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Samsung and Quinn Emanuel Ordered to Pay Over $2 Million for “Patentgate” Disclosure – eDiscovery Case Law

Remember the “patentgate” disclosure last year (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia?  Did you think they were going to avoid having to pay for that disclosure?  The answer is no.

In a June 20 ruling by California Magistrate Judge Paul S. Grewal, he began by noting “With the present quiet on the docket, it is easy to forget the long tumult of this case that once reigned. The ceremonial courtroom has cleared. The fire drills of motions on shortened time have ceased. All that remains for now, at least for the undersigned, is the relatively mundane issue of what makes for reasonable fees.

The fees at issue arise from this court’s order awarding sanctions to Apple and Nokia. The sanctions followed the court’s finding that Samsung and Quinn Emanuel were responsible for the unauthorized distribution of Apple and Nokia confidential information. Samsung and QE object to certain of the fees Apple and Nokia now claim, which means the court must wade into the billing entries and make various calls. So, here goes.”

The summary of events related to the inadvertent disclosure by Quinn Emanuel are described here and the details of the sanction applied to Quinn Emanuel are described here.

The question in this order turned to the fees and costs requested by Apple and Nokia.  Section C of the order was titled “With Limited Exceptions, Apple And Nokia’s Requests Have Been Sufficiently Supported To Sustain The Requested Award” and Judge Grewal stated that “in the over four hundred pages of correspondence and billing records submitted for review, the court has identified only 19 records that it finds troubling” (those were entries where partners and senior associates block billed ten or more hours on “drafting,” “preparing” “revising” or paying “attention to” various briefs and were listed in detail, along with the reduced amount after a 20% reduction penalty).

As for the rest of the entries, Judge Grewal commented that “[t]he court notes and appreciates that both Apple and Nokia have applied a series of discounts to their requests already” and ordered that, aside from the noted exceptions “the court finds that the remaining costs and fees requested by Apple and Nokia are reasonable and shall be awarded.  No later than 30 days from this order, Samsung and QE are to pay Nokia a total of $1,145,027.95 and Apple a total of $893,825.77 in fees and costs.” (emphasis added)

So, what do you think? Were those amounts awarded excessive?  Or did Samsung and Quinn Emanual get off lightly?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Plaintiff Ordered to Re-Open Social Media Account for Discovery – eDiscovery Case Law
 

In Chapman v. Hiland Operating, LLC, 2014 U.S. Dist. Case No. 1:13-cv-052 (D.N.D. May 29, 2014), while noting that he was “skeptical” that reactivating the plaintiff’s Facebook account would produce any relevant, noncumulative information, North Dakota Magistrate Judge Charles S. Miller ordered the plaintiff to “make a reasonable, good faith attempt” to reactivate her Facebook account.

The defendant’s requests for production included a request for communications in the form of, “emails, text messages, instant messages, journal updates, Facebook postings, notes, cards, and/or memorandums”.  The plaintiff objected to that request on several grounds, including that it violated the attorney client and work product privileges, was “unintelligible, improperly vague and ambiguous” and overbroad.

However, in the plaintiff’s deposition, she stated that her attorney advised her to deactivate her Facebook account, which occurred prior to the production request by the defendants. She also stated that stated that she attempted to reactivate her account to respond to discovery requests but was unable to remember her password, but had not attempted to change her password or contacted Facebook regarding reactivating her account. She claimed that she rarely used the account, and when she did it was primarily to communicate with her nieces and nephews. 

Judge Miller noted that although the court was “skeptical” that the plaintiff’s Facebook account “will contain any relevant, noncumulative information, especially given the amount of discovery already completed in this case”, he granted in part the defendant’s motion to compel and ordered the plaintiff and attorney to “make a reasonable, good faith attempt” to reactivate the Facebook account.   He instructed that the plaintiffs do not have to permit defense counsel to be present during the attempt to reactivate the account, and if the account is reactivated, plaintiffs do not have to provide defense counsel the account login and password or full access to the account.

If the Facebook account is reactivated, Judge Miller ordered the plaintiffs to produce in the form of a screen shot other similar format all information from the account referencing a co-plaintiff’s health and his relationship with the other plaintiff since October 19, 2008, and ordered the plaintiff to complete the items by June 27th (last Friday).

So, what do you think? Was the plaintiff’s attorney out of line in ordering the plaintiff to deactivate her Facebook account?  Are screen shots the best way to produce social media 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Refuses to Dismiss Spoliation Claim Due to Defendant’s Failure to Produce Key Native File with Metadata – eDiscovery Case Law

In Raines v. College Now Greater Cleveland, Inc., 1:14-CV-00003 (N.D. Ohio June 3, 2014), Ohio District Judge James S. Gwin refused to dismiss the plaintiff’s claim of tortious spoliation of evidence due to the defendant’s failure to produce the metadata associated with a key report authored by the plaintiff.

In 2012, the defendant hired the plaintiff as Executive Director of the Higher Education Compact of Greater Cleveland. As part of her role, the plaintiff produced a Student Privacy Report, entitled Higher Education Compact of Greater Cleveland; Strategic Issues Paper: Student Information Access (the Student Privacy Report). The Student Privacy Report focused on potential violations of student privacy rights and the plaintiff identified concerns to her defendant employer that student privacy rights might be violated because the defendant allowed access to student information. The plaintiff filed a complaint after she was fired the next year by the defendant (and replaced with a substantially younger individual).

The plaintiff claimed spoliation of evidence when the defendants only produced the Student Privacy Report in physical form, without the native file and related metadata. The defendant claimed that the plaintiff could not make that claim because she was not able to show that this production disrupted the case and brought a motion to dismiss the claim of tortious spoliation of evidence (as well as the overall claim).

Judge Gwin noted that, “to state a claim for spoliation of evidence, a plaintiff must establish the following:

(1) A pending or probable litigation involving the plaintiff;

(2) Knowledge on the part of defendant that litigation exists or is probable;

(3) Willful destruction of evidence by defendant designed to disrupt the plaintiff’s case;

(4) Disruption of the plaintiff’s case; and

(5) Damages proximately caused by the defendant’s acts.”

The plaintiff alleged that the defendants knew litigation was likely, and “willfully” destroyed their electronic copy of her Student Privacy Report, claiming that the “metadata associated with the report has independent importance”.

While noting that the plaintiff’s spoliation claim “is not clear regarding damages”, Judge Gwin stated that the plaintiff “sufficiently alleges a claim to survive a motion to dismiss”. Therefore, the motion to dismiss the spoliation claim was denied and Judge Gwin stated, “We will later sort through whether any loss of metadata has caused damage”.

So, what do you think? Should metadata be required to be included in production of key documents? Or is production of a physical document 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiffs Denied Motion to Depose Defendants Regarding ESI Processes Prior to Discovery Requests – eDiscovery Case Law

In Miller v. York Risk Servs. Grp., No. 2:13-cv-1419 JWS (D. Ariz. Apr. 15, 2014), Arizona Senior District Judge John W. Sedwick denied the plaintiffs’ Motion to Compel, requesting permission to conduct depositions in order to determine the defendant’s manner and methods used for storing and maintaining Electronically Stored Information (ESI) prior to submitting their discovery requests.

This action involves two claims against the defendant revolving around workers’ compensation benefits: (1) that the defendant “fraudulently denied [plaintiffs’] workers’ compensation benefits in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),” and (2) that the defendant aided and abetted the plaintiffs’ employer or former employer with a “breach of its duty of good faith and fair dealing” by denying the claims. In filing the Motion to Compel, the plaintiffs sought a wide ranging inquiry pursuant to Rule 30(b)(6) that would enable them to “tailor their discovery requests to avoid potential disputes over what may be discovered” by deposing the defendant regarding their process of storing and maintaining ESI.

The plaintiffs contended that other courts have “allowed discovery of the very sort they seek” for the purpose of tailoring discovery requests, and cited several appellate decisions to reinforce the contention. While most of the decisions cited by the plaintiffs were from trial courts in other circuits, two of the district court cases cited were within the Ninth Circuit—specifically, Great Am. Ins. Co. v. Vegas Constr. Co., Inc., and Starbucks Corp. v. ADTSec. Services, Inc.

In reviewing these appellate decisions, Judge Sedwick noted that the first cited Ninth Circuit case was inapplicable, as it discussed extensively “a corporation’s duty to identify and prepare a witness for a Rule 30(b)(6) deposition, but nothing in the opinion suggests that the case involved any request to conduct discovery into the manner and methods used by the defendant to store and maintain electronic data.” Regarding the second case, it was noted that the plaintiffs had in fact submitted a substantive request for discovery prior to the court ordered Rule 30(b)(6) deposition, which only attempted to conclude whether the discovery would actually be “unduly burdensome and difficult to retrieve,” as the defendants alleged.

Therefore, Judge Sedwick stated that the cited decisions were inconclusive in determining “whether starting the discovery process with a wide ranging inquiry into the manner and method by which a party stores and manages ESI is a helpful and appropriate approach to obtaining substantive information,” and therefore starting discovery with an inquiry as requested by the plaintiffs “puts the cart before the horse and likely will increase, rather than decrease, discovery disputes.” Hence, the plaintiffs’ Motion to Compel was denied.

So, what do you think? Are there circumstances under which taking depositions prior to discovery would be helpful and appropriate? Should depositions be reserved for resolving discovery disputes, rather than preventing 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendants – and Defendants’ Counsel – Sanctioned for Delays in Producing ESI – eDiscovery Case Law
 

In Knickerbocker v Corinthian Colleges, Case No. C12-1142JLR, (WDWA, April 7, 2014), Washington District Judge James L. Robart imposed sanctions against the defendants and the defendants’ counsel for their delays in producing Electronically Stored Information (ESI) during discovery, despite the fact that spoliation of evidence was ultimately avoided.

This workplace discrimination, harassment, and retaliation action involved three plaintiffs who were former employees of the defendants, and had been terminated from their positions. The plaintiffs filed first and second motions for sanctions, alleging in the first that the defendants had failed to preserve evidence, and in the second that the defendants had shown bad faith in their subsequent delay in producing evidence.

During discovery, the plaintiffs first expressed concern over the defendants’ “meager document production,” prompting several discovery conferences and correspondences between the counsel for the plaintiffs and the counsel for the defense. Eventually, the defendants’ counsel represented that as per the defendants’ policies, the plaintiffs’ email accounts had been deleted 30 days after their termination. Further, counsel stated regarding backup sources that the relevant ESI “could not be extracted without shutting down the servers; in other words, it was not extractable.”

Owing to the defendants’ apparent failure to preserve evidence, plaintiffs filed a motion to compel responses to particular discovery requests. In response, both parties stipulated to an order requiring that the defendant conduct a “full and complete search” at its own expense for all responsive documents, including “documents on backup servers.” The defendants complied and submitted more documents with a Verification of Compliance with Stipulation and Order Compelling Further Discovery, which stated in part that the defendants had conducted a complete search “on all available electronic sources and/or servers.”

After reviewing the defendants’ production, plaintiffs continued to allege that evidence had not been adequately preserved and collected. Further questioning revealed that although the defendants had issued litigation holds in previous litigation actions against them, they had not issued a litigation hold in this particular case. While the defendants’ previous policy had been to issue a company-wide notice to halt destruction of ESI, with respect to this case, the defendants claimed to have selected certain employees and asked them to retrieve and retain relevant documents. Yet in depositions, the employees at issue stated that they “had not searched, did not recall searching, and had not been asked to search for documents relevant to the litigation.”

At this point, the defendants’ total document production had consisted of only 1,272 pages. Defendants claimed that the document search was sufficient, alleging that the plaintiffs’ email accounts had been deleted prior to notification of pending litigation, thus before the duty to preserve had been triggered. However, the defendants admitted that the emails at issue existed on its backup tapes, but argued that they were not required to produce them because “the Stipulated Order only referred to backup ‘servers’, not backup ‘tapes’, and retrieval of information on the backup tapes would require ‘unreasonable’ cost and effort.”

Facing sanctions for spoliation, the defendants counsel changed their tune and represented that they were not only able to access the backup tapes and solve the spoliation issue, but that the total expense of producing the relevant ESI would be “a thousand dollars per day of recovery time,” and that the expenses would not be as great as previously warranted. Citing the counsel for the defendants’ representation that expenses would not be burdensome, Judge Robart deferred ruling on the plaintiffs’ most recent motion in favor of issuing an order to compel production specifically from the backup tapes.

Briefly summarized, the defendants far exceeded the time limit set for discovery production over a series of delays, difficulties, and missed deadlines, as the backup tapes were alternately reviewed and documents extracted by a third party vendor and the defendants themselves. Ultimately, an additional 3,000 emails were produced from the backup tapes, with the bulk of the production delivered 7 weeks after the final deadline.

Judge Robart found that the defendants had acted in bad faith, specifically stating that “there is clear and convincing evidence showing that [defendants] and [defendants’ counsel] have refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount to bad faith…[t]herefore, sanctions are warranted.” The defendants were sanctioned in the amount of $25,000, and the defense counsel was sanctioned another $10,000.

So, what do you think? Does this case demonstrate clear bad faith, or simply incompetence on behalf of counsel? Should sanctions be ordered in cases where spoliation of evidence has ultimately not occurred? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested – eDiscovery Case Law

Those of you who have been waiting for significant news to report from the Apple v. Samsung litigation, your wait is over!

As reported last week in The Recorder (Jury Awards Apple $119.6 Million in Mixed Verdict), a California Federal jury ordered Samsung on Friday to pay Apple $119.6 million for infringing three of Apple’s iPhone patents.  However, the award was a fraction of the nearly $2.2 billion Apple was requesting.

According to the federal jury of four women and four men, nine Samsung mobile devices infringed on Apple’s “quick links” patent and three devices were found to have infringed on Apple’s “slide-to-unlock” patent.  The jury also calculated Samsung’s damages on Apple’s autocorrect patent, but ruled that Samsung products did not infringe on two other Apple patents.

The jury also awarded $158,400 to Samsung for its counterclaims of patent infringement against Apple.

In August of 2012, Apple was awarded over a billion dollar verdict, but U.S. District Judge Lucy Koh later reduced those damages to a measly $599 million and ordered a retrial on 13 of Samsung’s products, saying the earlier jury’s math on those gadgets didn’t add up.  Then, last November, a jury ruled that Samsung owed Apple another $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products back up to almost $930 million.  Now, the total awarded is back over a billion.

From the never ending case that brought us an adverse inference sanction and “patentgate”, resulting in another sanction for Samsung’s outside counsel (Quinn Emanuel Urquhart & Sullivan LLP) for their inadvertent disclosure of Apple license information, what can happen next?  Stay tuned.

So, what do you think? Will this case ever end? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery – eDiscovery Case Law
 

In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist.. 11-14 (W.D. Okla. April 2, 2014), a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Discovery issues had plagued this litigation since the beginning, as both parties had repeatedly failed to communicate properly with one another, resulting in multiple interventions by the court. Upon the filing of the defendant’s Motion to Reconsider and a fourth request for continuation of the trial, Judge LaGrange held a hearing which discussed some of the discovery issues, among other things. The defendant stated at this hearing that some of the discovery documents requested by the plaintiffs—hard copies belonging to a key player who was no longer employed by the defendant—may have been inadvertently destroyed.

Pursuant to the hearing, Judge LaGrange instructed the parties to file status reports regarding the status of the discovery issues. While both parties accordingly filed a Joint Status Report soon after the hearing, once again there was a failure to communicate between parties, ultimately leading to the defendant’s filing of the Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

This motion asked to reconsider an earlier court order that would allow discovery on the company’s document retention policies and litigation hold strategies, in order to investigate the circumstances under which the paper documents of the defendant’s former employee been destroyed. The defendant alleged that the court order was issued prematurely, and that it was irrelevant and not discoverable.

In response to the issue of the order being premature, it was found that this was not the case, as the defendant had known about the plaintiff’s request for this discovery at the time the parties filed the Joint Status Report, in which the defendant requested a ruling on whether they were required to produce discovery on their document retention policies along with a relevant witness for deposition.

The relevancy of the plaintiff’s discovery request was also addressed as such: “Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to [the former employee’s files] is relevant and discoverable.”

In conclusion, Judge LaGrange denied the defendant’s Motion to Reconsider, and ordered both parties once again to attempt to resolve the issues surrounding discovery and the defendant’s document retention and litigation hold practices in good faith.

So, what do you think? Should a party have the right to request discovery on document retention policies when relevant discovery documents are not obtainable? Should the cooperation—or lack thereof—between parties affect the court’s ruling on various motions? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant – eDiscovery Case Law
 

In T&E Investment Group, LLC v. Faulkner, Nos. 11-CV-0724-P, 3:11-CV-1558-P (N.D. Tex. Feb. 12, 2014), Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

In this litigation, it had been ordered that “a third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives.” After examining the three computers produced by the defendants, the expert determined that one of the computers produced by an individual defendant had been manipulated.

In his report, the expert specifically stated that the defendant “created a new profile on PCL-03, copied data to it, and used a bulk file changer to alter the data in an apparent ‘attempt to make it look like that was his computer that he used all the time’.” It was noted that the majority of the manipulated data was not related to the issues of the lawsuit. Further, the expert “believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case,” and identified the computer that was not produced as “Alienware.”

Evidence in the expert’s report indicated that the last use of the Alienware computer had been inside the individual defendant’s home, the day after defendants were ordered to produce all computers relevant to the litigation. Additionally, the report found that the missing computer had been connected to the computer identified as PCL-03, which contained the manipulated data. And further, evidence indicated that during the relevant time period, the defendant had sent emails from the Alienware computer.

The defendant testified that he had used the bulk fire changer only to attempt to “set them as read only,” allegedly so they could not be deleted, and further categorized the copied files as “a multitude of things related to our investor files, a lot of photos, PDFs, Word documents, just standard stuff that we update our investor base with.” However, it was ultimately concluded that this testimony was false.

The plaintiffs requested sanctions, and limited consideration to the three specific computers produced by the defendants, while denying the defendants’ objection to consideration of the absent Alienware computer because “a finding that Defendants manipulated data on PCL-03 in order to avoid production of the Alienware computer or any other relevant evidence remains a viable ground for sanctions.”

Broadly, the Magistrate Judge ruled that the defendants had a duty to preserve “the evidence at issue, including PCL-03, the Alienware computer, and any other computer used by Defendants in 2011 in their possession, custody, or control.” Additionally, it was deemed that despite the individual defendant’s insistence that the unproduced computer was not within his home, the “evidence overwhelmingly support[ed]” the determination of the expert with regards to the manipulated data and the existence and use of the Alienware computer.

It was ruled that the individual defendant “acted in bad faith” by altering the metadata on PCL-03 to make it appear that he had used the computer “for a number of years,” and that he had made false statements to the court about manipulating the data, and further that it was done “in the context” of the defendant’s failure to produce the Alienware computer. While the Magistrate Judge concluded that the plaintiffs had not been “irreparably prejudiced,” requisite prejudice was established because “a reasonable fact finder could conclude” that there was relevant information contained on the non-produced computer, and that spoliation had occurred. Therefore, the Magistrate Judge recommended that the jury be “given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party.” In addition, a recommendation was made for monetary sanctions of $27,500.

Judge Solis, upon conducting a de novo review and hearing objections from the defendants, accepted the recommendations of the Magistrate Judge in imposing both the adverse inference and monetary sanctions against the defendants. 

So, what do you think? Are adverse sanctions sufficient to suggest electronic evidence that is not present due to data manipulation? Should a more stringent order be placed in cases where it is determined that evidence has been deliberately not 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit – eDiscovery Case Law
 

In Calderon v. Corporacion Puertorrique a de Salud, No. 12-1006 (FAB) (D.P.R. Jan. 16, 2014), the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

The discovery dispute began over the Electronically Stored Information (ESI) produced by the plaintiff, which were in the form of messages from his phone exchanged between the plaintiff and a particular identified email address belonging to an unknown person who was alleged to be the harasser. The plaintiff produced relevant messages to the defendants, but also admitted that some of the messages had been deleted from his phone. In response, the defendants filed a motion in limine that sought to have all of the messages excluded, and requesting that the case be dismissed.

While the motion in limine was still pending, the defendants received ESI from the plaintiff’s phone service provider, which contained the plaintiff’s phone and text messages spanning the time period relevant to the case. These records showed that at least 38 messages, including some from the alleged harasser and others that were “the numerous text messages that [plaintiff] sent in response” were not among those messages produced by the plaintiff to the defendants. Therefore, the defendants filed a supplemental motion based on the missing messages that asked to sanction the plaintiff by dismissing the case, since spoliation of evidence had occurred.

The plaintiff filed a motion to quash, with the argument that the defendants had subpoenaed the plaintiff’s service provider before the discovery deadline, and had not given adequate pre-service notice. Therefore, the plaintiff claimed that the subpoena which resulted in the discovery of missing messages should be quashed as procedurally defective. However, it was noted that had the defendants given notice of the subpoena and the plaintiff objected, the subpoena would not have been quashed. Further, the late disclosure of the defendants’ receipt of phone records was determined to be harmless to the plaintiff.

In considering the motions, District Judge Francisco A. Besosa found that spoliation had indeed occurred. This was based on discovery of the 38 messages the plaintiff had deleted, some of which had included photos that were also not produced by the plaintiff. Additionally, the plaintiff’s records revealed that he had “reasonably foresaw litigation and had a duty to preserve relevant evidence,” because the plaintiff had contacted his attorney via his phone prior to the point where he admitted to “forwarding some messages…so that he ‘would be able to print’ them.” Judge Besosa stated that this constituted “conscious abandonment of potentially useful evidence” and indicated that the plaintiff believed the deleted messages would not help his side of the case.

While spoliation had been found to occur, Judge Besosa declined to sanction the plaintiff by dismissing the case, citing that dismissal of an entire lawsuit as a sanction is generally reserved for extreme cases, as cited in Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006), which stated: “[I]t has long been our rule that a case should not be dismissed with prejudice except when a plaintiff’s misconduct is particularly egregious or extreme.” Instead, Judge Besosa ruled that an adverse inference instruction to the jury was the most appropriate sanction for this case.

So, what do you think? Should the court consider quashing evidence that would not have been likely quashed during normal proceedings, if a party obtains such evidence outside of established processes? Are adverse inference instructions truly sufficient to exclude or caution against potential spoliation of evidence? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Sanctions Denied over Destruction of Audio Evidence in Discrimination Lawsuit – eDiscovery Case Law
 

In Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122 (C.D. Ill. Jan. 17, 2014), the plaintiff filed a motion for default and sanctions relating to spoliation of evidence with a federal court, after a district court issued a Report and Recommendation (R&R) to deny the motion. Illinois Senior District Judge Joe Billy McDade ultimately declined to impose sanctions, due to a lack of evidence regarding the timing of alleged spoliation, and the plaintiff’s inability to establish bad faith on the part of the defendants.

The plaintiff’s motion argued that the defendants had destroyed audio recordings of closed-session school board meetings that were relevant to the issues of this discrimination case, and that in doing so the defendants had violated Illinois common law, the Illinois Open Meetings Act (OMA), and the defendants’ own documentation retention policies. As such, the plaintiff requested spoliation sanctions.

It was acknowledged that relevant discussions appeared to have taken place at an unknown number of school board meetings “[b]etween May 1, 2007 and January 1, 2009). The policy of the school district states that audio recordings of such meetings are to be maintained for at least 18 months, and only a vote by the school board could cause them to be destroyed. It appears the policy was “designed to fulfill the requirements of the Illinois Open Meetings Act…”

However, the plaintiff argued that an “unknown number of recordings” had been destroyed without a vote, and further that the destruction had occurred at a point when litigation was “either on file [or] reasonably foreseeable, or when a reasonable person would have foreseen that the audio recordings were material to a potential civil suit.” Reasonable anticipation should have occurred on March 24, 2010, at which point the plaintiff had notified the defendants that she believed she had been discriminated against due to her gender. Additionally, the plaintiff stated she believed the relevant audio recordings may have been destroyed less than 18 months after they were created, which would again be in violation of the defendants’ own policies.

Judge McDade’s review of the issues focused first on the alleged violation of the defendants’ retention policies and the OMA, and considered whether these violations were sufficient cause to impose sanctions. With regard to the OMA and the pursuant duty to preserve, it was stated that the “existence of a general duty to preserve is not the proper prerequisite for assessing sanctions in federal court…” and that the general duty imposed by the OMA is to “preserve audio recordings of closed session meetings, not a specific duty to preserve evidence for litigation, and certainly not for this specific litigation.”

Further, Judge McDade reasoned that “bad faith is a prerequisite to imposing sanctions for the destruction of evidence.” Bad faith might have been inferred, had the destruction of the audio recordings occurred before the defendants had reasonable indication of the possibility of litigation. However, the plaintiff was unable to establish the exact time period when the tapes had been destroyed, and therefore “[i]n such a case, the Court will not infer bad faith.”

Without evidence of the timing of the destruction, which was deemed a key factor in the defendants’ “duty to preserve that arises in direct relation to the pendency of potential litigation,” Judge McDade found that sanctions were “not appropriate under these circumstances.” The matter was then referred back to the district court to resume pre-trial proceedings.

So, what do you think? Should the burden to prove timing for the destruction of evidence in order to demonstrate bad faith rest with the plaintiff? Are sanctions warranted in cases where bad faith might be inferred, save for one factor that cannot be demonstrated? Please share any comments you might have or if you’d like to know more about a particular topic.

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