Sanctions

In Hernandez v. Tulare Cnty. Correction Center, et al., No. 1:16-cv-00413-EPG (PC) (E.D. Cal. Feb. 8, 2018), the California Magistrate Judge denied the plaintiff’s motion for sanctions, ruling that the defendants did not act with the intent to deprive there was no prejudice to the plaintiff from loss of videos and photos of an accident suffered by the plaintiff, a state prisoner at the defendant’s correctional facility.

Case Background

In this case, the plaintiff tripped and fell when going through an x-ray scanning machine while shackled, suffering injuries – as a result, he filed a personal injury lawsuit against the defendants.  In August 2017, the plaintiff filed a motion to compel claiming that Tulare County failed to preserve relevant videos as well as photos (stored on a memory card) of the accident.  In a discovery hearing held in September 2017, defendant’s counsel confirmed that relevant ESI had, in fact, been mistakenly deleted by Tulare County officials and could not be replaced. The motion to compel was denied because there was nothing to produce and the plaintiff was instructed on the procedure to file a motion for sanctions pursuant to Rule 37(e) of the Federal Rules of Civil Procedure.  He filed the motion for sanctions a few days later, requesting monetary sanctions and entry of default judgment based upon intentional deprivation of relevant evidence and serious prejudice suffered to his case that cannot be cured.  Defendant Tulare County filed a response in opposition arguing that the loss of the ESI was inadvertent and did not prejudice the plaintiff.

Judge’s Ruling

Noting that Subdivision (e)(1) of Fed. R. Civ. P. 37(e) applies only “upon finding prejudice to another party from loss of the information” and that Subdivision (e)(2) applies “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation”, the court proceeded to consider those two factors with respect to the plaintiff’s motion.

With regard to the intent to deprive consideration, the Court stated: “While the Court is troubled by the the failure to preserve the relevant video, there is no indication from the evidence in the record that Tulare County acted with intent to deprive Plaintiff of use of the video in this case. Upon consideration of the evidence in the record, it appears that this failure was a result of Tulare County either being misinformed about the relevant scope of this litigation or that the staff responsible for the preservation were poorly trained. However, the record does not contain any evidence suggesting that the failure to preserve the video was a result of bad faith or intent to deprive.”

With regard to the claim of prejudice suffered, the Court noted that “Tulare County does not dispute that: 1) Plaintiff was in shackles and other detainees were not; 2) Plaintiff tripped and fell when stepping onto the platform of the body scanner; or 3) others assisted Plaintiff to his feet after he fell.”  The Court also noted that “the video surveillance in question does not capture sound so the footage would not have been helpful regarding Plaintiff’s allegations that he informed correctional staff about his disability and the information was ignored”, that “Tulare County has produced relevant documents in this case, including photos of Plaintiff’s injuries” and “Plaintiff has also located eye-witnesses of the April 21, 2015 incident, who have reportedly agreed to provide testimony in support of his case.”  As a result, the Court ruled that the plaintiff was not prejudiced by loss of the information and denied the motion for sanctions.

So, what do you think?  Should the defendants have received at least some level of sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

February 19 has always been an important day to me, as this was my dad’s birthday (he would have been 89 today) and it’s my wife Paige’s birthday now!  Happy birthday, honey!

Case opinion link courtesy of eDiscovery Assistant.

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.

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:

• 2016: Part 1, Part 2, Part 3, Part 4
• 2015: Part 1, Part 2, Part 3, Part 4
• 2014: Part 1, Part 2, Part 3, Part 4
• 2013: Part 1, Part 2, Part 3, Part 4
• 2012: Part 1, Part 2, Part 3, Part 4
• 2011: Part 1, Part 2, Part 3, Part 4

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

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.

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.

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

In 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.

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

In 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.

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

In 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.

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.