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Preservation

Appeals Court Upholds Default Judgment Sanctions for Defendant’s Multiple Discovery Violations: eDiscovery Case Law

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

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

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

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

So, what do you think?  Did the defendants’ actions warrant a default judgment against them?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Grants Defendants’ Motion to Exclude Plaintiff’s Use of Spoliation Evidence: eDiscovery Case Law

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

Case Background

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

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

Judge’s Ruling

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

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

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

So, what do you think?  Should the court have allowed for a spoliation instruction to the jury or was the defendant’s efforts to provide ESI for the departed employee sufficient?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: eDiscovery Case Law

In Rembert v. Cheverko et. al., No. 12-9196 (S.D.N.Y., Oct. 9, 2015), New York District Judge Katherine B. Forrest granted the plaintiff’s motion “in its entirety” to compel the defendants to provide a properly prepared 30(b)(6) witness to testify regarding the defendants’ preservation and production of emails, to provide copies of document retention/preservation notices issued and to reimburse plaintiff’s costs and fees associated with having to conduct an additional deposition.

Case Background

In this civil suit filed by an inmate in the Westchester County Department of Corrections system over failure to properly treat a fractured arm, the plaintiff sought documents including any email communications between prison staff about the plaintiff.  The defendants failed to respond to that request for over three months, at which time they simply stated that they were not in possession of any such communications.  At a conference two days later, when pressed, defendants’ counsel conceded that defendants had not performed any search for emails and committed to expeditiously search for electronic documents for their witnesses, but still failed to provide any additional emails, despite the fact that five defendants’ witnesses confirmed that they used email to communicate about their patients and that responsive documents about the plaintiff should exist.

The plaintiff issued a motion to compel, to which defense counsel responded by calling the allegations regarding email collection “reckless and, frankly, scurrilous.”  Nonetheless, counsel for defendants ultimately made a small production of several emails to plaintiff’s counsel just before a court conference in July, which the plaintiff’s counsel determined to be incomplete.  The Court then outlined several possible ways of proceeding to resolve this email issue including a 30(b)(6) deposition.  The defendant’s motion to strike the 30(b)(6) deposition was denied and the deposition proceeded on September 25.

Judge’s Ruling

With regard to the 30(b)(6) deposition that was conducted, Judge Forrest noted “it is clear from the transcript that the witness was not prepared to deal with even the most basic topics set forth in the notice. It was a pure waste of time.”  Continuing, she stated:

“The designated witness, Peter Gavin, the Director of Health Information, testified that he had met with defense counsel once, for “an hour, I think.”…This is in contrast to defense counsel’s representation in his response to this motion that he prepared Mr. Gavin over the course of two days….Someone’s recollection is incorrect. Mr. Gavin did not know the version of the email platform used, whether Correct Care maintains the emails on its own server or works with a third party to do that, whether the storage is cloud-based, whether there are any size constraints on the amount of email data that a user can retain, what deletion practices were employed automatically, periodically or specifically, he was unfamiliar with ways of archiving emails other than his own personal practice, whether emails and documents were stored on the hard drive of a user’s computer or on a network server, whether emails sent or received through cell-phones would go through a web-mail client, whether Correct Care backs-up email, etc.”

As a result, Judge Forrest granted the plaintiff’s motion, stating that “[a] properly prepared 30(b)(6) witness shall be made available not later than October 23, 2015. Counsel shall confer on the appropriate location to take the deposition. As plaintiff should not have to have made this motion given the Court’s prior rulings and warnings, defendants shall pay the costs plaintiff has incurred in bringing this motion including: reasonable attorney’s fees for attending the useless deposition of Mr. Gavin and bringing this motion, and court reporter fees for the deposition of Mr. Gavin. Such costs shall be paid to the Patterson Belknap firm within 30 days of this Order. Defendant shall also provide plaintiff and the Court with copies of any document retention/preservation notices issued in connection with this case and the recipients of such hold notice. Such production shall occur not later than October 16, 2015.”

So, what do you think?  Have you ever been involved in a case where a second 30(b)(6) witness had to be produced?  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 Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: eDiscovery Case Law

In You v. Japan, No. C 15-03257 WHA (N.D. Cal. Sept. 16, 2015), California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Case Background

In this putative personal injury class action involving claims against numerous defendants for allegedly contributing to sexual violence against them when they were kept as “comfort women” for members of the Japanese military during World War II, one defendant, a newspaper business, sought permission to preserve documents by alternative means to the Court’s required procedures.

This defendant had already retained an electronic, searchable database of all of its articles back to 1992 and was also retaining the versions of articles that are placed in a proprietary application used for laying out each edition of the newspaper for 90 days. However, the defendant contended that retention for longer than that could slow down the system or cause it to crash, indicating that installing a new storage system would cost $18 million and could take up to eight months.  As a result, the defendant filed an administrative motion for miscellaneous relief, seeking permission to employ an alternative method of preserving the documents as used in the proprietary application, namely by preserving articles only if they contain one of four relevant search terms.

The plaintiffs opposed this request, arguing that the defendant’s proposed solution could lead to the destruction of evidence of its state of mind in selecting and editing its articles, since the version of articles in the proprietary application are the only versions that reflect a particular intermediary stage of bringing those articles to publication.  They also contended that the proposed search terms are insufficient because the defendant had also used the term “voluntary corps (teishintai)” in articles about comfort women.

Judge’s Ruling

Judge Alsup, observing that the plaintiffs “do not, however, argue that articles with that term would not have otherwise been preserved under the proposed search terms, nor have they identified any other search terms that should be included”, found “that Sankei’s proposal, if amended to include the term “voluntary corps (teishintai),” is sufficiently broad to preserve the versions of articles in the proprietary application that may be related to the issues in this case.”  As a result, he granted the defendant’s motion.

So, what do you think?  Is limiting preservation to documents responsive to a small set of search terms a good idea?  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.

Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: eDiscovery Case Law

In NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. July 22, 2015), California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Case Background

In this contractual dispute, the defendants sought sanctions in the form of an adverse inference jury instruction for the plaintiff’s failure to preserve evidence, specifically, text messages from four employees.  The defendants contended that these text messages could have been evidence of secret coordination between the plaintiff and former employees of the defendants to effect the termination of the defendants’ contractual relationship with the plaintiff and then have the plaintiff hire the defendants’ sales personnel as its own employees.

With regard to the four employees, each had a different level of failure to preserve the text messages.  One former employee turned over his current phone for imaging instead of the phone used during the relevant time period, which he wiped clean before turning it over to his son. A second employee was not asked to turn in his phone until 2014 (after being notified of a litigation hold in August 2012 and again in September 2013) and when he did, all text messages prior to September 20, 2012 were missing (which the plaintiff attributed to an iPhone iOS 6 software update released on September 19, 2012). The third employee had his phone wiped when he turned it in for an upgrade on two separate occasions, pursuant to company policy.  The fourth employee did not provide the phone he used in 2012 until sometime in 2013 and testified that he may have deleted some relevant messages.

Judge’s Ruling

Judge Moskowitz stated that “In light of all of the text messages that were lost or deleted, the Court concludes that NuVasive was at fault for not enforcing compliance with the litigation hold. Although it is true that Defendants should have taken steps to preserve the text messages of Orlando and Kordonowy while they were still working for MMI, NuVasive still had a duty to preserve the evidence and failed to do so.”

Rejecting the plaintiff’s claims that the defendants had obtained most of the deleted/lost text messages through other individuals, Judge Moskowitz also found that “Defendants have made a sufficient showing of prejudice”, noting from other texts that the defendants provided that it could “reasonably be inferred from these texts, viewed together with other evidence, that the MMI sales representatives were talking to NuVasive about plans to terminate MMI and have the sales representatives work directly for NuVasive. Accordingly, texts during the relevant time period to or from Moore, Kordonowy, Graubart, and Orlando might have furthered MMI’s claims.”

As a result, Judge Moskowitz found that “a properly tailored adverse inference instruction is appropriate and will not cause ‘substantial unfairness’ to NuVasive” and decided to give the following instruction:

“NuVasive has failed to prevent the destruction of evidence for MMI’s and Ms. Madsen’s use in this litigation after its duty to preserve the evidence arose. After considering all of the pertinent facts and circumstances, you may, but are not obligated to, infer that the evidence destroyed was favorable to MMI and unfavorable to NuVasive.”

Judge Moskowitz denied the defendants’ request for attorney’s fees and costs “because Defendants were also partially at fault for not taking steps to preserve text messages of Kordonowy and Orlando while they were still working for MMI.”

So, what do you think?  Was the sanction appropriate for this case?  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.

Despite Failure to Implement a Litigation Hold, Defendant Escapes Sanctions: eDiscovery Case Law

Is this case is one example of Craig Ball’s contention that “you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI”?  You decide.

In Flanders v. Dzugan et. al., 12-1481 (W.D. Pa., August 24, 2015), despite the fact that the defendant failed to implement a litigation hold, Pennsylvania District Judge Nora Barry Fischer denied the plaintiff’s Motion for Sanctions alleging the defendants failed to preserve evidence relevant to the case, finding that the plaintiff “cannot show any evidence was actually lost or destroyed”, “cannot show that if evidence was lost or destroyed, it would have been beneficial to his case” and “[n]or can Plaintiff show bad faith”.

Case Background

In this case where the plaintiff sued the defendants for constitutional violations related to their building permit approval process, the parties filed a Joint ESI Protocol Status Report with the Court in October 2014, agreeing that they would “initially focus their search” on the email of four employees of the defendant.  From these four individuals, the defendants turned over a total of 33 emails relating to the plaintiff and the litigation.  In one of these emails between two of the individuals, Defendant Dzugan stated, referring to the plaintiff, that he is “[g]etting tired of him.”  The plaintiff asserted that there must have been other similar emails that were not produced.

The Court ordered the defendants to file evidence of any litigation hold they had put in place for this lawsuit, but the defendants never filed any such evidence, and as Judge Fischer noted “it appears to be undisputed that they never put a litigation hold in place.” In its Motion for Sanctions, the plaintiff provided two arguments for a charge of spoliation for lack of a litigation hold: 1) arguing that the emails recovered from the email accounts that were searched cannot possibly be all the emails relating to the plaintiff and 2) arguing that additional email accounts were never searched at all.

Judge’s Ruling

Judge Fischer stated that “Plaintiff is correct that Defendants should have put a litigation hold in place”, but determined that “other elements of a spoliation claim, however, are not satisfied here”.  Continuing, Judge Fischer stated:

“Here, the only thing Plaintiff can say with any specificity is that Defendants do not appear to have put a litigation hold in place. Plaintiff cannot show any evidence was actually lost or destroyed. Plaintiff also cannot show that if evidence was lost or destroyed, it would have been beneficial to his case. Instead, Plaintiff’s Brief relies on inferences that such evidence must have existed, and thus must have been lost as a result of Defendants’ failure to institute a litigation hold.”

Referencing Bull v. UPS, Judge Fischer also stated that “[w]ith respect to actual suppression of evidence, the Third Circuit has clarified that a court must determine that the relevant actor suppressed or withheld the evidence in bad faith…A finding of bad faith is therefore ‘pivotal’ to a spoliation determination.”  She found the defendant’s handling of discovery to be “sloppy”, but stated that “in the Court’s estimation, this does not rise to the level of bad faith, particularly given the size and resources of Ford City and the fact that Solicitor is a part-time position.”  As a result, Judge Fischer found the spoliation motion “lacking in specificity and a showing of bad faith” and denied the motion.

So, what do you think?  Should the defendant have been held more accountable for the lack of a litigation hold?  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.

You’re More Likely to Be Hit by Lightning Than to Be Sanctioned for Non-Preservation of ESI: eDiscovery Best Practices

When it comes to eDiscovery topics, eDiscovery expert (and frequent thought leader interviewee on this blog) Craig Ball doesn’t hesitate to speak his mind and confront the (oftentimes) brutal truth.  In Craig’s latest post in his excellent Ball in Your Court blog, he does so in spades.

In Preservation and Proportionality, Craig sets the stage with a graphic showing a Lady Justice statue with a thumb holding down one end of the scales (I like it!).  He introduces the topic by stating:

“Litigants have been ignoring e-discovery obligations with impunity for so long they’ve come to think of it as an entitlement.  Protected from predators, few have evolved.  But now that opponents and courts are waking to this failure, those who’ve failed to adapt are feeling exposed. They don’t like it, and they want protection.  They call it ‘proportionality.’

Proportionality sounds wholesome and virtuous, like ‘patriotism’ or ‘faith;’ but like those wholesome virtues, it’s sometimes the refuge of scoundrels.”

But, without proportionality, how will organizations protect themselves against the “increased” threat of sanctions for spoliation?  Craig addresses that by debunking the myth:

“The much-ballyhooed ‘rise in sanctions’ is designed to mislead.   The solid metrics we have on spoliation sanctions prove that the risk of being sanctioned for negligent non-preservation remains miniscule (.00675% per a report from the Federal Judicial Center).  Put simply: In the United States, you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI.”

Noting that “the overwhelming majority of e-discovery sanctions decisions turn on venal acts like intentional destruction of evidence and contemptuous disregard of discovery obligations”, Craig decides to “tell it like it is: The claim that diligent, responsible litigants are being sanctioned for innocent e-discovery errors is hogwash.”

Craig then addresses how many organizations address their preservation obligations to avoid sanctions “by embracing monumental inefficiency in preservation instead of making sensible, defensible choices” and blaming the plaintiff for requesting the data (spoiler alert, it’s not the plaintiff’s fault).  “To the extent ‘proportionality’ is a byword for ‘let us err with impunity,’ it’s too soon in the evolution of e-discovery to be so resigned to incompetence.  If anything, we need more sanctions for incompetence, not more safe harbors”, Craig states.

Craig’s post continues to discuss the level of competence of lawyers preserving data, the efforts to use the proportionality argument and the court’s role in deciding (“proportionality shouldn’t be pressed into service as a “Get Out of Jail Free” card for botched preservation; but, it can prove instructive to courts weighing sanctions for failure to preserve relevant evidence”, he states).  In the end, it’s up to courts to “insist parties know how to use the scale and don’t put their thumbs on the pan” (of the scales of justice, that is).

By the way, this isn’t a recent sentiment of Craig’s spawned by the impending Federal rules changes this December, he notes that he wrote this post four years ago, but never posted it.  Interesting.

A link to his post is here.

So, what do you think?  Do you think we need more sanctions for incompetence and not just for willful destruction of 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: eDiscovery Case Law

In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, 13-02276 (Aug. 18, 2015), Oregon Magistrate Judge John V. Acosta concluded that the plaintiffs had not met their burden of showing they are entitled to sanctions for spoliation of evidence by deleting one of the veterinarian’s archived work emails.

Case Background

In this breach of contract case between veterinarians and a veterinary hospital, during discovery for this case, one of the plaintiffs was required to search for and produce emails stored in his email archive responsive to the defendant’s requests for production.  In August 2014, the plaintiff attempted to access old emails stored in his email archive, but was unable to locate more than one-hundred folders of archived emails.  Later that month, the plaintiff contacted the defendant’s IT department for help finding the “missing” emails.  A member of the defendant’s IT department requested a time when he could come and assist the plaintiff. In the plaintiff’s response, he disclosed that he sought the emails “[r]egarding a legal matter”. Because the plaintiff’s request was in furtherance of a legal matter, the IT department referred the issue to the defendant’s legal department, which refused further assistance and advised the plaintiffs that the defendant was not responsible for locating documents responsive to its own discovery requests (eventually, however, the plaintiff noted that “some,” but not all, of the missing folders had repopulated to his archive inbox).

Based on the defendant’s refusal to perform the search, the plaintiffs moved for spoliation.  The defendant denied it was responsible for “missing” emails, and in their response, requested an award of attorney fees because of the plaintiffs’ “unjustified” motion for sanctions.

Judge’s Ruling

Noting that a defendant “may be subject to sanctions, particularly dispositive sanctions, only if it committed ‘willful’ spoliation of evidence”, Judge Acosta stated: “Here, Plaintiffs do not establish that the emails were willfully destroyed by CPI, or even that the emails were destroyed at all.”

The plaintiffs relied on a report by its computer forensic analyst to request sanctions for spoliation, but Judge Acosta disputed the reliability of his report, noting that he “produces no evidence which shows CPI’s IT department remotely accessed Baltzell’s computer without permission or tampered with Baltzell’s archived emails in any way”, that he “fails to disclose that, during his analysis of Baltzell’s computer, the computer was not logged into the CPI’s servers where the archived emails are stored” (which meant he wouldn’t have been able to access the files anyway) and that an “excerpt of the activity log showed that CPI IT last remotely accessed Baltzell’s computer on July 2, 2014, well before Baltzell had difficultly(sic) finding the emails in question.”  In addition, the defendant produced evidence that the missing emails were accessible in the plaintiff’s email archive, but that they had been “dragged and dropped” into a folder not typically associated with archived emails.  Judge Acosta concluded that the “absence of the activity log in the record is telling and suggests Jorgensen found no direct evidence of knowing wrongdoing by CPI.”

As a result, Judge Acosta denied the plaintiff’s request for sanctions.  He also denied the defendant’s attorney fees, because “the court cannot conclude Plaintiffs motion was ‘unjustified.’”

So, what do you think?  Was this an open and shut case?  Should the defendant have been awarded attorney fees?  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.

Defendant Gets Summary Judgment, Not Dismissal, Due to Plaintiff’s Wiping of Hard Drive: eDiscovery Case Law

In Watkins v. Infosys, 14-0247 (W.D. Wa., July 23, 2015), Washington District Judge John C. Coughenour denied the defendant’s Motion for the Sanction of Dismissal but granted the defendant’s Motion for Summary Judgment against the plaintiff for spoliation of data due to her use of “Disk Wiping” software to delete ESI.

Case Background

In this discrimination case, the defendant’s forensic expert determined that the plaintiff performed a Bing search for the term “disk wipe” and downloaded and installed file wiping software onto the hard drive of her work computer around October 20, 2013, and ran the program to wipe files.  In addition, eleven external media drives had been connected to the plaintiff’s laptop in the days prior to the disk wipe.  Furthermore, the plaintiff perjured herself when she stated that “she did not `remove’ things from Defendant’s premises,” and that she “followed procedures typical with such litigation . . . to avoid the alteration or deletion of documents, in addition to preserving data back-ups relating to her employment.”

The plaintiff ultimately admitted in her deposition that she wiped the files, claiming that she did so out of concern for information preservation and client confidentiality.  In a supplemented response filed on the last day of discovery, the plaintiff again refused to turn over the wiped contents of her work computer, claiming that all of the files passed through the defendant’s servers (so the defendant presumably had copies), that the unproduced files were “vast and irrelevant to the claims or controversies in this case” and that she was “in the process of replicating all documents that she retained and will provide the same to Defendant upon their soonest availability.”

Judge’s Ruling

Judge Coughenour stated that he found the plaintiff’s responses “both illogical and unbelievable”, noting that her “brief in response to Defendant’s motion for the sanction of dismissal only exacerbates the problem…There, Plaintiff regurgitates flimsy justifications for wiping her disk drive, doubles-down on her unsupported argument about the irrelevance of the wiped files, and asserts blankly that “there has been no actual suppression or withholding of evidence since the entire content of Plaintiff’s computer has been produced to Defendant.”

With the spoliation (and associated perjury) clear, Judge Coughenour then turned his attention to determining the appropriate sanctions.  To consider dismissal, he noted the requirement to weigh five factors: (1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its dockets, (3) the risk of prejudice to the party seeking sanctions, (4) the public policy favoring the disposition of cases on their merits, and (5) the availability of less drastic sanctions.  Reviewing the five factors, Judge Coughenour found “that three weigh in favor of dismissal and two do not” and, while describing it as “an incredibly close call”, he stated that “the Court prefers to address this case, finally, on its merits.”  Therefore, he denied the defendant’s motion for dismissal, opting instead to grant a motion for summary judgment.  Judge Coughenour also ordered plaintiff’s counsel to show cause as to why sanctions should not be issued against them.

So, what do you think?  Should the court have granted the motion for dismissal?  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 State Agency is Not Responsible for Emails Deleted via the Retention Policy of Another State Agency: eDiscovery Case Law

In Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), (N.D.N.Y. May 29, 2015), New York Magistrate Judge Randolph F. Treece denied the plaintiff’s request for sanctions, stating that “that neither the individual Defendants nor their Attorney had a duty to preserve” the emails of the Deputy Secretary of Gaming and Racing to the President of the New York Racing Authority (“NYRA”).

Case Background

In this First Amendment case where the plaintiff contended that a set of NYRA Defendants and another set of state actors violated the First (Free Speech Clause) and Fourteenth (Equal Protection Clause) Amendments of the United States Constitution for denying its food trucks to provide services at the Saratoga Race Course and an outdoor lunch program based on the plaintiff company’s name.  The plaintiff’s exclusion from the race track occurred after several complaints were received, including an email from the Deputy Secretary at the NYRA, concerned that “the fallout from authorizing this truck will inevitably land on NYRA”.

After the media reported that “an unidentified state official” complained, the Deputy Secretary emailed the Governor’s Executive Chamber identifying himself as that official and he was eventually identified in court as that “unidentified state official”. However, the NYRA eventually settled and the Deputy Secretary was never named as a defendant, leaving the employees of the Office of General Services (“OGS”), who had denied the plaintiff’s applications for the outdoor lunch program, as the remaining defendants.

During discovery, the plaintiff requested production of the non-party Deputy Secretary’s emails, but they had been automatically destroyed pursuant to New York State’s Email Retention Policy. As a result, the plaintiff thereafter sought an adverse inference (as well as further discovery, costs and attorneys’ fees) against the remaining OGS defendants and their litigation counsel – an Assistant Attorney General – for the deletion of the Deputy Secretary’s emails.  The defendants objected, citing that they had no control over the Deputy Secretary’s emails and litigation counsel did not represent the nonparty Deputy Secretary at the time of the automatic deletions and had no legal authority to direct a preservation hold.

Judge’s Ruling

Judge Treece, agreeing with the defendants, stated that “the individual Defendants correctly assert that they have no control over {the Deputy Secretary’s} emails, the Executive Chamber’s emails, or over other emails pertaining to NYRA. Instead, when litigation was commenced against them, they and their agency, OGS, met their obligation by preserving those documents that were within their control and possession, and ultimately disclosed 1000 pages of documents relevant to the Empire Plaza Summer Program, including emails.”

Continuing, Judge Treece stated that the “Plaintiff suffers under the erroneous notion that when a governmental agency and its officials are defendants in any litigation, they and their counsel are required to preserve and produce documents belonging to another governmental agency.”  He also stated that “[c]onsidering that hundreds of lawsuits are filed daily against New York State,” that “requiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”  Finding that the plaintiff had also failed to prove a culpable state of mind and also failed to prove that the missing evidence would have been favorable to it, Judge Treece found that the plaintiff had failed to meet its burden and denied its request for sanctions, as well as its request for additional discovery and costs and attorney fees.

So, what do you think?  Should each state agency have its own separate duty to preserve or should the entire state be responsible to preserve data?  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.