”
Intentional deletion of emails: Noting that “the conclusion that data residing in the PST’s free space is only the result of deletion rests on the assumption that the export was conducted via the ‘client-side’ method, rather than the alternative ‘server-side’ method”, Judge Wormuth cited a lack of evidence that the collection specialist used a clean hard drive to conduct the collection and pointed to the presence of export logs to determine that the exports were conducted via the “server-side” method and concluded that “Plaintiff has not demonstrated by a preponderance of the evidence that Defendants intentionally deleted emails that should have been disclosed.”
Privilege designations: Judge Wormuth agreed with the Special Master’s report that the defendants “did not act in bad faith”. But, he did state “this does not mean that Defendants are free from blame. It is clear that Defendants over-designated documents as privileged, and that even their re-reviews were insufficient to fix their own errors. As a result, Plaintiff was required to repeatedly assert objections until the Special Master ultimately resolved the issue.”

As for the other issues, Judge Wormuth ruled that the “Plaintiff can demonstrate no prejudice resulting from any such delays” in receiving the billing and claims data, that the “collection of documents from the wrong Mike West was an inadvertent error and not done in bad faith” and that, because of the plaintiff’s failure to request that the Court allow additional depositions of the employees associated with the hard copy documents, “more severe sanctions are not warranted”.

Ultimately, Judge Wormuth ruled that the “harsh sanctions of default judgment or an adverse jury instruction” requested by the plaintiff “are not warranted” and instead opted to require the defendant to pay plaintiff costs related to activities resulting from defendants’ over-designation of documents as privileged and recommended that the defendants be ordered to pay the plaintiff 75% of the costs associated with its Motion for Sanctions including all fees paid to expert witnesses to prepare reports and testify at the motion hearing.

So, what do you think? Was that an appropriate level of sanctions for the various discovery issues? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Here’s a Chance to Learn What You Need to Do When a Case is First Filed: eDiscovery Best Practices

September 6, 2017

The first days after a complaint is filed are critical to managing the eDiscovery requirements of the case efficiently and cost-effectively. With a scheduling order required within 120 days of the complaint and a Rule 26(f) “meet and confer” conference required at least 21 days before that, there’s a lot to do and a short time to do it. Where do you begin?

On Wednesday, September 27 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Holy ****, The Case is Filed! What Do I Do Now? (yes, that’s the actual title). In this one-hour webcast, we’ll take a look at the various issues to consider and decisions to be made to help you “get your ducks in a row” and successfully prepare for the Rule 26(f) “meet and confer” conference within the first 100 days after the case is filed. Topics include:

What You Should Consider Doing before a Case is Even Filed
Scoping the Discovery Effort
Identifying Employees Likely to Have Potentially Responsive ESI
Mapping Data within the Organization
Timing and Execution of the Litigation Hold
Handling of Inaccessible Data
Guidelines for Interviewing Custodians
Managing ESI Collection and Chain of Custody
Search Considerations and Preparation
Handling and Clawback of Privileged and Confidential Materials
Determining Required Format(s) for Production
Timing of Discovery Deliverables and Phased Discovery
Identifying eDiscovery Liaison and 30(b)(6) Witnesses
Available Resources and Checklists

I’ll be presenting the webcast, along with Tom O’Connor, who is now a Special Consultant to CloudNine! If you follow our blog, you’re undoubtedly familiar with Tom as a leading eDiscovery thought leader (who we’ve interviewed several times over the years) and I’m excited to have Tom as a participant in this webcast! To register for it, click here.

So, what do you think? When a case is filed, do you have your eDiscovery “ducks in a row”? Please share any comments you might have or if you’d like to know more about a particular topic.

Plaintiff Sanctioned for Spoliation of Evidence in His Case Against Taylor Swift: eDiscovery Case Law

August 11, 2017

In Mueller v. Swift, No. 15-cv-1974-WJM-KLM (D. Colo. July 19, 2017), Colorado District Judge William J. Martinez ruled that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation [between the plaintiff and his supervisors] constitutes sanctionable spoliation of evidence”, but rejected the defendants’ request to make a finding of bad faith and to give the jury an adverse inference instruction, opting instead for permitting the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

Case Background

In this case against the defendants for tortious interference with the plaintiff’s employment contract and one defendant’s counterclaims for the torts of assault and battery over a well-publicized claim of inappropriate touching, the plaintiff met with his superiors at the radio station where he worked on June 3, 2013 to discuss the defendant’s claim of inappropriate touching. Unbeknownst to the supervisors at the time, the plaintiff made an audio recording of their conversation. The following day, the plaintiff was terminated from his employment by one of the supervisors, who explained that one reason for the plaintiff’s termination was because he perceived Plaintiff had “changed his story that it couldn’t have occurred, then that it was incidental.”

At some point thereafter, well after having first contacted an attorney regarding potential legal action, the plaintiff edited the audio recording of the conversation, and then sent only “clips” of the entire audio file to his attorney. According to his testimony, the plaintiff edited the audio file on his laptop computer, on which he also retained a full copy of the original audio file(s). However, he claimed that he spilled coffee on the keyboard of his laptop and was given “a new machine” by the Apple Store and he didn’t retain the hard drive from the old laptop. The plaintiff also kept an external hard drive “to store audio files and documents”, and the complete audio recording was saved on this drive, but he indicated that, at some point, it “stopped working.” At his deposition, the plaintiff testified that he “may have kept” this hard drive, but that because it was “useless” he “[didn’t] know if I discarded it because it was junk”. As a result, the complete audio file was never produced and the defendants moved for a Court-imposed sanction for spoliation of evidence, and for the Court to give the jury an adverse inference instruction at trial, to direct the jury “that the entirety of the June 3, 2013 audio recording would have been unfavorable to Plaintiff.”

Judge’s Ruling

Judge Martinez ruled that the plaintiff had a duty to preserve the recording, that the recording was “relevant to numerous disputed facts and issues” in the case, that the defendants were prejudiced by the loss of evidence and that the degree of culpability warrants a sanction. While declining to make a finding that the plaintiff acted in bad faith, Judge Martinez indicated that the “spoliation falls higher up on the ‘continuum of fault’” than “mere negligence”, noting that it was “troubling” that the plaintiff also threw out his cell phone, months after the litigation was filed, noting “it may have been the device that he originally used to record the June 3, 2013 conversation”.

As a result, Judge Martinez concluded that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation constitutes sanctionable spoliation of evidence”, but, determining that the defendants’ request for an adverse inference instruction sanction “would be unduly harsh in the circumstances of this case”, deciding instead to permit the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

So, what do you think? Was that an appropriate sanction given the lack of finding of bad faith? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.