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Delgado-O'Neil v. City of Minneapolis, 2010 U.S. Dist. LEXIS 78927 (D. Minn. Aug. 4, 2010).
Plaintiff's motion for spoliation sanctions was denied because sufficient remaining evidence was available to show that plaintiff was not prejudiced by defendant's destruction of a file.
Plaintiff's motion for spoliation sanctions was denied because sufficient remaining evidence was available to show that plaintiff was not prejudiced by defendant's destruction of a file.
Grubb v. Board of Trustees of the University of Illinois, 2010 U.S. Dist. LEXIS 78485 (N.D. Ill. Aug. 4, 2010).
Bad faith of plaintiff – who "knew how to turn his laptop on but knew little else about how computers work" – was not shown and spoliation sanctions were denied because "wiping" of the laptop he was using was carried out by plaintiff's organization rather than by plaintiff. Also, there was no evidence that there was usable data on the laptop when plaintiff was instructed by counsel for the organization to stop using the laptop pending a check on the access history of the laptop.
Bad faith of plaintiff – who "knew how to turn his laptop on but knew little else about how computers work" – was not shown and spoliation sanctions were denied because "wiping" of the laptop he was using was carried out by plaintiff's organization rather than by plaintiff. Also, there was no evidence that there was usable data on the laptop when plaintiff was instructed by counsel for the organization to stop using the laptop pending a check on the access history of the laptop.
Peal v. Lee, 2010 Ill. App. LEXIS 760 (Ill. App. Ct. 1st Dist. July 30, 2010).
An appellate court affirmed dismissal of plaintiff's lawsuit as a sanction for deleting electronic files from his computer with sophisticated data-wiping programs just prior to meeting a court-ordered deadline for producing the computer for examination.
An appellate court affirmed dismissal of plaintiff's lawsuit as a sanction for deleting electronic files from his computer with sophisticated data-wiping programs just prior to meeting a court-ordered deadline for producing the computer for examination.
Antonio v. Security Services of America, LLC, 2010 U.S. Dist. LEXIS 72148 (D. Md. July 16, 2010).
A magistrate judge properly inferred lost email was relevant because defendant "acted with more than gross negligence" in failing to save computers and in converting a local network onto a newer platform at the offices of defendant's parent company.
A magistrate judge properly inferred lost email was relevant because defendant "acted with more than gross negligence" in failing to save computers and in converting a local network onto a newer platform at the offices of defendant's parent company.
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."
Medcorp, Inc. v. Pinpoint Technologies, Inc., 2010 U.S. Dist. LEXIS 68532 (D. Colo. June 15, 2010).
Sanctions against plaintiff for destruction of hard drives were limited to an adverse inference jury instruction and reasonable fees and costs for defendant. Dismissal was not an appropriate sanction because plaintiff's conduct was negligent rather than intentional.
Sanctions against plaintiff for destruction of hard drives were limited to an adverse inference jury instruction and reasonable fees and costs for defendant. Dismissal was not an appropriate sanction because plaintiff's conduct was negligent rather than intentional.
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."
Edington v. Madison Coal & Supply Co., 2010 U.S. Dist. LEXIS 56033 (E.D. Ky. June 4, 2010).
Spoliation sanctions for failure to preserve GPS data at the time of an accident were denied because there was no regulation or law requiring activation of the data preservation system.
Spoliation sanctions for failure to preserve GPS data at the time of an accident were denied because there was no regulation or law requiring activation of the data preservation system.
Genworth Financial Wealth Management, Inc. v. McMullan, 2010 U.S. Dist. LEXIS 53145 (D. Conn. June 1, 2010).
Defendants were ordered to pay 80% of the cost of an independent computer forensics expert appointed by the court to image defendants' electronic storage devices. One of the defendants admitted that he threw out the personal computer on which he downloaded plaintiff's proprietary information.
Defendants were ordered to pay 80% of the cost of an independent computer forensics expert appointed by the court to image defendants' electronic storage devices. One of the defendants admitted that he threw out the personal computer on which he downloaded plaintiff's proprietary information.
Jones v. Bremen High School District 228, 2010 U.S. Dist. LEXIS 51312 (N.D. Ill. May 25, 2010).
Defendant was grossly negligent in relying on its employees whose conduct was in question to select which of their electronic documents were relevant for production and which documents could be permanently deleted. However, due to lack of proof that defendant tried to destroy material evidence, the sanction against defendant was limited to precluding defendant from arguing that the absence of evidence in support of plaintiff's claim meant no evidence had existed.
Defendant was grossly negligent in relying on its employees whose conduct was in question to select which of their electronic documents were relevant for production and which documents could be permanently deleted. However, due to lack of proof that defendant tried to destroy material evidence, the sanction against defendant was limited to precluding defendant from arguing that the absence of evidence in support of plaintiff's claim meant no evidence had existed.
Diocese of Harrisburg v. Summix Development Co., 2010 U.S. Dist. LEXIS 49069 (M.D. Pa. May 18, 2010).
Although no bad faith was asserted, plaintiff was sanctioned with an adverse inference jury instruction. Plaintiff's continued overwriting of backup tapes for over fourteen months, including eight months after filing its complaint, made it "more probable than not" that defendants were prejudiced by plaintiff's failure to preserve email.
Although no bad faith was asserted, plaintiff was sanctioned with an adverse inference jury instruction. Plaintiff's continued overwriting of backup tapes for over fourteen months, including eight months after filing its complaint, made it "more probable than not" that defendants were prejudiced by plaintiff's failure to preserve email.
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.
Mainfreight United States Partnership v. Marco, 2010 U.S. Dist. LEXIS 47982 (D.S.C. May 14, 2010).
After a defendant claimed that his laptop was stolen a week before service of the complaint and that he had no intention to destroy evidence by upgrading his "blackberry device," the court postponed ruling on plaintiff's motion for spoliation sanctions until trial.
After a defendant claimed that his laptop was stolen a week before service of the complaint and that he had no intention to destroy evidence by upgrading his "blackberry device," the court postponed ruling on plaintiff's motion for spoliation sanctions until trial.
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."
Mamola v. Group Manufacturing Services, Inc., 2010 U.S. Dist. LEXIS 35433 (D. Ariz. Apr. 9, 2010).
Partial default judgments requested by both sides due to each side's loss of email after computer "crashes" were denied because neither side presented evidence that the loss of evidence was the result of "egregious conduct" of intentional or willful destruction of relevant evidence to the irreparable prejudice of the other side.
Partial default judgments requested by both sides due to each side's loss of email after computer "crashes" were denied because neither side presented evidence that the loss of evidence was the result of "egregious conduct" of intentional or willful destruction of relevant evidence to the irreparable prejudice of the other side.
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.
Wilson v. Thorn Energy, LLC, 2010 U.S. Dist. LEXIS 47032 (S.D.N.Y. Mar. 15, 2010).
Failure to copy the flash drive of a key witness before the drive failed and was discarded was "at least grossly negligent," and defendants were precluded from offering any evidence at trial "concerning their financial records or the data allegedly contained on the flash drive."
Failure to copy the flash drive of a key witness before the drive failed and was discarded was "at least grossly negligent," and defendants were precluded from offering any evidence at trial "concerning their financial records or the data allegedly contained on the flash drive."
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."
Jain v. Memphis Shelby County Airport Authority, 2010 U.S. Dist. LEXIS 16842 (W.D. Tenn. Feb. 25, 2010).
Plaintiff was entitled to a "permissible adverse inference" as a sanction against an airport authority and a janitorial service for failure to preserve a video tape that may have captured plaintiff's slip and fall at the airport. The janitorial service had a duty to make sure the video was preserved despite having no control over the video because the service "had notice of the possibility of litigation" as a result of its employee's incident report and its knowledge of the airport surveillance video system.
Plaintiff was entitled to a "permissible adverse inference" as a sanction against an airport authority and a janitorial service for failure to preserve a video tape that may have captured plaintiff's slip and fall at the airport. The janitorial service had a duty to make sure the video was preserved despite having no control over the video because the service "had notice of the possibility of litigation" as a result of its employee's incident report and its knowledge of the airport surveillance video system.
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.
Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573 (S.D. Tex. Feb. 19, 2010).
After finding that defendant intentionally deleted email despite a duty to preserve documents, the court imposed a permissive adverse inference sanction against defendant and ruled that a prior judgment for defendant would not be given res judicata effect. However, more severe sanctions were not warranted because prejudice to plaintiff from the document destruction was limited. Plaintiff had access to missing information through subpoenas to third party providers, and some of the destroyed documents were favorable to defendant's position.
After finding that defendant intentionally deleted email despite a duty to preserve documents, the court imposed a permissive adverse inference sanction against defendant and ruled that a prior judgment for defendant would not be given res judicata effect. However, more severe sanctions were not warranted because prejudice to plaintiff from the document destruction was limited. Plaintiff had access to missing information through subpoenas to third party providers, and some of the destroyed documents were favorable to defendant's position.
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.
Kwon v. Costco Wholesale Corp., 2010 U.S. Dist. LEXIS 13614 (D. Haw. Feb. 17, 2010).
Defendant's failure to preserve a videotape despite its video retention policy and plaintiff's request to preserve the videotape resulted in an adverse inference sanction. A default judgment against defendant was not warranted because plaintiff did not produce evidence that defendant acted with willfulness, fault, or bad faith.
Defendant's failure to preserve a videotape despite its video retention policy and plaintiff's request to preserve the videotape resulted in an adverse inference sanction. A default judgment against defendant was not warranted because plaintiff did not produce evidence that defendant acted with willfulness, fault, or bad faith.
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.
TR Investors v. Genger, "TR Investors II", 2010 Del. Ch. LEXIS 19 (Del. Ch. Feb. 3, 2010).
Sanctions against defendant of $750,000 for plaintiffs' attorney fees and costs for "wiping" unallocated space on his company's computer server did not include additional attorney fees of plaintiffs that defendant was ordered to pay during a special master's investigation of document destruction by defendant.
Sanctions against defendant of $750,000 for plaintiffs' attorney fees and costs for "wiping" unallocated space on his company's computer server did not include additional attorney fees of plaintiffs that defendant was ordered to pay during a special master's investigation of document destruction by defendant.
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.
Ascom Hasler Mailing Systems, Inc. v. United States Postal Service, 2010 U.S. Dist. LEXIS 2875 (D.D.C. Jan. 14, 2010).
In order to hold off a possible spoliation motion, the court directed the parties to prepare a joint report on documents that plaintiff had or should have and that defendant still needed.
In order to hold off a possible spoliation motion, the court directed the parties to prepare a joint report on documents that plaintiff had or should have and that defendant still needed.
Wright v. City of Salisbury, 2010 U.S. Dist. LEXIS 1181 (E.D. Mo. Jan. 7, 2010).
Defendants' motion for sanctions after plaintiff lost the original of a digital recording due to a problem with his computer was denied. Plaintiff's explanation for the loss of the original was reasonable, there was no suggestion that a saved portion of the recording was altered, and there was no evidence to dispute plaintiff's sworn statement that there was nothing in the lost portion of the recording that would have any impact on the case.
Defendants' motion for sanctions after plaintiff lost the original of a digital recording due to a problem with his computer was denied. Plaintiff's explanation for the loss of the original was reasonable, there was no suggestion that a saved portion of the recording was altered, and there was no evidence to dispute plaintiff's sworn statement that there was nothing in the lost portion of the recording that would have any impact on the case.
Gotto v. Eusebe-Carter, 2010 N.Y. App. Div. LEXIS 182 (N.Y. App. Div. 2d Dep't Jan. 5, 2010).
A trial court sanction striking defendant's answer in a medical malpractice action was reduced to an adverse inference because no negligence or intention of defendant regarding the loss of fetal monitoring data had been shown.
A trial court sanction striking defendant's answer in a medical malpractice action was reduced to an adverse inference because no negligence or intention of defendant regarding the loss of fetal monitoring data had been shown.
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.
Vagenos v. LDG Financial Services, LLC, 2009 U.S. Dist. LEXIS 121490 (E.D.N.Y. Dec. 31, 2009).
A message on a cell phone that counsel re-recorded for evidence should have been preserved on the cell phone message system. Plaintiff was sanctioned with an adverse inference instruction to the jury that plaintiff's failure to preserve the original recording was evidence that the original recording contained information that was harmful to plaintiff's case.
A message on a cell phone that counsel re-recorded for evidence should have been preserved on the cell phone message system. Plaintiff was sanctioned with an adverse inference instruction to the jury that plaintiff's failure to preserve the original recording was evidence that the original recording contained information that was harmful to plaintiff's case.
Naylor v. Rotech Healthcare, Inc., 2009 U.S. Dist. LEXIS 120142 (D. Vt. Dec. 23, 2009).
In a matter of first impression, the court held that there was no separate cause of action under Vermont law for spoliation.
In a matter of first impression, the court held that there was no separate cause of action under Vermont law for spoliation.
Gillett v. Michigan Farm Bureau, 2009 Mich. App. LEXIS 2666 (Mich. Ct. App. Dec. 22, 2009).
Dismissal of plaintiff's action as a sanction for deleting "massive numbers of files" from his computer was affirmed. The trial court adequately considered lesser sanctions, and a "safe harbor" provision of MCR 2.313(E) for data "lost as a result of the routine, good-faith operation of an electronic information system" was not adopted until after plaintiff’s suit was filed.
Dismissal of plaintiff's action as a sanction for deleting "massive numbers of files" from his computer was affirmed. The trial court adequately considered lesser sanctions, and a "safe harbor" provision of MCR 2.313(E) for data "lost as a result of the routine, good-faith operation of an electronic information system" was not adopted until after plaintiff’s suit was filed.
Bensel v. Allied Pilots Association, 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009).
While defendant "should have moved more quickly to place litigation holds," plaintiff's motion for sanctions was denied because no bad faith of defendant in the destruction of documents had been shown.
While defendant "should have moved more quickly to place litigation holds," plaintiff's motion for sanctions was denied because no bad faith of defendant in the destruction of documents had been shown.
TR Investors v. Genger, 2009 Del. Ch. LEXIS 203 (Del. Ch. Dec. 9, 2009).
Defendant was sanctioned for "wiping" the unallocated space on his company's computer server despite a court order barring any disposal of company-related documents. The sanctions included a raised burden of proof for defendant on any defense or counterclaim, production of documents that defendant claimed were privileged, and payment of plaintiffs' reasonable attorney fees and costs, which the court suggested should be $750,000.
Defendant was sanctioned for "wiping" the unallocated space on his company's computer server despite a court order barring any disposal of company-related documents. The sanctions included a raised burden of proof for defendant on any defense or counterclaim, production of documents that defendant claimed were privileged, and payment of plaintiffs' reasonable attorney fees and costs, which the court suggested should be $750,000.
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.
Park West Radiology v. CareCore National LLC, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009).
Defendants' motion in limine to bar plaintiffs from offering documents or testimony at trial concerning allegations of spoliation of evidence by defendants was granted because plaintiffs had not raised any claim of spoliation earlier.
Defendants' motion in limine to bar plaintiffs from offering documents or testimony at trial concerning allegations of spoliation of evidence by defendants was granted because plaintiffs had not raised any claim of spoliation earlier.
Gray v. State, 2009 Tex. App. LEXIS 8436 (Tex. App. San Antonio Nov. 4, 2009).
Defendant's appeal of his conviction based on the deletion of email to him on the victim's computer was rejected because the loss of the potentially useful email was not shown by defendant to have resulted from bad faith acts of the state.
Defendant's appeal of his conviction based on the deletion of email to him on the victim's computer was rejected because the loss of the potentially useful email was not shown by defendant to have resulted from bad faith acts of the state.
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.
Peschel v. City of Missoula, 2009 U.S. Dist. LEXIS 98784 (D. Mont. Oct. 15, 2009).
The "loss" of an arrest video from a police car camera after the video was uploaded to a police department computer and viewed by police officers led the court to conclude as a sanction that unreasonable force was used in the arrest.
The "loss" of an arrest video from a police car camera after the video was uploaded to a police department computer and viewed by police officers led the court to conclude as a sanction that unreasonable force was used in the arrest.
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.
Tango Transport, LLC v. Transport International Pool, Inc., 2009 U.S. Dist. LEXIS 93930 (W.D. La. Oct. 7, 2009).
Defendant's request for an adverse inference against plaintiff for loss of information resulting from an inadequate litigation hold was denied because defendant did not show that lost information would have been admissible and was not available elsewhere.
Defendant's request for an adverse inference against plaintiff for loss of information resulting from an inadequate litigation hold was denied because defendant did not show that lost information would have been admissible and was not available elsewhere.
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., “Coleman IV”, 2009 Fla. App. LEXIS 14934 (Fla. Dist. Ct. App. 4th Dist. Oct. 7, 2009).
Even if considered a fraud upon the court, spoliation of email that resulted in a default judgment as to liability did not support a request for a new trial on damages after a $1.58 billion verdict was reversed for failure to use the proper measure of damages. A fraud claim of any type brought under Florida Rule of Civil Procedure 1.540(b) seeking to set aside a judgment was subject to the requirement that the fraud affected the final judgment.
Even if considered a fraud upon the court, spoliation of email that resulted in a default judgment as to liability did not support a request for a new trial on damages after a $1.58 billion verdict was reversed for failure to use the proper measure of damages. A fraud claim of any type brought under Florida Rule of Civil Procedure 1.540(b) seeking to set aside a judgment was subject to the requirement that the fraud affected the final judgment.
Beard Research, Inc. v. Kates, “Kates II”, 2009 Del. Ch. LEXIS 170 (Del. Ch. Oct. 1, 2009).
An ex-employee and his new employers who were held jointly responsible for spoliation of possible evidence on the employee's laptop were ordered to pay $76,906.80 in plaintiff's attorney and expert fees and expenses in seeking sanctions.
An ex-employee and his new employers who were held jointly responsible for spoliation of possible evidence on the employee's laptop were ordered to pay $76,906.80 in plaintiff's attorney and expert fees and expenses in seeking sanctions.
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."
Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009).
Defendants' motion for sanctions, described by the court as "a further example of how discovery has become a veritable 'black hole' having the potential to draw in and annihilate the case itself," was denied. Plaintiff's counsel refuted to the court's satisfaction defense counsel's contentions of spoliation, and no material prejudice to defenses of defendant had been established.
Defendants' motion for sanctions, described by the court as "a further example of how discovery has become a veritable 'black hole' having the potential to draw in and annihilate the case itself," was denied. Plaintiff's counsel refuted to the court's satisfaction defense counsel's contentions of spoliation, and no material prejudice to defenses of defendant had been established.
Chet Morrison Contractors, Inc. v. Medco Energi US LLC, 2009 U.S. Dist. LEXIS 84983 (E.D. La. Aug. 25, 2009).
A motion for an adverse inference sanction was denied because bad faith or bad conduct in alleged destruction of evidence was not shown. However, the court invited presentation of evidence during trial to show bad faith destruction of documents because trial would be before the court rather than a jury.
A motion for an adverse inference sanction was denied because bad faith or bad conduct in alleged destruction of evidence was not shown. However, the court invited presentation of evidence during trial to show bad faith destruction of documents because trial would be before the court rather than a jury.
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.
Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009).
Defendants were ordered to produce portions of their litigation hold letters to plaintiffs because plaintiffs made a preliminary showing of spoliation by defendants.
Defendants were ordered to produce portions of their litigation hold letters to plaintiffs because plaintiffs made a preliminary showing of spoliation by defendants.
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.
Pinstripe, Inc. v. Manpower, Inc., 2009 U.S. Dist. LEXIS 66422 (N.D. Okla. July 28, 2009).
Defendant was ordered to contribute $2500 to a county bar association to fund a program on litigation hold orders and preservation of electronic data. The sanction was imposed because defendant neglected to forward counsel's litigation hold instructions to key employees.
Defendant was ordered to contribute $2500 to a county bar association to fund a program on litigation hold orders and preservation of electronic data. The sanction was imposed because defendant neglected to forward counsel's litigation hold instructions to key employees.
Southeastern Mechanical Services, Inc. v. Brody, "Brody II", 2009 U.S. Dist. LEXIS 69830 (M.D. Fla. July 24, 2009).
Although it was "baffling" why plaintiff's litigation hold did not include suspension of routine overwriting of backup tapes, defendant was not entitled to sanctions for plaintiff's spoliation because defendant had not presented evidence that there was crucial evidence on the tapes or that the overwriting was due to bad faith.
Although it was "baffling" why plaintiff's litigation hold did not include suspension of routine overwriting of backup tapes, defendant was not entitled to sanctions for plaintiff's spoliation because defendant had not presented evidence that there was crucial evidence on the tapes or that the overwriting was due to bad faith.
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.
KCH Services, Inc. v. Vanaire, Inc., 2009 U.S. Dist. LEXIS 62993 (W.D. Ky. July 21, 2009).
A call from a competitor's president about defendant's use of the competitor's software should have put defendant on notice of future litigation, and defendant's deletion of the software without first giving the competitor an opportunity to inspect led the court to sanction defendant with an adverse inference jury instruction.
A call from a competitor's president about defendant's use of the competitor's software should have put defendant on notice of future litigation, and defendant's deletion of the software without first giving the competitor an opportunity to inspect led the court to sanction defendant with an adverse inference jury instruction.
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.
Goodman v. Praxair Services, Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009).
Defendant was sanctioned for destroying the laptop of a "key player" and for the key player's willful deletion of email. However, defendant was not obligated to issue a litigation hold to third party consultants or to preserve their records. Also, defendant's failure to search backup tapes did not constitute spoliation of evidence.
Defendant was sanctioned for destroying the laptop of a "key player" and for the key player's willful deletion of email. However, defendant was not obligated to issue a litigation hold to third party consultants or to preserve their records. Also, defendant's failure to search backup tapes did not constitute spoliation of evidence.
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.
Arista Records LLC v. Usenet.com, "Usenet II", 2009 U.S. Dist. LEXIS 55237 (S.D.N.Y. June 30, 2009).
Sanctions for spoliation precluding defendant from asserting a "safe harbor" defense under the Digital Millennium Copyright Act resulted in denial of defendant’s motion for summary judgment.
Sanctions for spoliation precluding defendant from asserting a "safe harbor" defense under the Digital Millennium Copyright Act resulted in denial of defendant’s motion for summary judgment.
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.
Electronic Funds Solutions, LLC v. Murphy, “Electronic Funds II”, 2009 Cal. App. Unpub. LEXIS 4956 (Cal. App. 4th Dist. 2009).
A second default judgment against defendants for wiping computer drives was affirmed because defendants continued after reversal of the first default judgment to fail to comply with a trial court discovery order. However, the court ordered the trial court to strike a "ruinous" $50 million punitive damages award included with the second default judgment.
A second default judgment against defendants for wiping computer drives was affirmed because defendants continued after reversal of the first default judgment to fail to comply with a trial court discovery order. However, the court ordered the trial court to strike a "ruinous" $50 million punitive damages award included with the second default judgment.
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.
Soza v. Interstate Brand Corp., 2009 U.S. Dist. LEXIS 59047 (D. Kan. June 5, 2009).
The court declined to prohibit plaintiff from referring to events depicted on a flash drive that apparently became lost after plaintiff mailed the flash drive to his attorney for production. It was not clear what events were depicted on the flash drive or that disappearance of the drive amounted to spoliation.
The court declined to prohibit plaintiff from referring to events depicted on a flash drive that apparently became lost after plaintiff mailed the flash drive to his attorney for production. It was not clear what events were depicted on the flash drive or that disappearance of the drive amounted to spoliation.
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.
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.
Beard Research, Inc. v. Kates, 2009 Del. Ch. LEXIS 94 (Del. Ch. May 29, 2009).
An ex-employee and his new employers were jointly obligated to preserve evidence in a misappropriation of trade secrets action and were sanctioned with an adverse inference for spoliation of evidence on the ex-employee's laptop computer.
An ex-employee and his new employers were jointly obligated to preserve evidence in a misappropriation of trade secrets action and were sanctioned with an adverse inference for spoliation of evidence on the ex-employee's laptop computer.
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.
Innis Arden Golf Club v. Pitney Bowes, Inc., “Innis Arden I”, 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).
Plaintiff in an environmental cleanup action was precluded from offering evidence of contaminants in samples of soil from its property because plaintiff's environmental consulting firm destroyed the soil samples after analyzing them for contaminants and failed to preserve electronic records of the analyses.
Plaintiff in an environmental cleanup action was precluded from offering evidence of contaminants in samples of soil from its property because plaintiff's environmental consulting firm destroyed the soil samples after analyzing them for contaminants and failed to preserve electronic records of the analyses.
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.
Realnetworks, Inc. v. DVD Copy Control Association, 2009 U.S. Dist. LEXIS 38221 (N.D. Cal. May 5, 2009).
Plaintiffs that could not locate notebook computers of an employee whose employment was terminated less than a week prior to the filing of plaintiffs’ action were sanctioned for failing to preserve the notebooks. However, sanctions were limited to an award of attorney fees and costs for defendants because the contents of the notebooks were unknown and other sources of information were available.
Plaintiffs that could not locate notebook computers of an employee whose employment was terminated less than a week prior to the filing of plaintiffs’ action were sanctioned for failing to preserve the notebooks. However, sanctions were limited to an award of attorney fees and costs for defendants because the contents of the notebooks were unknown and other sources of information were available.
Oz Optics v. Zeynep, 2009 Cal. App. Unpub. LEXIS 2952 (Cal. App. 1st Dist. Apr. 15, 2009).
Monetary sanctions against defendant for scrubbing data on her laptop before turning it over for inspection pursuant to a court order were properly limited to an amount that would not affect her ability to defend herself.
Monetary sanctions against defendant for scrubbing data on her laptop before turning it over for inspection pursuant to a court order were properly limited to an amount that would not affect her ability to defend herself.
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.
Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009).
A defendant’s email preservation system that consisted of instructing employees to preserve email of long term value on their local computers, coupled with “very little evidence compared to what would be expected,” led the court to conclude that the “safe harbor” of Fed. R. Civ. P. 37(e) did not apply and that the defendant should be sanctioned for spoliation.
A defendant’s email preservation system that consisted of instructing employees to preserve email of long term value on their local computers, coupled with “very little evidence compared to what would be expected,” led the court to conclude that the “safe harbor” of Fed. R. Civ. P. 37(e) did not apply and that the defendant should be sanctioned for spoliation.
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.
Kvitka v. Puffin Co., L.L.C., “Kvitka II”, 2009 U.S. Dist. LEXIS 24396 (M.D. Pa. Mar. 24, 2009).
Plaintiffs’ request for an interlocutory appeal of dismissal of their claims due to spoliation by disposing of a computer was denied. The lack of guidance from the Third Circuit on appropriate sanctions for spoliation of electronic evidence did not support an interlocutory appeal because “[s]poliation is spoliation regardless of the form of the evidence” and there was Third Circuit precedent for spoliation sanctions.
Plaintiffs’ request for an interlocutory appeal of dismissal of their claims due to spoliation by disposing of a computer was denied. The lack of guidance from the Third Circuit on appropriate sanctions for spoliation of electronic evidence did not support an interlocutory appeal because “[s]poliation is spoliation regardless of the form of the evidence” and there was Third Circuit precedent for spoliation sanctions.
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.”
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.
Technical Sales Associates, Inc. v. Ohio Star Forge Co., 2009 U.S. Dist. LEXIS 22431 (E.D. Mich. Mar. 19, 2009).
Sanctions against defendant were deemed appropriate because intentional deletion of evidence by defendant just prior to forensic examination was not protected by the safe harbor provision of Fed. R. Civ. P. 37(e) for information lost from the routine, good faith operation of an electronic information system.
Sanctions against defendant were deemed appropriate because intentional deletion of evidence by defendant just prior to forensic examination was not protected by the safe harbor provision of Fed. R. Civ. P. 37(e) for information lost from the routine, good faith operation of an electronic information system.
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.
TeleQuest International Corp. v. Dedicated Business Systems, Inc., 2009 U.S. Dist. LEXIS 19546 (D.N.J. Mar. 11, 2009).
An adverse inference sanction was imposed against a defendant who ran a defrag program and a data wiping program on his computer before turning the computer over to plaintiff’s forensics expert pursuant to a court order.
An adverse inference sanction was imposed against a defendant who ran a defrag program and a data wiping program on his computer before turning the computer over to plaintiff’s forensics expert pursuant to a court order.
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.
Kvitka v. Puffin Co., L.L.C., 2009 U.S. Dist. LEXIS 11214 (M.D. Pa. Feb. 13, 2009).
Spoliation sanctions against a plaintiff who discarded her laptop included dismissal of her claims and an adverse inference in support of defendants’ cross claims. Plaintiff had been notified in her state action of her duty to retain email but then threw her laptop in the trash, dismissed her state suit, and filed a federal action where she “concocted an outlandish story” about apparently favorable files and email from her discarded laptop appearing on her new laptop without any transfer of files.
Spoliation sanctions against a plaintiff who discarded her laptop included dismissal of her claims and an adverse inference in support of defendants’ cross claims. Plaintiff had been notified in her state action of her duty to retain email but then threw her laptop in the trash, dismissed her state suit, and filed a federal action where she “concocted an outlandish story” about apparently favorable files and email from her discarded laptop appearing on her new laptop without any transfer of files.
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.
Arista Records LLC v. Usenet.com, Inc., "Usenet I", 2009 U.S. Dist. LEXIS 5185 (S.D.N.Y. Jan. 26, 2009).
A Usenet website operator in a copyright infringement action was sanctioned for disabling access for about 900 music groups using the website without preserving usage data. The operator’s counsel had promised on the same day to provide hourly snapshots of data on usage by music groups.
A Usenet website operator in a copyright infringement action was sanctioned for disabling access for about 900 music groups using the website without preserving usage data. The operator’s counsel had promised on the same day to provide hourly snapshots of data on usage by music groups.
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.
Micron Technology, Inc. v. Rambus Inc., 2009 U.S. Dist. LEXIS 1260 (D. Del. Jan. 9, 2009).
Patents of the plaintiff in a patent infringement action were declared unenforceable against defendant as a sanction for purging files related to the patents after plaintiff knew that its aggressive patent enforcement plan would result in litigation.
Patents of the plaintiff in a patent infringement action were declared unenforceable against defendant as a sanction for purging files related to the patents after plaintiff knew that its aggressive patent enforcement plan would result in litigation.
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.
Barnett v. Simmons, 2008 Okla. LEXIS 102 (Okla. Nov. 10, 2008).
The Oklahoma Supreme Court ordered a trial court to consider appropriate sanctions to impose on a self-proclaimed computer novice who hired a service technician to work on his computer without informing the technician that the computer’s hard drive was subject to a court order. Although the trial court had found that destruction of files on the computer was not willful, willfulness was not required for imposition of sanctions.
The Oklahoma Supreme Court ordered a trial court to consider appropriate sanctions to impose on a self-proclaimed computer novice who hired a service technician to work on his computer without informing the technician that the computer’s hard drive was subject to a court order. Although the trial court had found that destruction of files on the computer was not willful, willfulness was not required for imposition of sanctions.
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.
Gutman v. Klein, 2008 U.S. Dist. LEXIS 92398 (E.D.N.Y. Oct. 15, 2008).
Intentional, thorough, and attempted concealment of destruction of evidence on a laptop computer was the most serious form of spoliation and led the court to recommend entry of a default judgment against defendant.
Intentional, thorough, and attempted concealment of destruction of evidence on a laptop computer was the most serious form of spoliation and led the court to recommend entry of a default judgment against defendant.
Pandora Jewelry, LLC v. Chamilia, LLC, 2008 U.S. Dist. LEXIS 79232 (D. Md. Sept. 30, 2008).
Although defendant was ordered to pay a portion of plaintiff’s costs in seeking sanctions due to defendant’s “stonewalling” of plaintiff’s discovery attempts, the court denied sanctions for spoliation by defendant. There was no showing by plaintiff that lost or deleted email would have evidenced any injury to plaintiff.
Although defendant was ordered to pay a portion of plaintiff’s costs in seeking sanctions due to defendant’s “stonewalling” of plaintiff’s discovery attempts, the court denied sanctions for spoliation by defendant. There was no showing by plaintiff that lost or deleted email would have evidenced any injury to plaintiff.
Wong v. Thomas, 2008 U.S. Dist. LEXIS 71246 (D.N.J. Sept. 9, 2008).
A state agency was not sanctioned for failing to impose a litigation hold on electronic documents when litigation against the agency began. The court held that plaintiff had not shown the relevancy of any specific evidence allegedly destroyed by the agency.
A state agency was not sanctioned for failing to impose a litigation hold on electronic documents when litigation against the agency began. The court held that plaintiff had not shown the relevancy of any specific evidence allegedly destroyed by the agency.
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.
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.
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.
Citizens for Responsibility & Ethics v. Executive Office of the President, "Citizens ll", 2008 U.S. Dist. LEXIS 57261 (D.D.C. July 29, 2008).
Costs and attorney fees of plaintiffs could not be awarded as sanctions against the government for failing to follow a court order to preserve email. The government had not waived its sovereign immunity to attorney fee liability, and the doctrine of sovereign immunity prevailed over inherent judicial power.
Costs and attorney fees of plaintiffs could not be awarded as sanctions against the government for failing to follow a court order to preserve email. The government had not waived its sovereign immunity to attorney fee liability, and the doctrine of sovereign immunity prevailed over inherent judicial power.
Koninklijke Philips Electronics N.V. v. KXD Technology, Inc., 2008 U.S. Dist. LEXIS 50839 (D. Nev. Jul. 1, 2008).
The maximum statutory penalty of $ 1 million for willful copyright infringement was warranted against defendants shown to have sold 222 units of infringing product for gross revenues of $35,206 because defendants failed to comply with temporary restraining order requirements and obstructed discovery by destroying electronic evidence and a server.
The maximum statutory penalty of $ 1 million for willful copyright infringement was warranted against defendants shown to have sold 222 units of infringing product for gross revenues of $35,206 because defendants failed to comply with temporary restraining order requirements and obstructed discovery by destroying electronic evidence and a server.
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.
International Brominated Solvents Association v. American Conference of Governmental Industrial Hygienists, Inc., 2008 U.S. Dist. LEXIS 32114 (M.D. Ga. Apr. 18, 2008).
Sanctions against defendant for destruction of email were denied because failure to preserve email of a defense witness resulted from the administrative policy of a non-party at which the witness was a partially-retired employee.
Sanctions against defendant for destruction of email were denied because failure to preserve email of a defense witness resulted from the administrative policy of a non-party at which the witness was a partially-retired employee.
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.
Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 2008 U.S. Dist. LEXIS 20360 (N.D. Ohio Mar. 11, 2008).
Plaintiff was permitted to add a spoliation claim to its breach of settlement agreement complaint. Defense counsel's concern about being called as a witness on the spoliation claim and forced to withdraw as defendant's counsel was mere speculation because plaintiff's spoliation claim implicated defendant but not defense counsel.
Plaintiff was permitted to add a spoliation claim to its breach of settlement agreement complaint. Defense counsel's concern about being called as a witness on the spoliation claim and forced to withdraw as defendant's counsel was mere speculation because plaintiff's spoliation claim implicated defendant but not defense counsel.
Clearone Communications, Inc. v. Chiang, 2008 U.S. Dist. LEXIS 18499 (D. Utah Mar. 10, 2008).
A defendant whose Fed. R. Civ. P. 30(b)(6) representative misrepresented his use of comments in writing source code was sanctioned. The jury or the court as fact-finder would be allowed to consider that the witness did not answer some questions truthfully during his deposition.
A defendant whose Fed. R. Civ. P. 30(b)(6) representative misrepresented his use of comments in writing source code was sanctioned. The jury or the court as fact-finder would be allowed to consider that the witness did not answer some questions truthfully during his deposition.
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.
Connor v. Sun Trust Bank, 2008 U.S. Dist. LEXIS 16917 (N.D. Ga. Mar. 5, 2008).
An adverse inference sanction was ordered against a defendant that failed to produce a key email document that plaintiff obtained through other means.
An adverse inference sanction was ordered against a defendant that failed to produce a key email document that plaintiff obtained through other means.
Sit-Up Ltd. v. IAC/Interactive Corp., 2008 U.S. Dist. LEXIS 12017 (S.D.N.Y. Feb. 20, 2008).
Plaintiff's request for an adverse inference sanction against defendants was denied as a matter of law because no evidence of negligence or bad faith of defendants was shown as a result of one defendant's failure to maintain a repository of its employees' email.
Plaintiff's request for an adverse inference sanction against defendants was denied as a matter of law because no evidence of negligence or bad faith of defendants was shown as a result of one defendant's failure to maintain a repository of its employees' email.
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.
Columbia Pictures, Inc. v. Bunnell, "Columbia Pictures II", 2007 U.S. Dist. LEXIS 96360 (C.D. Cal. Dec. 13, 2007).
Destruction, alteration, and withholding of evidence by website operators coupled with false testimony to hide evidence of the destruction led the court to issue a default judgment against the operators.
Destruction, alteration, and withholding of evidence by website operators coupled with false testimony to hide evidence of the destruction led the court to issue a default judgment against the operators.
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.
PML North America, LLC v. ACG Enterprises of NC, "PML IV", 2007 U.S. Dist. LEXIS 87602 (E.D. Mich. Nov. 29, 2007).
The president of a company that became insolvent prior to paying sanctions was ordered to pay the sanctions individually because the company was the instrument of its president's litigation misconduct.
The president of a company that became insolvent prior to paying sanctions was ordered to pay the sanctions individually because the company was the instrument of its president's litigation misconduct.
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.
Hawaiian Airlines, Inc. v. Mesa Air Group, Inc. (In re Hawaiian Airlines, Inc., Debtor), 2007 Bankr. LEXIS 3679 (Bankr. D. Haw. Oct. 30, 2007).
A bankruptcy court issued adverse inference sanctions against an airline after the airline's Executive Vice President and Chief Financial Officer used a "wiping" program on his office laptop computers soon after receiving a litigation hold email from the airline's attorney. The court held that the airline failed to make backup copies of the hard drives once suit was filed against it and thereby facilitated its officer's misconduct.
A bankruptcy court issued adverse inference sanctions against an airline after the airline's Executive Vice President and Chief Financial Officer used a "wiping" program on his office laptop computers soon after receiving a litigation hold email from the airline's attorney. The court held that the airline failed to make backup copies of the hard drives once suit was filed against it and thereby facilitated its officer's misconduct.
Benton v. Dlorah, Inc., 2007 U.S. Dist. LEXIS 80503 (D. Kan. Oct. 30, 2007).
Plaintiff in an employment discrimination action was sanctioned $1,000 for deleting relevant email from her home computer. She also was ordered to produce the hard drive of the computer for a forensic examination to recover the deleted email.
Plaintiff in an employment discrimination action was sanctioned $1,000 for deleting relevant email from her home computer. She also was ordered to produce the hard drive of the computer for a forensic examination to recover the deleted email.
Lockheed Martin Corp. v. L-3 Communications Corp., 2007 U.S. Dist. LEXIS 79572 (M.D. Fla. Oct. 25, 2007).
Defendant was not entitled to sanctions after an employee of plaintiff testified he had deleted email to "clean up" because there was no evidence the deleted email was relevant evidence or that any "missing evidence" was crucial to defendant's claims or defenses.
Defendant was not entitled to sanctions after an employee of plaintiff testified he had deleted email to "clean up" because there was no evidence the deleted email was relevant evidence or that any "missing evidence" was crucial to defendant's claims or defenses.
APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007).
Several days after receiving notice of a theft of trade secrets complaint against him, defendant travelled 20 miles to a construction site dumpster to dispose of his personal computer. The court held he had acted in bad faith and imposed sanctions that included deeming key allegations in plaintiff's complaint conclusively proven.
Several days after receiving notice of a theft of trade secrets complaint against him, defendant travelled 20 miles to a construction site dumpster to dispose of his personal computer. The court held he had acted in bad faith and imposed sanctions that included deeming key allegations in plaintiff's complaint conclusively proven.
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.
Flowers v. City of Minneapolis, 2007 U.S. Dist. LEXIS 75509 (D. Minn. Sept. 28, 2007).
Although a city could not find a copy of an email sent to city council members concerning plaintiff, sanctions against the city were denied because there had been no indication that the contents of the email would have assisted plaintiff in his claims against the city.
Although a city could not find a copy of an email sent to city council members concerning plaintiff, sanctions against the city were denied because there had been no indication that the contents of the email would have assisted plaintiff in his claims against the city.
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.
United States v. Krause (In re Krause),, 2007 Bankr. LEXIS 2797 (Bankr. D. Kan. Aug. 14, 2007).
A son's motion for reconsideration of a default judgment against his debtor father who ran a "wiping" program on his computer prior to turning the computer over to the government was denied. The default judgment that various trusts created by the father were property of the bankruptcy estate did not include trusts in which the son was a named beneficiary.
A son's motion for reconsideration of a default judgment against his debtor father who ran a "wiping" program on his computer prior to turning the computer over to the government was denied. The default judgment that various trusts created by the father were property of the bankruptcy estate did not include trusts in which the son was a named beneficiary.
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.
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.
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."
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.
Hunts Point Realty Corp. v. Pacifico, 2007 N.Y. Misc. LEXIS 5700 (N.Y. Sup. Ct. Jul. 24, 2007).
While defendant's breach of its contract with plaintiffs caused no lost profit or damages, plaintiffs were awarded their attorney fees and costs related to defendant's failure to preserve email.
While defendant's breach of its contract with plaintiffs caused no lost profit or damages, plaintiffs were awarded their attorney fees and costs related to defendant's failure to preserve email.
Healthcare Advocates, Inc. v. Harding, Earley, Folmer & Frailey, 2007 U.S. Dist. LEXIS 52544 (E.D. Pa. Jul. 20, 2007).
A law firm did not engage in spoliation of evidence by failing to preserve copies in its computer's temporary cache files of archived website images obtained through the "Wayback machine."
A law firm did not engage in spoliation of evidence by failing to preserve copies in its computer's temporary cache files of archived website images obtained through the "Wayback machine."
Doe v. Norwalk Community College, 2007 U.S. Dist. LEXIS 51084 (D. Conn. Jul. 16, 2007).
A community college that failed to take affirmative steps to halt destruction of information once it was on notice of a potential sexual assault claim was not entitled to the Fed. R. Civ. P. 37(f) good faith exception to sanctions for routine destruction of data. The court held plaintiff was entitled to an adverse inference sanction regarding data that the college failed to preserve.
A community college that failed to take affirmative steps to halt destruction of information once it was on notice of a potential sexual assault claim was not entitled to the Fed. R. Civ. P. 37(f) good faith exception to sanctions for routine destruction of data. The court held plaintiff was entitled to an adverse inference sanction regarding data that the college failed to preserve.
Ameriwood Industries, Inc. v. Liberman, "Ameriwood III", 2007 U.S. Dist. LEXIS 74886 (E.D. Mo. Jul. 3, 2007).
A default judgment as to liability was entered against defendants who used a "scrubbing" program on their laptops before and after a court order to produce the hard drives from the laptops.
A default judgment as to liability was entered against defendants who used a "scrubbing" program on their laptops before and after a court order to produce the hard drives from the laptops.
Tri-County Motors, Inc. v. American Suzuki Motor Corp., 2007 U.S. Dist. LEXIS 48418 (E.D.N.Y. Jul. 3, 2007).
Plaintiff's speculation that email was missing from defendants' records and contained evidence in support of plaintiff's claim was insufficient to support striking defendant's answer as a sanction for spoliation.
Plaintiff's speculation that email was missing from defendants' records and contained evidence in support of plaintiff's claim was insufficient to support striking defendant's answer as a sanction for spoliation.
United Medical Supply Co. v. United States, "United Medical Supply II", 2007 U.S. Claims LEXIS 207 (Fed. Cl. June 27, 2007).
In a matter of first impression for the Court of Federal Claims and after a thorough discussion of the history of spoliation and sanctions, the court determined that a finding of bad faith was not a prerequisite for imposing sanctions against the U.S. Government for spoliation of evidence.
In a matter of first impression for the Court of Federal Claims and after a thorough discussion of the history of spoliation and sanctions, the court determined that a finding of bad faith was not a prerequisite for imposing sanctions against the U.S. Government for spoliation of evidence.
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.
FMC Technologies, Inc. v. Edwards, 2007 U.S. Dist. LEXIS 42512 (W.D. Wash. June 12, 2007).
Although a judgment was an available sanction for spoliation, the court denied plaintiff's request for the sanction on the eve of trial. The request was based on generalized allegations that hinged on witness credibility which could be evaluated by the jury in due course.
Although a judgment was an available sanction for spoliation, the court denied plaintiff's request for the sanction on the eve of trial. The request was based on generalized allegations that hinged on witness credibility which could be evaluated by the jury in due course.
Reino de Espana v. American Bureau of Shipping, "Reino de Espana IV", 2007 U.S. Dist. LEXIS 41498 (S.D.N.Y. June 6, 2007).
Although the Spanish government was late in establishing a litigation hold on destruction of email by government agencies, it did not act in bad faith. Nor was there any proof of relevancy of lost records. Defendant's request for an adverse inference instruction that Spain contended would amount to a directed verdict for defendant was denied.
Although the Spanish government was late in establishing a litigation hold on destruction of email by government agencies, it did not act in bad faith. Nor was there any proof of relevancy of lost records. Defendant's request for an adverse inference instruction that Spain contended would amount to a directed verdict for defendant was denied.
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.
Doctor John's, Inc. v. City of Sioux City, 2007 U.S. Dist. LEXIS 36075 (N.D. Iowa May 17, 2007).
A city's destruction of tapes of closed-door meetings warranted a sanction of $50,000. However, the court declined to order the sanction in light of the city's change in its document retention policy to avoid a similar incident in the future and in light of the over $600,000 spent by taxpayers for the city's defense of the ordinances considered in the closed-door meetings.
A city's destruction of tapes of closed-door meetings warranted a sanction of $50,000. However, the court declined to order the sanction in light of the city's change in its document retention policy to avoid a similar incident in the future and in light of the over $600,000 spent by taxpayers for the city's defense of the ordinances considered in the closed-door meetings.
Martinez v. General Motors Corporation, 2007 Mich. App. LEXIS 1279 (Mich. Ct. App. May 15, 2007).
A trial court did not err in declining to impose spoliation sanctions on defendant for allowing a hard drive on a leased computer to be erased when the lease ended because the data that was destroyed was irrelevant and plaintiff thus was not prejudiced by the data destruction.
A trial court did not err in declining to impose spoliation sanctions on defendant for allowing a hard drive on a leased computer to be erased when the lease ended because the data that was destroyed was irrelevant and plaintiff thus was not prejudiced by the data destruction.
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.
Wood Group Pressure Control, L.P. v. B&B Oilfield Services, Inc., 2007 U.S. Dist. LEXIS 83708 (E.D. La. Apr. 27, 2007).
An adverse inference sanction was imposed against a party that had not taken any steps to preserve electronic evidence following entry of temporary restraining orders requiring preservation of all relevant evidence. The possible presence of evidence remaining on a less accessible backup system did not excuse failure to implement measures to preserve evidence.
An adverse inference sanction was imposed against a party that had not taken any steps to preserve electronic evidence following entry of temporary restraining orders requiring preservation of all relevant evidence. The possible presence of evidence remaining on a less accessible backup system did not excuse failure to implement measures to preserve evidence.
Greyhound Lines, Inc. v. Wade, 2007 U.S. App. LEXIS 9282 (8th Cir. Apr. 24, 2007).
Plaintiff did not engage in spoliation by sending the electronic control module from a bus after an accident to the manufacturer where data from the module was erased. No intention of the bus company to suppress the truth had been shown.
Plaintiff did not engage in spoliation by sending the electronic control module from a bus after an accident to the manufacturer where data from the module was erased. No intention of the bus company to suppress the truth had been shown.
AJW Partners, LLC v. Peak Entertainment Holdings, Inc., 2007 N.Y. Misc. LEXIS 2702 (N.Y. Sup. Ct. Apr. 24, 2007).
The court declined to impose an adverse inference instruction for a party's failure to produce a hard copy signature card holding that email confirmation of delivery was sufficient notice of delivery for a registered package.
The court declined to impose an adverse inference instruction for a party's failure to produce a hard copy signature card holding that email confirmation of delivery was sufficient notice of delivery for a registered package.
Great Am. Ins. Cos. v. Subranni (In re Tri-State Armored Services, Inc.), 2007 U.S. Dist. LEXIS 29794 (D.N.J. Apr. 23, 2007).
The court affirmed a bankruptcy court ruling denying the trustee's claim for sanctions against an insurer that failed to produce responsive email on discarded computers. The trustee failed to show that the spoliation harmed the interests of the bankrupt insured.
The court affirmed a bankruptcy court ruling denying the trustee's claim for sanctions against an insurer that failed to produce responsive email on discarded computers. The trustee failed to show that the spoliation harmed the interests of the bankrupt insured.
World Courier v. Barone, 2007 U.S. Dist. LEXIS 31714 (N.D. Cal. Apr. 16, 2007).
Sanctions that included an adverse inference jury instruction and reimbursement of expenses were ordered following the admitted destruction by a defendant's husband of a hard drive containing a copy of plaintiff's data.
Sanctions that included an adverse inference jury instruction and reimbursement of expenses were ordered following the admitted destruction by a defendant's husband of a hard drive containing a copy of plaintiff's data.
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.
Teague v. Target Corp., 2007 U.S. Dist. LEXIS 25368 (W.D.N.C. Apr. 4, 2007).
An adverse jury instruction was ordered for a plaintiff who, about a year after retaining counsel, threw away her personal computer with information about her case.
An adverse jury instruction was ordered for a plaintiff who, about a year after retaining counsel, threw away her personal computer with information about her case.
University of Pittsburgh v. Townsend, "University of Pittsburgh II", 2007 U.S. Dist. LEXIS 24620 (E.D. Tenn. Mar. 30, 2007).
Plaintiff's counsel acted improperly during discovery by destroying email with experts and advising the experts to destroy drafts of their reports and email with counsel. However, the court denied defendant's motion to exclude testimony of the experts because counsel's usual practice of advising experts to destroy drafts was not a product of fraudulent intent.
Plaintiff's counsel acted improperly during discovery by destroying email with experts and advising the experts to destroy drafts of their reports and email with counsel. However, the court denied defendant's motion to exclude testimony of the experts because counsel's usual practice of advising experts to destroy drafts was not a product of fraudulent intent.
In re Gupta, 2007 Tex. App. LEXIS 2483 (Tex. App. Mar. 29, 2007).
A Texas court of appeals without written explanation vacated an eight-month-old stay of trial court proceedings and denied a petition for a writ of mandamus seeking review of "death penalty" sanctions. A concurring opinion was filed in order to provide an explanation of the "important and extraordinary case."
A Texas court of appeals without written explanation vacated an eight-month-old stay of trial court proceedings and denied a petition for a writ of mandamus seeking review of "death penalty" sanctions. A concurring opinion was filed in order to provide an explanation of the "important and extraordinary case."
PML North America, LLC v. ACG Enterprises of NC, Inc.,, 2007 U.S. Dist. LEXIS 22394 (E.D. Mich. Mar. 28, 2007).
Plaintiff was awarded $134,373 in attorney fees and expert witness costs after obtaining a default judgment due to defendant's spoliation of data.
Plaintiff was awarded $134,373 in attorney fees and expert witness costs after obtaining a default judgment due to defendant's spoliation of data.
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.
Netria Corp. v. Graham (In re Graham), 2007 Bankr. LEXIS 785 (D.N.H. Mar. 8, 2007).
A sanction for spoliation was not discharged in bankruptcy. Prior to the debtor's filing for bankruptcy, a state court had granted summary judgment to his former employer and ordered sanctions for the debtor's destruction of evidence.
A sanction for spoliation was not discharged in bankruptcy. Prior to the debtor's filing for bankruptcy, a state court had granted summary judgment to his former employer and ordered sanctions for the debtor's destruction of evidence.
School-Link Technologies, Inc. v. Applied Resources, Inc., 2007 U.S. Dist. LEXIS 14723 (D. Kan. Feb. 28, 2007).
To support sanctions for spoliation following a party's failure to institute a litigation hold, actual destruction of responsive documents had to be shown.
To support sanctions for spoliation following a party's failure to institute a litigation hold, actual destruction of responsive documents had to be shown.
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.
Thompson v. Jiffy Lube Int'l, Inc.,, 2007 U.S. Dist. LEXIS 13078 (D. Kan. Feb. 22, 2007).
A default judgment was too severe a sanction for failure of plaintiffs in a class action to have a backup system for counsel's computer that crashed and caused the loss of information regarding up to four witnesses. Also, it was too early to consider an adverse inference sanction because the case was still at the class certification stage.
A default judgment was too severe a sanction for failure of plaintiffs in a class action to have a backup system for counsel's computer that crashed and caused the loss of information regarding up to four witnesses. Also, it was too early to consider an adverse inference sanction because the case was still at the class certification stage.
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.
Griffin v. GMAC Commercial Finance, Inc., 2007 U.S. Dist. LEXIS 10504 (N.D. Ga. Feb. 15, 2007).
Sanctions in the form of striking defendant's answer were denied because defendant's culpability for the loss of relevant documents was low and plaintiff's resulting inability to supply an expert with all relevant documents had little practical impact on plaintiff's case.
Sanctions in the form of striking defendant's answer were denied because defendant's culpability for the loss of relevant documents was low and plaintiff's resulting inability to supply an expert with all relevant documents had little practical impact on plaintiff's case.
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.
DeSantis v. Biehler, No. OCN-C-196-01 (N.J. Sup. Ct. Jan. 30, 2007).
Although a backup server hard drive and laptops with potentially relevant information had been disposed of or were missing, the court declined to impose spoliation sanctions on defendants. Testimony at trial convinced the court that missing hard drives and backup tapes were the result of defendants' business practices rather than a deliberate attempt to withhold or destroy evidence.
Although a backup server hard drive and laptops with potentially relevant information had been disposed of or were missing, the court declined to impose spoliation sanctions on defendants. Testimony at trial convinced the court that missing hard drives and backup tapes were the result of defendants' business practices rather than a deliberate attempt to withhold or destroy evidence.
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.
Anadarko Petroleum Corp. v. Davis, 2006 U.S. Dist. LEXIS 93594 (S.D. Tex. Dec. 28, 2006).
Spoliation sanctions were not appropriate for defendants' deletion of files because plaintiff had demanded return of its proprietary files without further viewing by defendants' employees and plaintiff was provided with a thumb drive copy of files that had been deleted.
Spoliation sanctions were not appropriate for defendants' deletion of files because plaintiff had demanded return of its proprietary files without further viewing by defendants' employees and plaintiff was provided with a thumb drive copy of files that had been deleted.
PML North America v. Hartford Underwriters Ins. Co., 2006 U.S. Dist. LEXIS 94456 (E.D. Mich. Dec. 20, 2006).
A computer forensics expert's report on signs of tampering with a hard drive and data spoliation coupled with loss of a hard drive and a thumb drive that the court ordered produced led to entry of a default judgment against a defendant.
A computer forensics expert's report on signs of tampering with a hard drive and data spoliation coupled with loss of a hard drive and a thumb drive that the court ordered produced led to entry of a default judgment against a defendant.
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.
Ortega v. City of New York, 2006 N.Y. App. Div. LEXIS 14547 (N.Y. App. Div. Dec. 5, 2006).
A New York appellate court rejected plaintiffs' contention that they had an independent cause of action for damages resulting from spoliation of evidence.
A New York appellate court rejected plaintiffs' contention that they had an independent cause of action for damages resulting from spoliation of evidence.
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.
MacSteel, Inc. v. Eramet North America, 2006 U.S. Dist. LEXIS 83338 (E.D. Mich. Nov. 16, 2006).
Destruction of handwritten notes relied on to compose an email summarizing an agreement did not warrant imposition of sanctions. The notes were made by a former employee of defendant, who could have been interviewed before the notes were destroyed. Also, the duty to preserve evidence did not extend to evidence that is not in a litigant's possession or control.
Destruction of handwritten notes relied on to compose an email summarizing an agreement did not warrant imposition of sanctions. The notes were made by a former employee of defendant, who could have been interviewed before the notes were destroyed. Also, the duty to preserve evidence did not extend to evidence that is not in a litigant's possession or control.
Plasse v. Tyco Electronics Corp.,, 2006 U.S. Dist. LEXIS 89829 (D. Mass. Nov. 8, 2006).
An egregious pattern of discovery misconduct that resulted in dismissal of plaintiff's wrongful employment termination action also warranted an award to defendant of $35,000 in attorney fees and $20,472.32 in costs.
An egregious pattern of discovery misconduct that resulted in dismissal of plaintiff's wrongful employment termination action also warranted an award to defendant of $35,000 in attorney fees and $20,472.32 in costs.
Optowave Co. v. Nikitin, 2006 U.S. Dist. LEXIS 81345 (M.D. Fla. Nov. 7, 2006).
A defendant who was knowledgeable about computers but allowed reformatting of hard drives and destruction of critical email at his company was sanctioned through imposition of an adverse inference jury instruction.
A defendant who was knowledgeable about computers but allowed reformatting of hard drives and destruction of critical email at his company was sanctioned through imposition of an adverse inference jury instruction.
Lerma v. Wal-Mart Stores, Inc., 2006 Okla. LEXIS 88 (Okla. Nov. 7, 2006).
Alleged evidence of defendant's discovery abuses and sanctions in other cases was not admissible in the jury trial of a contempt action against defendant for alleged destruction or delay in production of electronic data.
Alleged evidence of defendant's discovery abuses and sanctions in other cases was not admissible in the jury trial of a contempt action against defendant for alleged destruction or delay in production of electronic data.
Quintus Corp. v. Avaya, Inc. (In re Quintus Corp.), 2006 Bankr. LEXIS 2912 (Bankr. D. Del. Oct. 27, 2006).
A bankruptcy trustee obtained a $1.88 million judgment as a spoliation sanction against the purchaser of a debtor's assets. The asset purchaser's destruction of electronic records to free up computer space despite a contractual obligation to maintain the records was deliberate, and the destroyed documents went to the heart of the trustee's case.
A bankruptcy trustee obtained a $1.88 million judgment as a spoliation sanction against the purchaser of a debtor's assets. The asset purchaser's destruction of electronic records to free up computer space despite a contractual obligation to maintain the records was deliberate, and the destroyed documents went to the heart of the trustee's case.
In re Napster, Inc. Copyright Litigation, 2006 U.S. Dist. LEXIS 79508 (N.D. Cal. Oct. 25, 2006).
Gross negligence in deleting communications relating to merits of the action led to imposition of an adverse inference jury instruction, issue preclusion and attorney fees as a monetary sanction. However, efforts to preserve documents that were taken, although inadequate, led the court to conclude that the deletions were not willful and thus did not warrant imposition of a default judgment.
Gross negligence in deleting communications relating to merits of the action led to imposition of an adverse inference jury instruction, issue preclusion and attorney fees as a monetary sanction. However, efforts to preserve documents that were taken, although inadequate, led the court to conclude that the deletions were not willful and thus did not warrant imposition of a default judgment.
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.
Leon v. IDX Systems Corp., 2006 U.S. App. LEXIS 23820 (9th Cir. Sept. 20, 2006).
Prejudice to defendant and the unavailability of lesser sanctions led the court to affirm dismissal of a whistleblower's complaint following his deletion of over 2,200 files from his employer-provided computer and "wiping" of the hard drive.
Prejudice to defendant and the unavailability of lesser sanctions led the court to affirm dismissal of a whistleblower's complaint following his deletion of over 2,200 files from his employer-provided computer and "wiping" of the hard drive.
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.
United Medical Supply Co., Inc. v. United States, 2006 U.S. Claims LEXIS 270 (U.S. Ct. Claims Sept. 8, 2006).
Two reports of inadvertent destruction of documents by government offices led the court to enter a wide-ranging document preservation order without the need first to examine the merits of plaintiff's claim against the government.
Two reports of inadvertent destruction of documents by government offices led the court to enter a wide-ranging document preservation order without the need first to examine the merits of plaintiff's claim against the government.
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.
Plasse v. Tyco Electronics Corp., 2006 U.S. Dist. LEXIS 65463 (D. Mass. Sept. 7, 2006).
Plaintiff's wrongful employment termination complaint was dismissed following a computer forensics report that a copy of plaintiff's resume falsely claiming he had a graduate business degree had been deleted from a floppy disk and that the system date on plaintiff's laptop was changed five times two days before production of the laptop for inspection by defendant's expert.
Plaintiff's wrongful employment termination complaint was dismissed following a computer forensics report that a copy of plaintiff's resume falsely claiming he had a graduate business degree had been deleted from a floppy disk and that the system date on plaintiff's laptop was changed five times two days before production of the laptop for inspection by defendant's expert.
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.
O'Brien v. Ed Donnelly Enterprises, 2006 U.S. Dist. LEXIS 66633 (S.D. Ohio Sept. 5, 2005).
Plaintiffs' motion for sanctions, including an adverse inference order, was denied because alleged deficiencies in defendants' electronic recordkeeping system were irrelevant to the question whether defendants intentionally lost or destroyed relevant evidence after being on notice of plaintiffs' lawsuit.
Plaintiffs' motion for sanctions, including an adverse inference order, was denied because alleged deficiencies in defendants' electronic recordkeeping system were irrelevant to the question whether defendants intentionally lost or destroyed relevant evidence after being on notice of plaintiffs' lawsuit.
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.
Arista Records L.L.C. v. Tschirhart, 2006 U.S. Dist. LEXIS 70332 (W.D. Tex. Aug. 23, 2006).
Defendant's destruction of the best proof available for plaintiffs by using "wiping" software after receiving notice of plaintiffs' suit and again after being ordered by the court to produce a hard drive for inspection by plaintiffs led the court to impose a default judgment against defendant.
Defendant's destruction of the best proof available for plaintiffs by using "wiping" software after receiving notice of plaintiffs' suit and again after being ordered by the court to produce a hard drive for inspection by plaintiffs led the court to impose a default judgment against defendant.
Krumwiede v. Brighton Associates,, 2006 U.S. Dist. LEXIS 60654 (N.D. Ill. Aug. 9, 2006).
Two hundred hours of attorney time to obtain sanctions against plaintiff for willful and bad faith spoliation of evidence was not excessive because the evidentiary hearing on the sanctions amounted to a bench trial at which defendants obtained a default judgment against plaintiff and plaintiff's spoliation of computer data raised complex technical questions for defendants' attorney.
Two hundred hours of attorney time to obtain sanctions against plaintiff for willful and bad faith spoliation of evidence was not excessive because the evidentiary hearing on the sanctions amounted to a bench trial at which defendants obtained a default judgment against plaintiff and plaintiff's spoliation of computer data raised complex technical questions for defendants' attorney.
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.
Paramount Pictures Corp. v. Davis,, 2006 U.S. Dist. LEXIS 50955 (E.D. Pa. Jul. 26, 2006).
The fact that a computer forensics expert did not perform an expensive procedure ordinarily used in anti-terrorism efforts to retrieve zeroed out data did not negate a spoliation inference.
The fact that a computer forensics expert did not perform an expensive procedure ordinarily used in anti-terrorism efforts to retrieve zeroed out data did not negate a spoliation inference.
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.
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.
Austin v. City and County of Denver, 2006 U.S. Dist. LEXIS 47451 (D. Colo. Jul. 13, 2006).
Plaintiff in an employment discrimination action who deleted data from her computer showing some of her contacts in seeking re-employment was ordered to pay for re-opening her deposition so that defendant could seek proof that she had failed to mitigate damages. However, defendant was not entitled to further sanctions because bad faith or willful conduct of plaintiff had not been shown.
Plaintiff in an employment discrimination action who deleted data from her computer showing some of her contacts in seeking re-employment was ordered to pay for re-opening her deposition so that defendant could seek proof that she had failed to mitigate damages. However, defendant was not entitled to further sanctions because bad faith or willful conduct of plaintiff had not been shown.
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.
Oved & Associates Construction Services, Inc. v. Los Angeles County Metropolitan Transportation Authority, 2006 Cal. App. Unpub. LEXIS 5358 (Cal. App. Jun. 22, 2006).
Entry of default judgments for $5.2 million and $978,958 against a party that violated discovery orders and destroyed the integrity of its financial data by accessing and emptying documents from a computer hard drive was affirmed.
Entry of default judgments for $5.2 million and $978,958 against a party that violated discovery orders and destroyed the integrity of its financial data by accessing and emptying documents from a computer hard drive was affirmed.
Vela v. Wagner & Brown, Ltd., 2006 Tex. App. LEXIS 3088 (Ct. App. Tex. Jun. 21, 2006).
A trial court's imposition of $75,000 in discovery sanctions on a party whose expert lost computer data that should have been produced was upheld in light of the trial court's findings of a general pattern of discovery abuse, filing of frivolous objections to discovery requests, and giving false testimony.
A trial court's imposition of $75,000 in discovery sanctions on a party whose expert lost computer data that should have been produced was upheld in light of the trial court's findings of a general pattern of discovery abuse, filing of frivolous objections to discovery requests, and giving false testimony.
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."
Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. Jun. 2, 2006).
Unresolved questions regarding possible spoliation of satellite positioning evidence by defendant provided a sufficient basis for denying defendant's motion for summary judgment.
Unresolved questions regarding possible spoliation of satellite positioning evidence by defendant provided a sufficient basis for denying defendant's motion for summary judgment.
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."
Covucci v. Keane Consulting Group, Inc., 2006 Mass. Super. LEXIS 313 (Mass. Sup. Ct. May 31, 2006).
Court finds plaintiff's egregious conduct and bad-faith tactics to delete email and scrub files from his computer were clear evidence of persistent bad-faith repudiation of discovery obligations, intentional spoliation, and fraud on the court justifying the dismissal of plaintiff's complaint.
Court finds plaintiff's egregious conduct and bad-faith tactics to delete email and scrub files from his computer were clear evidence of persistent bad-faith repudiation of discovery obligations, intentional spoliation, and fraud on the court justifying the dismissal of plaintiff's complaint.
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.
Krumwiede v. Brighton Associates, L.L.C.,, 2006 U.S. Dist. LEXIS 31669 (N.D. Ill. May 8, 2006).
Default judgment for defendant on its counterclaims in an employment dispute was entered as a sanction against defendant's former Director of Business Development due to the Director's wilful and bad faith spoliation of evidence through continuing alteration and destruction of computer files following notice of defendant's claims against him.
Default judgment for defendant on its counterclaims in an employment dispute was entered as a sanction against defendant's former Director of Business Development due to the Director's wilful and bad faith spoliation of evidence through continuing alteration and destruction of computer files following notice of defendant's claims against him.
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.
Select Medical Corp. v. Hardaway, 2006 U.S. Dist. LEXIS 15326 (E.D. Pa. Mar. 24, 2006).
A company's motion for imposition of sanctions and for an adverse inference against a former employee in an action alleging violation of a non-compete agreement was denied. The employee's deletion of company files on his home computer was evidence of the employee's intent to abide by the non-compete agreement rather than an attempt to thwart the company's discovery request.
A company's motion for imposition of sanctions and for an adverse inference against a former employee in an action alleging violation of a non-compete agreement was denied. The employee's deletion of company files on his home computer was evidence of the employee's intent to abide by the non-compete agreement rather than an attempt to thwart the company's discovery request.
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.
DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 U.S. Dist. LEXIS 38162 (E.D. Mich. Dec. 22, 2005).
Failure to suspend normal procedures for document destruction after filing of a lawsuit resulted in a magistrate's recommendation that sanctions, including an adverse inference jury instruction and attorney fees, should be imposed even though document destruction was negligent rather than wilful.
Failure to suspend normal procedures for document destruction after filing of a lawsuit resulted in a magistrate's recommendation that sanctions, including an adverse inference jury instruction and attorney fees, should be imposed even though document destruction was negligent rather than wilful.
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.
In re Old Banc One Shareholders Securities Litigation, 2005 U.S. Dist. LEXIS 32154 (N.D. Ill. Dec. 8, 2005).
A bank breached its duty to preserve documents by failing to adopt promptly a comprehensive document retention policy and to communicate that policy to employees. As a result, the bank was unable to produce responsive documents and was responsible for spoliation. However, a sufficient sanction consisted of barring cross-examination of the financial expert testifying against the bank and informing the jury of the reason for barring the cross-examination.
A bank breached its duty to preserve documents by failing to adopt promptly a comprehensive document retention policy and to communicate that policy to employees. As a result, the bank was unable to produce responsive documents and was responsible for spoliation. However, a sufficient sanction consisted of barring cross-examination of the financial expert testifying against the bank and informing the jury of the reason for barring the cross-examination.
Jinks-Umstead v. England,, 2005 U.S. Dist. LEXIS 34547 (D.D.C. Dec. 7, 2005).
Discovery abuses by a government agency prior to and during a trial led a court to grant a new trial to an employee alleging discrimination during a reorganization. However, given the severity of that sanction against the government and the government's good faith discovery efforts since the sanction, the court declined to give an adverse inference instruction during the upcoming re-trial or to inform the jury in the new trial about the government's past discovery abuses.
Discovery abuses by a government agency prior to and during a trial led a court to grant a new trial to an employee alleging discrimination during a reorganization. However, given the severity of that sanction against the government and the government's good faith discovery efforts since the sanction, the court declined to give an adverse inference instruction during the upcoming re-trial or to inform the jury in the new trial about the government's past discovery abuses.
Paramount Pictures Corp. v. Davis, 2005 U.S. Dist. LEXIS 31065 (E.D. Pa. Dec. 2, 2005).
An adverse inference jury instruction was warranted due to a computer consultant's wiping of the hard drive on his computer after being notified he was suspected of being the "first propagator" of an unauthorized copy of a film on the internet. However, neither party had requested a jury trial, and an adverse inference was inappropriate on a motion for summary judgment. The court held that at the time of trial, it would take the willful destruction of evidence into account.
An adverse inference jury instruction was warranted due to a computer consultant's wiping of the hard drive on his computer after being notified he was suspected of being the "first propagator" of an unauthorized copy of a film on the internet. However, neither party had requested a jury trial, and an adverse inference was inappropriate on a motion for summary judgment. The court held that at the time of trial, it would take the willful destruction of evidence into account.
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.
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.
Larson v. Bank One Corp., 2005 U.S. Dist. LEXIS 42131 (N.D. Ill. Aug. 18, 2005).
A credit card issuer that failed to create and follow a comprehensive document retention policy was sanctioned after electronic documents could not be found because plaintiffs were prejudiced in the presentation of their case. However, the "draconian" sanction of a default judgment was not warranted because the spoliation by the issuer resulted from its ineffective preservation policies rather than willful document destruction or bad faith.
A credit card issuer that failed to create and follow a comprehensive document retention policy was sanctioned after electronic documents could not be found because plaintiffs were prejudiced in the presentation of their case. However, the "draconian" sanction of a default judgment was not warranted because the spoliation by the issuer resulted from its ineffective preservation policies rather than willful document destruction or bad faith.
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.
Wiedmann v. Bradford Group, Inc., 2005 Mass. LEXIS 418 (Sup. Jud. Ct. Jul. 21, 2005).
An employer that failed to keep employment records for two years as required by statute was barred from making undocumented challenges to commissions allegedly due to plaintiff under an oral contract.
An employer that failed to keep employment records for two years as required by statute was barred from making undocumented challenges to commissions allegedly due to plaintiff under an oral contract.
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.
Advantacare Health Partners v. Access IV, Inc., 2005 U.S. Dist. LEXIS 12794 (N.D.Ca., June 14, 2005).
A motion for reconsideration of a default judgment that was imposed upon defendants as a sanction for repeated electronic discovery abuses was denied.
A motion for reconsideration of a default judgment that was imposed upon defendants as a sanction for repeated electronic discovery abuses was denied.
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.
Zubulake v. UBS Warburg LLC,, 2005 U.S. Dist. LEXIS 4085 (S.D.N.Y. Mar. 16, 2005).
In an earlier decision (Zubulake V), the court imposed an adverse jury instruction sanction on UBS Warburg for acting willfully in destroying potentially relevant information contained in email. In response to motions in limine in preparation for trial, the court ruled (Zubulake VI) that providing the jury the court's five previous discovery opinions would unfairly prejudice UBS. Also, the court held plaintiff will not be allowed to introduce correspondence concerning the discovery disputes unless UBS first introduces evidence to show that any failure to produce information was reasonable. Finally, the court ruled that plaintiff would not be allowed to call defense counsel to the stand to testify regarding preservation of email and backup tapes.
In an earlier decision (Zubulake V), the court imposed an adverse jury instruction sanction on UBS Warburg for acting willfully in destroying potentially relevant information contained in email. In response to motions in limine in preparation for trial, the court ruled (Zubulake VI) that providing the jury the court's five previous discovery opinions would unfairly prejudice UBS. Also, the court held plaintiff will not be allowed to introduce correspondence concerning the discovery disputes unless UBS first introduces evidence to show that any failure to produce information was reasonable. Finally, the court ruled that plaintiff would not be allowed to call defense counsel to the stand to testify regarding preservation of email and backup tapes.
Clark Construction Group, Inc. v. City of Memphis, 2005 U.S. Dist. LEXIS 13808 (W.D. Tenn. Mar. 14, 2005).
Shredding of email and other documents by a city employee after the filing of a suit in which the documents would have been relevant was not in bad faith. However, the court imposed a rebuttable adverse inference sanction as punishment for the City's grossly negligent conduct in failing to establish a document preservation procedure or to take control of all potentially relevant documents.
Shredding of email and other documents by a city employee after the filing of a suit in which the documents would have been relevant was not in bad faith. However, the court imposed a rebuttable adverse inference sanction as punishment for the City's grossly negligent conduct in failing to establish a document preservation procedure or to take control of all potentially relevant documents.
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.
Metropolitan Opera Association v. Local 100, 2004 U.S. Dist. LEXIS 17093 (S.D.N.Y. August 27, 2004).
Severe sanctions for discovery misconduct, including the deletion of electronic data, were upheld.
Severe sanctions for discovery misconduct, including the deletion of electronic data, were upheld.
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.
Arista Records, Inc. v. Sakfield Holding Co., 2004 U.S. Dist. LEXIS 7023 (D.C. April 22, 2004).
In a copyright infringement suit, personal jurisdiction was established over the owner of an Internet website based on a District of Columbia resident's declaration that he downloaded music from the website. Computer server records that had been destroyed and subsequently partially recovered also supported the establishment of personal jurisdiction.
In a copyright infringement suit, personal jurisdiction was established over the owner of an Internet website based on a District of Columbia resident's declaration that he downloaded music from the website. Computer server records that had been destroyed and subsequently partially recovered also supported the establishment of personal jurisdiction.
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.
Long Island Diagnostic Imaging, P.C. v. Stony Brook Diagnostic, 2001 N.Y. App. Div. LEXIS 7836 (N.Y. Sup. Ct. August 6, 2001).
The court struck defendants' pleadings as a sanction for the spoliation of evidence.
The court struck defendants' pleadings as a sanction for the spoliation of evidence.
Mathias v. Jacobs, 2000 U.S. Dist. LEXIS 10547 (S.D.N.Y. July 28, 2000).
Sanctions were imposed upon plaintiff for recklessly spoliating information on a Palm Pilot.
Sanctions were imposed upon plaintiff for recklessly spoliating information on a Palm Pilot.
Telecom Int'l Am., Ltd. v. AT&T Corp., 1999 U.S. Dist. LEXIS 15109 (S.D.N.Y. September 27, 1999).
The imposition of a sanction on defendant for the spoliation of documents was necessary, despite the fact that defendant did not act willfully or with deliberate intent.
The imposition of a sanction on defendant for the spoliation of documents was necessary, despite the fact that defendant did not act willfully or with deliberate intent.
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.
New York State Nat'l Org. for Women v. Cuomo, 1998 U.S. Dist. LEXIS 10520, (S.D.N.Y. July 14, 1998).
Because plaintiffs did not establish that they were prejudiced by defendants' failure to preserve a computer database they were not entitled to sanctions for the spoliation of evidence.
Because plaintiffs did not establish that they were prejudiced by defendants' failure to preserve a computer database they were not entitled to sanctions for the spoliation of evidence.
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.
Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir. 1988).
In reversing a jury verdict against a rifle maker, the court held that on remand, the trial court should determine before issuing any adverse inference jury instruction whether the gun maker's document retention policy was reasonable and not instituted in bad faith.
In reversing a jury verdict against a rifle maker, the court held that on remand, the trial court should determine before issuing any adverse inference jury instruction whether the gun maker's document retention policy was reasonable and not instituted in bad faith.
