Archives: Sanctions

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New Books by Jackson Lewis Principal and New Services for Predictive Coding Assisted Document Review

I serve as National e-Discovery Counsel for Jackson Lewis. I wanted to let you know that I had two books published this year by the ABA. In one, E-Discovery For Everyone, I am the sole author (available now on Amazon). The Foreword is by Judge Paul Grimm. This is my fourth book on electronic discovery. In … Continue Reading

Lack Of Prejudice Precludes Sanctions Following Automatic Deletion Of Emails

Contributing Author: Kathryn B. Moynihan Magistrate Judge Iain D. Johnston recently held that sanctions were not warranted under Fed. R. Civ. P. 37(e) against a defendant who admitted to erroneously destroying electronically stored information (ESI). While the court did not condone the defendant’s actions (describing them as “disturbing”), it reasoned that the ESI “did not … Continue Reading

Court Issues Warning To The Bar Regarding Use Of “Boilerplate” Discovery Objections

In Liguria Foods, Inc. v. Griffith Laboratories, Inc., Judge Mark Bennett of the United States District Court for the Northern District of Iowa required both plaintiff and defense counsel to show cause why they should not be sanctioned for discovery abuses based on the excessive use of “boilerplate” objections to discovery requests.  The issue arose when the … Continue Reading

Lack Of Prejudice Results In Limited Sanction Against Defendant

In one of the first cases interpreting newly amended Fed. R. Civ. P. 37, F.T.C. v. DirecTV, Inc., 15-cv-01129-HSG, 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016), Magistrate Judge Maria Elena James of the Northern District of California denied plaintiff’s motion to exclude spoliated evidence that was relied upon by defendant’s expert, reasoning … Continue Reading

Preservation Of ESI Is Still Paramount Under New Rule 37(e)

Magistrate Judge Paul M. Warner recently decided that sanctions, including attorney’s fees and costs, were appropriate as a result of evidence of a defendant’s failure to preserve relevant electronically stored information (“ESI”) after receiving a preservation letter from the plaintiff in a wrongful death action. At issue in McQueen v. Aramark Corp., 2016 U.S. Dist. LEXIS … Continue Reading

Court Discusses The Obligation To Preserve Text Messages Under New Rule 37(e)

In a recent decision from the Western District of North Carolina, the Court discussed the importance of preserving text messages from accidental destruction due to a loss of a party’s cell phone.  In Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016), the plaintiff brought sexual harassment claims against her former employer … Continue Reading

Court Sanctions Both The Defendants’ CEO And Defendants’ Counsel For Discovery Misconduct

District Judge Katherine Polk Failla imposed significant sanctions in Arrowhead Capital Finance, LTD v. Seven Arts Entertainment, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), following Defendants’ repeated failure to cooperate in discovery and comply with the terms of her previously issued discovery orders.   The Backdrop.  Plaintiff sued Defendants in 2014 seeking to … Continue Reading

ESI Lost After Duty To Preserve Had Been Triggered Results In Limited Sanction Under New Rule 37(e)

A federal court in Utah recently applied the newly amended Rule 37(e) and, in doing so, issued relatively limited sanctions following a finding of spoliation.   In First American Title Insurance Company, et al v. Northwest Title Insurance Agency, et al, No. 2:15-cv-00229, 2016 U.S. Dist. LEXIS 118377 (D. Utah, Aug. 31, 2016), the plaintiff, First … Continue Reading

Federal Court In Washington Sanctions Attorney For Citing “Badly Out Of Date” Case Law

Defense counsel was sanctioned by a federal court in Washington for bringing a motion to compel in bad faith, with the court finding that defense counsel’s citation of case law analyzing a prior version of the Federal Rules of Civil Procedure was “inexcusable.” In Fulton v. Livingston Fin. LLC, (W.D. Wash.), Defendants cited case law … Continue Reading

Manufacturer Faces ‘Adverse Inference’ Instruction To Jury For Failing To Preserve Relevant E-Mails

Finding the defendant, Implant Direct Mfg., LLC, had a culpable state of mind in failing to preserve documents relevant to the claims against it, the federal District Court for the Southern District of California has granted Zest IP Holdings, LLC’s request for an adverse jury instruction against the defendant.  Zest IP Holdings, LLC v. Implant … Continue Reading

Discovery Difficulties Presented by Cloud Computing

In the age of cloud computing, electronically stored information (“ESI”) is no longer stored exclusively on physical drives or Facebook. Dropbox and Google Drive are programs (“apps”) that provide cloud storage services. A user can upload files to reserved space on a server from any computer, smartphone, or tablet connected to the Internet. The stored … Continue Reading

Evidence Preservation: An ancient legal doctrine that is still a major concern to all litigators

Preservation is an ancient, well-established common law doctrine. Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722) (chimney sweep boy and the missing diamond); Goodman v. Praxair Services, Inc. 632 F.Supp.2d 494, (D.Md. 2009) (Grimm, J.). Apparently the doctrine goes back even further to the days of Roman law. Ancient or not, the doctrine … Continue Reading

Court: ‘Preliminary Showing’ of Spoliation Required Before Discovery of Documentary Preservation Efforts Permitted

In Little Hocking Water Ass’n v. E.I. DuPont DeNemours & Co., 2013 U.S. Dist. LEXIS 134869 (S.D. Ohio Sept. 20, 2013), a federal district court declined to issue sanctions or permit additional discovery regarding the defendant’s preservation efforts because the plaintiff, Little Hocking, failed to provide sufficient evidence that the defendant spoliated evidence. Little Hocking … Continue Reading

Court May Impose Sanctions for Failure to Preserve Recording

In Hart v. Dillon Companies, Inc., the U.S. District Court in Colorado has ruled sanctions await defendants who fail to preserve relevant evidence—in this case a recording. The employer’s loss prevention officer (“LPO”) was investigating alleged misconduct by a 21-year-old employee. The LPO had surreptitiously taped his interview with the employee, which included the employee’s … Continue Reading

Party Avoids Sanctions Despite Missing Hard Drives and Withheld E-Mails

A party who was unable to explain the disappearance of two hard drives and several e-mails has dodged potential sanctions because the evidence was not relevant to the underlying claims and because there was no showing the alleged spoliators intentionally destroyed evidence, a federal trial court has ruled.  Anderson v. Sullivan, No. 1:07-cv-00111-SJM (W.D. Pa. … Continue Reading


In a decision showing the importance of ESI preservation efforts, Ohio’s Court of Appeals has upheld a lower court’s order imposing sanctions against the owner of a nursing home for the unexplained missing hard drive from the computer of its former CEO.  Altercare Inc. v. Clark, 2013 Ohio 2785 (9th Dist. Ohio June 28, 2013). … Continue Reading

Plaintiff’s Backyard Summer BBQ of Her Computer Leads to Sanctions

Parties sometimes go to great lengths to avoid providing information during discovery. A case out of Mobile, Alabama, shows some people will even go so far as to burn their computer in a backyard BBQ. Evans v. Mobile Cnty. Health Dep’t, 2012 U.S. Dist. LEXIS 8530 (S.D. Ala. 2012). The plaintiff in this case was a former employee … Continue Reading

Party Sanctioned for Non-Specific Production and Excessive Use of Confidentiality Designation

In a matter involving misappropriation of trade secrets, an appellate court in Georgia has upheld an order sanctioning the defendants for identifying more than 80% of the documents produced as “Highly Confidential – Attorneys’ Eyes Only.”  Hull v. WTI, Inc., Ga. Ct. App., No. A13A0003 (06/18/13).  The defendants must reimburse the plaintiff $7,500 in attorneys’ … Continue Reading

Fishing Expedition Discovers Laptop Cast into Indian River

There is a spot on the Indian River east of Orlando where the fish really byte. That’s because a defendant employee in a RICO case tossed her laptop into that river with millions of incriminating bits and bytes. Simon Property Group, Inc. v. Lauria, 2012 U.S. Dist. LEXIS 184638 (M.D. Fla. 2012). Defendant destroyed the evidence with … Continue Reading

Employer Gets Adverse Inference Sanction for Failing to Preserve Data

Finding the defendant-employer, Millard Refrigerated Services, permitted relevant data to be deleted after it was on notice of potential litigation, the court granted the plaintiff’s motion for sanctions and agreed to provide the jury an adverse inference instruction against the defendant. Pillay v. Millard Refrigerated Services, 2013 WL 2251727 (N.D. Ill. May 22, 2013). The plaintiff, … Continue Reading

More Courts Are Requiring Disclosure of Keywords

There is a clear trend in the law for a producing party to make disclosure of the keywords used to find documents responsive to a request for production. Moreover, all the requesting party has to do is ask. There is no requirement for a showing of good cause. This represents a further erosion of the … Continue Reading

$2.8 Million Award for Predictive Coding Expenses in a Trade Secret Case

A new decision out of California will be of interest to both trade secret and e-discovery lawyers: Gabriel Tech. Corp. v. Qualcomm Inc., 2013 WL 410103 (S.D.Cal. Feb. 1, 2013). The court awarded fees to the prevailing defendant under both 35 U.S.C. §285 and §3426.4 of California’s Uniform Trade Secrets Act. The amount of the … Continue Reading

Controlling e-Discovery Abuses with Rule 26(g)

Rule 26(g) of the Federal Rules of Civil Procedure (often called the Rule 11 of discovery) governs an attorney’s signature on discovery responses. A judge must impose sanctions if Rule 26(g) is violated. In spite of the rule’s requirement, we have not seen a sanction imposed under this rule…until now. U.S. Magistrate Judge Susan Gauvey … Continue Reading