In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff 's responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.
In Willett, et al. v. Redflex Traffic Systems, Inc., New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.
Most discovery requests include a request for emails of parties involved in the case. Email data is often the best resource for establishing a timeline of communications in the case and Microsoft® Outlook is the most common email program used in business today. Outlook emails can be stored in several different forms, so it’s important to be able to account for each file format when collecting emails that may be responsive to the discovery request.
In EEOC v. DolgenCorp LLC d/b/a Dollar General, Illinois District Judge Andrea R. Wood granted the plaintiff’s motion to compel the defendant to produce electronically-stored information ("ESI") containing personal information of the defendant's conditional hires and complete versions of documents that the defendant previously produced with portions redacted due to purported lack of relevance. She also ordered the plaintiff to produce documents previously withheld due to privilege for an in camera review.
While the Electronic Discovery Reference Model from EDRM has become the standard model for the workflow of the process for handling electronically stored information (ESI) in discovery, it might be helpful to think about the EDRM model backwards, whether you’re the producing party or the receiving party.
In Wilson v. Conair Corp., California Magistrate Judge Stanley A. Boone granted in part the plaintiff's motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.
In Clear-View Technologies, Inc., v. Rasnick et al, California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants' spoliated documents due to a series of “transgressions” by the defendants and their prior counsel.
In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.
In Younes, et al. v. 7-Eleven, Inc., New Jersey Magistrate Judge Joel Schneider granted the plaintiffs’ motions to compel the production of metadata for selected groups of documents, denying the defendant’s cross-motions to bar the production of metadata.
In Crews v. Avco Corp., a Washington Court of Appeals upheld a “death penalty order” against the defendant for discovery violations, including the failure to produce relevant information, but remanded for amendment of the final judgment of over $17.28 million to reflect any offsets for settlements with other defendants.
In Gladue v. Saint Francis Medical Center, Missouri District Judge Carol E. Jackson denied the plaintiff's motion for evidentiary and monetary sanctions due to spoliation of evidence, finding that the defendant did not have a duty to preserve emails deleted as part of routine IT operations, had diligently attempted to recover deleted emails and that the plaintiff failed to show that any of the unrecovered emails were relevant to her claims.
In Malone v. Kantner Ingredients, Nebraska Magistrate Judge Cheryl R. Zwart denied the plaintiffs' motion to show cause, finding that the defendant “the plaintiffs have presented no evidence” that the defendant “destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI” in the case.
An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.
In Lutzeier v. Citigroup Inc., Missouri District Judge Ronnie I. White ruled on two motions to compel discovery by the plaintiff, addressing (among other things) disagreement on search terms to be used by the defendant and lack of organization and labeling of the defendant’s production to date.
In Allison v. Clos-ette Too, LLC, New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.
In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport's Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.
In Federico et al. v. Lincoln Military Housing LLC, et al., Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert's production of the Facebook records”, except for a portion of the reasonable attorney's fees associated with the original motion to compel.
In Ablan v. Bank of America, Illinois Magistrate Judge Daniel G. Martin recommended that the defendant’s Motion for Sanctions should be granted in part and denied in part, recommending that the plaintiffs be barred from using any new information at summary judgment or at trial that was contained on eight CD-ROMs produced late, but recommending no sanctions for failing to produce or make available documents held by the plaintiff’s outside vendor.
In James v. National Financial LLC, Delaware Vice Chancellor Laster granted the plaintiff’s motion for sanctions after determining that the defendant’s “discovery misconduct calls for serious measures”. However, the plaintiff’s request for a default judgment was not granted, but lesser sanctions that included attorneys’ fees and a ruling that the lack of information contained in the requested document resulted in an admission.
As we noted yesterday, Wednesday and Tuesday, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute. Today, let’s take a look back at cases related to sanctions and spoliation.
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