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Moore v. Napolitano, "Moore II", 2010 U.S. Dist. LEXIS 70892 (D.D.C. July 15, 2010).
A magistrate judge's preclusion sanction against a government agency for violation of a discovery order was modified to avoid an unintended litigation-ending sanction and to tailor "a proportional remedy to the alleged harm."
A magistrate judge's preclusion sanction against a government agency for violation of a discovery order was modified to avoid an unintended litigation-ending sanction and to tailor "a proportional remedy to the alleged harm."
Lipp v. Zigman, 2010 N.Y. Misc. LEXIS 2103 (N.Y. Sup. Ct. June 8, 2010).
Defendants' answer and counterclaims were struck due to willful violations of court orders for discovery. The court considered the pattern of willful violations so complete that denial of plaintiff's request to strike the answer "could well be an improvident exercise of the court's discretion."
Defendants' answer and counterclaims were struck due to willful violations of court orders for discovery. The court considered the pattern of willful violations so complete that denial of plaintiff's request to strike the answer "could well be an improvident exercise of the court's discretion."
Fharmacy Records v. Nassar, 2010 U.S. App. LEXIS 11626 (6th Cir. Mich. June 7, 2010).
Dismissal of plaintiffs' case as a sanction for discovery abuse was affirmed although plaintiffs had not been warned that dismissal was a possibility. The district court had determined that the actions of plaintiffs and their attorney were "so egregious that they have forfeited their right to proceed in court."
Dismissal of plaintiffs' case as a sanction for discovery abuse was affirmed although plaintiffs had not been warned that dismissal was a possibility. The district court had determined that the actions of plaintiffs and their attorney were "so egregious that they have forfeited their right to proceed in court."
Whiteway v. Fedex Kinkos Office & Print Services, 2010 U.S. Dist. LEXIS 56124 (N.D. Cal. May 17, 2010).
Plaintiff was barred from using three email exhibits except for impeachment because the emails to and from defendant's employees were disclosed to defendant after the close of discovery. Although the email was disclosed to defendant within two days after it was found in another lawsuit against defendant, plaintiff failed to show the court why plaintiff could not have found the email sooner.
Plaintiff was barred from using three email exhibits except for impeachment because the emails to and from defendant's employees were disclosed to defendant after the close of discovery. Although the email was disclosed to defendant within two days after it was found in another lawsuit against defendant, plaintiff failed to show the court why plaintiff could not have found the email sooner.
Reis v. Iowa District Court for Polk County, 2010 Iowa Sup. LEXIS 38 (Iowa May 7, 2010).
The Iowa Supreme Court affirmed a contempt finding for an attorney whose "enthusiastic use" of documents covered by a protective order included a suggestion that he would make the documents or their content public if defendant had not "cleaned house." If the attorney believed that documents had been deemed confidential improperly, he should have sought such a determination from the court.
The Iowa Supreme Court affirmed a contempt finding for an attorney whose "enthusiastic use" of documents covered by a protective order included a suggestion that he would make the documents or their content public if defendant had not "cleaned house." If the attorney believed that documents had been deemed confidential improperly, he should have sought such a determination from the court.
Jackson v. Department of Human Services, 2010 U.S. Dist. LEXIS 43924 (M.D. Tenn. May 5, 2010).
A magistrate judge's recommendation to dismiss a pro se plaintiff's complaint for failure to respond to discovery requests was rejected by the court because plaintiff had told defendant that she did not understand the discovery requests and she had submitted relevant documents to the court with a statement of her case.
A magistrate judge's recommendation to dismiss a pro se plaintiff's complaint for failure to respond to discovery requests was rejected by the court because plaintiff had told defendant that she did not understand the discovery requests and she had submitted relevant documents to the court with a statement of her case.
Global Naps, Inc. v. Verizon New England Inc., 2010 U.S. App. LEXIS 8929 (1st Cir. Apr. 29, 2010).
Entry of a default judgment piercing a corporate veil so that additional defendants were liable for a $57 million judgment was within a district court's discretion as a sanction for willful discovery misconduct. Evidence supported the court's finding that file destruction was targeted at relevant financial records and was not simply the result of an "accidental" computer wipe minutes before attorneys arrived to collect records.
Entry of a default judgment piercing a corporate veil so that additional defendants were liable for a $57 million judgment was within a district court's discretion as a sanction for willful discovery misconduct. Evidence supported the court's finding that file destruction was targeted at relevant financial records and was not simply the result of an "accidental" computer wipe minutes before attorneys arrived to collect records.
Barahona v. Dillard's Inc., "Barahona II", 2010 U.S. App. LEXIS 8631 (5th Cir. Apr. 26, 2010).
An arbitrator's award for defendant was reinstated because defendant's "fraud" in not producing email was discovered during the arbitration hearing and the arbitrator drew an adverse inference against defendant before ruling for the defendant.
An arbitrator's award for defendant was reinstated because defendant's "fraud" in not producing email was discovered during the arbitration hearing and the arbitrator drew an adverse inference against defendant before ruling for the defendant.
Gamby v. Equifax Information Services, LLC, 2010 U.S. Dist. LEXIS 38580 (E.D. Mich. Apr. 20, 2010).
Although plaintiffs asked for $109,629.50 in attorney fees to be paid by a defendant as a sanction for discovery misconduct, the court awarded $10,000 to plaintiffs. The court considered "the amount necessary for deterrence and punishment, not reimbursement of Plaintiffs' expenses."
Although plaintiffs asked for $109,629.50 in attorney fees to be paid by a defendant as a sanction for discovery misconduct, the court awarded $10,000 to plaintiffs. The court considered "the amount necessary for deterrence and punishment, not reimbursement of Plaintiffs' expenses."
GFI Acquisition, LLC v. American Federated Title Corp. (In re A&M Florida Properties II, LLC), 2010 Bankr. LEXIS 1217 (Bankr. S.D.N.Y. Apr. 7, 2010).
Late production of email found in archives only after two forensic searches of plaintiff's computers jointly paid for by plaintiff and defendant did not warrant dismissal of plaintiff's claims or an adverse inference. However, the court ordered plaintiff to pay defendant's half of the cost of the earlier searches.
Late production of email found in archives only after two forensic searches of plaintiff's computers jointly paid for by plaintiff and defendant did not warrant dismissal of plaintiff's claims or an adverse inference. However, the court ordered plaintiff to pay defendant's half of the cost of the earlier searches.
Qualcomm Inc. v. Broadcom Corp., "Qualcomm IV", 2010 U.S. Dist. LEXIS 33889 (S.D. Cal. Apr. 2, 2010).
Despite plaintiff's "massive discovery failure" that resulted in the withholding "tens of thousands of documents that contradicted one of its key legal arguments," the court declined to sanction plaintiff's outside counsel because they "made significant efforts to comply with their discovery obligations" and did not act in bad faith.
Despite plaintiff's "massive discovery failure" that resulted in the withholding "tens of thousands of documents that contradicted one of its key legal arguments," the court declined to sanction plaintiff's outside counsel because they "made significant efforts to comply with their discovery obligations" and did not act in bad faith.
Covad Communications Co. v. Revonet, Inc., "Covad IV", 2010 U.S. Dist. LEXIS 31165 (D.D.C. Mar. 31, 2010).
Defense counsel's time spent in trying to avoid having to file a motion to compel was compensable as part of the attorney fees awarded to defendant in an order compelling plaintiff's production of documents.
Defense counsel's time spent in trying to avoid having to file a motion to compel was compensable as part of the attorney fees awarded to defendant in an order compelling plaintiff's production of documents.
Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2010 U.S. Dist. LEXIS 17318 (W.D.N.Y. Feb. 26, 2010).
Plaintiffs had to pay defendant's attorney fees and costs in seeking a preclusion order even though the court denied the requested preclusion of evidence. Plaintiffs failed to produce documents within a court-imposed deadline, and a finding of bad faith or vexatiousness was "not a prerequisite to an award of attorneys' fees as a sanction for failure to obey a court order."
Plaintiffs had to pay defendant's attorney fees and costs in seeking a preclusion order even though the court denied the requested preclusion of evidence. Plaintiffs failed to produce documents within a court-imposed deadline, and a finding of bad faith or vexatiousness was "not a prerequisite to an award of attorneys' fees as a sanction for failure to obey a court order."
Yu v. New York City Housing Development Corp., 2010 U.S. Dist. LEXIS 29495 (S.D.N.Y. Feb. 23, 2010).
Sanctions were recommended against a pro se plaintiff in an employment discrimination action that would "largely eviscerate the heart of plaintiff's case." To remedy the prejudice caused by plaintiff's failure to provide information about his job searches and post-termination employment, the magistrate judge recommended an adverse inference, a preclusion order, reimbursement of defendants' attorney fees and costs, and dismissal of plaintiff's case to the extent that he would be barred from recovering back or front pay.
Sanctions were recommended against a pro se plaintiff in an employment discrimination action that would "largely eviscerate the heart of plaintiff's case." To remedy the prejudice caused by plaintiff's failure to provide information about his job searches and post-termination employment, the magistrate judge recommended an adverse inference, a preclusion order, reimbursement of defendants' attorney fees and costs, and dismissal of plaintiff's case to the extent that he would be barred from recovering back or front pay.
E-Terra, LLC v. SARS Corp., 2010 U.S. Dist. LEXIS 14003 (D. Alaska Feb. 18, 2010).
Extensive email exchanges between counsel failed to satisfy a local rule requirement that counsel must meet in person or, if in different cities, by telephone, before a party sought a court order compelling discovery.
Extensive email exchanges between counsel failed to satisfy a local rule requirement that counsel must meet in person or, if in different cities, by telephone, before a party sought a court order compelling discovery.
Chang v. United States, 2010 U.S. Dist. LEXIS 13353 (D.D.C. Feb. 16, 2010).
Discovery regarding the handling of late-produced documents was appropriate "to flesh out whether sanctions are appropriate and which one should be imposed."
Discovery regarding the handling of late-produced documents was appropriate "to flesh out whether sanctions are appropriate and which one should be imposed."
Schreiber Foods, Inc. v. Wang, 2010 U.S. Dist. LEXIS 12125 (E.D. Wis. Feb. 11, 2010).
Defendant's motion for an order sanctioning plaintiff for late production of documents was denied because defendant failed to include a statement with her discovery motion, as required by a local rule, that she consulted with plaintiff in an attempt to resolve their differences.
Defendant's motion for an order sanctioning plaintiff for late production of documents was denied because defendant failed to include a statement with her discovery motion, as required by a local rule, that she consulted with plaintiff in an attempt to resolve their differences.
Altissima Ltd. v. One Niagara LLC, 2010 U.S. Dist. LEXIS 11718 (W.D.N.Y. Feb. 8, 2010).
A default judgment or an adverse inference sought by plaintiff as discovery sanctions could not be granted once the court determined that it did not have subject matter jurisdiction.
A default judgment or an adverse inference sought by plaintiff as discovery sanctions could not be granted once the court determined that it did not have subject matter jurisdiction.
Alexander v. Archuleta County, 2010 U.S. Dist. LEXIS 11698 (D. Colo. Jan. 27, 2010).
Affidavits of two witnesses for plaintiff submitted in opposition to summary judgment were struck, and the witnesses were barred from testifying at trial. Plaintiff conceded the sanction was appropriate based on plaintiff's failure to comply with a court order for plaintiff to produce all communications with the witnesses.
Affidavits of two witnesses for plaintiff submitted in opposition to summary judgment were struck, and the witnesses were barred from testifying at trial. Plaintiff conceded the sanction was appropriate based on plaintiff's failure to comply with a court order for plaintiff to produce all communications with the witnesses.
Bray & Gillespie Management, LLC v. Lexington Insurance Co., “Bray III”, 2010 U.S. Dist. LEXIS 400 (M.D. Fla. Jan. 5, 2010).
A magistrate's sanction barring plaintiff from using evidence produced after defendant's expert completed his report was overruled because the court would not have a jury decide a case without a full review of material, probative, and non-privileged evidence. The court held that the most appropriate remedy to sanction plaintiff for discovery order violations was to dismiss plaintiff's claim for damages with prejudice.
A magistrate's sanction barring plaintiff from using evidence produced after defendant's expert completed his report was overruled because the court would not have a jury decide a case without a full review of material, probative, and non-privileged evidence. The court held that the most appropriate remedy to sanction plaintiff for discovery order violations was to dismiss plaintiff's claim for damages with prejudice.
Edelen v. Campbell Soup Co., 2009 U.S. Dist. LEXIS 114893 (N.D. Ga. Dec. 8, 2009).
Plaintiff was barred from taking depositions and plaintiff's counsel was ordered to pay defense fees and costs in seeking sanctions because plaintiff failed to follow court orders to narrow discovery requests that sought entire contents of laptops of key players.
Plaintiff was barred from taking depositions and plaintiff's counsel was ordered to pay defense fees and costs in seeking sanctions because plaintiff failed to follow court orders to narrow discovery requests that sought entire contents of laptops of key players.
Magana v. Hyundai Motor America, 2009 Wash. LEXIS 1066 (Wash. Nov. 25, 2009).
The Washington Supreme Court reinstated a default judgment of $8 million against an automobile manufacturer for failure to produce database records from a consumer hotline concerning car seats until shortly before re-trial of the action was scheduled to begin.
The Washington Supreme Court reinstated a default judgment of $8 million against an automobile manufacturer for failure to produce database records from a consumer hotline concerning car seats until shortly before re-trial of the action was scheduled to begin.
Maggette v. BL Development Corp., 2009 U.S. Dist. LEXIS 116789 (N.D. Miss. Nov. 24, 2009).
Defendants were ordered to pay the costs for a court-appointed electronic discovery expert to report on their preservation and disclosure of relevant evidence. Defendants had been unable to specify how their electronic files were searched before they asserted they had no responsive documents.
Defendants were ordered to pay the costs for a court-appointed electronic discovery expert to report on their preservation and disclosure of relevant evidence. Defendants had been unable to specify how their electronic files were searched before they asserted they had no responsive documents.
Barahona v. Dillard Department Stores, "Barahona I", 2009 U.S. Dist. LEXIS 107791 (E.D. La. Nov. 3, 2009).
An arbitration award was vacated for fraud due to defendant's failure until the final day of an arbitration hearing to reveal existence of a manager's emails to himself relating to his termination of plaintiff's employment.
An arbitration award was vacated for fraud due to defendant's failure until the final day of an arbitration hearing to reveal existence of a manager's emails to himself relating to his termination of plaintiff's employment.
Brigham Young University v. Pfizer, Inc., 2009 U.S. Dist. LEXIS 101052 (D. Utah Oct. 28, 2009).
Defendant was ordered to pay plaintiff over $850,000 in costs and attorney fees in seeking discovery sanctions against defendant. However, the court rejected plaintiff's contention that sanctions in addition to fees and costs were needed to motivate a party with unlimited resources such as defendant to comply with its discovery obligations.
Defendant was ordered to pay plaintiff over $850,000 in costs and attorney fees in seeking discovery sanctions against defendant. However, the court rejected plaintiff's contention that sanctions in addition to fees and costs were needed to motivate a party with unlimited resources such as defendant to comply with its discovery obligations.
Bryant v. Board of Education, 2009 U.S. App. LEXIS 22392 (7th Cir. Oct. 9, 2009).
Plaintiff's argument on appeal of summary judgment for defendant that defendant in bad faith violated discovery rules was rejected. Plaintiff never obtained a court order compelling production by defendant, and plaintiff never filed a motion seeking further discovery needed to counter defendant's summary judgment motion.
Plaintiff's argument on appeal of summary judgment for defendant that defendant in bad faith violated discovery rules was rejected. Plaintiff never obtained a court order compelling production by defendant, and plaintiff never filed a motion seeking further discovery needed to counter defendant's summary judgment motion.
Oracle USA, Inc. v. SAP AG, 2009 U.S. Dist. LEXIS 91432 (N.D. Cal. Sept. 17, 2009).
A magistrate judge sanctioned plaintiff for delay in supplementing its initial disclosures on damages by precluding plaintiff from presenting any evidence of damages beyond those damages included by plaintiff in its initial disclosures. The magistrate judge also ruled that its preclusion sanction was not a dispositive order that required a report and recommendation to the court.
A magistrate judge sanctioned plaintiff for delay in supplementing its initial disclosures on damages by precluding plaintiff from presenting any evidence of damages beyond those damages included by plaintiff in its initial disclosures. The magistrate judge also ruled that its preclusion sanction was not a dispositive order that required a report and recommendation to the court.
In re National Century Financial Enterprises, Inc. Financial Investment Litigation, “National Century III”, 2009 U.S. Dist. LEXIS 92237 (S.D. Ohio Sept. 1, 2009).
An order requiring a party to pay for re-deposition of its employees at which they could be questioned about a key email that the party failed to produce was an appropriate sanction under Fed. R. Civ. P. 37(c).
An order requiring a party to pay for re-deposition of its employees at which they could be questioned about a key email that the party failed to produce was an appropriate sanction under Fed. R. Civ. P. 37(c).
Grider v. Keystone Health Plan Central, Inc., 2009 U.S. App. LEXIS 19642 (3d Cir. Sept. 1, 2009).
Sanctions requiring defendants and their counsel to pay over $3.2 million of plaintiffs' attorney fees were vacated because the trial court failed to specify, as required by Fed. R. Civ. P. 26(g)(3), how defendants' general discovery objections were "without substantial justification."
Sanctions requiring defendants and their counsel to pay over $3.2 million of plaintiffs' attorney fees were vacated because the trial court failed to specify, as required by Fed. R. Civ. P. 26(g)(3), how defendants' general discovery objections were "without substantial justification."
Green v. McClendon, 2009 U.S. Dist. LEXIS 71860 (S.D.N.Y. Aug. 13, 2009).
Counsel representing an individual art collector failed to meet their discovery obligations by apparently neglecting to advise their client on the relevance of documents, to institute a litigation hold, and to conduct a thorough search of their client's electronic files.
Counsel representing an individual art collector failed to meet their discovery obligations by apparently neglecting to advise their client on the relevance of documents, to institute a litigation hold, and to conduct a thorough search of their client's electronic files.
Bray & Gillespie Management, LLC v. Lexington Insurance Co., “Bray II”, 2009 U.S. Dist. LEXIS 122196 (M.D. Fla. Aug. 3, 2009).
Plaintiff was barred from introducing evidence or expert testimony contradicting conclusions of defendant's expert. Despite court orders, plaintiff's contrary evidence was not produced until after defendant's expert reached his conclusions. The magistrate judge also struck the report of plaintiff's expert on business interruption losses and ordered plaintiff and its counsel to pay defendant's cost, including expert and attorney fees, in seeking sanctions.
Plaintiff was barred from introducing evidence or expert testimony contradicting conclusions of defendant's expert. Despite court orders, plaintiff's contrary evidence was not produced until after defendant's expert reached his conclusions. The magistrate judge also struck the report of plaintiff's expert on business interruption losses and ordered plaintiff and its counsel to pay defendant's cost, including expert and attorney fees, in seeking sanctions.
Wells Fargo Bank, N.A. v. LaSalle Bank National Association, 2009 U.S. Dist. LEXIS 70514 (S.D. Ohio July 24, 2009).
Plaintiff's motion for an order compelling further production of documents by defendant and for sanctions for failure to supplement responses was denied. The motion was filed over four months after the discovery cut-off, and the cost of backup tape restoration sought by plaintiff outweighed the possible benefit of the restoration.
Plaintiff's motion for an order compelling further production of documents by defendant and for sanctions for failure to supplement responses was denied. The motion was filed over four months after the discovery cut-off, and the cost of backup tape restoration sought by plaintiff outweighed the possible benefit of the restoration.
Spooner v. Egan, 2009 U.S. Dist. LEXIS 70479 (D. Me. July 21, 2009).
Defendants that failed to produce forensic images of their computers, including over 6,000 emails, until almost three weeks after the date set by the court were sanctioned. They were barred from introducing at trial any documents that were produced late and from presenting any witness in their case-in-chief that plaintiff's counsel first became aware of through the late production.
Defendants that failed to produce forensic images of their computers, including over 6,000 emails, until almost three weeks after the date set by the court were sanctioned. They were barred from introducing at trial any documents that were produced late and from presenting any witness in their case-in-chief that plaintiff's counsel first became aware of through the late production.
In re National Century Financial Enterprises, Inc. Financial Investment Litigation, "National Century II", 2009 U.S. Dist. LEXIS 68379 (S.D. Ohio July 16, 2009).
Plaintiffs that had a "cavalier approach" to preservation of documents and plaintiffs that were late in responding to document requests were barred from making affirmative use of documents that were not produced by the deadline for discovery.
Plaintiffs that had a "cavalier approach" to preservation of documents and plaintiffs that were late in responding to document requests were barred from making affirmative use of documents that were not produced by the deadline for discovery.
Lakner v. Lantz, 2009 U.S. Dist. LEXIS 58596 (D. Conn. July 1, 2009).
Although plaintiff acknowledged being "somewhat dilatory" in responding to discovery, the court denied defendant's request for dismissal or preclusion of evidence because defendant did not point to any specific prejudice that she suffered that could not be rectified.
Although plaintiff acknowledged being "somewhat dilatory" in responding to discovery, the court denied defendant's request for dismissal or preclusion of evidence because defendant did not point to any specific prejudice that she suffered that could not be rectified.
Armor Screen Corp. v. Storm Catcher, Inc., 2009 U.S. Dist. LEXIS 59927 (S.D. Fla. June 29, 2009).
An award to plaintiff of its attorney fees and costs in successfully opposing defendants' motion to compel production of documents was required by Fed. R. Civ. P. 37(a)(5)(B) because defendants failed to show any substantial justification for the motion to compel. However, plaintiff’s computerized legal research costs were not reimbursable.
An award to plaintiff of its attorney fees and costs in successfully opposing defendants' motion to compel production of documents was required by Fed. R. Civ. P. 37(a)(5)(B) because defendants failed to show any substantial justification for the motion to compel. However, plaintiff’s computerized legal research costs were not reimbursable.
Doppes v. Bentley Motors, Inc., 2009 Cal. App. LEXIS 904 (Cal. App. 4th Dist. June 8, 2009).
In an unprecedented decision, a California appellate court reversed a jury verdict for defendant on fraud claims and ruled that a trial court abused its discretion in failing to issue terminating sanctions against the defendant for discovery abuse that first came to light during trial.
In an unprecedented decision, a California appellate court reversed a jury verdict for defendant on fraud claims and ruled that a trial court abused its discretion in failing to issue terminating sanctions against the defendant for discovery abuse that first came to light during trial.
1100 West, LLC v. Red Spot Paint & Varnish Co., 2009 U.S. Dist. LEXIS 47439 (S.D. Ind. June 5, 2009).
The "most onerous sanction" of a default declaratory judgment of liability for an environmental abatement plan was entered against defendant after a Freedom of Information Act request by plaintiff shortly before trial produced documents that defendant should have produced and that defense counsel had obtained a year earlier. Defense counsel also was sanctioned through an order to share equally with defendant payment of half of plaintiff's attorney fees and costs, including expert witness fees, for the previous three years of discovery.
The "most onerous sanction" of a default declaratory judgment of liability for an environmental abatement plan was entered against defendant after a Freedom of Information Act request by plaintiff shortly before trial produced documents that defendant should have produced and that defense counsel had obtained a year earlier. Defense counsel also was sanctioned through an order to share equally with defendant payment of half of plaintiff's attorney fees and costs, including expert witness fees, for the previous three years of discovery.
Brookhaven Typesetting Services, Inc. v. Adobe Systems, Inc., 2009 U.S. App. LEXIS 11692 (9th Cir. June 1, 2009).
Despite defendant's "troubling and unflattering history of discovery compliance" and destruction of source code, the court affirmed a district court's decision not to impose terminating sanctions due to the lack of evidence of bad faith or intentional destruction of evidence.
Despite defendant's "troubling and unflattering history of discovery compliance" and destruction of source code, the court affirmed a district court's decision not to impose terminating sanctions due to the lack of evidence of bad faith or intentional destruction of evidence.
Digital Encoding Factory v. Iron Mountain Information Management, Inc., 2009 U.S. Dist. LEXIS 45612 (W.D. Pa. June 1, 2009).
Defendant failed to comply with requirements of Fed. R. Civ. P. 30(b)(6) when it presented a representative for deposition who testified that he had not spoken to anyone from defendant to get information on the topics listed in the deposition notice and did not independently investigate any of the topics. Defendant was ordered to pay plaintiff's fees and costs in obtaining an order requiring production of a witness who would provide testimony on specific topics.
Defendant failed to comply with requirements of Fed. R. Civ. P. 30(b)(6) when it presented a representative for deposition who testified that he had not spoken to anyone from defendant to get information on the topics listed in the deposition notice and did not independently investigate any of the topics. Defendant was ordered to pay plaintiff's fees and costs in obtaining an order requiring production of a witness who would provide testimony on specific topics.
Carrier Corp. v. G.W. Martin, Inc., 2009 U.S. Dist. LEXIS 54769 (N.D. Ga. May 27, 2009).
Plaintiff's motion to dismiss its action without prejudice was granted only with prejudice due in part to plaintiff's bad faith failure to produce key email documents.
Plaintiff's motion to dismiss its action without prejudice was granted only with prejudice due in part to plaintiff's bad faith failure to produce key email documents.
Kipperman v. Onex Corp., "Kipperman II", 2009 U.S. Dist. LEXIS 44457 (N.D. Ga. May 26, 2009).
Although tempted by defendants' discovery abuse to strike defendants' answer, the court instead ordered defendants to reimburse plaintiff $1,022,700 in attorney fees and costs. The court explained that striking defendants' answer could have resulted in the largest default judgment in U.S. history in a case that presented novel issues.
Although tempted by defendants' discovery abuse to strike defendants' answer, the court instead ordered defendants to reimburse plaintiff $1,022,700 in attorney fees and costs. The court explained that striking defendants' answer could have resulted in the largest default judgment in U.S. history in a case that presented novel issues.
Debose v. Broward Health, 2009 U.S. Dist. LEXIS 45546 (S.D. Fla. May 20, 2009).
Defendant was barred in its defense from using email that should have been produced to plaintiff in defendant's Initial Disclosures pursuant to Fed. R. Civ. P. 26(a). However, defendant was not barred from using the email for impeachment purposes because plaintiff had requested production of documents without specifying email as "documents" to be produced.
Defendant was barred in its defense from using email that should have been produced to plaintiff in defendant's Initial Disclosures pursuant to Fed. R. Civ. P. 26(a). However, defendant was not barred from using the email for impeachment purposes because plaintiff had requested production of documents without specifying email as "documents" to be produced.
Holifield v. Mullenax Financial & Tax Advisory Group, Inc., 2009 Ark. App. LEXIS 477 (Ark. Ct. App. Apr. 15, 2009).
A finding of contempt for failing to obey discovery orders was reversed because court orders to submit to discovery in an "expedited" manner did not provide clear and unequivocal obligations or deadlines.
A finding of contempt for failing to obey discovery orders was reversed because court orders to submit to discovery in an "expedited" manner did not provide clear and unequivocal obligations or deadlines.
Vega v. Amer Int'l Corp., 2009 U.S. Dist. LEXIS 30323 (M.D. Fla. Apr. 3, 2009).
A magistrate judge recommended entry of a default judgment as to liability pursuant to Fed. R. Civ. P. 37(b)(2)(A) against a defendant that indicated through counsel that business was bad, shop would be closed up, and discovery would not be answered.
A magistrate judge recommended entry of a default judgment as to liability pursuant to Fed. R. Civ. P. 37(b)(2)(A) against a defendant that indicated through counsel that business was bad, shop would be closed up, and discovery would not be answered.
Sentis Group, Inc. v. Shell Oil Co., 2009 U.S. App. LEXIS 6099 (8th Cir. Mo. Mar. 24, 2009).
Dismissal of plaintiffs’ complaint with prejudice for the most egregious disregard of discovery rules seen by a district court judge in his twenty years on the bench was reversed with instructions to assign the case to another judge on remand. The dismissal was based in part on an affidavit from defense counsel with hearsay about a possible offer to pay money to conceal documents; the matters raised in the affidavit warranted investigation but not the ultimate sanction of dismissal “without an investigation or an evidentiary hearing.”
Dismissal of plaintiffs’ complaint with prejudice for the most egregious disregard of discovery rules seen by a district court judge in his twenty years on the bench was reversed with instructions to assign the case to another judge on remand. The dismissal was based in part on an affidavit from defense counsel with hearsay about a possible offer to pay money to conceal documents; the matters raised in the affidavit warranted investigation but not the ultimate sanction of dismissal “without an investigation or an evidentiary hearing.”
Fendi Adele S.R.L. v. Filene's Basement, Inc., 2009 U.S. Dist. LEXIS 32615 (S.D.N.Y. Mar. 24, 2009).
Plaintiff was entitled to reimbursement expenses “attributable to defendants’ repeated and extended discovery defaults,” but defendants were not required to pay plaintiff’s cost for obtaining and reviewing defendants’ backup tapes. Plaintiff had not addressed accessibility of the tapes or Zubulake and Fed. R. Civ. P. 26(b)(2)(C) cost shifting factors.
Plaintiff was entitled to reimbursement expenses “attributable to defendants’ repeated and extended discovery defaults,” but defendants were not required to pay plaintiff’s cost for obtaining and reviewing defendants’ backup tapes. Plaintiff had not addressed accessibility of the tapes or Zubulake and Fed. R. Civ. P. 26(b)(2)(C) cost shifting factors.
ClearValue, Inc. v. Pearl River Polymers, Inc., 2009 U.S. App. LEXIS 6061 (Fed. Cir. Mar. 24, 2009).
The court reversed sanctions that included striking plaintiffs’ pleadings, entering judgment for defendants, invalidating plaintiff’s patent, and awarding defendants $1.6 million in attorney fees as prevailing parties. The sanctions resulted from plaintiffs’ violation of a discovery order and thus should have been imposed under Fed. R. Civ. P. 37 rather than under the trial court’s inherent power.
The court reversed sanctions that included striking plaintiffs’ pleadings, entering judgment for defendants, invalidating plaintiff’s patent, and awarding defendants $1.6 million in attorney fees as prevailing parties. The sanctions resulted from plaintiffs’ violation of a discovery order and thus should have been imposed under Fed. R. Civ. P. 37 rather than under the trial court’s inherent power.
Grochocinski v. Schlossberg, 2009 U.S. Dist. LEXIS 19523 (N.D. Ill. Mar. 11, 2009).
Sanctions ordered by a bankruptcy judge that established facts against the recipient of allegedly fraudulent transfers and prohibited the recipient from opposing the Trustee’s claims against him were affirmed. The recipient’s use of a disk cleaning program after being told by the Trustee to retain “electronic discovery” and while the Trustee’s motion to compel discovery from the recipient was pending was sufficient disregard of discovery obligations by the recipient to establish bad faith that justified the sanctions.
Sanctions ordered by a bankruptcy judge that established facts against the recipient of allegedly fraudulent transfers and prohibited the recipient from opposing the Trustee’s claims against him were affirmed. The recipient’s use of a disk cleaning program after being told by the Trustee to retain “electronic discovery” and while the Trustee’s motion to compel discovery from the recipient was pending was sufficient disregard of discovery obligations by the recipient to establish bad faith that justified the sanctions.
Bray & Gillespie Management, LLC v. Lexington Insurance Co., 2009 U.S. Dist. LEXIS 21250 (M.D. Fla. Mar. 4, 2009).
An attorney and a law firm were held jointly and severally liable for defendant’s costs, including attorney and expert fees, in seeking sanctions against plaintiff for failing to produce electronically stored information with metadata intact as originally requested by defendant.
An attorney and a law firm were held jointly and severally liable for defendant’s costs, including attorney and expert fees, in seeking sanctions against plaintiff for failing to produce electronically stored information with metadata intact as originally requested by defendant.
Gucci America, Inc. v. Gucci, 2009 U.S. Dist. LEXIS 19685 (S.D.N.Y. Feb. 20, 2009).
A defendant who failed to provide expedited discovery required under a temporary restraining order was held liable for contempt sanctions and ordered to pay $1,000 per day of failure to meet a discovery timetable and to pay plaintiff’s attorney fees and costs.
A defendant who failed to provide expedited discovery required under a temporary restraining order was held liable for contempt sanctions and ordered to pay $1,000 per day of failure to meet a discovery timetable and to pay plaintiff’s attorney fees and costs.
Elloie v. Allstate Ins. Co., "Elloie II", 2009 U.S. Dist. LEXIS 13293 (E.D. La. Feb. 4, 2009).
A party was not sanctioned for failing to provide discovery or to comply with the court’s discovery order. Former counsel for the party had failed to alert the party to the outstanding discovery, and the party provided responses or sought a protective order promptly after learning about the discovery.
A party was not sanctioned for failing to provide discovery or to comply with the court’s discovery order. Former counsel for the party had failed to alert the party to the outstanding discovery, and the party provided responses or sought a protective order promptly after learning about the discovery.
Hoving v. Transnation Title Ins. Co., 2009 U.S. Dist. LEXIS 9862 (E.D. Mich. Jan. 9, 2009).
Plaintiff’s motion for sanctions, including an order barring defendant from contesting class certification, was denied by a magistrate judge. Defendant had complied with a majority of the requirements of the magistrate’s earlier discovery order, and the issue of class certification was before the court, rather than the magistrate, to decide.
Plaintiff’s motion for sanctions, including an order barring defendant from contesting class certification, was denied by a magistrate judge. Defendant had complied with a majority of the requirements of the magistrate’s earlier discovery order, and the issue of class certification was before the court, rather than the magistrate, to decide.
In re National Century Financial Enterprises, Inc. Financial Investment Litigation, 2009 U.S. Dist. LEXIS 5772 (S.D. Ohio Jan. 8, 2009).
Sanctions against a plaintiff that failed to explain why it did not produce a critical email and whose employees gave “less than fully forthcoming answers to deposition questions” were limited to reopening depositions of the employees and payment of defendant’s costs in seeking sanctions. Defendant had been prejudiced only to the extent of being forced to depose plaintiff’s employees without having the email available.
Sanctions against a plaintiff that failed to explain why it did not produce a critical email and whose employees gave “less than fully forthcoming answers to deposition questions” were limited to reopening depositions of the employees and payment of defendant’s costs in seeking sanctions. Defendant had been prejudiced only to the extent of being forced to depose plaintiff’s employees without having the email available.
ABN Amro Mortgage Group, Inc. v. Rabalais, 2008 Tex. App. LEXIS 9423 (Tex. App. Corpus Christi Dec. 18, 2008).
A discovery sanction of $100,000 against plaintiff was affirmed. The sanction was not excessive because three motions to compel, a motion for sanctions, and five hearings were needed before plaintiff fully complied with its discovery obligations.
A discovery sanction of $100,000 against plaintiff was affirmed. The sanction was not excessive because three motions to compel, a motion for sanctions, and five hearings were needed before plaintiff fully complied with its discovery obligations.
1-800 Contacts, Inc. v. Lens.com, Inc., 2008 U.S. Dist. LEXIS 99940 (D. Utah Dec. 9, 2008).
A defendant that made false statements related to its possession of relevant and responsive documents but then obtained new counsel and provided genuine progress in the litigation was sanctioned in the amount of plaintiff’s attorney fees and costs in obtaining compliance with the court’s discovery order. An additional sanction of precluding defendant from using evidence not produced by defendant prior to the order was recommended by the magistrate but was not ordered.
A defendant that made false statements related to its possession of relevant and responsive documents but then obtained new counsel and provided genuine progress in the litigation was sanctioned in the amount of plaintiff’s attorney fees and costs in obtaining compliance with the court’s discovery order. An additional sanction of precluding defendant from using evidence not produced by defendant prior to the order was recommended by the magistrate but was not ordered.
Davis v. Auto Club Family Ins. Co., 2008 U.S. Dist. LEXIS 100671 (E.D. La. Dec. 2, 2008).
Defendant’s motion to dismiss the action due to plaintiff’s failure to comply fully with the court’s discovery order was denied. Nothing in the record suggested that plaintiff’s failure to comply with the order or to pay $450 in defendant’s attorney fees was the result of bad faith or willfulness.
Defendant’s motion to dismiss the action due to plaintiff’s failure to comply fully with the court’s discovery order was denied. Nothing in the record suggested that plaintiff’s failure to comply with the order or to pay $450 in defendant’s attorney fees was the result of bad faith or willfulness.
Ajaxo Inc. v. Bank of America Technology and Operations, Inc., 2008 U.S. Dist. LEXIS 97602 (E.D. Cal. Dec. 1, 2008).
Plaintiff was ordered to pay for another deposition of its expert because plaintiff's production of the expert's documents in non-searchable form prevented defendant from preparing adequately for the expert's first deposition.
Plaintiff was ordered to pay for another deposition of its expert because plaintiff's production of the expert's documents in non-searchable form prevented defendant from preparing adequately for the expert's first deposition.
SD Protection, Inc. v. Rio, 2008 U.S. Dist. LEXIS 107362 (E.D.N.Y. Nov. 21, 2008).
After finding a company in contempt for failing to pay a $1,000 discovery sanction, the court determined that a suitable remedy was to enter a final judgment against the company for the sanction. A civil arrest warrant against the company’s president, who was located in Florida, would be ineffective because the court’s diversity jurisdiction would allow service of a civil commitment order only within 100 miles of the court’s New York location.
After finding a company in contempt for failing to pay a $1,000 discovery sanction, the court determined that a suitable remedy was to enter a final judgment against the company for the sanction. A civil arrest warrant against the company’s president, who was located in Florida, would be ineffective because the court’s diversity jurisdiction would allow service of a civil commitment order only within 100 miles of the court’s New York location.
Lessley v. City of Madison, 2008 U.S. Dist. LEXIS 94716 (S.D. Ind. Nov. 20, 2008).
Sanctions against a city government and its officials who disregarded discovery orders were limited to a fine of $1,000 and payment of reasonable attorney’s fees to plaintiffs’ counsel for their motions to compel. The court concluded that a default judgment and orders barring use of certain evidence were extreme sanctions that should not be entered “in the first instance.”
Sanctions against a city government and its officials who disregarded discovery orders were limited to a fine of $1,000 and payment of reasonable attorney’s fees to plaintiffs’ counsel for their motions to compel. The court concluded that a default judgment and orders barring use of certain evidence were extreme sanctions that should not be entered “in the first instance.”
In re GTI Capital Holdings, L.L.C., 2008 Bankr. LEXIS 3505 (Bankr. D. Ariz. Nov. 19, 2008).
A bankruptcy court retained jurisdiction to impose discovery sanctions against plaintiffs in independent actions who dismissed their actions after the actions were removed to the bankruptcy court.
A bankruptcy court retained jurisdiction to impose discovery sanctions against plaintiffs in independent actions who dismissed their actions after the actions were removed to the bankruptcy court.
Keithley v. Homestore.com, Inc., "Keithley II", 2008 U.S. Dist. LEXIS 92822 (N.D. Cal. Nov. 6, 2008).
Plaintiffs’ failure to adequately search electronic media until several years into litigation prejudiced defendants by rushing them to complete discovery, but terminating and evidentiary sanctions sought by defendants were disproportionate to their actual prejudice and were denied.
Plaintiffs’ failure to adequately search electronic media until several years into litigation prejudiced defendants by rushing them to complete discovery, but terminating and evidentiary sanctions sought by defendants were disproportionate to their actual prejudice and were denied.
Nationwide Indemnity Co. v. American States Ins. Co., 2008 Cal. App. Unpub. LEXIS 8312 (Cal. App. 2d Dist. 2008).
Discovery sanctions against plaintiff were reversed because the order compelling discovery on which the trial court based the sanctions was not sought by defendants within the statutory period of 45 days after plaintiff’s initial response. Failure of the parties to agree on a discovery referee did not excuse defendants’ late request for sanctions.
Discovery sanctions against plaintiff were reversed because the order compelling discovery on which the trial court based the sanctions was not sought by defendants within the statutory period of 45 days after plaintiff’s initial response. Failure of the parties to agree on a discovery referee did not excuse defendants’ late request for sanctions.
Chao v. Oriental Forest Palace, Inc., 2008 U.S. Dist. LEXIS 86443 (W.D. Mich. Oct. 27, 2008).
Defendants in an action by the Secretary of Labor were barred from contesting liability as a sanction for failing to provide discovery and failing to respond to the Secretary’s motion for sanctions.
Defendants in an action by the Secretary of Labor were barred from contesting liability as a sanction for failing to provide discovery and failing to respond to the Secretary’s motion for sanctions.
Metrokane, Inc. v. Built NY, Inc., 2008 U.S. Dist. LEXIS 69272 (S.D.N.Y. Sept. 3, 2008).
A party was sanctioned for failing to disclose information supporting claims against the party while producing an email document with a “plainly deliberate and inexcusable” redaction of a comment about the party being in trouble. The court treated the information as binding on the party and ordered delivery of an adverse inference instruction to the jury and payment of fees and costs of the opposing party.
A party was sanctioned for failing to disclose information supporting claims against the party while producing an email document with a “plainly deliberate and inexcusable” redaction of a comment about the party being in trouble. The court treated the information as binding on the party and ordered delivery of an adverse inference instruction to the jury and payment of fees and costs of the opposing party.
Infinite Energy, Inc. v. Chang, 2008 U.S. Dist. LEXIS 88084 (N.D. Fla. Aug. 29, 2008).
Defendant was sanctioned for claiming he did not identify his deactivated email account due to his belief that the provider of the account would find it impossible to recover email from the account to produce in discovery.
Defendant was sanctioned for claiming he did not identify his deactivated email account due to his belief that the provider of the account would find it impossible to recover email from the account to produce in discovery.
De Espana v. Am. Bureau of Shipping, Inc., "Reino de Espana V", 2008 U.S. Dist. LEXIS 62865 (S.D.N.Y. Aug. 18, 2008).
A court did not have to go through each stage of the systematic inquiry of Zubulake before sanctioning a party for failure to conduct a prompt and comprehensive search for electronic records.
A court did not have to go through each stage of the systematic inquiry of Zubulake before sanctioning a party for failure to conduct a prompt and comprehensive search for electronic records.
Keithley v. Home Store.com, Inc., 2008 U.S. Dist. LEXIS 61741 (N.D. Cal. Aug. 12, 2008).
Defendants’ “lackadaisical attitude” toward discovery -- shown by their failure to maintain a written litigation hold policy, by loss of data when backup tapes were written over, and by production of other data only when faced with possible sanctions -- led the court to order a mandatory adverse inference jury instruction against the defendants and to award plaintiffs’ attorney fees, expert witness fees and costs that could total over $1 million for re-doing tasks made necessary by defendants’ late production.
Defendants’ “lackadaisical attitude” toward discovery -- shown by their failure to maintain a written litigation hold policy, by loss of data when backup tapes were written over, and by production of other data only when faced with possible sanctions -- led the court to order a mandatory adverse inference jury instruction against the defendants and to award plaintiffs’ attorney fees, expert witness fees and costs that could total over $1 million for re-doing tasks made necessary by defendants’ late production.
Delta Financial Corp. v. Morrison, 2008 N.Y. Misc. LEXIS 6105 (N.Y. Sup. Ct. Aug. 12, 2008).
A group of related defendants and their counsel were each sanctioned $5,000 for asserting attorney-client privilege over email being produced by a third party even though no attorney was a participant in the communications in the email.
A group of related defendants and their counsel were each sanctioned $5,000 for asserting attorney-client privilege over email being produced by a third party even though no attorney was a participant in the communications in the email.
DL v. District of Columbia, 2008 U.S. Dist. LEXIS 48759 (D.D.C. June 27, 2008).
The District of Columbia government was ordered to pay attorney fees and expenses of plaintiffs who were not provided with thousands of pages of documents until after plaintiffs filed a motion to compel.
The District of Columbia government was ordered to pay attorney fees and expenses of plaintiffs who were not provided with thousands of pages of documents until after plaintiffs filed a motion to compel.
Francis v. AIT Laboratories, 2008 U.S. Dist. LEXIS 49015 (S.D. Ind. June 26, 2008).
Plaintiff’s attorney was ordered to pay defendant’s attorney fees and costs in seeking supplemental responses to discovery requests required by Fed. R. Civ. P. 26(e). However, defendant was not entitled to dismissal of the action as a sanction because defendant had not shown it was prejudiced by the failure of plaintiff’s attorney to provide supplemental responses.
Plaintiff’s attorney was ordered to pay defendant’s attorney fees and costs in seeking supplemental responses to discovery requests required by Fed. R. Civ. P. 26(e). However, defendant was not entitled to dismissal of the action as a sanction because defendant had not shown it was prejudiced by the failure of plaintiff’s attorney to provide supplemental responses.
Southern New England Telephone Co. v. Global NAPs, Inc., 2008 U.S. Dist. LEXIS 47986 (D. Conn. June 23, 2008).
A default judgment was entered against defendant companies as a sanction for failure to comply with discovery orders. The companies “committed a fraud” upon the court by failing to turn over business records, lying about inability to obtain documents from third parties, and destroying or withholding responsive documents.
A default judgment was entered against defendant companies as a sanction for failure to comply with discovery orders. The companies “committed a fraud” upon the court by failing to turn over business records, lying about inability to obtain documents from third parties, and destroying or withholding responsive documents.
Casio v. Papst (In re Papst Licensing GMBH & Co. KG Litigation), 2008 U.S. Dist. LEXIS 36399 (D.D.C. May 6, 2008).
A German company was ordered to respond to discovery without regard to confidentiality, attorney-client privilege, work product, or consulting expert privilege because any doubt as to the meaning of a court order to proceed with discovery did not justify a failure to respond to discovery.
A German company was ordered to respond to discovery without regard to confidentiality, attorney-client privilege, work product, or consulting expert privilege because any doubt as to the meaning of a court order to proceed with discovery did not justify a failure to respond to discovery.
Acker v. Workhorse Sales Corp., 2008 U.S. Dist. LEXIS 34398 (E.D. Mich. Apr. 28, 2008).
A magistrate judge's unspecified award of attorney fees and costs to defendant despite plaintiff's production of documents in response to defendant's motion to compel was not erroneous because plaintiff’s production did not take place until after the motion to compel was filed. Plaintiff’s objection to the magistrate’s order also was premature because the magistrate still could consider circumstances that would make any specific award of expenses unjust.
A magistrate judge's unspecified award of attorney fees and costs to defendant despite plaintiff's production of documents in response to defendant's motion to compel was not erroneous because plaintiff’s production did not take place until after the motion to compel was filed. Plaintiff’s objection to the magistrate’s order also was premature because the magistrate still could consider circumstances that would make any specific award of expenses unjust.
R & R Sails, Inc. v. Insurance Company of the State of Pennsylvania, 2008 U.S. Dist. LEXIS 44552 (S.D. Cal. Apr. 18, 2008).
A magistrate judge ordered an insurer and its counsel to pay $39,914 to plaintiff for failure to search for and produce electronically stored information. The magistrate recommended imposition of preclusion sanctions on the insurer which would bar the insurer from offering evidence related to electronically stored information that had not already been produced to plaintiff.
A magistrate judge ordered an insurer and its counsel to pay $39,914 to plaintiff for failure to search for and produce electronically stored information. The magistrate recommended imposition of preclusion sanctions on the insurer which would bar the insurer from offering evidence related to electronically stored information that had not already been produced to plaintiff.
Sterle v. Elizabeth Arden, Inc., 2008 U.S. Dist. LEXIS 32046 (D. Conn. Apr. 9, 2008).
Defense counsel who failed to recognize that an agreed-upon forensic inspection of their client’s electronic records for seven reports included mirror imaging of hard drives and company-issued laptops were sanctioned for limiting a forensics consultant to minimal server access without client IT support. Defense counsel were ordered to pay plaintiff’s costs and fees in seeking enforcement of the inspection order and to pay the expense of re-scheduling the inspection.
Defense counsel who failed to recognize that an agreed-upon forensic inspection of their client’s electronic records for seven reports included mirror imaging of hard drives and company-issued laptops were sanctioned for limiting a forensics consultant to minimal server access without client IT support. Defense counsel were ordered to pay plaintiff’s costs and fees in seeking enforcement of the inspection order and to pay the expense of re-scheduling the inspection.
Yeisley v. Pennsylvania State Police, 2008 U.S. Dist. LEXIS 25706 (M.D. Pa. Mar. 31, 2008).
Defendant’s production of a scanned document without the reverse side of the document which contained handwritten notes supporting plaintiff’s position led the court to allow plaintiff to conduct further depositions at defendant’s cost. Defendant was also ordered to produce email, but no sanctions were ordered because no previous order had been entered that had been violated by defendant.
Defendant’s production of a scanned document without the reverse side of the document which contained handwritten notes supporting plaintiff’s position led the court to allow plaintiff to conduct further depositions at defendant’s cost. Defendant was also ordered to produce email, but no sanctions were ordered because no previous order had been entered that had been violated by defendant.
U & I Corp. v. Advanced Medical Design, Inc., "Advance Medical II", 2008 U.S. Dist. LEXIS 27931 (M.D. Fla. Mar. 26, 2008).
Language barriers and a lack of understanding of the American legal system did not excuse a Korean manufacturer’s late and incomplete discovery responses. In beginning the litigation, the manufacturer and its counsel were obliged to prepare for complete and timely responses to discovery requests.
Language barriers and a lack of understanding of the American legal system did not excuse a Korean manufacturer’s late and incomplete discovery responses. In beginning the litigation, the manufacturer and its counsel were obliged to prepare for complete and timely responses to discovery requests.
Grange Mutual Casualty Co. v. Mack, 2008 U.S. App. LEXIS 6113 (6th Cir. Mar. 17, 2008).
Default judgments of $3.4 million and $5.4 million entered as sanctions for defendant's failure to respond to discovery in RICO actions by insurers for medical clinic billing overcharges on phony auto accident injuries were affirmed "without hesitation" by the U.S. Court of Appeals for the Sixth Circuit.
Default judgments of $3.4 million and $5.4 million entered as sanctions for defendant's failure to respond to discovery in RICO actions by insurers for medical clinic billing overcharges on phony auto accident injuries were affirmed "without hesitation" by the U.S. Court of Appeals for the Sixth Circuit.
Rahman v. Smith & Wollensky Restaurant Group, Inc., 2008 U.S. Dist. LEXIS 20167 (S.D.N.Y. Mar. 14, 2008).
Plaintiff's counsel was ordered to submit a revised application for attorney fees and costs awarded as a sanction for defendant's failure to comply with a discovery order. Attorney fees and costs associated with obtaining the order for sanctions rather than fees for all conduct considered sanctionable would be awarded.
Plaintiff's counsel was ordered to submit a revised application for attorney fees and costs awarded as a sanction for defendant's failure to comply with a discovery order. Attorney fees and costs associated with obtaining the order for sanctions rather than fees for all conduct considered sanctionable would be awarded.
Qualcomm Inc. v. Broadcom Corp., "Qualcomm III", 2008 U.S. Dist. LEXIS 16897 (S.D. Cal. Mar. 5, 2008).
A magistrate's order sanctioning attorneys for their alleged involvement in the withholding of email documents was remanded for further consideration so that the sanctioned attorneys could use what had been attorney-client privileged information in their defense.
A magistrate's order sanctioning attorneys for their alleged involvement in the withholding of email documents was remanded for further consideration so that the sanctioned attorneys could use what had been attorney-client privileged information in their defense.
Tse v. UBS Financial Services, Inc., 2008 U.S. Dist. LEXIS 11915 (S.D.N.Y. Feb. 19, 2008).
Plaintiff's failure to provide contact information on a witness and two-year failure to recall the location of her laptop that had crashed led the court to order her to pay half of defendant's costs and attorney fees in responding to her "casual" regard for discovery obligations.
Plaintiff's failure to provide contact information on a witness and two-year failure to recall the location of her laptop that had crashed led the court to order her to pay half of defendant's costs and attorney fees in responding to her "casual" regard for discovery obligations.
Diabetes Centers of America, Inc. v. Healthpia America, Inc., 2008 U.S. Dist. LEXIS 8362 (S.D. Tex. Feb. 5, 2008).
Cross motions for spoliation and discovery abuse sanctions were denied because bad faith was not shown and incomplete or lax discovery responses by the parties did not persuade the court that Fed. R. Civ. P. 37(d) sanctions should be imposed on any party.
Cross motions for spoliation and discovery abuse sanctions were denied because bad faith was not shown and incomplete or lax discovery responses by the parties did not persuade the court that Fed. R. Civ. P. 37(d) sanctions should be imposed on any party.
Williams v. Taser International, Inc., "Williams II", 2008 U.S. Dist. LEXIS 4263 (N.D. Ga. Jan. 22, 2008).
Unjustified delay in providing the meaningful privilege log required by Fed. R. Civ. P. 26(b)(5)(A) led the court to conclude defendant had waived its privilege claims and to order defendant to provide plaintiffs with all of the documents identified in defendant's privilege log.
Unjustified delay in providing the meaningful privilege log required by Fed. R. Civ. P. 26(b)(5)(A) led the court to conclude defendant had waived its privilege claims and to order defendant to provide plaintiffs with all of the documents identified in defendant's privilege log.
Qualcomm Inc. v. Broadcom Corp., "Qualcomm II", 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).
Following the withholding of "tens of thousands of emails," plaintiff was ordered to pay defendant $8.5 million in attorney fees and costs. Also, retained attorneys for plaintiff were ordered to report to the state bar and plaintiff and the attorneys were ordered to participate in development of a case management protocol to prevent future discovery violations.
Following the withholding of "tens of thousands of emails," plaintiff was ordered to pay defendant $8.5 million in attorney fees and costs. Also, retained attorneys for plaintiff were ordered to report to the state bar and plaintiff and the attorneys were ordered to participate in development of a case management protocol to prevent future discovery violations.
Coleman (Parent) Holdings Inc. v. Morgan Stanley & Co. Inc., "Coleman II", No. SC07-1251 (Fla. S.Ct. Dec. 12, 2007).
The Florida Supreme Court denied review of the Court of Appeals decision reversing a judgment against Morgan Stanley for $1.58 billion that followed sanctions for electronic discovery misconduct. The court of appeals had ruled that plaintiff's expert failed to factor a valuation date into his analysis of damages presented to the jury. The Florida Supreme Court denied review for lack of jurisdiction after Morgan Stanley claimed there was no conflict between the court of appeals decision and other appellate decisions that would support consideration of the case by the Court.
The Florida Supreme Court denied review of the Court of Appeals decision reversing a judgment against Morgan Stanley for $1.58 billion that followed sanctions for electronic discovery misconduct. The court of appeals had ruled that plaintiff's expert failed to factor a valuation date into his analysis of damages presented to the jury. The Florida Supreme Court denied review for lack of jurisdiction after Morgan Stanley claimed there was no conflict between the court of appeals decision and other appellate decisions that would support consideration of the case by the Court.
Fleming v. City of New York, 2007 U.S. Dist. LEXIS 90114 (S.D.N.Y. Dec. 7, 2007).
Sanctions ordered against the City of New York for failing to turn over data sets to plaintiff included exclusion of expert witness findings for the City and an order to pay plaintiff's attorney fees and expert witness expenses.
Sanctions ordered against the City of New York for failing to turn over data sets to plaintiff included exclusion of expert witness findings for the City and an order to pay plaintiff's attorney fees and expert witness expenses.
Board of Regents v. BASF Corp., 2007 U.S. Dist. LEXIS 82492 (D. Neb. Nov. 5, 2007).
Plaintiff did not willfully violate a court discovery order when plaintiff's microbiologist failed to understand that counsel's direction to produce all documents related to his research included electronically stored documents. However, the court ordered plaintiff to pay for a complete search of electronic files and for the costs of re-opened depositions once electronic documents were produced.
Plaintiff did not willfully violate a court discovery order when plaintiff's microbiologist failed to understand that counsel's direction to produce all documents related to his research included electronically stored documents. However, the court ordered plaintiff to pay for a complete search of electronic files and for the costs of re-opened depositions once electronic documents were produced.
Robinson v. Moran, 2007 U.S. Dist. LEXIS 74617 (C.D. Ill. Oct. 5, 2007).
Sanctions against parties for failing to disclose relevant information as part of their initial disclosure under Fed. R. Civ. P. 26(a)(1)(B) were denied because at the time of initial disclosure, a "party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use."
Sanctions against parties for failing to disclose relevant information as part of their initial disclosure under Fed. R. Civ. P. 26(a)(1)(B) were denied because at the time of initial disclosure, a "party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use."
Heartland Surgical Specialty Hosp., LLC v. Midwest Division, Inc., "Heartland IV", 2007 U.S. Dist. LEXIS 80208 (D. Kan. Oct. 1, 2007).
Although a party did not disclose relevant information in an email chain until the day before moving for summary judgment, the court declined to sanction the party for not disclosing the information in its rule 26(a)(1)(A) initial disclosure or in discovery responses because the opposing party still had time to respond to the new information and trial was not imminent.
Although a party did not disclose relevant information in an email chain until the day before moving for summary judgment, the court declined to sanction the party for not disclosing the information in its rule 26(a)(1)(A) initial disclosure or in discovery responses because the opposing party still had time to respond to the new information and trial was not imminent.
Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 U.S. Dist. LEXIS 72953 (C.D. Cal. Sept. 18, 2007).
Failure of a defendant to place a litigation hold on destruction of documents led the court to order the defendant to pay for a vendor to search servers for responsive documents and to pay up to $125,000 in plaintiff's fees and costs in obtaining the order.
Failure of a defendant to place a litigation hold on destruction of documents led the court to order the defendant to pay for a vendor to search servers for responsive documents and to pay up to $125,000 in plaintiff's fees and costs in obtaining the order.
In re Seroquel Products Liability Litigation, 2007 U.S. Dist. LEXIS 61287 (M.D. Fla. Aug. 21, 2007).
A drug company's failure to cooperate in the production of databases or to produce electronic discovery from 80 custodians was sanctionable conduct. The court reserved ruling on appropriate sanctions while plaintiffs produced evidence of prejudice and additional expenses caused by the conduct.
A drug company's failure to cooperate in the production of databases or to produce electronic discovery from 80 custodians was sanctionable conduct. The court reserved ruling on appropriate sanctions while plaintiffs produced evidence of prejudice and additional expenses caused by the conduct.
Perez-Farias v. Global Horizons, Inc., 2007 U.S. Dist. LEXIS 58576 (E.D. Wash. Aug. 10, 2007).
Defendants' willful failure to pay lesser sanctions for not complying with discovery orders led the court to impose a dispositive sanction of default judgment as to liability of the defendants.
Defendants' willful failure to pay lesser sanctions for not complying with discovery orders led the court to impose a dispositive sanction of default judgment as to liability of the defendants.
Qualcomm Inc. v. Broadcom Corp., 2007 U.S. Dist. LEXIS 57136 (S.D. Cal. Aug. 6, 2007).
Plaintiff's and their counsels "aggravated litigation abuse" in patent infringement litigation led the court to hold two patents "totally unenforceable."
Plaintiff's and their counsels "aggravated litigation abuse" in patent infringement litigation led the court to hold two patents "totally unenforceable."
Emmerick v. Penley/Groseclose, 2007 U.S. Dist. LEXIS 59147 (E.D. Tenn. Aug. 6, 2007).
Plaintiff's motion for an order to compel a defendant to produce electronic mail messages and data was denied because plaintiff had failed to certify he had made a good faith attempt with defendant to resolve the discovery dispute without court intervention.
Plaintiff's motion for an order to compel a defendant to produce electronic mail messages and data was denied because plaintiff had failed to certify he had made a good faith attempt with defendant to resolve the discovery dispute without court intervention.
PML North America, LLC v. ACG Enterprises of NC, Inc., "PML III", 2007 U.S. Dist. LEXIS 54003 (E.D. Mich. Jul. 26, 2007).
Plaintiff was allowed to add the CEO of a company as a defendant to assume personal liability for a default judgment and attorney fees awarded as a sanction for electronic discovery abuses by his company.
Plaintiff was allowed to add the CEO of a company as a defendant to assume personal liability for a default judgment and attorney fees awarded as a sanction for electronic discovery abuses by his company.
Google Inc. v. American Blind & Wallpaper Factory, Inc., 2007 U.S. Dist. LEXIS 48309 (N.D. Cal. June 27, 2007).
Sanctions of a conditional adverse inference and $15,000 payable to plaintiff were imposed on a defendant that failed to make an adequate search of its internal email to respond to plaintiff's discovery requests.
Sanctions of a conditional adverse inference and $15,000 payable to plaintiff were imposed on a defendant that failed to make an adequate search of its internal email to respond to plaintiff's discovery requests.
In re Spoonemore, 2007 Bankr. LEXIS 2215 (Bankr. D. Kan. June 25, 2007).
Following an in camera examination of documents, a creditor in a bankruptcy proceeding was sanctioned $1,000 for maintaining that ten email documents were privileged.
Following an in camera examination of documents, a creditor in a bankruptcy proceeding was sanctioned $1,000 for maintaining that ten email documents were privileged.
Klein-Becker United States, LLC v. Englert, 2007 U.S. Dist. LEXIS 45197 (D. Utah June 20, 2007).
An award of attorney fees and expenses rather than summary judgment was appropriate following defendants' failure to provide expedited discovery because plaintiffs obtained the injunction they requested even without the information that should have been provided by defendants.
An award of attorney fees and expenses rather than summary judgment was appropriate following defendants' failure to provide expedited discovery because plaintiffs obtained the injunction they requested even without the information that should have been provided by defendants.
Wachtel v. Health Net, Inc., "Wachtel IV", 2007 U.S. Dist. LEXIS 44225 (D.N.J. June 19, 2007).
Defendants who engaged in "repeated and unabated discovery abuses and lack of candor" were ordered to pay $6.72 million in attorney fees and costs of plaintiffs in obtaining discovery compliance orders.
Defendants who engaged in "repeated and unabated discovery abuses and lack of candor" were ordered to pay $6.72 million in attorney fees and costs of plaintiffs in obtaining discovery compliance orders.
In re September 11th Liability Insurance Coverage Cases, 2007 U.S. Dist. LEXIS 43734 (S.D.N.Y. June 18, 2007).
Rule 11 and Rule 37 sanctions totaling $1.25 million were imposed on law firms and their insurer client after a key insurance policy document in electronic form was eliminated and a paper copy of the document was left undisclosed for almost two years.
Rule 11 and Rule 37 sanctions totaling $1.25 million were imposed on law firms and their insurer client after a key insurance policy document in electronic form was eliminated and a paper copy of the document was left undisclosed for almost two years.
Coral Group, Inc. v. Shell Oil Co., 2007 U.S. Dist. LEXIS 43220 (W.D. Mo. June 14, 2007).
The most egregious disregard of discovery rules and court orders seen by the court in its 20 years on the federal bench led to dismissal of plaintiff's complaint with prejudice.
The most egregious disregard of discovery rules and court orders seen by the court in its 20 years on the federal bench led to dismissal of plaintiff's complaint with prejudice.
Action Marine, Inc. v. Continental Carbon Co., Inc., 2007 U.S. Dist. LEXIS 84148 (M.D. Ala. June 13, 2007).
After entry of a jury verdict against them, defendants were ordered to pay $147,000 in sanctions for failing before trial to disclose documents that had been "filtered" through outside counsel in order to assert attorney-client privilege for the documents.
After entry of a jury verdict against them, defendants were ordered to pay $147,000 in sanctions for failing before trial to disclose documents that had been "filtered" through outside counsel in order to assert attorney-client privilege for the documents.
Weaver v. Zenimax Media, Inc., "Weaver II", 2007 Md. App. LEXIS 82 (Md. Ct. Spec. App. May 25, 2007).
A Maryland trial court had inherent authority to sanction an executive for his after-hours searches of offices and computers of other executives in preparation for litigation against his company, but dismissal of the executive's case to obtain a severance package was too harsh given that the documents he obtained had been disclosed in the ensuing litigation and defense and adjudication of the case had not been overly prejudiced.
A Maryland trial court had inherent authority to sanction an executive for his after-hours searches of offices and computers of other executives in preparation for litigation against his company, but dismissal of the executive's case to obtain a severance package was too harsh given that the documents he obtained had been disclosed in the ensuing litigation and defense and adjudication of the case had not been overly prejudiced.
Synergy Tech & Design, Inc. v. Terry, 2007 U.S. Dist. LEXIS 34463 (N.D. Cal. May 2, 2007).
Defendants who responded to a court order by producing email without including responsive attachments and claimed their recently-hired computer forensic expert had provided counsel with 36 gigabytes of data that still had to be reviewed were assessed plaintiff's $4,275 cost to obtain court-ordered discovery.
Defendants who responded to a court order by producing email without including responsive attachments and claimed their recently-hired computer forensic expert had provided counsel with 36 gigabytes of data that still had to be reviewed were assessed plaintiff's $4,275 cost to obtain court-ordered discovery.
Doe v. Winter, 2007 U.S. Dist. LEXIS 25517 (M.D. Pa. Apr. 5, 2007).
Plaintiff's motion for sanctions against defendant for alleged withholding or destruction of documents during discovery through failure to issue a litigation hold was denied because defendant established that email and backup tapes were retained and ultimately produced.
Plaintiff's motion for sanctions against defendant for alleged withholding or destruction of documents during discovery through failure to issue a litigation hold was denied because defendant established that email and backup tapes were retained and ultimately produced.
Bonneville v. Kitsap County, 2007 U.S. Dist. LEXIS 25983 (W.D. Wash. Apr. 5, 2007).
Plaintiff's action was dismissed with prejudice just over a month before trial due to his failure to respond to several discovery orders or to defendants' motion for a sanction of dismissal.
Plaintiff's action was dismissed with prejudice just over a month before trial due to his failure to respond to several discovery orders or to defendants' motion for a sanction of dismissal.
Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings Inc., 2007 Fla. App. Lexis 4167 (Fla. Dist. Ct. App. 4th Dist. Mar. 21, 2007).
The District Court of Appeal of the State of Florida reversed a $1.58 billion jury verdict, including $850 million in punitive damages for conspiracy and aiding and abetting fraud against Morgan Stanley. The appellate court held that Coleman (Parent) Holdings failed to prove actual compensatory damages and, as a result, the trial court should have granted a directed verdict in favor of Morgan Stanley. The appellate court further ruled that the punitive damages award could not stand in the absence of compensatory damages.
The District Court of Appeal of the State of Florida reversed a $1.58 billion jury verdict, including $850 million in punitive damages for conspiracy and aiding and abetting fraud against Morgan Stanley. The appellate court held that Coleman (Parent) Holdings failed to prove actual compensatory damages and, as a result, the trial court should have granted a directed verdict in favor of Morgan Stanley. The appellate court further ruled that the punitive damages award could not stand in the absence of compensatory damages.
Padgett v. City of Monte Sereno, 2007 U.S. Dist. LEXIS 24301 (N.D. Cal. Mar. 20, 2007).
After defendant "found" a discarded laptop hard drive just prior to a hearing on plaintiff's request for a default judgment due to defendant's spoliation, the court reserved judgment on whether terminating sanctions should be imposed. Defendant was ordered to pay plaintiff's costs in seeking sanctions and the costs of a special master who would manage the discovery process.
After defendant "found" a discarded laptop hard drive just prior to a hearing on plaintiff's request for a default judgment due to defendant's spoliation, the court reserved judgment on whether terminating sanctions should be imposed. Defendant was ordered to pay plaintiff's costs in seeking sanctions and the costs of a special master who would manage the discovery process.
Tilton v. McGraw-Hill Cos., 2007 U.S. Dist. LEXIS 17421 (W.D. Wash. Mar. 9, 2007.
A motion of defendants to dismiss the action due to plaintiff's threats to their expert and destruction of documents was denied to take into account plaintiff's troubled state and the public policy favoring resolution of disputes on the merits.
A motion of defendants to dismiss the action due to plaintiff's threats to their expert and destruction of documents was denied to take into account plaintiff's troubled state and the public policy favoring resolution of disputes on the merits.
Claredi Corp. v. SeeBeyond Technology Corp., 2007 U.S. Dist. LEXIS 16593 (E.D. Mo. Mar. 8, 2007).
A defendant that failed to turn over responsive documents was ordered to pay plaintiff $53,943.75 for reimbursement of additional discovery costs caused by defendant and to pay $20,000 to the clerk of the court for failing to take discovery seriously.
A defendant that failed to turn over responsive documents was ordered to pay plaintiff $53,943.75 for reimbursement of additional discovery costs caused by defendant and to pay $20,000 to the clerk of the court for failing to take discovery seriously.
Kinney v. Trustees of Princeton University, 2007 U.S. Dist. LEXIS 14452 (D.N.J. Feb. 28, 2007).
Plaintiff was prejudiced by defendant's production of files of a key employee two years late and just before pretrial. However, rather than strike defendant's affirmative defenses, the court ordered the re-opening of the employee's deposition at defendant's cost.
Plaintiff was prejudiced by defendant's production of files of a key employee two years late and just before pretrial. However, rather than strike defendant's affirmative defenses, the court ordered the re-opening of the employee's deposition at defendant's cost.
Riel v. Morgan Stanley, 2007 U.S. Dist. LEXIS 11153 (S.D.N.Y. Feb. 16, 2007).
Most counts of a wrongful termination complaint by the former Executive Director of Morgan Stanley's Law Information Technology Department were dismissed. According to the court, the Director's contention that he did not understand Morgan Stanley's discovery obligations in Florida litigation was inconsistent with his certification in that litigation of Morgan Stanley's compliance with a court order regarding electronic discovery.
Most counts of a wrongful termination complaint by the former Executive Director of Morgan Stanley's Law Information Technology Department were dismissed. According to the court, the Director's contention that he did not understand Morgan Stanley's discovery obligations in Florida litigation was inconsistent with his certification in that litigation of Morgan Stanley's compliance with a court order regarding electronic discovery.
Qantum Communications Corp. v. Star Broadcasting, Inc., 2007 U.S. Dist. LEXIS 12009 (S.D. Fla. Feb. 9, 2007).
Perjury at a deposition and failure to turn over "smoking gun" emails later discovered from a third party led the court to grant summary judgment to plaintiff on liability and sanctions that included a default judgment against defendants.
Perjury at a deposition and failure to turn over "smoking gun" emails later discovered from a third party led the court to grant summary judgment to plaintiff on liability and sanctions that included a default judgment against defendants.
Industrial Roofing Services v. Marquardt, 2007 Wisc. LEXIS 16 (Wisc. Feb. 8, 2007).
Dismissal of plaintiff's complaint with prejudice was affirmed because plaintiff's discovery misconduct was egregious and not solely the fault of plaintiff's attorney. Plaintiff had been given a chance to pay sanctions and refile the case to avoid dismissal with prejudice but failed to do so.
Dismissal of plaintiff's complaint with prejudice was affirmed because plaintiff's discovery misconduct was egregious and not solely the fault of plaintiff's attorney. Plaintiff had been given a chance to pay sanctions and refile the case to avoid dismissal with prejudice but failed to do so.
NSB U.S. Sales, Inc. v. Brill, 2007 U.S. Dist. LEXIS 7813 (S.D.N.Y. Jan. 26, 2007).
A defendant that failed to produce relevant emails and other documents was sanctioned for failing to comply fully with court orders.
A defendant that failed to produce relevant emails and other documents was sanctioned for failing to comply fully with court orders.
Reino De Espana v. American Bureau of Shipping, "Reino III", 2007 U.S. Dist. LEXIS 5693 (S.D.N.Y. Jan. 25, 2007).
Plaintiff's motion for reconsideration in order to allow time to have forensic computer experts determine whether otherwise inaccessible email could be retrieved was denied. Plaintiff's earlier insistence that there were no email documents to recover was inconsistent with its request for reconsideration.
Plaintiff's motion for reconsideration in order to allow time to have forensic computer experts determine whether otherwise inaccessible email could be retrieved was denied. Plaintiff's earlier insistence that there were no email documents to recover was inconsistent with its request for reconsideration.
Williams v. Sprint/United Management Co.,, 2007 U.S. Dist. LEXIS 5477 (D. Kan. Jan. 23, 2007).
A magistrate judge denied sanctions against defendant for delays in producing spreadsheets and for producing the spreadsheets in a static image format because the delays were caused by unique circumstances of the case rather than willful behavior and plaintiff did not specify that the documents were to be produced in a native format.
A magistrate judge denied sanctions against defendant for delays in producing spreadsheets and for producing the spreadsheets in a static image format because the delays were caused by unique circumstances of the case rather than willful behavior and plaintiff did not specify that the documents were to be produced in a native format.
Riggin v. Snohomish County, 2007 Wash. App. LEXIS 3 (Wash. Ct. App. Jan. 2, 2007).
Dismissal of plaintiff's action was affirmed following a determination that plaintiff's failure to comply with discovery orders was wilful and prejudicial to defendant's ability to prepare for trial.
Dismissal of plaintiff's action was affirmed following a determination that plaintiff's failure to comply with discovery orders was wilful and prejudicial to defendant's ability to prepare for trial.
May v. Pilot Travel Centers LLC, 2006 U.S. Dist. LEXIS 94507 (S.D. Ohio Dec. 28, 2006).
Defendant's tardy disclosure of documents was neither harmless nor substantially justified, and the tardiness resulted in assessment of sanctions of attorney fees and costs of plaintiff in seeking the documents.
Defendant's tardy disclosure of documents was neither harmless nor substantially justified, and the tardiness resulted in assessment of sanctions of attorney fees and costs of plaintiff in seeking the documents.
Wachtel v. Health Net, Inc., 2006 U.S. Dist. LEXIS 88563 (D. N.J. Dec. 6, 2006).
After dozens of motions relating to electronic discovery gave new meaning to "scorched earth" litigation tactics and caused a "staggering" waste of judicial resources through years of policing defendant's discovery responses, the court sanctioned defendant by deeming various facts as established, striking "surprise" trial exhibits, barring defendant's use of late-designated witnesses, ordering reimbursement of plaintiffs' attorney fees and costs, appointing a discovery master to be paid for by defendant, and imposing a fine in an amount to be determined.
After dozens of motions relating to electronic discovery gave new meaning to "scorched earth" litigation tactics and caused a "staggering" waste of judicial resources through years of policing defendant's discovery responses, the court sanctioned defendant by deeming various facts as established, striking "surprise" trial exhibits, barring defendant's use of late-designated witnesses, ordering reimbursement of plaintiffs' attorney fees and costs, appointing a discovery master to be paid for by defendant, and imposing a fine in an amount to be determined.
Louis Vuitton Malletier v. Dooney & Bourke, Inc., 2006 U.S. Dist. LEXIS 87096 (S.D.N.Y. Nov. 30, 2006).
A limited adverse inference sanction was ordered against a party that misled the court regarding electronic document availability and chose to use in-house people rather than outside specialists to extract email from a database.
A limited adverse inference sanction was ordered against a party that misled the court regarding electronic document availability and chose to use in-house people rather than outside specialists to extract email from a database.
Wells v. Orange County School Board, 2006 U.S. Dist. LEXIS 81265 (M.D. Fla. Nov. 7, 2006).
Although a school board should have conducted a better investigation and produced responsive documents a year earlier, sanctions beyond plaintiff's motion costs of $750 were not warranted.
Although a school board should have conducted a better investigation and produced responsive documents a year earlier, sanctions beyond plaintiff's motion costs of $750 were not warranted.
Burkybile v. Mitsubishi Motors Corp., 2006 U.S. Dist. LEXIS 84864 (N.D. Ill. Oct. 17, 2006).
Although defendant failed to comply fully with a discovery order to produce data underlying quarterly reports, the mandatory award of fees was a more appropriate sanction than the default judgment requested by plaintiff.
Although defendant failed to comply fully with a discovery order to produce data underlying quarterly reports, the mandatory award of fees was a more appropriate sanction than the default judgment requested by plaintiff.
Delcath Systems, Inc. v. Ladd, 2006 U.S. Dist. LEXIS 67720 (S.D.N.Y. Sept. 20, 2006).
The court extended an order temporarily restraining a corporate takeover following defendants' failure to produce or explain the absence of email that had been sent to those who had received allegedly misleading disclosures.
The court extended an order temporarily restraining a corporate takeover following defendants' failure to produce or explain the absence of email that had been sent to those who had received allegedly misleading disclosures.
Crandall v. City & County of Denver, 2006 U.S. Dist. LEXIS 66958 (D. Colo. Sept. 19, 2006).
Although defendant failed to halt its computer protocol for overwriting email until almost six months following a document production "remarkably void" of email, the court declined to issue an adverse inference sanction against defendant because defendant recovered and produced 91,000 overwritten email documents and the court was satisfied that defendant was proceeding in good faith.
Although defendant failed to halt its computer protocol for overwriting email until almost six months following a document production "remarkably void" of email, the court declined to issue an adverse inference sanction against defendant because defendant recovered and produced 91,000 overwritten email documents and the court was satisfied that defendant was proceeding in good faith.
Patsy's Italian Restaurant v. Banas, 2006 U.S. Dist. LEXIS 64857 (E.D.N.Y. Sept. 12, 2006).
The attorney for defendants who failed to respond to a motion to compel and failed to produce an initial disclosure and timely responses to discovery requests was ordered to pay $250 and attorney fees and expenses of plaintiff in filing the motion to compel. The attorney also was warned that he would be sanctioned $200 for each day of future non-compliance with a court order to respond to discovery requests.
The attorney for defendants who failed to respond to a motion to compel and failed to produce an initial disclosure and timely responses to discovery requests was ordered to pay $250 and attorney fees and expenses of plaintiff in filing the motion to compel. The attorney also was warned that he would be sanctioned $200 for each day of future non-compliance with a court order to respond to discovery requests.
Elion v. Jackson, 2006 U.S. Dist. LEXIS 63854 (D.D.C. Sept. 8, 2006).
Under the "self-executing sanction" of Fed. R. Civ. P. 37(c)(1), a government agency that produced relevant email later than required in the discovery process was barred from offering the email in evidence or from offering testimony regarding the email.
Under the "self-executing sanction" of Fed. R. Civ. P. 37(c)(1), a government agency that produced relevant email later than required in the discovery process was barred from offering the email in evidence or from offering testimony regarding the email.
Ridge Chrysler Jeep, LLC v. Daimlerchrysler Services North America LLC, 2006 U.S. Dist. LEXIS 63664 (N.D. Ill. Sept. 6, 2006).
Misrepresentations by plaintiffs made to obtain a temporary restraining order, misrepresentations regarding missing notes referred to in their verified complaint, and failure to inform defendants about the availability of a computer with relevant information led the court to dismiss plaintiffs' complaint with prejudice.
Misrepresentations by plaintiffs made to obtain a temporary restraining order, misrepresentations regarding missing notes referred to in their verified complaint, and failure to inform defendants about the availability of a computer with relevant information led the court to dismiss plaintiffs' complaint with prejudice.
Lehman Capital v. Lofland, 2006 Del. LEXIS 447 (Del. Sup. Ct. Aug. 25, 2006).
Dismissal of plaintiff's complaint with prejudice as a sanction for discovery violations was reversed because a willful and conscious disregard by plaintiff of its discovery obligations had not been shown.
Dismissal of plaintiff's complaint with prejudice as a sanction for discovery violations was reversed because a willful and conscious disregard by plaintiff of its discovery obligations had not been shown.
Self v. Equilon Enterprises, LLC, 2006 U.S. Dist. LEXIS 58607 (E.D. Mo. Aug. 8, 2006).
Defendants that claimed public records were available to fill in a nine-month gap in their pricing data sought by plaintiff during discovery were barred from challenging the accuracy or admissibility of the data obtained from public records.
Defendants that claimed public records were available to fill in a nine-month gap in their pricing data sought by plaintiff during discovery were barred from challenging the accuracy or admissibility of the data obtained from public records.
Oscher v. Solomon Tropp Law Group, P.A. (In re Atlantic International Mortgage Co., Debtor), 2006 Bankr. LEXIS 2487 (Bankr. M.D. Fla. Aug. 2, 2006).
A law firm defendant and its counsel who "fought tooth and nail" to prevent and delay discovery were ordered to pay a bankruptcy trustee his reasonable costs and expenses in pursuing discovery against the firm.
A law firm defendant and its counsel who "fought tooth and nail" to prevent and delay discovery were ordered to pay a bankruptcy trustee his reasonable costs and expenses in pursuing discovery against the firm.
Phoenix Four, Inc. v. Strategic Res. Corp., "Phoenix Four II", 2006 U.S. Dist. LEXIS 52402 (S.D.N.Y. Aug. 1, 2006).
While deciding that it lacked subject matter jurisdiction and had to dismiss the action, the court reviewed and ordered payment of costs and attorney fees incurred by plaintiff in obtaining sanctions for destruction and late production of documents by defendant earlier in the litigation.
While deciding that it lacked subject matter jurisdiction and had to dismiss the action, the court reviewed and ordered payment of costs and attorney fees incurred by plaintiff in obtaining sanctions for destruction and late production of documents by defendant earlier in the litigation.
3M Innovative Properties Co. v. Tomar Electronics, Inc., 2006 U.S. Dist. LEXIS 80571 (D. Minn. Jul. 21, 2006).
Defendant's "incomplete, willfully false, and evasive discovery responses" and failure to place a litigation hold on relevant documents led to sanctions that included a directed fact finding, an adverse inference jury instruction, leave to plaintiff to conduct additional depositions, and reimbursement of attorney fees and costs in seeking sanctions.
Defendant's "incomplete, willfully false, and evasive discovery responses" and failure to place a litigation hold on relevant documents led to sanctions that included a directed fact finding, an adverse inference jury instruction, leave to plaintiff to conduct additional depositions, and reimbursement of attorney fees and costs in seeking sanctions.
General Medicine, PC v. Morning View Care Centers, 2006 U.S. Dist. LEXIS 49598 (S.D. Ohio Jul. 20, 2006).
A magistrate's denial of a motion to dismiss an action for failure to provide discovery was confirmed by the court. Plaintiff's billing data was not produced due to a change in plaintiff's billing software provider, and data no longer on plaintiff's database but stored on tapes or discs would be expensive to retrieve.
A magistrate's denial of a motion to dismiss an action for failure to provide discovery was confirmed by the court. Plaintiff's billing data was not produced due to a change in plaintiff's billing software provider, and data no longer on plaintiff's database but stored on tapes or discs would be expensive to retrieve.
Waltzer v. Tradescape & Co., L.L.C., 2006 N.Y. App. Div. LEXIS 9487 (N.Y. Sup. Ct., App. Div., Jul. 20, 2006).
While striking defendants' answer was an appropriate sanction for their attempted use of their law firms' fee demand and lien to avoid production of defendants' documents held by the firms, the court reversed entry of a $6.66 million judgment against defendants in order to allow them an opportunity to contest the amount of damages being assessed.
While striking defendants' answer was an appropriate sanction for their attempted use of their law firms' fee demand and lien to avoid production of defendants' documents held by the firms, the court reversed entry of a $6.66 million judgment against defendants in order to allow them an opportunity to contest the amount of damages being assessed.
Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 U.S. Dist. LEXIS 49650 (M.D. Fla. Jul. 19, 2006).
Motions to transfer to another federal court and to stay discovery did not justify a party's "taking its time conducting the search of its electronic databases" and producing 2,000 pages of email a month later than ordered by the court and after the deposition of the party's designated corporate representative. The party was ordered to pay sanctions of $1500 and to pay for the cost of re-deposing the representative.
Motions to transfer to another federal court and to stay discovery did not justify a party's "taking its time conducting the search of its electronic databases" and producing 2,000 pages of email a month later than ordered by the court and after the deposition of the party's designated corporate representative. The party was ordered to pay sanctions of $1500 and to pay for the cost of re-deposing the representative.
McDowell v. District of Columbia,, 2006 U.S. Dist. LEXIS 46371 (D.D.C. Jul. 11, 2006).
An attorney's expertise in e-discovery did not warrant an increase in his hourly rate used to determine fees in seeking discovery to be reimbursed by defendant. The attorney's overall experience was already accounted for in a matrix used by the court in determining reasonable hourly rates.
An attorney's expertise in e-discovery did not warrant an increase in his hourly rate used to determine fees in seeking discovery to be reimbursed by defendant. The attorney's overall experience was already accounted for in a matrix used by the court in determining reasonable hourly rates.
Technology Recycling Corp. v. City of Taylor, 2006 U.S. App. LEXIS 16590 (6th Cir. Jun. 28, 2006).
Dismissal with prejudice of plaintiffs' civil rights action was affirmed because plaintiffs repeatedly failed to comply with discovery orders. Also, plaintiffs' failure to provide complete discovery responses warranted an inference that their case lacked foundation and justified an award of $223,805 to defendants for attorney fees.
Dismissal with prejudice of plaintiffs' civil rights action was affirmed because plaintiffs repeatedly failed to comply with discovery orders. Also, plaintiffs' failure to provide complete discovery responses warranted an inference that their case lacked foundation and justified an award of $223,805 to defendants for attorney fees.
Lighthouse Community Church of God v. City of Southfield, 2006 U.S. Dist. LEXIS 38681 (E.D. Mich. Jun. 12, 2006).
Although plaintiff's request for sanctions in the form of a default judgment or the striking of defendants' defenses was denied, the court ordered defendants to pay $750 in plaintiff's costs and attorney fees and advised defendants that failure to comply with the court's discovery order could result in the "most drastic sanctions."
Although plaintiff's request for sanctions in the form of a default judgment or the striking of defendants' defenses was denied, the court ordered defendants to pay $750 in plaintiff's costs and attorney fees and advised defendants that failure to comply with the court's discovery order could result in the "most drastic sanctions."
Cardenas v. Dorel Juvenile Group, Inc.,, 2006 U.S. Dist. LEXIS 37465 (D. Kan. Jun.1, 2006).
Although tardy production of a key document did not warrant imposition of sanctions amounting to a default judgment, defendant was ordered to pay plaintiffs' costs and attorney fees in seeking sanctions because defendant's trial counsel had "an obligation to review all documents received from the client to see whether they indicate the existence of other documents not previously retrieved or produced."
Although tardy production of a key document did not warrant imposition of sanctions amounting to a default judgment, defendant was ordered to pay plaintiffs' costs and attorney fees in seeking sanctions because defendant's trial counsel had "an obligation to review all documents received from the client to see whether they indicate the existence of other documents not previously retrieved or produced."
Clare v. Coleman (Parent) Holdings, Inc., 2006 Fla. App. LEXIS 8144 (Fla. Ct. App. May 24, 2006).
The out-of-state attorney representing Morgan Stanley during imposition of sanctions resulting in a $1.45 billion judgment against Morgan Stanley was denied due process when his pro hac vice admission to the court imposing the sanctions was revoked without a hearing, according to the court hearing Morgan Stanley's appeal of the judgment.
The out-of-state attorney representing Morgan Stanley during imposition of sanctions resulting in a $1.45 billion judgment against Morgan Stanley was denied due process when his pro hac vice admission to the court imposing the sanctions was revoked without a hearing, according to the court hearing Morgan Stanley's appeal of the judgment.
Phoenix Four, Inc. v. Strategic Res. Corp., 2006 U.S. Dist. LEXIS 32211 (S.D.N.Y. May 23, 2006).
Monetary sanctions to be paid by defendant and its counsel were sufficiently remedial following late production of several hundred boxes of printed electronic documents. Imposing an adverse inference instruction or barring the filing of a summary judgment motion was rejected by the court following a freelance computer technician's discovery that 25 gigabytes of data was stored in a dormant, partitioned section of a hard drive.
Monetary sanctions to be paid by defendant and its counsel were sufficiently remedial following late production of several hundred boxes of printed electronic documents. Imposing an adverse inference instruction or barring the filing of a summary judgment motion was rejected by the court following a freelance computer technician's discovery that 25 gigabytes of data was stored in a dormant, partitioned section of a hard drive.
Wachtel v. Guardian Life Ins. Co., 2006 U.S. Dist. LEXIS 27117 (D. N.J. May 5, 2006).
Despite defendants' assertion that compliance with orders to produce responsive email, including email in backup systems, would cost "millions of dollars and take months to complete," the court affirmed a magistrate's orders and scheduled a rolling production of email of employees of defendants with weekly reports to the court detailing restoration of backup tapes and other steps taken to provide complete production in just over two months. The court also affirmed sanctions and concluded it would review privileged documents in camera to determine if their privileged status was lost under the crime-fraud exception.
Despite defendants' assertion that compliance with orders to produce responsive email, including email in backup systems, would cost "millions of dollars and take months to complete," the court affirmed a magistrate's orders and scheduled a rolling production of email of employees of defendants with weekly reports to the court detailing restoration of backup tapes and other steps taken to provide complete production in just over two months. The court also affirmed sanctions and concluded it would review privileged documents in camera to determine if their privileged status was lost under the crime-fraud exception.
Serra Chevrolet, Inc. v. General Motors Corp., 2006 U.S. App. LEXIS 9212 (11th Cir. Apr. 13, 2006).
A district court violated Fifth Amendment due process rights of General Motors by imposing a fine of $700,000 and striking GM's affirmative defenses for failure to comply with a court order requiring production of documents relating to vehicle allocation and satellite dealerships. Although the district court was within its discretion in finding a violation by GM of the discovery order, the district court failed to provide any rational basis for the sanctions it imposed.
A district court violated Fifth Amendment due process rights of General Motors by imposing a fine of $700,000 and striking GM's affirmative defenses for failure to comply with a court order requiring production of documents relating to vehicle allocation and satellite dealerships. Although the district court was within its discretion in finding a violation by GM of the discovery order, the district court failed to provide any rational basis for the sanctions it imposed.
In re CV Therapeutics, Inc., Securities Litigation, 2006 U.S. Dist. LEXIS 38909 (N.D. Cal. Apr. 4, 2006).
A request for sanctions following discovery of additional backup tapes was denied because plaintiffs failed to show that defendants intentionally hid the existence of the backup tapes. However, defendants were ordered at their cost to catalog the tapes and provide plaintiffs with documents requested from the catalog.
A request for sanctions following discovery of additional backup tapes was denied because plaintiffs failed to show that defendants intentionally hid the existence of the backup tapes. However, defendants were ordered at their cost to catalog the tapes and provide plaintiffs with documents requested from the catalog.
Automotive Finance Corp. v. Bissell, 2006 U.S. Dist. LEXIS 21421 (S.D. Miss. Mar. 30, 2006).
Defendants' motion for sanctions for plaintiff's failure to provide discovery of email and other documents that plaintiff contended were privileged was denied because there had been no failure of plaintiff to comply with a discovery order.
Defendants' motion for sanctions for plaintiff's failure to provide discovery of email and other documents that plaintiff contended were privileged was denied because there had been no failure of plaintiff to comply with a discovery order.
McDowell v. Gov't of the District of Columbia, 2006 U.S. Dist. LEXIS 4756 (D.D.C. Feb. 9, 2006).
Although a three-year delay by the District of Columbia government in providing discovery was "not acceptable" and "exasperating," a default judgment was not warranted as a sanction due to the government's lack of bad faith. However, the judge ruled that it would recommend an adverse inference jury instruction if the government failed to meet a new and "inexorable" deadline for document production.
Although a three-year delay by the District of Columbia government in providing discovery was "not acceptable" and "exasperating," a default judgment was not warranted as a sanction due to the government's lack of bad faith. However, the judge ruled that it would recommend an adverse inference jury instruction if the government failed to meet a new and "inexorable" deadline for document production.
Ambix International, Inc. v. Sav-Rx, L.L.C., 2006 U.S. Dist. LEXIS 6162 (D. Neb. Jan. 30, 2006).
Although information sought by a party in a motion to compel was not likely to lead to discovery of relevant evidence, the court declined to order the party to pay its opponent's attorney fees and costs in responding to the motion to compel. Such sanctions were not warranted due to the justification of the party in asserting its position even though the position ultimately was unsuccessful.
Although information sought by a party in a motion to compel was not likely to lead to discovery of relevant evidence, the court declined to order the party to pay its opponent's attorney fees and costs in responding to the motion to compel. Such sanctions were not warranted due to the justification of the party in asserting its position even though the position ultimately was unsuccessful.
Super Group Packaging & Distribution Corp. v. Smurfit Stone Container Corp., 2006 U.S. Dist. LEXIS 3382 (W.D. Wis. Jan. 27, 2006).
Despite defendants' contention that they had promptly produced employee email when ordered to do so by the court, plaintiff was awarded sanctions in the form of attorney's fees and costs spent in filing a motion to compel and in seeking compliance with a court order for production.
Despite defendants' contention that they had promptly produced employee email when ordered to do so by the court, plaintiff was awarded sanctions in the form of attorney's fees and costs spent in filing a motion to compel and in seeking compliance with a court order for production.
Channel Components, Inc. v. America II Electronics, Inc., 2005 Fla. App. LEXIS 20067 (Fla. Ct. App. Dec. 21, 2005).
In the first reported Florida case affirming a discovery sanction of $2,500 per day for thirty days of noncompliance with a court order, the court held that a trial court was within its discretion in ordering a penalty of $75,000 for civil contempt. Defendants failed to take advantage of a "purge" provision that would have allowed avoidance of the fine by providing required discovery.
In the first reported Florida case affirming a discovery sanction of $2,500 per day for thirty days of noncompliance with a court order, the court held that a trial court was within its discretion in ordering a penalty of $75,000 for civil contempt. Defendants failed to take advantage of a "purge" provision that would have allowed avoidance of the fine by providing required discovery.
Wood v. Sempra Energy Trading Corp., 2005 U.S. Dist. LEXIS 33638 (D. Conn. Dec. 9, 2005).
A motion in limine seeking an adverse inference jury instruction was denied because it was filed on the eve of the final pretrial conference and over a year after allegedly inadequate document production took place. Although an adverse inference instruction can be sought just before trial, there should first be "efforts to compel compliance with discovery requests, and even motions for contempt."
A motion in limine seeking an adverse inference jury instruction was denied because it was filed on the eve of the final pretrial conference and over a year after allegedly inadequate document production took place. Although an adverse inference instruction can be sought just before trial, there should first be "efforts to compel compliance with discovery requests, and even motions for contempt."
Mermell v. Nike, Inc., 2005 Mont. Dist. LEXIS 1575 (Mont. 18th Dist. Ct. Dec. 6, 2005).
A default judgment was entered against two defendants who were instructed by their attorney that responsive documents concerned subsequent remedial measures and did not have to be produced and who then hired new lead counsel without knowledge of the documents to respond to plaintiff's request for sanctions for non-production.
A default judgment was entered against two defendants who were instructed by their attorney that responsive documents concerned subsequent remedial measures and did not have to be produced and who then hired new lead counsel without knowledge of the documents to respond to plaintiff's request for sanctions for non-production.
Procter & Gamble Co. v. Haugen, 2005 U.S. App. LEXIS 22447 (10th Cir. Oct. 19, 2005).
A district court abused its discretion in dismissing plaintiff's Lanham Act claim as a discovery sanction because the court failed to set out conclusions regarding factors that had to be evaluated before dismissing claims as a sanction. Also, there had been no basis for concluding that plaintiff had acted willfully and in bad faith in not producing market share information available to plaintiff from an unrelated marketing company.
A district court abused its discretion in dismissing plaintiff's Lanham Act claim as a discovery sanction because the court failed to set out conclusions regarding factors that had to be evaluated before dismissing claims as a sanction. Also, there had been no basis for concluding that plaintiff had acted willfully and in bad faith in not producing market share information available to plaintiff from an unrelated marketing company.
Okoumou v. Safe Horizon, 2005 U.S. Dist. LEXIS 22412 (S.D.N.Y. Sept. 30, 2005).
Court declined to issue sanctions for failure to produce email when there was no evidence of bad faith by defendants. Court required further factual analysis in deciding whether former employee may pursue discovery of archived email after responsive emails that could be "readily retrieved" had already been produced.
Court declined to issue sanctions for failure to produce email when there was no evidence of bad faith by defendants. Court required further factual analysis in deciding whether former employee may pursue discovery of archived email after responsive emails that could be "readily retrieved" had already been produced.
Tracy v. Financial Insurance Management Corp., 2005 U.S. Dist. LEXIS 38323 (S.D. Ind. Aug. 23, 2005).
Defendant who produced responsive email on the last day of out-of-state depositions by plaintiff was ordered to pay for additional telephonic depositions and for half the cost of additional in-person depositions.
Defendant who produced responsive email on the last day of out-of-state depositions by plaintiff was ordered to pay for additional telephonic depositions and for half the cost of additional in-person depositions.
United States v. Montgomery Global Advisors V LLC, 2005 U.S. Dist. LEXIS 18468 (N.D. Cal. Aug. 1, 2005).
Despite "some good faith efforts to identify some missing documents," sellers of tax shelters were fined $1,000 for each day of noncompliance with a summons following identification by the government of specific documents that the sellers failed to account for as non-existent or not available.
Despite "some good faith efforts to identify some missing documents," sellers of tax shelters were fined $1,000 for each day of noncompliance with a summons following identification by the government of specific documents that the sellers failed to account for as non-existent or not available.
E & J Gallo Winery v. EnCana Energy Services Inc., 2005 U.S. Dist. LEXIS 40143 (E.D. Cal. Jul. 5, 2005).
A law firm was ordered to pay $102,000 in sanctions following its efforts to delay a third-party deposition of a former employee of the firm's client until after mediation. In the same opinion, the magistrate judge concluded the firm's motion for comprehensive e-discovery was a harassing tactic to distract the plaintiff.
A law firm was ordered to pay $102,000 in sanctions following its efforts to delay a third-party deposition of a former employee of the firm's client until after mediation. In the same opinion, the magistrate judge concluded the firm's motion for comprehensive e-discovery was a harassing tactic to distract the plaintiff.
State Farm Mut. Auto. Ins. Co. v. CPT Medical Services, P.C., 2005 U.S. Dist. LEXIS 12754 (E.D.N.Y. Jun. 28, 2005).
In a civil RICO action filed against doctors for conducting allegedly unnecessary medical tests on insureds injured in auto accidents, the court held that a magistrate's order compelling the doctors at their expense to respond to discovery requests was proper. However, the court limited required production of telephone and e-mail records to communications between the physicians and other defendants.
In a civil RICO action filed against doctors for conducting allegedly unnecessary medical tests on insureds injured in auto accidents, the court held that a magistrate's order compelling the doctors at their expense to respond to discovery requests was proper. However, the court limited required production of telephone and e-mail records to communications between the physicians and other defendants.
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., 2005 Extra LEXIS 94 (Fla. Cir. Ct. Mar. 23, 2005).
After finding that an international investment banking company "deliberately and contumaciously violated numerous discovery orders," a Florida state court imposed sanctions on the company by granting in part a motion for default judgment. The sanctions include an instruction to be given the jury that facts in the complaint, which claims damages of at least $485 million, shall be "deemed established for all purposes" in the action. The jury also will be read a statement describing the company's in-house handling of electronic discovery requirements and describing the court's findings regarding discovery misconduct by the company. The jury will be instructed that it may consider this additional information in determining whether the company "sought to conceal its offensive conduct" and in deciding whether punitive damages should be assessed against the company.
After finding that an international investment banking company "deliberately and contumaciously violated numerous discovery orders," a Florida state court imposed sanctions on the company by granting in part a motion for default judgment. The sanctions include an instruction to be given the jury that facts in the complaint, which claims damages of at least $485 million, shall be "deemed established for all purposes" in the action. The jury also will be read a statement describing the company's in-house handling of electronic discovery requirements and describing the court's findings regarding discovery misconduct by the company. The jury will be instructed that it may consider this additional information in determining whether the company "sought to conceal its offensive conduct" and in deciding whether punitive damages should be assessed against the company.
Whitehall Specialties, Inc. v. Delaportas, 2005 U.S. Dist. LEXIS 4345 (W.D. Wisc. Mar. 10, 2005).
A defendant's discovery misconduct displayed "willfulness, bad faith and fault," according to the court in entering a default judgment for $2.2 million.
A defendant's discovery misconduct displayed "willfulness, bad faith and fault," according to the court in entering a default judgment for $2.2 million.
Deans v. Terry, 2005 N.C. App. LEXIS 425 (N.C. Ct. App. Mar. 1, 2005).
A spouse in a North Carolina state court custody and child support action was not required to show prejudice in order to obtain sanctions as a result of her former husband's failure to meet discovery obligations.
A spouse in a North Carolina state court custody and child support action was not required to show prejudice in order to obtain sanctions as a result of her former husband's failure to meet discovery obligations.
Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 U.S. Dist. LEXIS 2866 (S.D.N.Y. Feb. 24, 2005).
Sanctions were recommended for a plaintiff that "engaged in repeated improper discovery conduct." Withholding of damaging email until the end of discovery and until after expert discovery ended was "inexcusable." While rejecting dismissal of the plaintiff's complaint requested by the defendant insurance company, the magistrate recommended that sanctions should include further depositions of certain witnesses, partial preclusion, and cost-shifting.
Sanctions were recommended for a plaintiff that "engaged in repeated improper discovery conduct." Withholding of damaging email until the end of discovery and until after expert discovery ended was "inexcusable." While rejecting dismissal of the plaintiff's complaint requested by the defendant insurance company, the magistrate recommended that sanctions should include further depositions of certain witnesses, partial preclusion, and cost-shifting.
Beck v. Atlantic Coast PLC, 2005 Del. Ch. LEXIS 15, (Del. Ch. February 11, 2005).
Consumer's fraud and breach of warranty suit against software company was dismissed and fees awarded to the company due to the consumer's deception regarding his use of software.
Consumer's fraud and breach of warranty suit against software company was dismissed and fees awarded to the company due to the consumer's deception regarding his use of software.
Green v. Baca, 225 F.R.D. 612 (C.D. Cal. 2005).
A county that failed for nine months to disclose existence of computer-based records of over-detention of inmates was assessed over $50,000 in attorney fees as sanctions after the Magistrate Judge by chance discovered four computer-generated documents related to over-detention scattered among over 11,000 documents being reviewed in camera.
A county that failed for nine months to disclose existence of computer-based records of over-detention of inmates was assessed over $50,000 in attorney fees as sanctions after the Magistrate Judge by chance discovered four computer-generated documents related to over-detention scattered among over 11,000 documents being reviewed in camera.
Housing Rights Center v. Sterling,, 2004 U.S. Dist. LEXIS 28879 (C.D. Cal. Dec. 28, 2004).
Failure of defendants to comply with an order to respond to plaintiffs' request for information on defendants' net worth resulted in sanctions including payment of plaintiffs' fees and costs in obtaining the sanctions and payment to the court of $500 per day of noncompliance.
Failure of defendants to comply with an order to respond to plaintiffs' request for information on defendants' net worth resulted in sanctions including payment of plaintiffs' fees and costs in obtaining the sanctions and payment to the court of $500 per day of noncompliance.
Weaver v. Zenimax Media, Inc., 2004 Md. Cir. Ct. LEXIS 12 (Md. Cir. Ct. Sept. 3, 2004).
Court dismissed plaintiff's wrongful termination suit against defendant as a sanction for egregious discovery conduct, including that related to electronic documents.
Court dismissed plaintiff's wrongful termination suit against defendant as a sanction for egregious discovery conduct, including that related to electronic documents.
Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2004 U.S. Dist. LEXIS 17267 (S.D.N.Y. Aug. 30, 2004).
A default judgment was not an appropriate discovery sanction because the defendant produced the document specifically required by court order and time remained before expiration of the deadline for discovery in the case during which other deficiencies could be cured.
A default judgment was not an appropriate discovery sanction because the defendant produced the document specifically required by court order and time remained before expiration of the deadline for discovery in the case during which other deficiencies could be cured.
Convolve, Inc. v. Compaq Computer Corp., 2004 U.S. Dist. LEXIS 16164 (S.D.N.Y. Aug. 17, 2004).
Direct access to a defendant's hard drives, servers, and databases and sanctions was not warranted because the requesting party had not shown widespread destruction or withholding of relevant information.
Direct access to a defendant's hard drives, servers, and databases and sanctions was not warranted because the requesting party had not shown widespread destruction or withholding of relevant information.
Hentsch Henchoz & Cie v. Philippe D. David Gubbay, 2004 UT 64 (Aug. 6, 2004).
The Utah Supreme Court held that before it would consider an appeal of a lower court's disregard of a forum selection clause in an investment contract, the defendant would have to return documents, records, and hard drives from Spain to Utah and comply with the lower court's discovery orders.
The Utah Supreme Court held that before it would consider an appeal of a lower court's disregard of a forum selection clause in an investment contract, the defendant would have to return documents, records, and hard drives from Spain to Utah and comply with the lower court's discovery orders.
Hayman v. PricewaterhouseCoopers, LLP (In re Telxon Securities Litigation), 2004 U.S. Dist. LEXIS 27295 (N.D. Ohio July 2, 2004).
Magistrate recommended that motions for sanctions against third-party defendant be granted where third-party defendant's production of relevant documents and database information was not made in good faith; third-party defendant failed to produce documents and there was strong evidence that suggested spoliation.
Magistrate recommended that motions for sanctions against third-party defendant be granted where third-party defendant's production of relevant documents and database information was not made in good faith; third-party defendant failed to produce documents and there was strong evidence that suggested spoliation.
Feather River Anesthesia Med. Group. v. The Fremont-Rideout Health Group, 2004 Cal. App. Unpub. LEXIS 6233 (Cal. Ct. App. June 30, 2004).
A health group's refusal to disclose discoverable evidence resulted in an award of sanctions under the California Civil Discovery Act was affirmed.
A health group's refusal to disclose discoverable evidence resulted in an award of sanctions under the California Civil Discovery Act was affirmed.
Munshani v. Signal Lake Venture Fund II, 2004 Mass. App. LEXIS 323 (Mass. App. Mar. 26, 2004).
Plaintiff's complaint dismissed on ruling that he fabricated email evidence and perpetuated a fraud on the court.
Plaintiff's complaint dismissed on ruling that he fabricated email evidence and perpetuated a fraud on the court.
Invision Media Communications, Inc. v. Federal Insur. Co., 2004 U.S. Dist. LEXIS 3196 (S.D.N.Y. Mar. 22, 2004).
Court issues discovery sanctions for failure to conduct a reasonable inquiry to disclose availability of email and other documents requested in discovery.
Court issues discovery sanctions for failure to conduct a reasonable inquiry to disclose availability of email and other documents requested in discovery.
Anderson v. Crossroads Capital Partners, L. L. C., 2004 U. S. Dist. LEXIS 1867 (D. Minn. Feb. 10, 2004).
An adverse jury instruction sanction was imposed on a plaintiff who attempted to conceal that she had changed her computer's hard drive that may have contained discoverable information sought by defendant.
An adverse jury instruction sanction was imposed on a plaintiff who attempted to conceal that she had changed her computer's hard drive that may have contained discoverable information sought by defendant.
Aero Prods. Int'l v. Intex Rec. Corp., 2004 U.S. Dist. LEXIS 1283 (N.D. Ill., Jan. 30, 2004).
Court declines to issue electronic discovery sanctions against defendant when plaintiffs failed to pursue discovery through channels outlined by court in previous order.
Court declines to issue electronic discovery sanctions against defendant when plaintiffs failed to pursue discovery through channels outlined by court in previous order.
Thompson v. United States HUD, 2003 U.S. Dist. LEXIS 22739 (D. Md. Dec. 13, 2003).
This memorandum was issued on plaintiffs' motion in limine to bar certain witnesses from testifying based on a local defendant's failure to produce emails in discovery. The memorandum also set forth a detailed explanation concerning the court's rulings on earlier discovery motions surrounding production of email and other electronic records.
This memorandum was issued on plaintiffs' motion in limine to bar certain witnesses from testifying based on a local defendant's failure to produce emails in discovery. The memorandum also set forth a detailed explanation concerning the court's rulings on earlier discovery motions surrounding production of email and other electronic records.
Comm'r of Labor of N.C. v. Ward, 2003 N.C. App. LEXIS 1099 (N.C. Ct. App. June 3, 2003).
Court of appeals affirms default judgment against defendant for failing to comply with discovery orders.
Court of appeals affirms default judgment against defendant for failing to comply with discovery orders.
NARTRON CORP. v. GMC, 2003 Mich. App. LEXIS 1059 (Mich. Ct. App. Apr. 29, 2003).
Plaintiff's cause of action dismissed as sanction for discovery abuses, including destruction of computer records.
Plaintiff's cause of action dismissed as sanction for discovery abuses, including destruction of computer records.
Essex Group v. Express Wire Servs., 578 S.E.2d 705, 2003 N.C. App. LEXIS 534 (N.C. Ct. App. Apr. 15, 2003).
Default judgment entered after finding that defendants intentionally destroyed evidence, including emails.
Default judgment entered after finding that defendants intentionally destroyed evidence, including emails.
Lakewood Eng'g & Mfg. Co. v. Lasko Prods., 2003 U.S. Dist. LEXIS 3867 (N.D. Ill. Mar. 14, 2003).
Sanctions not warranted when defendant suffered minimal harm due to plaintiff's failure to produce electronic documents.
Sanctions not warranted when defendant suffered minimal harm due to plaintiff's failure to produce electronic documents.
Metro. Opera Ass'n v. Local 100, Hotel Emples. & Rest. Emples. Int'l Union, 212 F.R.D. 178, 2003 U.S. Dist. LEXIS 1077, 171 L.R.R.M. (BNA) 2897 (S.D.N.Y. Jan. 28, 2003).
Court granted motion for judgment against defendant due to party's failure to comply with discovery rules. Attorneys failed to meet obligations to search for and produce all relevant information, including email and other documents contained on client's computer systems.
Court granted motion for judgment against defendant due to party's failure to comply with discovery rules. Attorneys failed to meet obligations to search for and produce all relevant information, including email and other documents contained on client's computer systems.
Kormendi v. Computer Assocs. Int'l, 2002 U.S. Dist. LEXIS 20768 (S.D.N.Y. Oct. 21, 2002).
Request for sanctions for non-production of emails was premature.
Request for sanctions for non-production of emails was premature.
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 2002 U.S. App. LEXIS 20422, 53 Fed. R. Serv. 3d (Callaghan) 1105 (2d Cir. Conn. Sept. 26, 2002).
Sanctions for negligence in failing to produce electronic information, including information from backup tapes.
Sanctions for negligence in failing to produce electronic information, including information from backup tapes.
Williams v. St.-Gobain Corp., 2002 U.S. Dist. LEXIS 12798, 53 Fed. R. Serv. 3d (Callaghan) 360 (W.D.N.Y. June 28, 2002).
No sanction for tardy production of email; otherwise unavailable emails were produced as soon as they were discovered on a former employee's personal computer.
No sanction for tardy production of email; otherwise unavailable emails were produced as soon as they were discovered on a former employee's personal computer.
Sheppard v. River Valley Fitness One, L.P., 203 F.R.D. 56, 2001 DNH 177, 2001 U.S. Dist. LEXIS 15801, 50 Fed. R. Serv. 3d (Callaghan) 1278 (D.N.H. Sept. 27, 2001).
Attorney sanctioned for "lack of diligence" in discovery.
Attorney sanctioned for "lack of diligence" in discovery.
Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 20 P.3d 447, 2001 Wash. App. LEXIS 474 (Mar. 26, 2001).
Computer-generated summary must produce substantial equivalent of information requested.
Computer-generated summary must produce substantial equivalent of information requested.
GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 U.S. Dist. LEXIS 16244 (S.D.N.Y. Nov. 8, 2000).
Defendant sanctioned for failure to make accurate disclosure of its computer system capabilities.
Defendant sanctioned for failure to make accurate disclosure of its computer system capabilities.
R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 89 Cal. Rptr. 2d 353, 1999 Cal. App. LEXIS 898, 99 Cal. Daily Op. Service 8192, 99 D.A.R. 10407 (Cal. App. 2d Dist. Oct. 4, 1999).
Trial court's dismissal of plaintiff's complaint affirmed; plaintiff's discovery abuses included destruction of computer evidence.
Trial court's dismissal of plaintiff's complaint affirmed; plaintiff's discovery abuses included destruction of computer evidence.
Illinois Tool Works, Inc. v. Metro Mark Productions, Ltd., 43 F. Supp. 2d 951 (N.D. Ill. 1999).
Court determined that defendants chose to respond to legitimate discovery requests with deception rather than directness. Defendants were ordered to pay plaintiff's reasonable fees and costs in seeking discovery. By requiring plaintiff to file motions to compel in order to obtain documents that should have been voluntarily produced and by offering implausible reasons for unavailability of documents, defendants had engaged in sanctionable conduct.
Court determined that defendants chose to respond to legitimate discovery requests with deception rather than directness. Defendants were ordered to pay plaintiff's reasonable fees and costs in seeking discovery. By requiring plaintiff to file motions to compel in order to obtain documents that should have been voluntarily produced and by offering implausible reasons for unavailability of documents, defendants had engaged in sanctionable conduct.
LEXIS-NEXIS v. Beer, 41 F. Supp. 2d 950, 1999 U.S. Dist. LEXIS 4297 (D. Minn. Mar. 22, 1999).
Sanctions for failure to produce copy of database.
Sanctions for failure to produce copy of database.
In re Cheyenne Software Sec. Litig., 1997 U.S. Dist. LEXIS 24141 (E.D. N.Y. August 18, 1997).
Sanctions were not imposed on defendants for erasing their hard drives because plaintiffs did not show that they were prejudiced, but substantial fines, attorney's fees, and expense were ordered for defendants' violation of court order.
Sanctions were not imposed on defendants for erasing their hard drives because plaintiffs did not show that they were prejudiced, but substantial fines, attorney's fees, and expense were ordered for defendants' violation of court order.
ABC Home Health Services, Inc. v. International Business Machines Corp., 158 F.R.D. 180 (S.D. Ga. 1994).
While Fed. R. Civ. P. 37 did not apply to pre-litigation destruction of personal files on a computer, sanctions such as adverse jury instructions could be imposed on a party for any misconduct under the inherent powers of the court.
While Fed. R. Civ. P. 37 did not apply to pre-litigation destruction of personal files on a computer, sanctions such as adverse jury instructions could be imposed on a party for any misconduct under the inherent powers of the court.
Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1993 U.S. App. LEXIS 12943, 26 Fed. R. Serv. 3d (Callaghan) 113 (7th Cir. Ill. May 28, 1993).
Upholds sanctions for failure to provide electronically stored evidence in response to request for "written documents"; rejects argument electronic documents were "inaccessible."
Upholds sanctions for failure to provide electronically stored evidence in response to request for "written documents"; rejects argument electronic documents were "inaccessible."
