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Sanctions (Continued)
Feather River Anesthesia Med. Group. v. The Fremont-Rideout Health Group, 2004 Cal. App. Unpub. LEXIS 6233 (Cal. Ct. App. June 30, 2004).
Under the California Civil Discovery Act, sanctions were awarded after the health group refused to disclose discoverable evidence.
Munshani v. Signal Lake Venture Fund II, 2004 Mass. App. LEXIS 323 (Mass. App. Mar. 26, 2004).
Based on a dispute over the authentication of an email message, an appeal was filed by plaintiff after the Superior Court judge had dismissed his complaint. The judge found that plaintiff had intentionally fabricated the disputed email message, had committed a fraud on the court by swearing to its authenticity, and had wasted seven months of the court's time while an appointed expert had investigated the situation. Based on this fraud, the court also ordered plaintiff to pay all fees associated with the defendant's case. Although plaintiff admitted he had fabricated the evidence, in this appeal plaintiff stated that court's assumption that he had purposely committed a fraud on the court was not lawful, however, the appellate court did not agree and upheld the prior ruling.
Anderson v. Crossroads Capital Partners, L. L. C., 2004 U. S. Dist. LEXIS 1867 (D. Minn. Feb. 10, 2004).
After it was discovered that plaintiff attempted to hide the fact that she had removed her computer hard drive that may have contained discoverable information that was sought by defendant, the court imposed an adverse jury instruction sanction.
Aero Prods. Int'l v. Intex Rec. Corp., 2004 U.S. Dist. LEXIS 1283 (N.D. Ill., Jan. 30, 2004).
In this patent infringement case, filed in April 2002, plaintiff moved for sanctions against defendant regarding electronic discovery misconduct. After learning in February 2003 that defendant had been consistently deleting all of its email message every 30 days since the case was filed, a protective court order was filed April 1, 2003 compelling defendant to make a thorough attempt to recover any and all deleted electronic information. The order also permitted plaintiff to petition to appoint a computer forensics expert to assist in the recovery process and to be paid for by the defendant. Defendant produced 45 pages of electronic documents and declaration by a computer forensics specialist stating that defendant had attempted to recover destroyed documents in May 2003, which plaintiff found unacceptable. After engaging in fruitless negotiations between plaintiff and defendant to hire a computer forensics expert, plaintiff moved for discovery sanctions pursuant to FRCP 37(c)(1) and 37(b)(2)(A) based on the defendant's failure to meet the terms of the electronic discovery order issued April 1, 2003. As the plaintiff had not sought the appointment of a computer forensics expert to assist with the recovery process, the court denied their motion for sanctions.
Wiginton v. CB Richard Ellis, 2003 U.S. Dist. LEXIS 19128 (N.D. Ill., Oct. 27, 2003).
In this class action suit alleging sexual harassment, plaintiff moved to have defendant preserve all electronic information relevant to the lawsuit. Defendant did not follow the magistrate's order to do so and instead followed its normal document retention and destruction policies. The magistrate found that defendant had purposefully destroyed relevant documents in bad faith as defendant knew it had a duty to preserve all relevant electronic information. Further demonstration that defendant had destroyed evidence in bad faith was their failure to sufficiently search for relevant electronic information before destroying non-relevant information. The magistrate did not impose sanctions against defendant based on the fact that electronic information was stored on backup tapes and ordered that plaintiff's experts be provided with the opportunity to search these backup tapes for relevant documents.
Kucala Enters. v. Auto Wax Co., 2003 U.S. Dist. LEXIS 8833 (N.D. Ill. May 23, 2003).
Defendant alleged discovery misconduct by the plaintiff due to plaintiff's installation of software entitled "Evidence Eliminator" that deleted files from two of his computer systems' hard drives after several court orders were entered for the defendant to inspect said computer systems, while also throwing away an additional computer system. Defendant argued before a magistrate that plaintiff's use of this software was severely prejudicing as it permitted defendant from identifying evidence that could be used to defend itself. The magistrate found that, even though it could not be ascertained as to whether the software had actually destroyed relevant information, plaintiff also could not prove that he had only deleted personal documents. The magistrate recommended that defendant's motion for sanctions against the plaintiff be granted, that the case be dismissed with prejudice, and that the plaintiff should pay all costs associated with defendant's case.
Lakewood Eng'g & Mfg. Co. v. Lasko Prods., 2003 U.S. Dist. LEXIS 3867 (N.D. Ill. Mar. 14, 2003).
After the close of the discovery period, plaintiff produced additional electronic information, however, the court found that, although plaintiff did not in good faith attempt to produce all requested documents within the legitimate time frame, defendant did not suffer extreme costs. Sanctions were not imposed against the plaintiff and the court ordered production of all additional electronic information relating to the patent issue at the center of this case.
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 2002 U.S. App. LEXIS 20422, 53 Fed. R. Serv. 3d (Callaghan) 1105 (2d Cir. Conn. Sept. 26, 2002).
Plaintiff failed to produce specific email messages until after the start of the trial and subsequently prevailed over defendant. In their appeal, defendant stated the trial court's denial of their request for sanctions, specifically in the form of an adverse jury instruction. The Second Circuit agreed that the trial court had broad discretion when applying sanctions in that they may be imposed when a party has acted grossly negligent or in bad faith. However, the Second Circuit also found that the trial court had applied the wrong legal standard as sanctions may also be imposed for ordinary negligence and thus called for a renewed hearing on discovery sanctions.
Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 2002 U.S. Dist. LEXIS 20811, Copy. L. Rep. (CCH) P28554, 54 Fed. R. Serv. 3d (Callaghan) 427 (D. Minn. Apr. 29, 2002).
In this copyright infringement suit, plaintiff brought numerous discovery motions requiring defendant to: protect records, accelerate discovery, compel discovery, and appoint a neutral forensics expert. The court found that discoverable and relevant information could be found in deleted documents residing on defendant's computer systems and that it was reasonable for plaintiff to attempt to recover such information. The court ordered defendant to make their computer systems available to plaintiff's computer forensics expert for duplication purposes and that appointed expert would report to the court regarding the information that was produced and the forensic work performed by the expert.
Trigon Insurance v. United States, 204 F.R.D. 277 (E.D. Va., 2001).
In this corporate taxpayer suit, Defendant retained a litigation support company who hired third party experts to consult and testify in the case. As per company policy, the litigation support company destroyed all email messages and draft reports between themselves and the third party experts. Based on the facts of this specific case, the court found that the email messages and drafts would have been discoverable and defendant was held responsible for the deliberate spoliation of these documents. The court imposed sanctions on defendant in the form of adverse inferences regarding the content of the destroyed electronic documents.
Minnesota Mining & Manufacturing Co. v. Pribyl, 259 F.3d 587 (7th Cir. 2001).
In this case regarding misappropriation of trade secrets, numerous files were destroyed on defendant's hard drive the night before he was to turn it over to plaintiff after defendant's children allegedly downloaded six gigabytes of music. The trial court gave a negative inference instruction and the appellate court affirmed this instruction.
Sheppard v. River Valley Fitness One, L.P., 203 F.R.D. 56, 2001 DNH 177, 2001 U.S. Dist. LEXIS 15801, 50 Fed. R. Serv. 3d (Callaghan) 1278 (D.N.H. Sept. 27, 2001).
Defendant's attorney failed to produce requested computer documents in a timely manner, causing some to be destroyed. The court attributed this failure to produce to a lack of diligence rather than an intentional obstruction of discovery and fined the attorney $500 and issued a testimonial preclusion order.
GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 U.S. Dist. LEXIS 16244 (S.D.N.Y. Nov. 8, 2000).
Plaintiff requested sanctions against defendant due to unnecessary legal fees expended as a result of defendant inaccurately disclosing their computer capabilities. The court ruled in favor of these sanctions and ordered defendant to allow plaintiff to perform an inspection of defendant's computer facilities and records at defendant's cost. The court ruled that these expenses were "reasonable in view of the prior repeated misinformation provided by Wal-Mart concerning the availability of information…"
Danis v. USN Communs., Inc., 2000 U.S. Dist. LEXIS 16900, 53 Fed. R. Serv. 3d (Callaghan) 828 (N.D. Ill. Oct. 20, 2000).
After defendant allegedly failed to properly preserve electronic information, plaintiff moved for sanctions, stating that defendant's employees had destroyed all evidence pertaining to the alleged fraud surrounding the case. The trial judge informed the jury that defendant's failure to turn over computer tapes and properly preserve electronic documents caused gaps in the case. The court also imposed a sanction of $10,000 on defendant's CEO for failing to institute a document preservation program.
Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988).
In this product liability suit alleging the defective design of rifles, relevant documents containing past consumer complaints were destroyed. The trial court instructed the jury that it could be inferred that the destroyed documents would have contained evidence against defendant. Defendant appealed, stating that the documents were destroyed as per their 3-year record retention policy and the appeals court remanded the case back to the trial court to determine whether defendant's records retention policy was reasonable.
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