Zapproved 2018SummerCaseLaw

Case Law
Ediscovery Case Law Summaries

Summer 2018
Edited by Brad Harris
May 2018
EDISCOVERY CASE LAW SUMMARIES, SUMMER 2018
CASE LAW SUMMARIES 22 © 2018
©Zapproved
Zapproved,LLC.
Inc. All
All rights
rights reserved.
reserved.
Table of Contents
Introduction��3
New Case Law Summaries

Spoliation
Waymo LLC v. Uber Techs., Inc.��4
White v. United States ��6
Leidig v. BuzzFeed, Inc.��7
Youngevity Int’l Corp. v. Smith. ��9
Eaton-Stephens v. Grapevine Colleyville Indep. Sch. Dist.��10
Proportionality
Klipsch Grp., Inc. v. ePRO E-Commerce Ltd. ��11
Hurd v. City of Lincoln��13
Winfield v. City of New York��14
Scope
Firefighters’ Ret. Sys. v. Citco Grp. Ltd. ��15
Campbell v. Chadbourne & Parke LLP��16
Fairholme Funds, Inc. v. United States ��17
Cooperation
Padron v. Watchtower Bible & Tract Soc’y of New York, Inc. ��19
Case Law Index�� 21-52
Venues:
# U.S. Circuit or State Court Jurisdiction
Topics: Co Cooperation Pr Proportionality Sc Scope Sp Spoliation

KEY
DJ
Sanctions: Additional Discovery Adverse Inference Default Judgment Dismissal
Evidentiary Monetary Sanctions Preclusion Punitive Vacate Judgment
© 2018 Zapproved LLC. All rights reserved 1 EDISCOVERY CASE LAW SUMMARIES, SUMMER 2018
"Several cases, including Waymo LLC
v. Uber Techs., Inc., put Rule 37(e) to
the test by demonstrating that a duty
to preserve ESI exists, that the ESI
was truly lost, and that a party was
prejudiced as a result of the loss."
EDISCOVERY CASE LAW SUMMARIES, SUMMER 2018 2 © 2018 Zapproved LLC. All rights reserved.
Introduction
It’s been over two years since the latest amendments to the Federal Rules of
Civil Procedure (FRCP) went into effect, and the courts continue to explore the
boundaries of preservation, proportionality, and cooperation. In our Ediscovery
Case Law Summaries, Summer 2018 volume, we highlight cases illustrating a
range of outcomes.
First and foremost, federal courts have clearly embraced the changes to Rule
37(e), focusing on a specific set of rules that govern the imposition of serious
sanctions. In two of these cases (White v. United States and Youngevity Int’l Corp.
v. Smith), the court starts with the underlying premise that electronically stored
information (ESI) subject to a preservation duty must in fact be lost and not
irretrievable through other means. In such situations, curative measures may
include additional discovery to assess the scope of loss and potential
for prejudice.
Several cases, including Waymo LLC v. Uber Techs., Inc., put Rule 37(e) to the test by demonstrating that
a duty to preserve ESI exists, that the ESI was truly lost, and that a party was prejudiced as a result of
the loss. Other cases, including Leidig v. BuzzFeed, Inc. and Youngevity Int’l Corp. v. Smith, illustrate how
willfulness and a spoliating party’s intent to deprive warrant more serious sanctions. However, litigants
often face a high bar to prove bad faith when seeking the harshest of sanctions in a case.
The second major theme we present in this volume is proportionality. That includes how revisions to Rule
26(b) influence decisions regarding the reasonable scope of discovery and how courts can encourage
“just, speedy and inexpensive” conclusions. For example, in Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., the
court was asked to set aside a $2.7M discovery sanction on the grounds that it was not proportional to the
amount in controversy. The request — which was denied — was made in spite of the court’s continued
review of the scope of discovery and reasonable attorneys’ fees and costs.
As illustrated by Firefighters’ Ret. Sys. v. Citco Grp. Ltd and Campbell v. Chadbourne & Parke LLP, courts are
weighing the scope of discovery relative to the needs of the case. This is proving true even when parties
reach early agreements concerning the scope of discovery. Requests for additional discovery must also be
based on proven shortcomings (rather than “mere speculation”).
Sincerely,
Brad Harris
Vice President of Corporate Strategy at Zapproved
About Brad Harris

Brad has more than 30 years’ experience in the high technology and enterprise software sectors, including
assisting Fortune 1000 companies enhance their ediscovery preparedness through technology and process
improvement. Brad is a frequent author and speaker on data preservation and ediscovery issues and is a
member of The Sedona Conference. He has published articles in The National Law Journal, Corporate Counsel,
and Information Management and presented at leading industry events, such as LegalTech New York. He also
serves as Conference Chair for PREX, the leading conference for in-house legal professionals.
Waymo LLC v. Uber Techs., Inc.
No. 17-cv-00939 WHA, 2018 U.S. Dist. LEXIS 16020
(N.D. Cal. Jan. 29, 2018)
9 Sp
‘Academy Award’-Worthy Denials Can’t Save Uber

From Spoliation
In this highly publicized case alleging that Under Rule 37(e), the court first considered whether
Uber misappropriated trade secrets, the court litigation had been “reasonably foreseeable” when Uber
held that Uber spoliated electronically stored allowed the above ESI to be lost. The court held that
Uber should have reasonably foreseen the Waymo
information (ESI) despite both reasonably and
litigation. Moreover, it ruled that Uber “actually foresaw
actually foreseeing litigation. The court further
this litigation” when it first sought to obtain Otto. Uber
held that the lost evidence might have been had argued earlier that it could withhold information
relevant and reserved judgment until trial about about the Otto acquisition, since it involved privileged
whether Uber willfully deprived its opponent of conversations with legal counsel. Now, however, with
evidence. After the court issued this opinion, the spoliation at issue, “Uber has reversed course and, in a
parties settled the case, reportedly for about performance deserving of an Academy Award, claim[ed]
$245 million. the exact opposite — that it did not reasonably foresee
this litigation” and had no duty to preserve ESI.
The plaintiff, Waymo LLC, a Google spinoff, sued Uber
charging that it misappropriated Waymo’s trade secrets The court rejected this argument. It found that Uber’s
related to its self-driving technology. Specifically, Waymo privilege assertions “were an elaborate artifice carefully
argued that its former employee, Anthony Levandowski, and meticulously constructed” to “shroud” the Otto
had stolen proprietary information from Waymo and acquisition “in secrecy.” Therefore, since Uber both
used that information to start his own company, Otto. reasonably and actually foresaw this litigation with
Levandowski then sold Otto to Uber, which was trying to Waymo, the duty to preserve began in January 2016.
design its own self-driving car.
Next, the court turned to whether Uber had taken
The court colorfully observed that the case has “suffer[ed] reasonable steps to preserve ESI. The court rejected
from a deluge of accusations” that Uber “tossed out Waymo’s assertion that Uber was responsible for
evidence and engaged in litigation misconduct.” After Levandowski’s laptops, which it “never controlled,
addressing Waymo’s complaints that Uber repeatedly destroyed, or otherwise failed to preserve.” Uber did
violated the court’s discovery orders with late disclosures, not dispute that it had lost and could not restore or
including Uber’s “belated and bone-crushing production of replace the other categories of ESI.
evidence” on the eve of the first trial date, the court turned
Uber countered that the loss was of no consequence
to spoliation.
because the spoliated evidence was irrelevant. The court
Waymo requested adverse-inference jury instructions wasted no time in finding this argument “meritless.”
under Federal Rule of Civil Procedure 37(e) for Uber’s It noted that “Uber cannot now evade spoliation by
destruction of evidence. That evidence included “hundreds speculating that all of the lost information was benign.”
of text messages,” “electronic communications, files,
Finally, the court weighed whether Uber acted in bad faith
and Slack records,” five discs, emails, and Levandowski’s
or with the intent to deprive Waymo of evidence. Here, the
personal laptops.
court hesitated. It observed, “There is considerable ground
for Waymo to argue that Uber had the requisite intent.”
However, Waymo appeared “unwilling or unable to prove
its case.” Rather, Waymo persistently sought “to have the
court fill in the gaps” of its proof with adverse inferences.
Takeaways on presenting
your best evidence
Therefore, the court withheld its judgment. It reserved its
The court provided sound advice here. It noted
decision about Uber’s intent until “after Waymo presents
that “Waymo has whined — often without good
its case-in-chief” at trial. As part of its proof, the court
reason — at every turn in this case, making it hard
permitted Waymo to offer evidence at trial about Uber’s
to separate the wheat from the chaff…. Less time
“use of ephemeral communications” to explain its lack
would have been consumed had Waymo focused
of evidence. Uber could similarly present evidence and
on its best examples of misconduct instead of
argument justifying its use of such communications and
piling on every miscellaneous grievance.” When
pointing out that Waymo did the same.
alleging spoliation or other discovery misconduct,
The court noted in summary that it “reserves the focus on your best examples.
possibility of an adverse-inference instruction … based
on Uber’s spoliation of evidence” until the presentation of
Waymo’s case at trial. While “evidence of Uber’s litigation
misconduct … may be relevant and admissible,” the court
reiterated that it would “not be allowed to consume”
the issues at trial. Indeed, the “central issue in this case”
was misappropriation, “not whether or not Uber is an
evil corporation.”
White v. United States
No. 4:15CV1252 SNLJ
(E.D. Mo. Jan. 9, 2018)
8 Sp
Plaintiff Loses Sanctions In Wrongful Death Case by

Failing to Prove Video Loss After ATF ‘Sting’
In this wrongful death case, the plaintiff confirming that the government no longer needed
moved for spoliation sanctions against the the files.
U.S. government for destroying video evidence. The U.S. assigned an investigator to examine the server
The court denied the motion without prejudice, “to determine if it still contained data” about the missing
holding that the plaintiff had not yet proved that video. However, the U.S. refused to produce the server
the lost evidence was irretrievable. However, both “because [White] had not properly requested it”
citing its “serious concern” about the potential and because it might contain video related to other
loss of evidence, the court ordered the U.S. to incidents. The U.S. ultimately “recovered 75 deleted files
from the server” but could not identify the dates of those
search its files and produce anything relevant
recordings. After viewing one file and determining that
to the plaintiff.
it was unrelated, the U.S. refused to continue to search
This case began with a “sting” operation conducted by the without a court order requiring it to do so.
U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives
White moved for spoliation sanctions under Rule 37(e),
(“ATF”). During the sting, ATF agents shot Myron Pollard, a
requesting either judgment against the U.S. or an adverse
passenger in the front seat of the targeted vehicle. Pollard
inference jury instruction.
died the next day. His mother, Hope White, sued the U.S.
for Pollard’s wrongful death and other claims. The court began by reviewing Rule 37(e). It noted that the
rule only applies where a party loses data that “cannot be
Prior to the sting, an ATF agent set up four separate video
restored or replaced through additional discovery.” Here,
cameras to record the events. Each of those cameras
White had not yet established that the lost video frames
wirelessly transmitted data to a remote server. After
were irretrievable. The court reasoned that the videos
the operation, the ATF burned video from each of the
might be “among the 75 recovered files” from the server.
four cameras onto DVDs. It stored the DVDs in a sealed
envelope in an evidence room. The court pointed out that White had neither directly
requested the files nor filed a motion to compel their
The U.S. provided copies of those DVDs to White during
production. Indeed, White did “not even mention the
discovery. However, none of the videos filmed the
recovered files” in her brief.
shooting. Two cameras were “obscured by other objects,”
and two were “missing the video frames” from over four Therefore, allowing for the possibility “that the video files
seconds, encompassing the entire shooting. are not irretrievably lost,” the court denied White’s motion
without prejudice.
White’s counsel emailed the U.S. counsel to ask for the
original SD card or device that recorded all four videos. But the court went further. Noting its “serious concern that
However, he never filed a formal request under Federal the key four seconds of the video during the shooting itself
Rule of Civil Procedure 34. Another ATF agent stated in a were somehow lost,” the court ordered the U.S. to “inspect
declaration that he thought he had “deleted the video files the 75 deleted video files and produce any files that relate”
from the server … as part of routine maintenance” after to White’s case.
Takeaways on preserving evidence
Do not delete original data until you have confirmed that the more readily accessible copies are intact. While
there’s no need to keep data in multiple different formats or sources, you must maintain at least one complete
copy of potential evidence if litigation is pending or reasonably anticipated. Assuming, for now, no nefarious
intent on the part of the ATF agents involved, it’s hard to imagine how no one noticed that the DVD videos did not
capture the critical incident before deleting the original data.
Leidig v. BuzzFeed, Inc.

No. 16 Civ. 542 (VM) (GWG)
(S.D.N.Y. Dec. 19, 2017)
2 Sp
Court Orders Evidentiary Sanctions for Plaintiffs’ ‘No

Special Effort’ to Preserve Evidence
In this defamation case, the court ordered BuzzFeed objected to the plaintiffs’ second production
evidentiary sanctions to address the prejudice as well. BuzzFeed raised four issues. First, it claimed that
caused by the plaintiffs’ negligent the plaintiffs “failed to produce preserved versions of the
disabled websites.” Second, the plaintiffs produced only
preservation efforts.
screenshots of news story drafts and supporting source
This matter began in April 2015 when the defendant, material, with metadata postdating the complaint. Third,
BuzzFeed, published an article on its website calling the they produced electronically stored information (ESI) with
plaintiffs, Michael Leidig, et al., “The King of Bullsh*t News.” missing metadata or metadata that again postdated the
BuzzFeed reached out to the plaintiffs for comment before complaint. Fourth, they produced a forwarded version of
releasing the article. Their attorney responded that the an email but not the original.
article “would be ‘highly defamatory.’” Nine months later,
The court ordered the plaintiffs to prepare a witness
the plaintiffs filed suit, alleging libel.
regarding their production of documents for a deposition
During discovery, the plaintiffs stated that they had “taken pursuant to Federal Rule of Civil Procedure 30(b)(6).
down” websites displaying some of the disputed news Unfortunately, that witness was unable to answer every
stories, such as the Austrian Times and the Croatian Times. question. He did testify that the plaintiffs made “no special
The plaintiffs produced some 400 documents, but those effort” to preserve documents before filing their complaint.
included “documents bearing no metadata, including Further, he admitted that he “inadvertently changed or
manually manipulated PDFs” and other problematic files. deleted the metadata” for some files when he tried to
move them to a hard drive for production. BuzzFeed
BuzzFeed moved to compel the plaintiffs to produce moved for sanctions against the plaintiffs both for “failure
original versions of “authentic” documents with intact to properly prepare a Rule 30(b)(6) witness” and for
metadata. The court ordered a second production and spoliation of evidence.
warned the plaintiffs of the possibility of sanctions
for spoliation.
As to the witness, the court noted that to impose However, the court disagreed with BuzzFeed about
sanctions, the deponent’s “inadequacies … must be the plaintiffs’ intent in failing to preserve evidence. Rule
egregious and not merely lacking in desired specificity 37(e)(2)’s severe sanctions demand an intent to deprive
in discrete areas.” Here, the witness’s “discrete gaps in another party of evidence, not merely “the intent to
knowledge” did not justify sanctions. The court did grant perform an act that destroys ESI.” The court did find that
BuzzFeed leave to conduct a follow-up deposition. the plaintiffs were negligent; their “amateurish collection
of documents” revealed their lack of “reasonable steps”
As to spoliation, the court turned to Rule 37(e), noting
to preserve evidence.
first that it allows sanctions only where evidence has been
lost. BuzzFeed failed to establish that all of the data it The court turned last to prejudice. The deleted email
complained about had in fact been lost. The court limited was sent after BuzzFeed published its article and
its analysis to the disabled websites, deleted email, and therefore did not prove that the plaintiffs engaged in
missing metadata, all of which were indisputably lost. “contemporaneous newsgathering” for the earlier story
it referenced. The court deemed that its loss was not
The court noted that, as the initiators of this lawsuit,
prejudicial. The missing websites and metadata, on the
the plaintiffs were on notice and had a duty to preserve
other hand, did prejudice BuzzFeed.
evidence beginning, “at the very latest,” on the date that
BuzzFeed published its article. The websites were clearly Therefore, the court crafted spoliation sanctions that
relevant, as was the deleted email, which “addressed addressed the prejudice, such as allowing BuzzFeed
the newsgathering efforts” underlying one of the plaintiffs’ to present evidence about the plaintiffs disabling their
disputed news stories. Further, the “duty to preserve websites after threatening litigation.
encompassed the metadata” associated with
discoverable evidence.
Takeaways on preserving metadata

It’s startlingly easy to modify or even delete metadata simply by gathering documents and ESI for production.
Don’t run the risk of a court calling your collection “amateurish” and negligent. Work with a trusted vendor or a
capable ediscovery professional to ensure that you preserve not only ESI but also its metadata.
Youngevity Int’l Corp. v. Smith
No. 16-cv-704-BTM-JLB, 2017 U.S. Dist. LEXIS 200048
(S.D. Cal. Dec. 4, 2017)
9 Sp
Court Denies Plaintiff Sanctions for Failure to Prove

ESI Loss
In this case alleging misappropriation of trade stated that it could not “make such a finding because
secrets and breach of fiduciary duty, the plaintiff it would require that it accept [Youngevity’s] allegations
requested sanctions for the defendants’ deletion as true.”
of emails and other electronically stored Second, the court concluded that Youngevity also
information (ESI). The court denied sanctions, failed to show that the defendants actually lost any
finding that the plaintiff failed to establish any of information. Youngevity did not “submit any evidence”
the required elements. proving that the defendants had lost or destroyed any
emails. Nor did it “demonstrate[] that the information
Plaintiff Youngevity International Corp., a multi-level cannot be found elsewhere.”
marketing company, brought suit alleging that the
defendants established a competing company while Finally, the court stated perfunctorily that Youngevity
still working as Youngevity distributors. In this motion, “failed to demonstrate that [the] defendants acted with
Youngevity requested sanctions, namely adverse the intent to deprive them” of any evidence.
inference jury instructions and either a $500,000
Therefore, the court rejected Youngevity’s request
punitive award or attorneys’ fees and costs, for what it
for sanctions.
claimed was the defendants’ destruction of evidence
that could prove its claims. However, the court did allow Youngevity leave to
subpoena third parties, such as Comcast, that might
According to Youngevity, the defendants communicated
provide another avenue of access to the defendants’
about their plans using their personal email accounts
emails. The court noted that it did so because Youngevity
and then destroyed those emails. Youngevity also claimed
had been “prejudiced by the representations [the]
that the defendants deleted data from their Youngevity
defendants made” in a prior court appearance.
laptops and deleted Facebook posts about their new
company Since all the alleged spoliated evidence was
ESI, the court declined to rely on its inherent authority.
Instead, the court confined its analysis to Federal Rule Takeaways on
of Civil Procedure 37(e).
proving spoliation
First, the court determined that Youngevity “failed to Make your case! Especially when trying to
establish that [the] defendants had a duty to preserve” establish that ESI has been lost, spell out for the
any data they might have deleted. Youngevity did not court the evidence that proves ESI previously
file suit until about five months after the defendants existed. Enumerate everywhere you have looked,
deleted information from their Youngevity laptops. The unsuccessfully, for that information. Don’t assume
court rejected Youngevity’s argument that the defendants that the court will believe your representations
“should have anticipated litigation because they conspired” without specific proof.
to create a competing company “and intentionally interfere
with Youngevity’s contractual relationships.” Rather, it
Eaton-Stephens v. Grapevine Colleyville Indep. Sch. Dist.
No. 16-11611, 2017 U.S. App. LEXIS 22704
(5th Cir. Nov. 13, 2017)
5 Sp
Violating a Retention Policy Is Not Necessarily Bad

Faith Spoliation
In this appeal of a workplace discrimination case, denied her that inference and granted summary judgment
the court held that a school district’s erasure of in favor of the school district.
the plaintiff’s computer files, although it violated On appeal, the court agreed with Eaton-Stephens
document retention policies, was not per se that the trial court had “unduly discredited some of
done in bad faith. Because the plaintiff offered [her] deposition testimony as conclusory.” Even when
no other evidence of bad faith in the destruction considering that improperly excluded evidence, however,
of files, the appellate court upheld the denial of the appellate court found that the trial court had ruled
an adverse inference. It also affirmed the lower correctly. Eaton-Stephens offered no proof that the school
district’s spoliation was done in bad faith, and the court
court’s award of summary judgment for the
“decline[d] to adopt a per se rule” that deleting files in
defendant school district.
violation of policy established bad faith.
The plaintiff, Linda Eaton-Stephens, previously worked
After considering all of Eaton-Stephens’s nonconclusory
as a counselor for the Grapevine Colleyville Independent
evidence and rejecting an adverse inference in her favor,
School District. Eaton-Stephens believed that her
the appellate court affirmed the trial court. It found that
colleagues were “prejudiced against non-white students
summary judgment for the school district was appropriate.
and faculty.” Her primary support for this contention was
her deposition testimony that another counselor had
referred to her as “the little black counselor.” The principal
failed to intervene on Eaton-Stephens’s behalf when she Takeaways on
raised this concern. Notably, she was also the only black digital discovery
employee within her school.
If you are trying to establish that a party destroyed
Eaton-Stephens eventually resigned her position, following digital discovery evidence in bad faith, relying on
an accusation that she “was taking online college courses” a policy violation will not suffice. Here, it was not
on behalf of another employee. Another deponent claimed clear what Eaton-Stephens believed the contents
to have found two class assignments on Eaton-Stephens’s of her computer would have proved. However,
computer in the other employee’s name. That fraudulent laying that evidence out for the court and
conduct, if true, would have violated the district’s policies explaining how it would have related to her case
and the counselor’s code of ethics. could have helped her establish why the school
district might have acted in bad faith and thus
After her resignation, Eaton-Stephens sued the school helped her obtain an adverse inference.
district, alleging discrimination and various violations
of Title VII and other laws. During the litigation, Eaton-
Stephens moved for an adverse inference against the
school district. She claimed the school had improperly
wiped the contents of her school laptop. The trial court
Klipsch Grp., Inc. v. ePRO E-Commerce Ltd.
Nos. 16-3637-cv, 16-3726-cv
(2d Cir. Jan. 25, 2018)
2 Pr
ePRO Can’t Escape Huge Sanctions for Willful Spoliation
In this interlocutory appeal, the Second Circuit discoverable information. The court looked in part to “the
upheld the lower court’s imposition of a $2.7 various means of deleting data as cumulative proof that
million discovery sanction in a case with an ePRO’s spoliation was willful.”
estimated $25,000 value. The district court ordered sanctions including adverse
inference jury instructions and “reasonable” costs and
This case began with the plaintiff, Klipsch Group, Inc.,
attorneys’ fees. It ultimately awarded Klipsch $2.68 million
challenging a subsidiary of ePRO E-Commerce for
“as compensation for the additional discovery efforts
selling counterfeit Klipsch headphones. The parties have
occasioned by ePRO’s misconduct.”
disagreed from the outset about the value of the infringing
sales. Klipsch believes monetary damages should number ePRO appealed, arguing that the lower court’s sanctions
in the millions, while ePRO counters that the case is worth were “impermissibly punitive” because they were so
less than $8,000. “disproportionate to the likely value of the case.”
During the litigation, the defendant ePRO consistently While the court found ePRO’s position “superficially
and systematically flouted its discovery obligations. First, sympathetic,” its argument “overlook[ed] the fact that
it admitted that it had failed to place a legal hold on ePRO caused Klipsch to accrue those costs by failing to
emails or other electronic data. Further, it did not disclose comply with its discovery obligations.” The court noted
relevant sales documents. To “remedy those problems,” that “the integrity of our civil litigation process requires”
ePRO agreed to use a discovery vendor, which found voluntary good-faith cooperation with discovery.
40,000 undisclosed discoverable documents. However,
it turned out that ePRO had “limited [the vendor’s] The appellate court held that the $2.7-million award
investigation” impermissibly. And during a second round “properly reflects the additional costs ePRO imposed
of court-ordered depositions, Klipsch determined that, on its opponent by refusing to comply with its discovery
“despite the magistrate judge’s clear directive,” ePRO still obligations.” Further, the court recognized that this
had not imposed an “adequate” legal hold. sanction serves to “deter recalcitrant parties from
the cavalier destruction or concealment” of
Klipsch moved for discovery sanctions. While the discoverable materials.
magistrate denied that motion, “he authorized Klipsch
to undertake an independent forensic examination” The court was unmoved by ePRO’s challenge that
of ePRO’s data. The investigator found that ePRO’s the monetary sanction failed to comport with Federal
“custodians had … manually delet[ed] thousands of files Rule of Civil Procedure 37(e). First, the district court
and emails, us[ed] data-wiping software … and updat[ed] imposed sanctions under its “inherent power to manage
their operating systems” to limit discovery. ePRO also its own affairs.” Additionally, “there is no special rule
refused to allow the investigator to examine numerous requiring parties to suffer an opponent’s open and
email and messaging accounts. notorious discovery misconduct in small value cases.”
The district court also “carefully limited” its sanctions to
After a four-day evidentiary hearing, the district court those costs that Klipsch “incurred in direct response to
found that ePRO had “willfully spoliated relevant” ePRO’s misconduct.” Klipsch sought approval from the
magistrate before each costly stage of investigation. The
magistrate granted that approval in each case “only after
ePRO had already squandered an opportunity to correct
Takeaways on proving
its own errors.” misconduct and avoiding
The court roundly rejected ePRO’s proportionality sanctions
argument for similar reasons. In short, it concluded that Klipsch prevailed in part due to its own cautious
the relevant measure of proportionality is the relationship course of action. The appeals court noted no
between the sanctions and “the costs ePRO inflicted on “abusive conduct” on Klipsch’s part or any attempt
Klipsch” through its misconduct. to “burden [ePRO] with wasteful expenses.”
Instead, Klipsch sought the magistrate’s approval
The Second Circuit affirmed the district court, concluding
before each costly investigation.
that the sanctions “properly compensated Klipsch for
the corrective discovery efforts it undertook with court The Second Circuit also issued its own warning,
permission in response to ePRO’s misconduct.” In doing noting that “ePRO did not have a software usage
so, it “emphasize[d] that discovery sanctions should be policy in place” to ensure the preservation of
commensurate with the costs unnecessarily created by “professional communications sent through
the sanctionable behavior. personal accounts.” That “was the company’s
own error,” and it could not “complain because
the resulting and wholly foreseeable deletion of
material … gave rise to sanctions.”
Hurd v. City of Lincoln
No. 4:16-CV-3029, 2017 U.S. Dist. LEXIS 210104
(D. Neb. Dec. 21, 2017)
8 Pr
‘Mere Conjecture’ Insufficient to Justify

Mayor’s Deposition
In this employment discrimination and Hurd conceded that the mayor is a high-ranking official
retaliation case, the plaintiff sought to depose but nonetheless argued that his testimony would be
the defendant City’s mayor. The court granted “essential [and] unique” such that no “alternative source”
could replace it. But Hurd offered no evidence to support
the City’s motion to quash that request, finding
those assertions. Instead, he relied on “mere conjecture
that the mayor’s deposition was not proportional
and conclusory statements” about what the mayor might
to the needs of the case. testify to.
The plaintiff, Troy Hurd, filed this employment case
The court noted that in the “nearly 40 hours” of
alleging that the City of Lincoln and six named defendants
depositions that had already occurred, each deponent
(collectively referred to as “the City”) retaliated against
had answered questions about the mayor’s involvement
him for complaining about discrimination. In the course
in Hurd’s EEO complaints. Additionally, none of the 6,500
of “extensive” discovery, Hurd deposed five named
emails produced in discovery was to or from the mayor.
defendants in addition to other witnesses. The City also
produced over 6,500 emails and another 49,000 pages of Therefore, the court held that Hurd failed to establish
discoverable documents. that the mayor’s deposition would be either necessary or
proportional to the needs of the case. The court granted
Hurd then noticed a deposition of the City’s mayor.
the City’s motion to quash.
Hurd argued that the mayor had “personal knowledge of
the investigation” and of the City’s “motivations” regarding
his complaints. The City moved to quash that deposition
or, in the alternative, to obtain a protective order for the Takeaways on making
mayor’s testimony. your case
The court began its analysis by noting that under Don’t make the plaintiff’s mistake here of relying
Rule 26(b)(1), discovery is limited to nonprivileged on “mere conjecture and conclusory statements.”
matters that are relevant and proportional to the Point the court directly to whatever evidence you
needs of the case. Further, the burden to “show how have that a witness has relevant and proportional
the requested information is important” is on the party information. Here, the court noted that none of
requesting discovery. the produced emails involved the mayor. If the
plaintiff thought the city withheld emails involving
Citing In re United States (Holder), the City argued the mayor, he should have moved to compel
that the mayor is a “high-ranking government official” their production.
with “greater duties and time constraints” than other
witnesses. The court agreed with the City’s assertion
that except in “extraordinary circumstances,” the mayor
should not be deposed.
Winfield v. City of New York
No. 15-CV-05236 (LTS) (KHP)
(S.D.N.Y. Nov. 27, 2017)
2 Pr
Court Orders Validation Set

for TAR Process
In this case alleging that New York City’s documents.” Therefore, the court focused on narrowing
affordable housing program has a disparate the plaintiffs’ requests to “information that is most
relevant to this litigation” and “proportional to the
impact on racial minorities, the plaintiffs
needs of the case.”
challenged the City’s implementation of court-
ordered technology-assisted review (TAR). The The court reviewed the City’s “predictive coding process
court disagreed that the overall TAR training and training” in camera. It concluded that “the City
process had flaws. Even so, it ordered the appropriately trained and utilized” its review software.
City to provide random samples of irrelevant The court found nothing “inherently defective” in the City’s
TAR process. Therefore, it concluded that “human error
nonprivileged documents to validate the results.
in categorizing a small subset of documents” caused the
The plaintiffs, Janell Winfield, Tracey Stewart, and Shauna defects. The court noted again that its guiding principles
Noel, sued New York City for policies that they claimed must be “reasonableness and proportionality, not
“perpetuate[] racial segregation in the City” in violation of perfection and scorched-earth.”
the Fair Housing Act. The plaintiffs “sought wide-ranging
After debating “the degree of transparency required by
discovery, which the City has resisted vigorously.” The
the producing party as to its predictive coding process,”
court eventually ordered the City to use TAR software to
the court determined that a validation set would be
speed up the discovery process.
appropriate. Allowing the plaintiffs to review a sample
In this motion, the plaintiffs argued that the City was too set of documents that the City characterized as
liberal in designating privilege. They also claimed that the nonprivileged and nonresponsive would “increase
City applied an “impermissibly narrow” responsiveness transparency,” which would be “not unreasonable” in
standard. The plaintiffs contended that these deficiencies light of the volume of documents and the examples that
were so severe that the City must have “improperly the plaintiffs had identified.
trained” its TAR software.
As to privilege, the court ordered the City to produce a

privilege log for a sample of 80 documents it had marked Takeaways on using TAR for
as privileged. In responding, the City determined that only ediscovery
20 of those documents were privileged.
Don’t insist on nitpicky perfection in discovery.
The court noted that “traditionally, courts have not If you believe there is a persistent pattern of
micromanaged parties’ internal review processes.” This incomplete production, frame your argument
is in part because “attorneys, as officers of the court, are in terms of reasonableness and proportionality
expected to comply with” the federal rules in providing rather than on the technical completeness of a
complete discovery. Furthermore, they don’t require data set.
perfection in ediscovery. Instead, “a producing party must
take reasonable steps to identify and produce relevant
Firefighters’ Ret. Sys. v. Citco Grp. Ltd.
No. 13-373-SDD-EWD
(M.D. La. Jan. 3, 2018)
5 Sc
Court Denies Motion to Compel All-Employee Email

as Disproportionate
In this case regarding a $100 million investment it had already performed the requested searches and
loss from a variety of municipal retirement that further searches would be disproportionate.
accounts, the court reconsidered the plaintiffs’ The court began by reviewing the scope of discovery
motion to compel. Specifically, the plaintiffs under Rule 26(b)(1). It noted that “any information sought
wanted the defendants to “email everyone in that is not relevant to a party’s claim or defense is not
every Citco entity to ask whether anyone … has discoverable, regardless of proportionality.” Additionally,
knowledge relevant to this litigation.” After a the court pointed out its obligation to limit “unreasonably
proportionality analysis, the court denied the cumulative or duplicative” discovery.
motion as “simply unreasonable.” Reviewing the parties’ correspondence, the court
The case arose from the defendants’ purchase of 100,000 observed that they had mutually selected the 56 search
shares in what turned out to be an illiquid investment. terms and 21 document custodians that Citco used in
The plaintiffs sued Citco and other defendants (collectively its searches. Nor had the plaintiffs explained “why the
“Citco”), alleging claims including unjust enrichment and custodians and search terms used were unreasonable.”
breach of contract. Citco had indicated its willingness to add search terms and
custodians “if [the] plaintiffs identify any,” yet the plaintiffs
During the previous motion to compel, Citco pointed out had not.
that it had already made “substantial discovery efforts”
in the case. Citco argued that the plaintiffs’ request was The court concluded that the plaintiffs’ request to
“incompatible with the proportionality requirement” of email every Citco employee was “simply unreasonable”
Federal Rule of Civil Procedure 26(b). and would effectively return the parties to “square one”
of discovery. Such a deterioration, it held, would be
The court denied the previous motion to compel “unduly burdensome,” particularly given the plaintiffs’
without prejudice. In doing so, it ordered a Rule 30(b)(6) “failure to identify or explain the necessity” of additional
deposition to determine “the method by which Citco [had] terms or custodians.
responded” to discovery requests thus far.
In closing, the court ruled that the plaintiffs had not
In that deposition, Citco’s general counsel stated that “established that the searches conducted so far were
Citco had previously searched its archives, physical files, unreasonable”; rather, the court’s review revealed Citco’s
and shared drives using 56 agreed search terms and 21 discovery efforts to be appropriate. Therefore, the court
named custodians. The plaintiffs countered that those denied the motion.
searches were “flawed” because Citco’s earlier responses
to interrogatories had been “incomplete and inaccurate.”
The plaintiffs demanded that Citco email “everyone in the
Citco organization [to] ask them limited questions about
their personal knowledge” of the facts. Citco objected that
Takeaways on supporting your argument
If you are certain that your opponent is hiding something, you must provide evidentiary support for that claim.
Here, the plaintiffs made bare assertions that Citco’s responses were “incomplete and inaccurate” yet utterly
failed to explain why. Search for any discrepancy in the data or statements that you have received and bring
those inconsistencies to the court’s attention.
Campbell v. Chadbourne & Parke LLP

16-CV-6832 (JPO)
(S.D.N.Y. Nov. 9, 2017)
2 Sc
Court Orders Defendants to Search Personal and

Business Email Accounts
This proposed class action alleging that the law square with the judge’s experience, persuasive. Rather,
firm of Chadbourne & Parke intentionally and she said, “Since I am myself a human being — believe it
systematically underpaid its female partners has or not — as well as a former law firm partner, I know that
even individuals who generally … use their business email
grabbed headlines since its inception, addressing
account for business don’t always adhere to that 100%
gender discrimination in the law head-on. In this
of the time.” Therefore, the court ordered the individual
motion, the parties disputed several ediscovery defendants to search their personal email accounts for
issues, with the court balancing the burden of documents related to the alleged discrimination.
individual searches against the parties’ expected
payoff and justifications. The court then turned to the plaintiffs’ request to have
the defendants search for ESI in the records of three
First, the court considered whether the individual law additional custodians. The plaintiffs stated only that
firm defendants had to search for responsive documents they “believed” these unnamed custodians would have
within their personal and work email accounts. The responsive ESI. They also contended that the additional
defendants argued that they absolutely did not use their searches would not impose an undue burden. The
personal accounts for anything related to work. They defendants countered that they had already agreed to
labeled the plaintiffs’ requests as a “fishing expedition.” “extensive” ediscovery. To that point, they had searched
In contrast, the plaintiffs admitted that they used their the emails of 25 custodians and processed 2.5 terabytes
personal accounts for work and agreed to search of data. The additional custodians were not relevant in the
those accounts. defendants’ view. The court agreed with the defendants,
noting that if at some point the plaintiffs could offer
The court stated that, generally speaking, “What is good for
“more than speculation” to support their request, it would
the goose is good for the gander.” The court did not find
reconsider the issue.
the defendants’ representations, which did not
Finally, the court addressed the unresolved disputes Throughout the hearing, the court chided the parties,
between the parties about which “proximity sarcastically calling the motion “what I live for as a federal
operators” they should use in specific searches. The judge.” She specifically derided the debate about proximity
plaintiffs argued that the defendants’ proposals were operators as “truly exciting” and “what I went to law school
“unnecessarily narrow.” Conversely, the defendants to do.”
stated that the plaintiffs’ requests were “unnecessary and
disproportionate.” Keeping terms more closely linked
together, the defendants argued, would most effectively Takeaways on
limit the results to “relevant and responsive documents.”
The agreed terms, according to the defendants, would ediscovery searches
generate about 90,000 documents for review. On the When requesting additional discovery or objecting
other hand, the modifiers that the plaintiffs sought would to an opponent’s request, focus on the discernible
expand the corpus to 115,000 documents. facts. Calculate and tell the court how many
documents a proposed search is expected to
The judge agreed with the defendants that most of
return. Be sure to frame that burden in the
the keywords were “common English words,” such as
context of the overall case. Here, the defendants
“partnership,” “offer,” and “remove,” that could return
withdrew numerous objections as soon as it
numerous irrelevant results. Her opinion focused on
became clear that the court was not concerned
the differential between the documents that would be
with small increases in the number of documents
returned using the two competing proposals. She granted
searched. Avoiding the court date — and the
the plaintiffs’ broader requests where that differential
judge’s scorn — would have been preferable.
was less than about 1,000 documents and compromised
between the positions as needed.
Fairholme Funds, Inc. v. United States

No. 13-456C, 2017 WL 4768385
(Fed. Cl. Oct. 23, 2017)
FD Sc
Court Allows ‘Quick Peek’ of ‘Privileged’

Government Documents
In this eminent domain case, the court granted This case began in 2013 with an allegation that the
the plaintiffs’ motion to compel a “quick peek” government took the plaintiffs’ private property without
just compensation. Discovery began in April 2014 and is
at approximately 1,500 documents that the
not yet complete.
government had withheld as privileged. While
the government objected, the court reasoned By way of background, the court pointed out that
that allowing the quick peek would expedite the plaintiffs had recently identified 38 documents
the case’s resolution and avoid its own in- they believed the government improperly withheld as
camera review. privileged. Upon review, the government agreed to
produce 22 of those documents as not privileged. In
response, the plaintiffs proposed that the parties use applied directly, the court noted that FRE 502(d) would
the “quick peek” procedure under Federal Rule of Evidence allow the court to order a “quick peek” and to ensure that
(FRE) 502(d) to review 1,500 additional documents that the government did not waive its privilege.
the government had withheld as privileged. The
The court then pointed out the “axiomatic” fact that it has
government refused.
“broad discretion to fashion discovery orders” in its cases.
The plaintiffs argued that “the quick peek procedure is the Additionally, the court observed that if it denied the quick
only way to ensure that they receive all of the documents” peek, the plaintiffs would likely seek an in-camera review.
they are entitled to in discovery. Therefore, the “more viable and attractive option” was the
quick peek. Additionally, under the protective order, only
In opposing the request, the government argued
authorized individuals could take a “quick peek” at the
that it did not consent to a quick peek. Further, its
documents.
“comprehensive review” had already resulted in its
privilege assertions. The government also pointed to a Finally, the court found The Sedona Conference’s position
note published by The Sedona Conference, stating that unpersuasive. Rather, it concluded that the quick peek
FRE “502(d) does not authorize a court to require” a quick was “eminently appropriate” given its discretion to manage
peek. Finally, the government claimed that the plaintiffs discovery and protective orders.
could obtain “substantively similar information” to what’s
The court was careful to state that it did not find that the
in the withheld documents from other sources.
government had failed to satisfy its discovery obligations.
To start, the court found “troubling” that the government However, even the government conceded that its
abandoned its privilege assertions so readily after a “production of documents … has been piecemeal”
second review. Furthermore, the court highlighted “the in this case.
inherent difficulty” of having the government screen
Therefore, “to facilitate the speedy and efficient conclusion
discovery in this matter. The court also noted that it had
of jurisdictional discovery,” the court granted the plaintiffs’
already entered a protective order including a clawback
motion, ordering a “quick peek” for the disputed 1,500
provision under FRE 502(d).
documents. The court again clarified that this was “not
The court next reviewed the twofold purpose of FRE 502. intended as a sanction … but rather as a means of
First, the rule seeks to resolve disputes about the waiver expediting the completion of jurisdictional discovery …
of privilege following the disclosure of privileged materials. and conserving the court’s limited resources.”
Second, it intends to control costs where privilege review
would be prohibitively expensive. While neither purpose
Takeaways on disclosure of privileged materials

Be sure to have an FRE 502(d) order in every case. Magistrate Judge Andrew Peck has gone so far as to opine that
not having one is malpractice. Additionally, be diligent in your motions practice, as the plaintiffs were here. Point
out to the court that letting you do the work is “more viable and attractive” than making the court do it.
Padron v. Watchtower Bible & Tract Soc’y of New York, Inc.
No. D070723
(Cal. Ct. App. Nov. 9, 2017)
CA Co
Court Rejects Church’s Appeal, Upholding $4,000

Daily Sanction
This negligence and failure to warn case arose Watchtower additionally sought a protective order.
from an allegation of childhood sexual abuse The trial court denied the protective order and
in a religious organization. In this opinion, the ordered Watchtower to respond. Watchtower and
appellate court soundly rejected the defendant’s Padron thereafter negotiated a confidentiality and
arguments, affirming a daily $4,000 sanction nondisclosure order. Even so, Watchtower still did not
for the defendant’s willful refusal to comply respond. After a fruitless meet-and-confer, Padron
with discovery. moved to compel production.
The plaintiff, Osbaldo Padron, sued religious nonprofit Watchtower opposed that motion, adding the argument
Watchtower Bible and Tract Society of New York, Inc. that it could not produce anything after March
(“Watchtower”). In his complaint, Padron alleged that 2001 because a separate corporation, the Christian
Watchtower church elder Gonzalo Campos molested Congregation of Jehovah’s Witnesses (“CCJW”), collected
him when he was about seven years old. Padron further those later responses. The court ordered the parties
alleged that Watchtower had been repeatedly informed to work with a discovery referee, who submitted a
about Campos’s molestation but did nothing to warn or recommendation to which Watchtower, predictably,
protect congregation members. objected. Nonetheless, the superior court adopted that
recommendation and ordered Watchtower to produce its
In this opinion, the appellate court considered whether the responsive documents.
lower court could “impose a hefty daily monetary sanction”
on Watchtower for its refusal to obey a discovery order. Thereafter, “Watchtower’s counsel ‘unequivocally informed’
the superior court that it would not comply” with the
The court began by noting that it had previously addressed discovery order.
the issue of court sanctions against Watchtower for
discovery abuses. In Lopez v. Watchtower Bible and Tract Padron filed a motion for sanctions. The superior court
Society of New York, Inc. (Lopez), 246 Cal. App. 4th 566 found Watchtower’s refusal willful and imposed monetary
(2016), the court rejected terminating sanctions. It found sanctions, in accordance with Lopez. Specifically, the trial
that “a significant monetary penalty for every day” that court sanctioned Watchtower $2,000 for every day it failed
Watchtower failed to comply would be more appropriate to search for documents and an additional $2,000 for
as a first step. Significantly, the court based this every day it failed to produce responsive documents. In
recommendation on Watchtower’s own suggestion doing so, the trial court noted that Watchtower had real
in that case. property holdings valued at $1.3 billion, such that the
sanction was “not overly harsh.”
In this case, during discovery, Padron asked Watchtower
to produce responses to a 1997 internal church letter Watchtower appealed, leading to this opinion.
that sought written reports about church leaders
The appellate court began by pointing out the “broad
who molested children. Arguing that the request was
discretion” that a trial court has in overseeing discovery
“overbroad and oppressive,” Watchtower objected
and imposing discovery sanctions, “subject to reversal
on privilege, privacy, and First Amendment grounds.
only for abuse” of that discretion. The court noted that it authority and “maintain[ed] the court was just wrong”
was “troubled that Watchtower has taken two inconsistent in each ruling. As such, Watchtower “repudiate[d] the
positions” about the appropriateness of monetary procedures and rules” that all litigants are held to.
sanctions. Indeed, the court stated that it could not “rectify
The appellate court ultimately noted that if Watchtower’s
these diametrically opposed positions.”
“egregious” conduct continued, terminating sanctions
In this case, contrary to its position in Lopez, Watchtower would be appropriate.
argued that the trial court “lacked the authority” to impose
Watchtower made additional “multifaceted” challenges,
monetary sanctions. The appellate court rejected this
arguing that it could not produce documents in CCJW’s
assertion, concluding that Watchtower was “judicially
possession, that the court could not interfere with “issues
estopped from arguing the monetary sanctions here were
of religious polity and administration” and that its refusal
unauthorized.” Because Watchtower had successfully
to comply was justified. The appellate court rejected
argued that monetary sanctions would be appropriate in
each argument.
Lopez, it could not adopt an entirely contrary position.
In conclusion, the appellate court found that “Watchtower
Further, the court noted that “Watchtower has abused
has abused the discovery process” by “cavalierly refus[ing]
the litigation process,” such that monetary sanctions
to acknowledge” its losses or the “validity of the court’s
were wholly appropriate. Watchtower had unsuccessfully
orders” regarding discovery. Therefore, the court affirmed
opposed this request for production at least five times.
the monetary sanctions.
Still, Watchtower refused to acknowledge the court’s
Takeaways on discovery compliance

Resistance is futile when it comes to discovery. Parties that ignore their discovery responsibilities should expect
severe consequences, particularly when they take inconsistent positions, refuse to cooperate with the opposing
party, and ignore court orders repeatedly.
Case Law Index
Waymo LLC v. Uber Techs., Inc., No. 17-cv-00939 WHA, 2018 U.S. Dist. LEXIS 16020 9 Sp
(N.D. Cal. Jan. 29, 2018)
Venue: N.D. Cal.
In this highly publicized case alleging that Uber misappropriated trade secrets, the court held that Uber Judge: William Alsup
spoliated electronically stored information (ESI) despite both reasonably and actually foreseeing litigation.
The court further held that the lost evidence might have been relevant and reserved judgment until trial
about whether Uber willfully deprived its opponent of evidence. After the court issued this opinion, the
parties settled the case, reportedly for about $245 million.
White v. United States, No. 4:15CV1252 SNLJ (E.D. Mo. Jan. 9, 2018) 8 Sp
In this wrongful death case, the plaintiff moved for sanctions against the U.S. for spoliating video evidence Venue: E.D. Mo.
of the shooting of her son. None of the four video cameras the ATF used to record its sting operation
Judge: Stephen N.
actually showed the shooting. An ATF agent stated that he deleted the original video files from the server
Limbaugh, Jr.
as a part of routine maintenance. While 75 files had been recovered from the server, the U.S. had not
analyzed them yet. The court denied the motion because the plaintiff had not demonstrated that the lost
video was irretrievable. Voicing its "serious concern," the court ordered the U.S. to inspect the recovered
files and produce anything related to this matter.
Leidig v. Buzzfeed, Inc., No. 16 Civ. 542 (VM) (GWG) (S.D.N.Y. Dec. 19, 2017) 2 Sp
In this defamation case, the court ordered evidentiary sanctions to address the prejudice caused by the
Venue: S.D.N.Y.
plaintiffs' negligent and "amateurish" preservation efforts. The plaintiffs admitted that they had made "no
Judge: Gabriel W.
special effort" to preserve evidence for the litigation that they initiated. Rather, the plaintiffs had "taken Gorenstein
down" websites where they had published disputed news stories without preserving them and had lost
metadata through sloppy file transfers. However, the court stopped short of finding an intent to deprive
another party of evidence. The court therefore denied harsh sanctions, instead crafting evidentiary
sanctions that would precisely address the prejudice caused.
Youngevity Int'l Corp. v. Smith, No. 16-cv-704-BTM-JLB, 2017 U.S. Dist. LEXIS 200048 9 Sp
(S.D. Cal. Dec. 4, 2017)
Venue: S.D. Cal.
In this case alleging misappropriation of trade secrets and breach of fiduciary duty, the plaintiff requested Judge: Barry Ted Moskowitz
sanctions for the defendants' deletion of emails and other ESI. The court denied sanctions, finding that
the plaintiff failed to establish that the defendants had a duty to preserve any evidence at the time it was
deleted. Although the plaintiff argued that the conspiring defendants should have anticipated litigation, the
court rejected that claim. Nor had the plaintiff proved that evidence was lost entirely. The court did allow
the plaintiff leave to file third-party subpoenas, which it had previously not filed based on the defendants'
prejudicial misrepresentations in court.
Eaton-Stephens v. Grapevine Colleyville Indep. Sch. Dist., No. 16-11611, 2017 U.S. App. LEXIS 5 Sp
22704 (5th Cir. Nov. 13, 2017)
Venue: 5th Cir.
In this appeal of a workplace discrimination case, the court held that a school district’s erasure of the Judge: Per curiam
plaintiff’s computer files, although it violated document retention policies, was not per se done in bad faith.
The plaintiff offered no other evidence to prove that files were destroyed in bad faith. The appellate court
upheld the denial of an adverse inference and, considering all the proper evidence, affirmed the lower
court’s award of summary judgment for the defendant school district.
Venues:
# U.S. Circuit or State Court Jurisdiction
Topics: Co Cooperation Pr Proportionality LH Legal Hold Sc Scope Sp Spoliation Te Technology Tr Trigger

KEY
DJ
Sanctions: Additional Discovery Adverse Inference Default Judgment Dismissal
Evidentiary Monetary Sanctions Preclusion Punitive Vacate Judgment
Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., Nos. 16-3637-cv, 16-3726-cv (2d Cir. Jan. 25, 2018) 2 Sp
In this interlocutory appeal, the Second Circuit upheld the lower court's imposition of a $2.7 million
Venue: 2d Cir.
discovery sanction in a case with an estimated $25,000 value. While the defendant has admitted to selling
Judge: Gerard E. Lynch
infringing products, the parties have disagreed throughout the case about the value of those sales. During
the litigation, the defendant consistently, systematically, and willfully flouted its discovery obligations. The
district court eventually granted sanctions, including adverse inference jury instructions and $2.68 million
"as compensation for the additional discovery efforts occasioned by [the defendant's] misconduct." The
Second Circuit affirmed, holding that the award "properly reflects the additional costs [the defendant]
imposed on its opponent by refusing to comply with its discovery obligations."
Hurd v. City of Lincoln, No. 4:16-CV-3029, 2017 U.S. Dist. LEXIS 210104 (D. Neb. Dec. 21, 2017) 8 Pr
In this employment discrimination and retaliation case, the plaintiff sought to depose the defendant city's Venue: D. Neb.
mayor. There had already been "extensive" discovery: the plaintiff had conducted numerous depositions
Judge: Cheryl R. Zwart
and received thousands of emails and nearly 50,000 pages of documents. The city moved to quash, arguing
that the mayor is a "high-ranking government official" who should not be deposed except in "extraordinary
circumstances." The plaintiff argued that his testimony was "unique" and "essential" but offered no
evidence to support that assertion. Considering FRCP 26(b)(1), the court granted the city's motion to quash
the deposition, finding that it was not proportional to the needs of the case.
Winfield v. City of New York, No. 15-CV-05236 (LTS) (KHP) (S.D.N.Y. Nov. 27, 2017) 2 Pr
In this case alleging that New York City's affordable housing program has a disparate impact on racial Venue: S.D.N.Y.
minorities, the plaintiffs challenged the City's implementation of court-ordered technology-assisted review
Judge: Katharine H. Parker
(TAR). Specifically, the plaintiffs argue that the City "over-designated documents as privileged" and used
an "impermissibly narrow view of responsiveness." The plaintiffs argued that these deficiencies were so
severe that it believed "the City's TAR software was improperly trained" as to responsiveness. The court
focused on proportionality while eschewing perfection. Ultimately, the court disagreed that the overall TAR
training process was flawed but ordered the City to provide random samples of irrelevant, nonprivileged
documents to validate the results.
Firefighters' Ret. Sys. v. Citco Grp. Ltd., No. 13-373-SDD-EWD (M.D. La. Jan. 3, 2018) 5 Sc Pr
In this unjust enrichment case, the court denied the plaintiffs' motion to compel the defendant to Venue: M.D. La.
effectively restart discovery by emailing all of its employees to seek potentially relevant information. The
Judge: Erin Wilder-Doomes
defendant argued that it had already made "substantial discovery efforts" and that further searches would
not be proportional to the needs of the case. The plaintiffs failed to establish why the 56 search terms and
21 custodians it had agreed to were not suitable. The court found the request disproportionate and unduly
burdensome, noting that the defendant's earlier searches were reasonable.
Campbell v. Chadbourne & Parke LLP, 16-CV-6832 (JPO) (S.D.N.Y. Nov. 9, 2017) 2 Sc
In this proposed class action alleging gender discrimination in a prominent law firm, the court held that Venue: S.D.N.Y.
since the plaintiffs were searching their personal as well as business email accounts, the defendants must
Judge: Barbara C. Moses
do so as well. The court noted that in her experience, business and personal accounts overlap, and "what
is good for the goose is good for the gander." The court rejected a speculative request to add further
custodians and scornfully parsed several disputes about proximity operators, making it clear that the
parties should have resolved these disputes on their own.
Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017) FD Sc
In this eminent domain case, the court granted the plaintiffs' motion to compel a "quick peek" at Venue: Fed. Cl.
approximately 1,500 documents that the U.S. had withheld as privileged. The court noted that the parties
Judge: Margaret
had an existing protective order governed by Rule 502(d), precluding waiver. While the U.S. objected M. Sweeney
strongly, the court cited its "piecemeal" production and reasoned that allowing the quick peek would
both expedite resolution of the dispute and avoid the need for the court to conduct an in camera review.
Therefore, the court ordered the U.S. to provide the plaintiffs with the opportunity to review the at-issue
documents according to a specified protocol.
Padron v. Watchtower Bible & Tract Soc’y of New York, Inc., No. D070723 Co
(Cal. Ct. App. Nov. 9, 2017)
Venue: Cal. Ct. App.
This negligence and failure to warn case arose from an allegation of childhood sexual abuse in a religious
Judge: Richard D. Huffman
organization. In this opinion, the appellate court soundly rejected the defendant’s arguments, affirming a
daily $4,000 sanction for the defendant’s willful refusal to comply with discovery.
Rembrandt Diagnostics, LP v. Innovacon, Inc., 2017 U.S. Dist. LEXIS 164015 9 Pr

(S.D. Cal. Oct. 3, 2017)
Venue: S.D. Cal.
In this patent case, the court denied the plaintiff’s motion to compel in full. The court concluded that the Judge: Nita L. Stormes
defendant need not conduct a $30,000 review of all 300 GB of its custodians’ extensive emails. This search
would be duplicative and disproportionate: the plaintiff’s search terms were unlikely to yield relevant infor-
mation, and the defendant had already provided the same information in “more appropriate and less costly
forms” such as design files.
Barcroft Media, Ltd. v. Coed Media Grp., LLC , No. 16-CV-7634 (JMF), 2017 U.S. Dist. LEXIS 2 Sp
164162 (S.D.N.Y. Sept. 28, 2017)
Venue: S.D.N.Y.
In this intellectual property action, the court denied the plaintiff's motion for spoliation sanctions where Judge: Jesse M. Furman
the evidence in question had not been "lost." The plaintiff claimed that the defendant had not "preserve[d]
the webpages on which it had displayed" the allegedly infringing images, but those images were either still
on the defendant's website or had been screen-captured. The court concluded that the plaintiff's motion
"borders on frivolous," finding further that there was no prejudice to the plaintiff and no intent to deprive
on the part of the defendant.
Oxbow Carbon & Minerals LLC v. Union Pac. R.R., 2017 U.S. Dist. LEXIS 146211 D.C. Pr
(D.D.C. Sept. 11, 2017)
Venue: D.D.C.
In this multimillion-dollar antitrust claim, the defendants moved to compel the plaintiffs to include their Judge: G. Michael Harvey
CEO as a custodian, searching all of his documents -- totaling 130 GB - for discoverable information. The
plaintiffs argued that that production "would be unduly burdensome and disproportionate" to the value of
the documents. The court granted the motion, finding that under Rule 26, the documents were responsive,
relevant and proportional in light of the litigation's overall value. The court further declined to shift the cost
of that discovery to the defense.
Mann v. City of Chicago, Nos. 15 CV 9197, 13 CV 4531, 2017 WL 3970592 (N.D. Ill. Sept. 8, 2017) 7 Pr
In this consolidated wrongful detention case, the plaintiffs moved to compel the defendant to extend its Venue: N.D. Ill.
email search to 11 additional custodians; the defendant agreed to only two. The court first noted that the
Judge: Mary M. Rowland
potential evidence would be relevant, which is a necessary "precondition" for discovery. The court rejected
the defendant's argument that the plaintiffs failed to establish a "factual basis" for their request, noting that
during discovery, "the court is only concerned with the propriety and scope of discovery." Nor was the court
moved by the defendant's complaint of undue burden, since the defendant failed to specifically describe
that burden. Considering the proportionality factors of Rule 26, the court granted the plaintiffs' motion to
compel in part, ordering the defendant to extend its email searches to seven additional custodians.
Pertile v. en. Motors, LLC, No. 15-cv-0518-WJM-NYW, 2017 U.S. Dist. LEXIS 141088 10 Co
(D. Colo. Aug. 31, 2017)
Venue: D. Colo.
In this negligence case, the district court upheld the magistrate's order requiring that the defendant Judge: William J. Martinez
provide electronic data to the plaintiffs in a usable form, rather than restricting their access so tightly that it
denied them a "fair opportunity" to evaluate that data. The court held that the defendant must disclose one
of its three models to allow the plaintiffs to defend their mechanical engineering expert's approach and to
cross-examine the defense's expert. As to the method of production, the court rejected the defendant's
"onerously restrictive on-site inspection," which it failed to justify. The court also noted its "displeas[ure]"
with the defendant's failure to request a stay or to comply with the magistrate's order, but withheld
sanctions — for now.
NM Oncology & Hematology Consultants v. Presbyterian Healthcare Servs., No. 1:12-cv- 10 Sp
00526 (D.N.M. Aug. 16, 2017)
Venue: D.N.M.
In this antitrust case, the plaintiff argued that the defendant failed to implement a proper litigation hold Judge: Gregory B. Wormuth
and intentionally deleted emails. Although the defendant continued using an "email jail" after the hold was
issued and failed to include all custodians in the initial hold, the magistrate concluded that no evidence
was actually spoliated by the "imperfect" hold. And while the defendant's ESI backup procedures were
inadequate, its"many mistakes" established only negligence in producing discoverable information,
not bad faith. The magistrate judge therefore recommended against default judgment or an adverse
jury instruction, suggesting instead that the defendant pay 75% of the costs of the plaintiff's motion for
sanctions.
Hefter Impact Techs, LLC v. Sport Maska, Inc., No. 15-13290-FDS 1 Sp

(D. Mass. Aug. 3, 2017)
Venue: D. Mass.
In this contract dispute, the court granted in part the plaintiff's motion for sanctions, ordering the Judge: F. Dennis Saylor, IV
defendant to pay costs and fees associated with the motion. However, because the spoliation was merely
negligent and caused at most slight prejudice, the court denied more severe sanctions. The defendant
allowed three types of evidence to be destroyed: emails that were deleted "due to routine management"
practices that were not suspended for the litigation hold; electronic documents on an employee's laptop
that was wiped when she took maternity leave; and hard-copy notebooks. Ultimately, the court concluded
that the plaintiff could not demonstrate that any relevant emails had been deleted. Nor did the court find
bad faith on the defendant's side or prejudice to the plaintiff.
Irth Sols. LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 6 Sc
(S.D. Ohio Aug. 2, 2017)
Venue: S.D. Ohio
In this breach of contract case, the defendant twice produced privileged documents despite allegedly Judge: Kimberly A. Jolson
conducting "two levels of review." Although the parties had a clawback agreement, the court found that
the production was so reckless and the agreement so perfunctory that the privilege was waived. The court
therefore denied the defendant's request for the return of privileged documents.
Mueller v. Swift, No. 15-cv-1974-WJM-KLM, 2017 U.S. DIST. LEXIS 112276 (D. Colo. July 19, 2017) 10 Sp
In this tort action, the court granted the defendant's motion for sanctions in part, finding sanctionable Venue: D. Colo.
spoliation where the plaintiff lost or destroyed an audio recording. The plaintiff knew that litigation was
Judge: William J. Martinez
imminent, since he initiated it; the evidence was clearly relevant, as it captured the case's "central disputed
facts"; and its loss prejudiced the defendant. But while the plaintiff lost the full recording "for entirely
foreseeable and preventable reasons," the court was unconvinced that he acted in bad faith. Therefore, the
court denied an adverse inference instruction, both because the plaintiff's degree of culpability was unclear
and because it did not want to direct the jury's verdict. However, the court allowed the defendant to cross-
examine the plaintiff about the spoliation, allowing the jury to "make its own assessment of [his] degree of
culpability and of the actual prejudice" the loss caused.
Nachurs Alpine Sols. Corp. v. Banks, No. 15-CV-4015-LTS, 2017 WL 2918979 (N.D. Iowa July 7, 2017) 8 Pr
In this trade secret theft case, the plaintiff asked the court to order the defendants to re-sort nearly 25,000 Venue: N.D. Iowa
documents that it had withheld as nonresponsive, producing those that fell within four defined categories,
Judge: C.J. Williams
at the defendants’ expense. The defendants argued that this request was disproportional and cumulative.
The court granted the motion in part, ordering the defendants to produce all of their “nonresponsive” ESI,
labeled for attorneys’ eyes only, for the plaintiff to review at its own expense.
Tingle v. Hebert, No. 15-626-JWD-EWD, 2017 U.S. Dist. LEXIS 88936 (M.D. La. June 8, 2017) 5 Sc
In this wrongful termination case, the court strictly limited the defendant's request to compel production Venue: M.D. La.
of the plaintiff’s personal emails and texts, adding date and subject limitations to ensure that only relevant
Judge: Erin Wilder-Doomes
information was sought. The court also concluded that the defendant’s request for deleted information was
a “fishing expedition,” since the defendant provided no evidence to contradict the plaintiff’s testimony that
he had deleted only personal information. Because the court denied the motion to compel in part, it also
denied the defendant’s request for attorney’s fees associated with the motion.
OmniGen Research v. Wang, No. 6:16-cv-00268-MC, 2017 U.S. Dist. LEXIS 78107 (D. Or. May 23, 2017) 9 Sp
This case alleged breach of contract, trade secret misappropriation and unfair competition by the plaintiff's Venue: D. Or.
former employee. Despite the plaintiff's meticulous documentation and multiple preservation letters,
Judge: Michael J. McShane
the defendant deleted over 4,000 files, untold numbers of emails from multiple accounts and metadata
associated with critical files. The defendant also "donated" a desktop computer to Goodwill rather than
provide it to the plaintiff. All these actions occurred after the court had ordered the preservation and
production of all data. The defendant's shifting and incredible explanations did not convince the court
that the spoliation was anything but intentionally done for the purpose of concealing relevant information.
Concluding that Wang willfully and intentionally destroyed substantial evidence necessary to resolve the
case on its merits, the court granted the plaintiff's motion for a default judgment.
Mirmina v. Genpact LLC, No. 3:16CV00614 (AWT), 2017 BL 260425 (D. Conn. July 27, 2017) 2 Sc
In this employment discrimination case, the plaintiff moved to compel additional searches for discoverable Venue: D. Conn.
ESI. The plaintiff cited no supporting law and offered no evidence, arguing only that he was "concerned"
Judge: Sarah A.L. Merriam
about "withheld communications" because an involved employee had searched her own emails for
responsive information. The court denied the motion, finding that the defendant's in-house counsel had
already conducted a "comprehensive search" as detailed in an affidavit describing the steps that counsel
took to oversee the discovery process.
Eshelman v. Puma Biotech., Inc., No. 7:16-CV-18-D, 2017 WL 2483800 (E.D.N.C. June 7, 2017) 4 Sp
In this defamation case, the plaintiff sought an adverse jury instruction because the defendant failed to Venue: E.D.N.C.
preserve its web browser history. However, the defendant did not intentionally destroy that information;
Judge: Robert B. Jones, Jr.,
indeed, it was unaware that its browser automatically deleted information after 90 days. The court
Magistrate
concluded that whatever information the plaintiff might have gained from the web search history could
probably be replaced through other discovery methods. Therefore, the plaintiff did not meet Rule
37’s threshold requirement that spoliated evidence be irreplaceable. Additionally, the plaintiff failed to
demonstrate any prejudice from the loss of information or any intentional conduct by the defendant to
deprive him of discoverable information. The court denied all sanctions.
Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. C 16-2195 (ADS) (AKT), 2017 WL 2616957 2 Pr
(E.D.N.Y. June 16, 2017)
Venue: E.D.N.Y.
In this employment discrimination case, the plaintiff entered an agreed discovery order that included Judge: A. Kathleen
unnecessarily complicated and expensive production of ESI. The court concluded that plaintiff's counsel Tomlinson
failed to meaningfully consult with his client before entering the agreement, failed to negotiate its terms
with opposing counsel and, apparently, failed to read the agreement. The court therefore shifted 40% of
the cost of the plaintiff's ESI production to the defendant, which drafted the agreement, and the remaining
60% to plaintiff's counsel.
U.S. Commodity Futures Trading Comm’n v. Gramalegui, No. 15-cv-02313-REB-GPG 10 Sp
(D. Colo. June 14, 2017)
Venue: D. Colo.
In this civil futures trading enforcement action, the defendant engaged in a “pervasive, continuous and Judge: Gordon P. Gallagher
intentional pattern of discovery violations” intended to hinder discovery. Rejecting the defendant’s
excuses that he was merely “disorganized,” the magistrate judge concluded that the late disclosure of
2,500 emails interfered with the judicial process and prejudiced the plaintiff. The magistrate recommended
that all evidentiary objections to those emails be waived. Additionally, he found the defendant’s behavior
“contemptuous” and recommended a “substantial” fine for criminal contempt. Regarding spoliated
evidence, the magistrate found bad faith and granted presumptions of authenticity, adverse inference jury
instructions, and attorneys’ fees. The magistrate did not recommend default judgment, finding that the
plaintiff could still try its case.
People v. Miller, No. 16PDJ067, 2017 BL 208514 (Colo. June 1, 2017) 10 Sp
In a brief order supported by an underlying agreed stipulation, the Colorado Supreme Court fined and Venue: Colo.
publicly censured an attorney for failing to promptly disclose false evidence. During the underlying
Judge: Unnamed Presiding
representation, the attorney's client deleted emails that should have been preserved at the mistaken
Disciplinary Judge
direction of a law firm associate. Those emails were "likely" restored, but counsel improperly proffered
evidence as if the deletion had never occurred. In failing to disclose the deletion, counsel also recklessly
failed to advise the court and opposing counsel of the client's false statement.
In re State Farm Lloyds, No. 15-0903, 2017 BL 177212 (Tex. May 26, 2017) 5 Pr
The Texas Supreme Court observed that "proportionality is the polestar" for e-discovery after a party Venue: Tex.
refused to collaborate with its adversary and produced only a static form of ESI.
Judge: Eva M. Guzman
CrossFit, Inc. v. Nat'l Strength & Conditioning Ass'n, No. 14cv1191 JLS (KSC) 9 Sp
(S.D. Cal. May 26, 2017)
Venue: S.D. Cal.
In this case alleging unfair competition and Lanham Act violations, the court found “ample evidence” that Judge: Janis L. Sammartino
the defendant withheld evidence in bad faith. Under Rule 37, the court found that terminating sanctions
would be appropriate. However, where “less drastic sanctions” were available and evidence had not yet
been destroyed, the court declined terminating sanctions. The court instead ordered the defendant to pay
for a full forensic examination of its computers, with leave for the plaintiff to renew its motion for summary
judgment if evidence had been destroyed. The court also provided numerous issue and evidentiary
sanctions that “significantly narrow the issues remaining for trial.”
Meredith v. United Collection Bureau, Inc., No. 1:16 CV 1102, 2017 U.S. Dist. LEXIS 56783 6 Sc
(N.D. Ohio Apr. 13, 2017)
Venue: N.D. Ohio
In this potential class action, the plaintiff moved to compel the defendant to write a program that would Judge: Patricia A. Gaughan
search its database to identify potential plaintiffs. The court found that the information sought was relevant
and necessary for the plaintiff’s case. The court rejected the defendant’s argument that Rule 34 limits
production of ESI “to the manner in which it is ‘kept in the usual course of business.’” Creating and running
a program to search existing data is distinct from creating new documents or information. Here, the
benefit of producing the data outweighed any burden on the defendant. Therefore, the court ordered the
defendant to either write a program to produce data about the potential class of plaintiffs or provide the
underlying database to the plaintiff.
First Am. Bankcard, Inc. v. Smart Bus. Tech., Inc., No. 15-638 (E.D. La. May 24, 2017) 5 Sc
In this diversity jurisdiction case, the court considered the scope and proportionality of requests Venue: E.D. La.
for production. The motion for discovery was granted "in substantial part" over the defendant's
Judge: Joseph C.
insufficient boilerplate objections. As to defendant's objection that it no longer possessed information
Wilkinson, Jr.
since the business had dissolved, the court held that possession includes custody or control. As such,
the company's former owners were obliged to produce the requested information. However, the court
denied the plaintiff's request for forensic imaging because the plaintiff failed to establish its relevance or
proportionality.
Hawa v. Coatesville Area Sch. Dist., No. 15-4828, 2017 WL 1021026 (E.D. Pa. Mar. 16, 2017) 3 Pr
In this employment discrimination case, the court denied the defendant's motion to shift e-discovery costs. Venue: E.D. Pa.
The defendant had elected to store its data as picture files that could not be searched with keywords. It
Judge: Marilyn Heffley
therefore argued that those records were so expensive to search that they were "inaccessible." Considering
the framework of Rule 26 and the Zubulake factors, the court agreed that the information was inaccessible
but denied the motion. The information sought was discoverable, not available from other sources, and
was not excessively expensive in light of the issues at stake.
Estate of Shaw v. Marcus , Nos. 14 Civ. 3849 (NSR) (JCM), 14 Civ. 5653 (NSR) (JCM), 2017 WL 825317 2 Sp
(S.D.N.Y. Mar. 1, 2017)
Venue: S.D.N.Y.
The plaintiff in this case discarded one computer and failed to preserve any relevant emails after litigation Judge: Judith C. McCarthy
was anticipated. Considering the Zubulake factors, the court shifted 70% of the cost of having the plaintiff's
computer forensically examined back to the plaintiff. However, the defendant would still be required to
pay for all of review costs. Additionally, given the plaintiff's former counsel's "complete disregard" for the
court's orders, the judge ordered payment of all associated attorneys' fees. The court denied terminating
sanctions.
Gordon v. T.G.R. Logistics, Inc., No. 16-CV-00238-NDF, 2017 WL 1947537 (D. Wyo. May 10, 2017) 10 Sc
In this personal injury case, the court struck a balance when ordering discovery of social media posts, Venue: D. Wyo.
considering both the risk of chilling legitimate cases and the need to detect exaggerated claims. The
Judge: Mark L. Carman
defendant sought discovery of the plaintiff’s entire Facebook history, both before and after the accident in
question. Under Rule 26, the court considered a three-part inquiry to determine whether the information
sought was privileged, relevant and proportional to the needs of the case. Privilege was not asserted. While
“almost any post” could provide relevant information, the full history was not proportional to the case. The
Facebook data was easy and inexpensive to provide, but it was nonetheless burdensome in its invasion of
the plaintiff’s privacy. The court concluded that the plaintiff must provide all relevant posts but not a full
account history.
United States v. HVI Cat Canyon, Inc., No. 2:11-cv-05097-FMO (PLAx) (C.D. Cal. Apr. 20, 2017) 9 Sp
The court adopted the recommendation of the special master and required the State of California to pay
$956,784 in attorneys' fees to HVI because of its spoliation of evidence. California had asked the court to Venue: C.D. Cal.
reduce the amount of fees. But because California failed to disclose its spoliation for more than a year, HVI Judge: Special Master
spent many hours investigating the evidence loss and the damage to its case. A reduction in fees would William McCurine
have essentially punished HVI for uncovering the spoliation.
Goodyear Tire & Rubber Co. v. Haeger, No. 15-1406 (U.S. Apr. 18, 2017) U.S. Sp
The Supreme Court unanimously reversed and remanded this award of $2.7 million in attorney's fees Venue: U.S. Supreme Court
as improperly punitive after a personal injury lawsuit settled despite incomplete discovery: Goodyear
Judge: Elena Kagan
withheld documents, and the plaintiff later discovered their existence. The Supreme Court ruled that
while courts have the inherent power to sanction a party for bad faith in discovery by imposing attorney's
fees, that award must be limited to reimbursing the innocent party "to the fees that party would not have
incurred but for the bad faith."
Williams v. Angie's List, Inc., No. 1:16-cv-00878-WTL-MJD (S.D. Ind. Apr. 10, 2017) 7 Sc
The class-action plaintiffs moved to compel the defendant employer to produce three years of work activity Venue: S.D. Ind.
records from a third-party vendor. The defendant produced one year of records but refused to provide
Judge: Mark J. Dinsmore
more. It argued that because a third-party vendor held the data, it was not “in [its] possession, custody, or
control” under Rule 34(a)(1). The court considered the Seventh Circuit’s definition of “control” of informa-
tion as having “a legal right to obtain” that information. Because the defendant had already obtained some
information through its long-standing business relationship, the court found that it did have control of the
information sought. Nor did the burden of producing it justify shifting the costs to the plaintiffs. The infor-
mation was central to the claims, and the cost was minor compared to the amount in controversy.
The defendant therefore was ordered to produce the data sought at its own cost.
Bird v. Wells Fargo Bank, No. 16-1130 (E.D. Cal. Mar. 31, 2017) 9 Sc Co
The court ordered specific discovery after discovery had “completely broken down” in this employment Venue: E.D. Cal.
discrimination case. Both parties contributed to the breakdown, but the defendant took the “legally unsup-
Judge: Erica P. Grosjean
portable position” that it would not produce any ESI until the parties agreed on search terms. The defen-
dant also threatened to shift the cost of production to the plaintiff without any justification. Finally, the
defendant eventually revealed that it had purged the plaintiff’s email account after her termination. Overall,
the court found that the defendant had an “unprofessional” approach to its discovery obligations. The court
therefore ordered the defendant to provide specific discovery and granted leave to the plaintiff to file for
sanctions for any violation.
Fischer v. Forrest, No. 14 Civ. 1304, 1307 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017) 2 Sc
The court explained that under the amended Federal Rule of Civil Procedure 34, objections must be stated Venue: S.D.N.Y.
with specificity, state clearly whether responsive materials are being withheld, and specify the time for
Judge: Andrew J. Peck
production. Counsel continue to violate this rule with their forms and boilerplate objections to discovery.
Future violations in this court will act as a waiver of all objections except privilege.
HCC Ins. Holdings, Inc. v. Flowers, No. 1:15-cv-3262-WSD, 2017 WL 393732 (N.D. Ga. Jan. 30, 2017) 11 Sp
The parties agreed that Volkswagen would agree to plead guilty to conspiracy, obstruction of justice for Venue: N.D. Ga.
the loss of documents, and entry of goods by false statement; pay fines totaling $4.3 billion; and retain an
Judge: William S. Duffey, Jr.
independent compliance monitor for three years of probation. The obstruction of justice charge stemmed
from the loss of documents at the direction of the company's in-house counsel, who instructed employees
to destroy documents, was late notifying custodians of the issuance of a legal hold, and told employees to
store emissions documents on flash drives rather than company networks.
Vir2us, Inc. v. Invincea, Inc., No. 2:15cv162 (E.D. Va. Jan. 27, 2017) 4 Sc
The court granted monetary sanctions, imposed jointly and severally against the defendant and its lead Venue: E.D. Va.
counsel, for "needlessly burden[ing] discovery" through late disclosures and repeated discovery violations.
Judge: Henry Coke
Despite assuring the court that all relevant documents had been disclosed, the defendant continued to find
Morgan, Jr.
and provide relevant documents for a full month after the close of discovery. Over 150 additional docu-
ments were provided late due to the defense's admitted failure to follow up with witnesses. Although the
case settled, the court imposed a monetary sanction because it concluded that no one knew "what may
have been uncovered" if discovery had been properly conducted.
Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, No. 5.14-CV-5262 (W.D. Ark. Jan. 19, 2017) 8 Sp
The court refused to issue sanctions under Rule 37(e) where the plaintiff destroyed a key employee's laptop Venue: W.D. Ark.
after it anticipated litigation because the defendant failed to review backup tapes that would have included
Judge: Timothy L. Brooks
the employee's e-mails. Therefore, the defendant could not show any prejudice.
Solo v. United Parcel Serv. Co., No. 14-12719, 2017 U.S. Dist. LEXIS 3275 (E.D. Mich. Jan. 10, 2017) 6 Pr
The court granted in part a motion to compel where the plaintiff's requested discovery spanned years Venue: E.D. Mich.
and was largely maintained on archival backup tapes. The defendant argued that it would be unduly
Judge: R. Steven Whalen
burdensome to extract and analyze such inaccessible data. The court agreed. It ordered a limited sampling
of data from a shorter period. The court also noted that as the case progresses, additional information may
become relevant and proportional, so it permitted the plaintiff to move again for its discovery.
OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017-EJD, 2017 U.S. Dist. LEXIS 2343 9 Sp
(N.D. Cal. Jan. 6, 2017)
Venue: N.D. Cal.
The court partially granted a motion for emergency evidence preservation measures, finding that Judge: Edward J. Davila
the plaintiffs had demonstrated "a significant concern that potentially relevant evidence will be
destroyed." The plaintiffs provided evidence that the defendants had misappropriated trade secrets,
deleted emails, and refused to return a company-owned laptop and mobile phone. Additionally, the
defendants' emails were hosted by third-party providers that were under no obligation to preserve
evidence without a court order. The court therefore ordered both the email providers and the
defendants to maintain evidence for discovery.
United States v. Volkswagen AG, No. 16-CR-20394 (Jan. 11, 2017) 6 Sp
The parties agreed that Volkswagen would agree to plead guilty to conspiracy, obstruction of justice for Venue: E.D. Mich.
the loss of documents, and entry of goods by false statement; pay fines totaling $4.3 billion; and retain an
Judge: Sean F. Cox
independent compliance monitor for three years of probation. The obstruction of justice charge stemmed
from the loss of documents at the direction of the company's in-house counsel, who instructed employees
to destroy documents, was late notifying custodians of the issuance of a legal hold, and told employees to
store emissions documents on flash drives rather than company networks.
Federal Trade Commission v. DirecTV, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 7386133 9 Sp
(N.D. Cal. Dec. 21, 2016)
Venue: N.D. Cal.
The court refused to exclude evidence as a curative measure for spoliation under Rule 37(e)(1) where the Judge: Maria-Elena James
FTC failed to complain about the loss of information until the end of discovery.
Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., No. 3:13-cv-00102-SLG, 2016 WL 9 Sp
7115911 (D. Alaska Dec. 6, 2016)
Venue: D. Alaska
The court found spoliation sanctions proper under amended Rule 37(e) where a party engaged in selective Judge: Sharon L. Gleason
preservation. Despite issuing a general legal hold, the party kept only 150 recordings of customer calls that
were favorable to its case despite acknowledging that the remaining thousands of calls were potentially
relevant to the matter. The loss of evidence was thus unreasonable. However, given the timing of the
spoliation, the court could not conclude that the spoliating party intended to deprive the opposing party
of the evidence. Thus, sanctions less drastic than an adverse inference were appropriate.
First Fin. Sec., Inc. v. Freedom Equity Grp., No. 15-cv-1893-HRL, 2016 WL 5870218 (N.D. Cal. 9 Sp
Oct. 7, 2016)
Venue: N.D. Cal.
The court imposed two permissive adverse inferences against a party that failed to produce requested Judge: Howard R. Lloyd
discovery materials, including text messages that its principals destroyed with the intent to deprive the
plaintiff of their use and native format data from a database that it had produced in non-native format.
The party objected that it lacked custody, control, or possession of this data, which was in the control
of a third party, but it failed to do so until far too late in the case for the court to consider its objection,
particularly since it had said it would produce the information after upgrading its computer systems.
Rodman v. Safeway Inc., No. 11-cv-03003-JST (N.D. Cal. Oct. 6, 2016) 9 Sp
The court imposed sanctions of nearly $700,000 in attorneys' fees against a party whose counsel failed Venue: N.D. Cal.
to make a reasonable inquiry into his client's discovery responses under Rule 26(g). Counsel allowed the
Judge: Jon S. Tigar
client's director of marketing, who lacked IT and discovery expertise, to run searches using keywords and
failed to identify relevant documents. Counsel's failure to offer meaningful assistance was unreasonable.
Erhart v. Bofl Holding, Inc., No. 15-cv-02287-BAS (NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016) 9 Sp
The court refused to impose sanctions on a whistleblower plaintiff who had deleted files. The court, Venue: S.D. Cal.
noting that deletion was not he equivalent of destruction, found that almost all of the deleted files were
Judge: Cynthia Bashant
copies of documents in the defendant's possession or were recoverable from other sources, including
the computer's recycling bin. Any prejudice from the remaining few files would fall upon the plaintiff, who
had the burden of proof in the case.
Arrowhead Capital Fin., Ltd. v. Seven Arts Entertainment, Inc., No. 14 Civ. 6512 (KPF), 2016 2 Sp
U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016)
Venue: S.D.N.Y.
The court ordered issue preclusion and costs as severe sanctions against a party that engaged in Judge: Katherine Polk Failla
continuous discovery misconduct, including failing to take reasonable steps to preserve evidence stored
on a third-party server and making innumerable excuses for the failure to produce documents. The court
also sanctioned the party's counsel for his failure to check his client's behavior and for taking steps that
inappropriately lengthened the proceedings.
First Am. Title Ins. Co. v. Northwest Title Ins. Agency, No. 2:15-cv-00229 2016 U.S. Dist. LEXIS 9 Sp
118377 (D. Utah Aug. 31, 2016)
Venue: D. Utah
In a breach of contract matter, the court refused to impose severe spoliation sanctions under Federal Rule Judge: Paul M. Warner
of Civil Procedure 37 where a party requesting sanctions did not demonstrate prejudice because the lost
files were generally irrelevant or available from other sources; however, the court did allow the parties to
present evidence to the jury about spoliation because one employee who took hard-copy documents and
a flash drive to her new, competing company had unintentionally lost those files.
BMG Rights Mgmt. LLC v. Cox Commc’ns, Inc., No. 1:14-cv-1611, 2016 WL 4224964 (E.D. Va. 4 Sp
Aug. 8, 2016)
Venue: E.D. Va.
In this copyright infringement case, the court found the plaintiff had intentionally spoliated evidence. Judge: Liam O'Grady
The court allowed the defendant to address the spoliation in its opening statement and instructed the
jury that it could consider the loss of evidence in its deliberations. Despite these sanctions, the jury
awarded the plaintiff $25 million after finding that the defendant infringed the plaintiff's copyrighted music.
In a motion for a new trial, the defendant argued that the sanctions were "anemic," among other things.
The district judge denied the defendant's motion and entered final judgment for the plaintiff, finding the
lesser sanctions sufficient to cure the prejudice; anything more would have been tantamount to dismissal.
First Niagara Risk Mgmt., Inc. v. Folino, No. 16-1779 (E.D. Pa. Aug. 11, 2016) 3 Pr
Where the parties could not agree on the scope of discovery, the court granted a plaintiff's motion Venue: E.D. Pa.
to compel discovery from a defendant who objected that requests for production from his electronic
Judge: Stewart Dalzell
devices were using overly broad search terms and date ranges. The court acknowledged that the
requests were broad but nonetheless permitted them, finding them proportionate, largely because
the individual defendant had the financial resources to comply with the requests. The court also found
that the e-discovery principles espoused by the Sedona Conference were not binding, so it was not
required to allow the defendant to choose his own search protocol.
Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016) 2 Te
Magistrate Judge Andrew J. Peck refused to grant a requesting party's motion to compel a responding party Venue: S.D.N.Y.
to use technology-assisted review (TAR) in discovery, finding that responding parties are best equipped to
Judge: Andrew J. Peck
choose which technology is best for preserving and producing their data. However, he noted that in most
cases, "TAR is the best and most efficient search tool."
Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016) 9 Pr
The court denied a party's request to compel the production of archived emails stored on backup tapes. Venue: W.D. Wash
The court refused to find that the value of the emails outweighed the burden and expense — more than
Judge: Robert J. Bryan
$150,000 — of retrieving, restoring, and reviewing them or that the defendant should be found at fault
for choosing this less accessible method of preservation.
Atiles v. Golub Corp., No. 521828 (N.Y. App. July 28, 2016) Pr
The appellate court affirmed the lower court's denial of the plaintiff's motion seeking to compel production Venue: N.Y. App.
of additional video evidence of a slip and fall accident and sanctions for the failure to preserve it because Judge: William McCarthy
she could not show that the video was relevant to her claim.
Fulton v. Livingston Fin., LLC., No. C15-0574JLR, 2016 WL 3976558 (W.D. Wash. July 25, 2016) 9 Pr
The court sanctioned a lawyer for making misrepresentations to the court as well as for relying on Venue: W.D. Wash
out-of-date case law that interpreted the old relevancy standard of Federal Rule of Civil Procedure 26. Judge: James L. Robart
The lawyer failed to acknowledge the amended rule's inclusion of proportionality. The court found the
lawyer acted in bad faith because he failed to own up to his errors. Accordingly, the court required him
to pay his opponent's attorneys' fees and costs as well as share the news of his errors and the court's
sanctions with the leaders of his law firm. Though he need not report the sanction on future pro hac vice
applications, he must disclose the court's order to any federal court that “threatens or imposes sanctions"
in the next five years.
In re Shawe & Elting LLC, No. C.A. 9661-CB (Del. Ch. July 20, 2016) Sp
A court sanctioned an e-discovery company's CEO for bad faith misconduct, including destroying files Venue: Del. Ch.
on his laptop after the court entered an order requiring him to produce it for forensic discovery, failing to Judge: Andre G. Bouchard
preserve data from his phone, and lying repeatedly under oath to cover up his misdeeds, which obstructed
discovery and impeded the administration of justice.
Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570 (W.D. Va. July 13, 2016) 4 Pr
The court granted a plaintiff's motion to compel a defendant to perform a search for data, over Venue: W.D. Va.
the defendant's objection that the request sought data that was neither reasonably accessible nor Judge: Robert Ballou
proportionate to the value of the case. Proportionality does not simply look at the expense of searches,
and there was no undue burden here, where the defendant merely said it would have to pay a third-party
vendor $45,000 for document collection and review. The defendant could not show that the data was not
reasonably inaccessible; in fact, the defendant chose a system that did not preserve emails for longer than
three days and that did not preserve them in a readily searchable format.
GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS, 2016 WL 3792833 (D. Del. July 12, 2016) 3 Sp
The court imposed $3 million in punitive sanctions, awarded attorneys' fees and costs, and ordered a Venue: D. Del.
permissive adverse inference instruction where a party's senior executive acted in bad faith by intentionally Judge: Leonard Stark
deleting 40% of his email and instructing others to do so despite a legal hold, training, and reminders from
the company to preserve evidence; the executive also claimed not to recall whether he deleted emails
under oath and said he did not intend to withhold evidence but simply was concerned about "sloppy"
language in emails.
Learning Care Group, Inc. v. Armetta, No. 3:13-cv-1540 (VAB) (D. Conn. June 17, 2016) 2 Sp
Applying the unamended Federal Rules of Civil Procedure, the court awarded spoliation sanctions where a Venue: D. Conn.
plaintiff negligently destroyed a laptop containing relevant emails as part of its ordinary business practices. Judge: Victor A. Bolden
Given the weak relevance of the emails and slight prejudice to the defendants, only costs and attorneys'
fees, and not an adverse inference, were appropriate.
Sunderland v. Suffolk Cty., No. CV 13-4838 (JFB)(AKT), 2016 WL 3264169 (E.D.N.Y. June 14, 2016) 2 Sc
The court required the individual defendants, physicians employed by a county, to run search terms on Venue: E.D.N.Y.
their personal email accounts and personal computers. The fact that the county, also a defendant, chose Judge: A. Kathleen
to represent them in the case did not excuse them from their discovery obligations because they were Tomlinson
sued in their individual capacity and not in their official capacity as county employees.
Mathew Enter., Inc. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2016 WL 2957133 (N.D. Cal. 9 Sp
May 23, 2016) Venue: N.D. Cal.
The court ruled that sanctions were appropriate under amended Rule 37 where a plaintiff took a Judge: Paul S. Grewal
"lackadaisical attitude" toward preservation by failing to preserve relevant evidence after sending
the defendant a letter threatening litigation. The court noted that the duty to preserve is an
"attainable" standard that does "not demand perfection."
Bruner v. Am. Honda Motor Co., No. 1:15-00499-N, 2016 U.S. Dist. LEXIS 62810 (S.D. Ala. 11 LH
May 12, 2016) Venue: S.D. Ala.
The court granted a plaintiff's motion to compel the defendant to issue a legal hold after the Judge: Katherine P. Nelson
defendant objected to issuing one because it was too burdensome on top of its ordinary
document retention procedures.
LaBrier v. State Farm Fire & Cas. Co., No. 2:15-cv-04093-NKL, 2016 U.S. Dist. LEXIS 61246 (W.D. Mo. 8 Pr
May 9, 2016) Venue: W.D. Mo.
The court refused to grant an insurer's request to overturn a special master's discovery order. The order Judge: Nanette K. Laughrey
allowed the plaintiff to serve interrogatories that mandated the production of relevant claims information
the insurer deemed too burdensome to produce. The court found that the insurer unreasonably kept its
claims system secret and that the information was critical to the plaintiff's case. Thus, the court found the
discovery proportionate and denied the insurer's motion to vacate the order.
Applied Underwriters, Inc. v. Am. Employer Grp., No. 3:14-cv-379-PLR-CCS (E.D. Tenn. 6 Sp
May 2, 2016)
Venue: E.D. Tenn.
The court chastised a party for falling short of its discovery violations by delivering a "document dump" Judge: C. Clifford Shirley, Jr.
instead of following the court's discovery orders and the parties' discovery plans; the party failed to search
using agreed-upon search terms or to search agreed-upon systems, failed to review the documents before
production, and marked all the documents "attorney eyes only," among other things. The court stopped
short of dismissal but threatened it as a future sanction if the problems continued.
FiTeq Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016) 9 Sp
The court declined to impose sanctions under amended Federal Rule of Civil Procedure 37 because the Venue: N.D. Cal.
party requesting sanctions failed to show that the claimed lost documents ever existed. Judge: Beth Labson
Freeman
O'Berry v. Turner, Nos. 7:15-CV-00064-HL and 7:15-CV-00075-HL, 2016 U.S. Dist. LEXIS 55714 (M.D. Ga. 11 Sp
Apr. 27, 2016)
Venue: M.D. Ga.
The court issued an adverse inference instruction against a corporate defendant engaged in "irresponsible Judge: Hugh Lawson
and shiftless" behavior because it took "minimal" steps to preserve data. An employee had stored a
printout of accident-related data in a manilla folder that was lost while the employee was on leave and his
files were moved to a new office. No other copies, paper or electronic, of the data were available.
Swetlic Chiropractic & Rehabilitation Ctr., Inc. v. Foot Levelers, Inc., No. 2:16-cv-236, 2016 6 Sc
WL 1657922 (S.D. Ohio Apr. 27, 2016) Venue: S.D. Ohio
The court issued a rare order to preserve evidence to a nonparty given the threat that the nonparty might Judge: Elizabeth A.
otherwise destroy potentially responsive information under its document retention policy. Preston Deavers
Nat’l Football League Mgmt. Council v. Nat’l Football League Players Assoc., Inc. v. 2 Sp
Foot Levelers, Inc., Nos. 15-2801 (L), 15-2805 (CON), 2016 WL 1619883 (2d Cir. Apr. 25, 2016) Four-game NFL suspension
The court reinstated quarterback Tom Brady's four-game suspension for tampering with the pressure Venue: 2d Cir.
of footballs, due in part to his failure to cooperate with an investigation by intentionally instructing his Judge: Barrington D. Parker
assistant to destroy his cell phone that contained relevant text messages.
Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, 2016 WL 1594453 (E.D. Mo. 8 Sc
Apr. 21, 2016) Venue: E.D. Mo.
The court ordered a plaintiff to produce a "Download Your Facebook" report where she initially failed to Judge: Noelle C. Collins
disclose the existence of her social media accounts, then failed to respond "fully and completely" to the
defendants' discovery requests about them. The fact that the defendants had already uncovered 441
pages of relevant information from her Facebook account and the ease of downloading the information
persuaded the court that it was an appropriate request that did not invade the plaintiff's privacy.
OrchestrateHR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2016 WL 1555784 5 Sp

(N.D. Tex. Apr. 18, 2016) Venue: N.D. Tex.
Under the amended Rule 37(e), the court found that despite "troubling" deposition testimony where Judge: David L. Horan
a defendant admitted deleting emails despite knowing he had a duty to preserve them, sanctions were
inappropriate because the plaintiffs could not establish the requisite level of intent to deprive them of
relevant evidence.
Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-cv-01734-WTL-DML, 2016 WL 1162553 7 Pr
(S.D. Ind. Mar. 24, 2016) Venue: S.D. Ind.
The court granted a party's request for a protective order where it found subpoenaed documents Judge: Debra
McVicker Lynch
and deposition from a nonparty amounted to "discovery run amok." The requesting party claimed the
documents were relevant but could not establish more than a tangential connection to the case and failed
to address proportionality.
CTB, Inc. v. Hog Slat, Inc., No. 7:14-CV-157-D (E.D.N.C. Mar. 23, 2016) 4 Sp
Adverse inference instructions were appropriate when a party failed to follow its own records retention Venue: E.D.N.C.
policy, which required that it issue a legal hold in the event of an investigation or legal proceeding, and Judge: James E. Gates
destroyed evidence as a result.
Living Color Enters. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATTHEWMAN, 11 Sp

2016 WL 1105297 (S.D. Fla. Mar. 22, 2016) Venue: S.D. Fla.
Sanctions were not appropriate under newly amended Federal Rule of Civil Procedure 37(e) for text Judge: William
messages lost through a phone's automatic deletion function, where the majority of those messages were Matthewman
replaced through other discovery, the deletion was not intentional, and the missing messages did not
prejudice the plaintiff's case.
LaFerrera v. Camping World RV Sales of Birmingham, No. 15-00473 (N.D. Ala. Mar. 21, 2016) 11 Sp
The court applied state law to the parties' spoliation claim and rejected it since there was no evidence of Venue: N.D. Ala.
bad faith destruction of evidence as required by Alabama law. To conserve judicial resources, the court Judge: L. Scott Coogler
also recommended parties lodge spoliation claims with a motion to compel rather than include them in
a motion for summary judgment.
Roadrunner Transp. Servs. Inc. v. Tarwater, Nos. 15-55448 and 14-55529 (9th Cir., 9 Sp
Mar. 18, 2016).
Venue: 9th Cir.
The Ninth Circuit ruled that the trial court did not err in entering a default judgment against a defendant Judge: Michael R. Murphy,
who willfully deleted emails and files on his laptop despite multiple preservation letters from the plaintiff Richard A. Paez, Jacqueline
Hong-Ngoc Nguyen
and a court order directing him to preserve data. The court also ordered the defendant to pay $325,000
in attorneys' fees.
First Fin. Sec., Inc. v. Lee, No. 14-1843 (D. Minn. Mar. 8, 2016) 8 Sp
A court sanctioned two defendants who repeatedly misrepresented to the court that they had produced Venue: D. Minn
all documents yet continually supplemented their production. Rather than impose spoliation sanctions, the Judge: Patrick J. Schiltz
court elected to sanction them for failing to comply with a discovery order and imposed adverse inference
instructions and awarded the plaintiff its attorneys' fees and costs.
Core Laboratories LP v. Spectrum Tracer Services, LLC, No. 11-1157 (W.D. Okla. Mar. 7, 2016). 10 Sp
The court sanctioned a defendant company for failing to preserve relevant emails when it transitioned to a Venue: W.D. Okla.
new email service provider, prejudicing the plaintiff; however, it declined to impose sanctions for the wiping Judge: Vicki Miles-LaGrange
of a computer and deleting files from a hard drive because these actions did not prejudice the plaintiff,
which could not show that any relevant files were lost as the result of these actions.
Brown Jordan Int’l, Inc. v. Carmiclet, Nos. 0:14-CV-60629 and 0:14-CV-61415, 2016 WL 815827 11 Sp
(S.D. Fla. Mar. 2, 2016) Venue: S.D. Fla.
Applying the amended Federal Rule of Civil Procedure 37(e), which went into effect after a bench trial Judge: Robin L. Rosenberg
but before the court ruled on a motion for sanctions, the court drew several adverse inferences
against a party that intentionally locked a company password, destroyed files, and lost devices
containing relevant evidence.
In re Takata Airbag Prods. Liab. Litig., No. 15-02599-CIV-Moreno, MDL No. 5-2599 11 Pr
(S.D. Fla. Mar. 1, 2016)
Venue: S.D. Fla.
Citing proportionality and amended Federal Rule of Civil Procedure 26(b)(1), the court adopted the Special Judge: Federico A. Moreno
Master's recommendation in part, allowing parties to withhold nonresponsive parent documents and to
redact irrelevant information from otherwise responsive documents based on certain categories except
where the information related specifically to the product at issue: airbags.
Best Payphones, Inc. v. The City of New York, Nos. 1-CV-3924 (JG) (VMS), 1-CV-8506 (JG) (VMS), 2 Sp
3-CV-0192 (JG) (VMS) 2016 WL 792396 (E.D.N.Y. Feb. 26, 2016) Venue: E.D.N.Y.
Under amended Federal Rule of Civil Procedure 37(e), the only appropriate sanction for the loss of emails Judge: Vera M. Scanlon
and other evidence was an award of attorneys' fees and costs where a party failed to implement a legal
hold and lost some information. A harsher penalty was inappropriate because, given the unsettled law
on preservation at the time, the party did not act unreasonably in not preserving the evidence, and the
requesting party should have tried to obtain the missing documents from publicly available records and
third parties.
Ericksen v. Kaplan Higher Educ., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016) 4 Sp
Where an IT professional plaintiff ran five data cleanup software programs on her computer, deleting Venue: D. Md.
400,000 files, the court declined to terminate the case, finding that it could cure any prejudice to the Judge: Richard D. Bennett
defendants by allowing the defendants to present evidence about the plaintiff's destruction of evidence
and precluding the plaintiff from presenting certain evidence at trial.
InternMatch, Inc. v. Nxtbigthing, LLC, No. 14-05438, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016) 9 Sp
The court punished a spoliating party that threw away computers and other devices after a fabricated Venue: N.D. Cal
power surge and lightning strike that allegedly destroyed them; the court found the party's account Judge: Jon S. Tigar
unbelievable and that the destruction occurred in bad faith. The court stopped short of imposing
terminating sanctions because it was still able to decide the case on the merits.
Marten Transport, Ltd. v. Plattform Advertising, Inc, No. 14-02464 (D. Kan., Feb. 8, 2016) 10 Sc
A court refused to sanction a party that did not retain an employee's internet history because it had no Venue: D. Kan
reason to know the history would be relevant until well after the evidence had been destroyed. Judge: Teresa J. James
NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077 (BTM)(RBB), 2016 WL 305096 (S.D. Cal. 9 LH
Jan. 26, 2016) Venue: S.D. Cal.
The court overturned its earlier decision granting a permissive adverse inference in light of the Judge: Barry Ted
Moskowitz
amendments to Federal Rule of Civil Procedure 37; the court would allow the jury to consider any evidence
the parties presented regarding the other's loss of evidence.
Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. 9 Pr
Jan. 13, 2016) Venue: N.D. Cal.
The court reaffirmed the value of proportionality invoking the New Rule 26(b) and denied the defendant's Judge: Paul S. Grewal
motion to compel citing that "Merck's request is precisely the kind of disproportionate discovery that Rule
26 - old or new - was intended to preclude."
CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF), 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016) 2 Sp
The court applied the newly amended Rule 37(e) and found that the emails manipulated by the plaintiffs Venue: S.D.N.Y.
were essentially lost evidence and deserved sanctions to cure prejudice to the defendant. Judge: James C. Frances
Hausman v. Holland Am. Line-U.S.A., No. CV132-0937 BJR, 2016 WL 51273 (W.D. Wash. 9 Sp
Jan. 5, 2016) Venue: W.D. Wash.
The court vacated a $21.5 million verdict for the plaintiff after his personal assistant provided testimony Judge: Barbara
and evidence that he deleted and failed to disclose responsive emails; the court also ordered a new trial. Jacobs Rothstein
Stinson v. City of New York, No. 10 Civ. 4228, 2016 U.S. Dist. LEXIS 868 (S.D.N.Y. Jan. 2, 2016) 2 LH
The court issued a permissive adverse inference for the City of New York's grossly negligent spoliation. The Venue: S.D. N.Y.
City failed to implement a legal hold for three years after the plaintiffs filed their complaint, failed to supervise Judge: Robert Sweet
the implementation of the legal hold, and destroyed countless emails, text messages, and other documents.
Grove City Veterinary Serv., LLC, v. Charter Practices Int’l, LLC, No. 3:13-cv-02276-AC 2015 9 LH
U.S. Dist. LEXIS 108491 (D. Ore. Aug. 18, 2015). Venue: D. Ore.
The court refused to grant a party’s request for spoliation sanctions where it had weak circumstantial Judge: John V. Acosta
proof of evidence loss, failed to file a motion to compel before seeking sanctions, and failed to raise the
issue of missing evidence with the court for nine months prior to asking for sanctions. The plaintiffs also
misunderstood the purpose of a legal hold, believing it restricted their access to responsive information.
HM Elecs. v. R.F. Techs., Inc., No. 12cv2884-BAS-MDD, 2015 U.S. Dist. LEXIS 104100 (S.D. Cal. 9 LH
Aug. 7, 2015).D6
Venue: S.D. Cal.
The court sanctioned a party that failed to impose a legal hold, instructed salespeople to destroy relevant Judge: Mitchell D. Dembin
documents, signed and certified discovery responses that contained false information, and failed to
supervise a discovery vendor because their actions “threatened to interfere with the rightful decision of
the case.” The court also sanctioned defense counsel, who ignored numerous red flags and refused to take
responsibility for the discovery errors.
NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077, 2015 WL 4479147 (S.D. Cal. July 22, 2015). 9 LH
The court imposed a permissive adverse inference against a party that imposed a legal hold but failed to Venue: S. D. Cal.
take steps to enforce it and thus lost potentially relevant text messages. Judge: Barry Ted
Moskowitz
Burd v. Ford Motor Co., No. 3:13-cv-20976, 2015 WL 4137915 (S.D.W. Va. July 8, 2015) 4 Sc
The court allowed the plaintiffs to depose a corporate representative to get to the bottom of the company’s Venue: S.D.W. Va.
“self-selection” process where custodians were allowed to search their own computers for relevant Judge: Cheryl A. Eifert
documents and there was no standard process for preserving or collecting information.
F & J Samame, Inc. v. Arco Iris Ice Cream, No. SA-13-CV-365-XR, 2015 WL 4068575 5 LH
(W.D. Tex. July 2, 2015). Venue: W.D. Tex.
The defendants used CCleaner to wipe hard drives, violated court orders, and engaged in stalling discovery Judge: Xavier Rodgriguez
tactics, prejudicing at least some of the plaintiff’s claims. Accordingly, the court imposed monetary
sanctions to compensate the plaintiff for the cost of discovery and allowed the plaintiff the opportunity to
renew its request for an adverse inference instruction depending on the outcome of additional discovery.
Giuliani v. Springfield Twp., No. 10-7518, 2015 U.S. Dist. LEXIS 74174 (E.D. Pa. June 9, 2015) 3 Tr
The court found the defendants had no duty to preserve evidence until litigation commenced because Venue: E.D. Pa.
they believed all issues relating to the underlying zoning dispute had been resolved. The court also ruled Judge: Thomas N. O’Neill
that the negligent deletion of data is insufficient to support a spoliation claim; bad faith is required in the
Third Circuit.
Wandering Dago Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), 2 Tr
(N.D.N.Y. May 29, 2015). Venue: N.D.N.Y.
The court ruled that one state agency has no duty to preserve evidence that is not under its control Judge: Randolph F. Treece
because it belongs to another state agency.
HMS Holdings Corp. v. Arendt, 2015 N.Y. Slip Op. 50750(U) (Sup. Ct. May 19, 2015) LH
The court awarded the plaintiffs sanctions, including a mandatory adverse inference and attorneys’ fees, Venue: N.Y.
where the defendangs--both licensed attorneys--intentionally deleted evidence from their computers and Judge: Richard M. Platkin
lost other data sources including an external hard drive and iPhone and misled the court under oath.
Electrified Discounters, Inc. v. MI Technologies, Inc., No. 3:13cv1332 (RNC), 2015 U.S. Dist. 2 LH

LEXIS 64950 (D. Conn. May 19, 2015) Venue: D. Conn.
The court granted the defendant’s motion to compel discovery and ordered a mirror image of the plaintiff’s Judge: Donna F. Martinez
data sources where the plaintiff produced only one email, failed to provide pertinent sales records, and
testified to a questionable process of preserving and collecting evidence.
Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015) 7 LH
The court awarded the plaintiff a default judgment where the defendants deleted computer files, failed to Venue: S.D. Ind.
disclose evidence in discovery, and committed perjury, finding their behavior prejudiced the plaintiff and Judge: Mark J. Dinsmore
served as an affront to the judicial system.
Clear-View Techs., Inc. v. Rasnick, No. 5:13-cv-02744-BLF, 2015 U.S. Dist. LEXIS 63579 9 Sp
(N.D. Cal. May 13, 2015)
Venue: N.D. Cal.
Where the defendants destroyed tens of thousands of documents and took other steps to spoliate Judge: Paul S. Grewal
evidence, including discarding electronic media and devices, the court imposed a permissive adverse
inference and imposed extensive costs.
Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015) 11 Sp
The court permitted the defendant to depose a neutral, court-appointed forensic expert who had been Venue: S.D. Fla.
tasked with analyzing the plaintiffs’ loss of ESI. The court ruled the deposition was permissible because it Judge: Jonathan Goodman
would help the court evaluate the difficult and contentious spoliation issues that had arisen in the case.
Crews v. Avco Corp., No. 70756-6-I, 2015 WL 1541179 (Wash. Ct. App. Apr. 6, 2015) Sp
The appellate court affirmed “death penalty” sanctions in this wrongful death and products liability case Venue: Wash. Ct. App
because the mere statement that the company adhered to a document retention policy, without evidence Judge: Marlin Appelwick
supporting its scope and operation, was an insufficient excuse for the nonproduction of documents. Lesser
sanctions could not adequately punish the party’s transgressions, which had hindered the opposing party’s
ability to engage in discovery.
Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015) 2
The court refused to issue an adverse inference against the defendants, which could not produce records Venue: E.D.N.Y
because they had turned them over to a party in another case pursuant to a court order. Judge: Robert Levy
Blue Sky Travel & Tours, LLC v. Al Tayyar, No. 13-2500, 2014 WL 1451636 (4th Cir. Mar. 31, 2015) 4 Sc
The court overturned the magistrate judge’s decision that a party needed to preserve everything because Venue: Fourth Circuit
it did not know what might or might not be relevant and remanded the case to the district court for further Judge: Barbara
findings to determine whether spoliation occurred. Milano Keenan
Grady v. Brodersen, No. 13-cv-00752-REB-NYW, 2015 U.S. Dist. LEXIS 35788 (D. Colo. Mar. 23, 2015) 10 LH
The court granted the plaintiff’s motion for sanctions where the defendant destroyed a computer Venue: D. Colo.
that contained relevant evidence after the lawsuit commenced; however, it refused to grant a default Judge: Nina Y. Wang
judgment, despite evidence of intentional, bad faith spoliation, finding an adverse inference was sufficient
to remedy the conduct.
Colosi v. Jones Lang LaSalle Americas, Inc., 781 F.3d 293 (6th Cir. Mar. 4, 2015) 6
The court affirmed the district court’s ruling that imaging was properly considered a taxable cost under Venue: Sixth Circuit
28 U.S.C. § 1920(4). Judge: Deborah L. Cook
Vladeck, Waldman, Elias & Engelhard, P.C. v. Paramount Leasehold, L.P., LH

No. 653416/2011, 2015 NY Slip Op. 50298(U) (N.Y. Sup. Ct. Mar. 4, 2015) Venue: N.Y.
The court ruled that sanctions of attorneys’ fees and costs for filing a motion for sanctions and for the cost Judge: Eileen Bransten
of extended and retaken depositions were appropriate against defense counsel who engaged in frivolous
discovery conduct. The counsel failed to implement a litigation hold, failed to produce documents before
depositions, and included nonprivileged documents on the privilege log.
United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. Feb. 20, 2015) 9 Pr
The court refused to require the production of inaccessible data on backup tapes in response to a motion Venue: S.D. Cal.
to reconsider that adduced no new evidence and where the cost of producing that information far Judge: William V. Gallo
outweighed the minimal, if any, value of that information.
Corning Optical Communications Wireless Ltd. v. Solid, Inc., No. 5:14-cv-03750-PSG, 9 Pr

2015 U.S. Dist. LEXIS 71889 (N.D. Cal. Feb. 12, 2015) Venue: N.D. Cal.
Judge: Paul S. Grewal
The court required a party to provide supplemental information about its damages claims, finding
that knowing the value of a case is critical not only to parties but also to judges, who have to rely on
considerations of proportionality in ruling on discovery disputes.
Lunkenheimer Co. v. Tyco Flow Control Pac. Party Ltd., No. 1:11-cv-824, 2015 WL 631045 6 Tr
(S.D. Ohio Feb. 12, 2015) Venue: S.D. Ohio
The court found that the duty for an Australian company to preserve evidence did not arise until the Judge: Timothy S. Black
U.S. court had jurisdiction of the case and the Australian company received a copy of the complaint. The
company did no business in the United States and the contract at issue provided that all disputes would
be filed in Australia.
United Corp. v. Tutu Park Ltd., No. ST-2001-CV-361, 2015 WL 457853 (V.I. Jan. 28, 2015) V.I. Tr
The court refused to sanction a party or hold it in contempt because organizations are permitted to have Venue: V.I.
reasonable records retention policies; it was not reasonable to expect an organization to retain records Judge: Denise M. Francois
more than nine years old.
Ballai v. Kiewit Power Constructors, No. 110,166, 2015 WL 423795 (Kan. Ct. App. Jan. 23, 2015) KS Tr
The appellate court refused to find that a party had a duty to preserve a former employee’s laptop because Venue: Kan.
Kansas state law did not impose a duty to preserve evidence and the plaintiff did not ask the court for a Judge: Per curiam
protective order to prevent the destruction of data.
Fidelity Nat’l Title Ins. Co. v. Captiva Lake Investments, LLC, No. 4:10-CV-1890 (CEJ), 8 LH
2015 U.S. Dist. LEXIS 1350 (E.D. Mo. Jan. 7, 2015)
Venue: E.D. Mo.
In this insurance matter, the court found an adverse inference appropriate because a company failed to Judge: Carole E. Jackson
implement a legal hold throughout the pendency of the litigation and as a result lost thousands of emails;
it also delayed producing some documents until well after summary judgment briefing was complete. The
court also ordered the plaintiff to pay the defendants’ attorneys fees in bringing the motion and half of the
costs of a forensic inspection of its computer systems.
Federico v. Lincoln Military Hous., LLC, No. 2:12-cv-80, 2014 WL 7447937 (E.D. Va. Dec. 31, 2014) 4 LH
The plaintiffs argued that dismissal was appropriate for a party’s delayed production of social media and Venue: E.D. Va.
failure to produce text messages. The court disagreed, ruling that the text messages were deleted as part Judge: Douglas E. Miller
of the operation of the mobile provider’s routine, good faith systems. Dismissal was too harsh a sanction
for the late production; instead, the court refused to shift the cost of the expert retained to collect social
media and email and awarded the defendants a portion of their attorneys’ fees for the motion to compel.
Mead v. Travelers Indemnity Co. of Conn., Inc., No. 14-2695, 2014 U.S. Dist. LEXIS 167912 3 LH
(E.D. Pa. Dec. 4, 2014) Venue: E.D. Pa.
This case arising out of an insurance claim involved the loss of a critical document due to the insurance Judge: Harvey Bartle
company’s automatic deletion process for records older than ninety days. The plaintiffs claimed the
deletion of the key document four days after they filed a claim was spoliation, but the court declined
to agree, finding that sometimes documents are deleted in good faith.
Halliburton, Inc. v. Admin. Review Bd., No. 13-60323, 2014 U.S. App. LEXIS 21743 5 LH
(5th Cir. Nov. 12, 2014) (per curiam) Venue: 5th Cir.
(Department of Labor)
The court ruled that identifying a whistleblower in a legal hold notice constituted retaliation under the
Judge: per curiam
Sarbanes-Oxley Act and awarded the whistleblower $30,000 in damages. Although the complaint was
initially dismissed based on a finding that the disclosure of his identity to co-workers did not rise to the
level of an adverse action, on appeal the court held the company liable and awarded damages.
In re Certain Opaque Polymers, Inv. No. 337-TA-883 (Oct. 20, 2014) LH
The Administrative Law judge entered a default judgment for the complainants and imposed monetary Venue: USITC
sanctions of nearly $2 million against the respondents, whose culture indicated the duty to preserve Judge: Administrative Law
evidence was “an inconvenience.” For example, the respondents used software to wipe files from a laptop, Judge Thomas B. Pender
“lost” computers and storage devices conveniently, and even hammered a hard drive and zip drives. The
court held counsel jointly and severally liable with their client for several reasons, including the company’s
failure to issue a legal hold or make any other efforts to preserve evidence.
Alter v. Rocky Point Sch. Dist., No. 13-1100 (JS) (AKT), 2014 U.S. Dist. LEXIS 141020 2 LH
(E.D.N.Y. Sept. 30, 2014) Venue: E.D.N.Y.
The court sanctioned the defendants and their counsel for failing to institute a legal hold for more than two Judge: Magistrate A.
Kathleen Tomlinson
years after the plaintiff filed the lawsuit. The court ruled that the defendants’ actions were merely negligent,
not intentional, so an adverse inference instruction was not warranted.
AJ Holdings Grp. LLC v. IP Holdings, LLC, No. 600530/2009 (N.Y. Sup. Ct. Sept. 19, 2014) LH
A discussion of but failure to implement a verbal legal hold and the failure to involve the company’s IT Venue: N.Y.
manager in the preservation process doomed a company. The court imposed an adverse inference at Judge: Saliann Scarpulla
summary judgment and at trial and awarded monetary sanctions for the loss of thousands of emails
belonging to key players.
Small v. Univ. Med. Ctr. of S. Nev., No.: 2:13-cv-00298-APG-PAL, 2014 WL 4079507 9 LH

(D. Nev. Aug. 18, 2014) Venue: D. Nev
The court appointed a Special Master to handle numerous discovery disputes in this employment-related Judge: Special Master
Daniel Garrie
class action. The Special Master found the defendant failed to preserve key evidence, failed to identify
all potential data sources and custodians, and misrepresented key information about data sources and
productions to the court. The Special Master asserted that the defendant’s misconduct made a “mockery
of the administration of justice” and recommended default judgment for the plaintiffs, the certification of
the class of plaintiffs, the issuance of numerous rebuttable presumptions on the merits of the case, and
an award of costs and fees to the plaintiffs.
United States ex rel. Vainer v. Davita, Inc., No. 1:07-CV-2509-CAP (N.D. Ga. Aug. 12, 2014) 11 Te
In this False Claims Act matter, the whistleblowers alleged the defendants engaged in a campaign of Venue: N.D. Ga.
falsifying testimony that merited a default judgment. The court ruled that there was insufficient evidence Judge: Charles Pannell Jr.
to warrant a default but opted to reopen discovery and award attorneys’ fees given the prejudice to the
whistleblowers from the incorrect testimony.
Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014) 9 LH Sc
In this employment dispute, the plaintiffs sought a partial summary judgment for spoliation. The court Venue: D. Ariz.
found that they failed to demonstrate prejudice despite preservation shortcomings, and a lack of bad Judge: David G. Campbell
faith precluded awarding a sanction that would have resulted in default judgment.
Solara Ventures IV, LLC v. PNC Bank, No. 1212 WDA 2013 (Pa. Super. Ct. Aug. 7, 2014) PA Tr LH
This appeal in a breach of contract matter involved a plaintiff that offered contradictory reasons for failing Venue: PA
to comply with the defendant’s request for ESI. The defendant filed a motion seeking spoliation sanctions Judge: John T. Bender
including dismissal, but the trial court only awarded attorneys’ fees. After the plaintiff failed to abide by the
terms of the court’s sanctions order, the defendant filed a second motion seeking sanctions, and the trial
court dismissed the case and awarded $70,000 in attorneys’ fees. The appellate court affirmed given the
plaintiff’s attempts to “mislead and confuse” the parties and court.
Regulatory Fundamentals Grp. v. Governance Risk Management Compliance, 2 LH

13 Civ. 2493, 2014 WL 3844796 (S.D.N.Y. Aug. 5, 2014) Venue: S.D.N.Y.
In this intellectual property case, the court found the defendant’s destruction of evidence was “planned, Judge: Katherine B. Forrest
repeated and comprehensive,” turning what was a straightforward commercial dispute into a far more
serious issue; the court granted sanctions and entered a default judgment in favor of the plaintiff.
Osberg v. Foot Locker, No. 07-cv-1358 (KBF), 2014 WL 3427321 (S.D.N.Y. July 14, 2014) 2 Tr LH
This ERISA case involved the defendant’s failure to issue a timely legal hold and subsequent spoliation Venue: S.D.N.Y.
of relevant paper records (during annual “spring cleaning”). Although the court initially granted summary Judge: Katherine B. Forrest
judgment, on appeal, the plaintiff was allowed to renew his spoliation motion, which ultimately resulted
in a finding of simple negligence and an adverse inference.
Brookshire Bros., Ltd. v. Aldridge, No. 10-0846, 2014 WL 2994435 (Tex. July 3, 2014) TX Pr
The court removed the discretion of trial judges to administer sanctions by only permitting jury instructions Venue: Texas Sup.
when the spoliation was intentional or deprived the opposing party of the ability to present a claim or Judge: Debra H. Lehrmann
defense. The court overturned a $1 million judgment and sent the case back for a retrial.
Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014) 6 LH Te
This age discrimination case involved the defendant’s failure to preserve information retained in Venue: S.D. Ohio
Salesforce.com and counsel’s failure to be engaged in the discovery process and their multiple Judge: Terence P. Kemp
misrepresentations to the court. The court sanctioned the defendant, precluding it from using
evidence and awarding attorneys’ fees.
Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504 (6th Cir. June 25, 2014) 6 LH
Affirming the decisions of the lower court, this copyright infringement case agreed that the spoliation Venue: N.D. Ohio
of relevant computers and back-up tapes was at most negligent, and an adverse inference at trial was Judge: Robert H. Cleland
appropriate but moot because the court granted partial summary judgment.
Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13-cv-00825 (AJT/TCP), 2014 WL 1681694 4 LH
(E.D. Va. Apr. 24, 2014) Venue: E.D. Va.
This False Claims Act lawsuit involved intentional spoliation (including mobile devices) and bad faith, Judge: Anthony Trenga
resulting in the dismissal of claims with prejudice and an award of fees to be determined. The defendant
asked the court to find the plaintiff and its law firm jointly and severally responsible, but the firm claimed
it was merely “an innocent bystander.”
EEOC v. SunTrust Bank, No. 8:12-cv-1325-T-33MAP (M.D. Fla. Apr. 7, 2014) 11 Tr Sp
In this Title VII sexual harassment case, the court found the defendant had failed to preserve surveillance Venue: M.D. Fla.
camera footage after a duty to preserve had arisen, in conflict with records retention policies. However, Judge: Virginia M.
finding no bad faith, the court denied the plaintiff’s motion seeking an adverse inference instruction Hernandez Covington
(although it allowed the plaintiff to introduce evidence of spoliation at trial).
Knickerbocker v. Corinthian Colleges, No. C12-1142JLR, 2014 WL 1356205 9 LH
(W.D. Wash. Apr. 7, 2014) Venue: W.D. Wash.
The defendant’s discovery failures in this employment case (including failing to issue a legal hold, deleting Judge: James L. Robart
emails, and other delays) resulted in monetary fines against the defendant and its counsel, but the court
refused to issue an adverse inference because the plaintiff could not demonstrate prejudice.
Pacific Packaging Prods., Inc. v. Barenboim, No. 09-4320 (Mass. Super. Ct. Apr. 1, 2014) MA LH
The court ordered default judgments, dismissed counterclaims, and ordered the payment of attorneys’ fees Venue: MA
upon discovering the defendants in this trade secrets case had committed fraud upon the court, spoliated Judge: Bruce R. Henry
evidence, and ignored a preliminary injunction.
Painter v. Atwood, No. 2:12-cv-01215-JCM-RJJ, 2014 WL 1089694 (D. Nev. Mar. 18, 2014) 9 LH
In this employment discrimination case, the plaintiffs were found to have intentionally deleted Facebook Venue: D. Nev.
posts, resulting in an adverse inference sanction. Judge: Nancy J. Koppe
Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014) 11 LH
This case involved numerous discovery shortfalls, including inadequate preservation practices and the Venue: S.D. Fla.
failure of plaintiff’s counsel to manage and direct search efforts. The court ordered additional discovery Judge: Jonathan Goodman
and awarded attorneys’ fees ($24K split 50/50 between plaintiff and its counsel).
Quantlab Techs. Ltd. v. Godlevsky, No. 4:09-cv-4039 (S.D. Tex. Feb. 19, 2014) 5 LH
In this misappropriation of trade secrets case, the defendants were found to have spoliated relevant ESI Venue: S.D. Tex.
when computers were wiped or given away during a company liquidation, resulting in an adverse inference. Judge: Keith P. Ellison
Digital Vending Servs. Int’l LLC v. Univ. of Phoenix, Inc., No. 2:09-cv-00555 4 LH
(E.D.Va. Feb. 5, 2014) Venue: E.D. Va.
In this intellectual property case, the plaintiff was sanctioned for Rule 37 discovery delays (including Judge: Tommy E. Miller
an adverse inference). As part of the settlement, the parties filed a consent motion to have sanctions
withdrawn. The court refused, denying the motion due to discovery abuses.
In re Ethicon, Inc., 299 F.R.D. 502 (S.D.W.Va. Feb. 4, 2014) 4 LH Tr
In this multidistrict products liability case, the plaintiffs attempted to establish that the duty to preserve Venue: S.D.W. Va.
evidence commenced with the filing of the first case involving the products at issue. Relying largely on Judge: Cheryl A. Eifert
language from the defendant’s legal hold in a consolidated case, the court determined that the duty to
preserve did not arise with isolated cases. Rather, it arose when the company issued a broad legal hold
referencing “ongoing,” “company-wide” litigation. The court also looked to the hold’s broad language in
determining the scope of production and found the defendant breached its duty to preserve. The court
declined to impose an adverse inference because the plaintiffs could not establish the loss of evidence
prejudiced them. However, monetary sanctions were appropriate.
In re Actos Prods. Liab. Litig., MDL, No. 6:11-md-2299 (W.D. La. Jan. 27, 2014) 5 Tr
In this multidistrict products liability case, the plaintiff alleged spoliation of relevant documents from Venue: W.D. La.
numerous witnesses. The court agreed, finding that the duty to preserve was recognized as early as July Judge: Rebecca F. Doherty
2002 when the initial legal hold was issued, and anticipated an adverse inference at trial.
Sokn v. Fieldcrest Cmty. Unit School Dist., No. 10-CV-1122, 2014 WL 201534 7 Sc
(C.D.Ill., Jan. 16, 2014) Venue: C.D. Ill.
This unfair labor practices case involved the destruction of audio tape recordings. The court could not Judge: Joe Billy McDade
determine when the tapes were destroyed, so it could not rule that the destruction was done in bad faith
and therefore sanctions were not appropriate.
Polo-Calderon v. Corporacion Puertorriquena de Salud, 992 F. Supp. 2d 53 (D.P.R., 1 Te

Jan. 16 2014).
Venue: D.P.R.
This sexual harassment case involved subpoenaed phone and text logs from a third party, which the Judge: Francisco A. Besosa
defendant used as evidence of spoliation. The court issued a permissive adverse inference sanction.
In re Pradaxa Prods. Liab. Litig., MDL No. 2385, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013) 7 Te
In this follow-up motion, the court issued a $931,000 sanction for gross inadequacies in the defendant’s Venue: S.D. Ill.
preservation practices and misrepresentations including untimely and inadequate legal hold notices, Judge: David R. Herndon
finding bad faith.
Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-0541-GPC (WVG), 2013 WL 615977 (S.D. 9 LH
Cal. Nov. 25, 2013) Venue: S.D. Cal.
In this intellectual property case, the court granted the plaintiff’s motion for adverse inference and fees due Judge: William V. Gallo
to the defendant’s failure to take adequate preservation steps, including the lack of any legal hold notice
(despite the defendant’s claim that “no documents are to be deleted” according to company policy).
SJS Distrib. Sys. v. Sam's East, Inc., No. 11 CV 1229 (WFK)(RML), 2013 WL 5596010 2 Tr LH
(E.D.N.Y. Oct. 11, 2013) Venue: N.D.N.Y.
In this breach of contract dispute, the plaintiff was granted an adverse inference and fees due to the Judge: Robert M. Levy
spoliation of relevant emails. The court found the “failure to take the most basic document preservation
steps,” including the lack of a legal hold, to constitute gross negligence.
Puerto Rico Tel. Co. v. San Juan Cable, LLC, No. 11-2135 (GAG/BJM), 2013 WL 5533711 (D.P.R. 1 LH
Oct. 7, 2013) Venue: D.P.R.
In this commercial litigation case, the court refused to give an adverse inference instruction because the Judge: Bruce J. McGiverin
party alleging spoliation could not establish that it was prejudiced by the loss of evidence.
In re Pradaxa Prods. Liab. Litig., MDL, No. 2385, 2013 WL 6486921 (S.D. Ill. Sept. 25, 2013) 7 Tr
In this class action product liability claim, the plaintiff sought an adverse inference due to spoliation. The Venue: S.D. Ill.
court found no bad faith when files from a terminated employee were properly disposed of according to Judge: David R. Herndon
company retention policies and before a triggering event had attached.
Little Hocking Water Ass’n v. E.I. du Pont de Nemours & Co., No. 2:09-CV-1081, 6 Sc
2013 WL 5311292 (S.D. Ohio Sept. 20, 2013) Venue: S.D. Ohio
In this dispute over waste disposal practices, the court declined to issue sanctions or permit additional Judge: Norah McCann King
discovery regarding the defendant’s preservation efforts (including the production of legal hold letters)
due to an insufficient “preliminary showing” that spoliation had occurred.
Sekisui Am. Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013) 2 Tr
In this breach of contract case, the plaintiff failed to issue a timely legal hold or to notify a third party in Venue: S.D.N.Y.
control of relevant e-mail to preserve it. The court overruled the finding of the magistrate judge and Judge: Shira A. Scheindlin
issued an adverse inference, citing gross negligence.
Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013). 10 LH
This case involved a review of the magistrate judge’s dismissal of the plaintiff’s motion for an adverse Venue: D. Kan.
inference due to a lack of prejudice and the required bad faith. Despite finding that the defendants did not Judge: Richard D. Rogers
properly preserve ESI due to a failure to suspend routine retention practices, mere negligence in this case
did not warrant an adverse inference.
AMC Tech., LLC v. Cisco Sys., Inc., No. 11-cv-3403 PSG, 2013 WL 3733390 (N.D. Cal. July 15, 2013) 9 Sc
In this contract dispute, the plaintiff sought an adverse inference. The court denied the motion, finding that Venue: N.D. Cal.
no duty to preserve existed for the employee involved, that emails were not destroyed with a culpable state Judge: Paul Grewal
of mind, and that no prejudice occurred.
Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL, 2013 WL 3677203 (D. Nev. July 10, 2013) 9 Tr
In this wrongful discharge case, the plaintiff filed for Rule 37(c) sanctions due to the automatic destruction Venue: D. Nev.
of emails. The court found that the duty to preserve had not attached until after the alleged spoliation Judge: Peggy Leen
occurred and denied sanctions.
Hart v. Dillon Cos., No. 12-cv-00238-RM-DW, 2013 WL 3442555 (D. Colo. July 9, 2013) 10 Tr
This wrongful discharge case involved the destruction of a recorded interview by the defendant’s Venue: D. Colo.
investigator. A legal hold wasn’t issued until four months after the EEOC complaint had been filed; Judge: David West
the court found gross negligence and relevance, with sanctions to be determined later.
Sekisui Am. Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 2951924 (S.D.N.Y. June 10, 2013) 2 Tr
In this breach of contract case, the plaintiff failed to issue a timely legal hold or to notify a third party Venue: S.D.N.Y.
in control of relevant email to preserve it; however, alternate sources for many of the lost emails were Judge: Frank Maas
found. Because the defendant failed to show prejudice, the court denied the request for an adverse
inference sanction.
Pillay v. Millard Refrigerated Servs, No. 09 C 5725, 2013 WL 2251727 (N.D.Ill., May 22, 2013) 7 Tr
In this employment discrimination case, the plaintiff filed a motion claiming spoliation for the destruction Venue: N.D. Ill.
of performance data due to routine data destruction. The court granted the request for an adverse Judge: Joan Lefkfow
inference sanction.
Cottle-Banks v. Cox Commc’ns, Inc., No. 10 CV 2133-GPC (WVG), 2013 WL 2244333 9 Tr

(S.D. Cal. May 21, 2013) Venue: S.D. Cal.
In this unfair competition lawsuit, the plaintiff alleged destruction of relevant audio recordings; agreeing Judge: Gonzalo Curiel
that spoliation had occurred, the court denied the plaintiff’s motion for an adverse inference due to lack
of any showing of prejudice.
Research Foundation of State Univ. of N.Y. v. Nektar Therapeutics, 2 LH

No. 1:09-cv-1292 (GLS/CFH), 2013 WL 2145652 (N.D.N.Y. May 15, 2013) Venue: N.D.N.Y.
In this patent dispute case, the court denied the defendant’s motion for an adverse inference, citing among Judge: Gary L. Sharpe
other actions a comprehensive preservation policy and issuance of legal holds.
Kirgan v. FCA LLC, No. 10-1392, WL 1500708 (C.D. Ill., Apr. 10, 2013) 7 LH
In this employment case involving the defendant’s routine destruction of calendar entries (despite Venue: C.D. Ill.
issuing a legal hold notice) and false testimony, the court granted an adverse inference instruction and Judge: John Gorman
monetary fine.
Dunbar v. Google, No. C12-3305 LHK, (N.D.Cal, Apr. 2, 2013) 9 Sc
The plaintiff sought prior versions of documents retained in the defendant’s document management Venue: N.D. Cal.
system. The court ordered additional discovery. Judge: Paul Grewal
Gatto v. United Air Lines, Inc., No. 10-CV-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013) 3 Sc
The defendant in this personal injury case sought sanctions related to the deletion of a Facebook account, Venue: D. N.J.
resulting in an adverse inference sanction. Judge: Steven Mannion
EEOC v. JP Morgan Chase Bank N.A., No. 2:09-cv-00864, 2013 WL 765593 6 Tr

(S.D. Ohio Feb. 28, 2013) Venue: S.D. Ohio
This employment discrimination case involved the destruction of data due to the untimely issuance of Judge: Gregory L. Frost
a legal hold and a failure to suspend routine email culling, resulting in a permissive adverse inference.
EEOC v. Ventura Corp., No. 11-1700 (PG), 2013 WL 550550 (D.P.R. Feb. 12, 2013) 1 Tr
In this Title VII case, relevant documents were shredded and emails lost due to a software migration, Venue: D.P.R.
despite multiple warnings from the EEOC, which resulted in an adverse inference despite the absence Judge: Juan M.
of bad faith. Perez-Gimenez
Christou v. Beatport, LLC, No. 10-cv-02912-RBJ-KMT, 2013 WL 248058 (D. Colo. Jan. 23, 2013) 10 Tr
The defendant in this commercial case failed to take steps to preserve text messages. Because the Venue: D. Colo.
defendant lost his phone, he could not produce the requested messages during discovery. Finding that Judge: R. Brooke Jackson
the duty to preserve had attached, the court found negligence and provided a rebuttable inference at trial.
Simms v. Deggeller Attractions, No. 7:12-cv-00038-JCT, 2013 WL 49756 (W.D. Va. January 2, 2013) 4 Tr
The plaintiff in this personal injury case moved for sanctions for the destruction of photos. The court Venue: W.D. Va.
concluded that neither the duty to preserve nor bad faith existed and denied the motion, applying the Judge: James Turk
Rule 37((e)) safe harbor.
Day v. LSI Corp., No. CIV 11-186-TUC-CKJ, 2012 WL 6674434 (D. Ariz. Dec. 20, 2012) 9 Sc
In this employment discrimination case, a critical witness was excluded from the original preservation Venue: D. Ariz.
request and legal hold; data was subsequently lost, resulting in a default judgment and an adverse Judge: Cindy K. Jorgenson
inference instruction.
Haskins v. First Am. Title Ins. Co., No. 10-5044, 2012 WL 5183908 (D. NJ, Oct. 18, 2012) 3 Sc
In this insurance fraud case, the plaintiff filed a motion to compel preservation of ESI held by third-party Venue: D. N.J.
agents. The court found ESI was in the defendant’s “possession, custody, or control” and ordered issuance Judge: Joel Schneider
of a legal hold and a request for production.
Scentsy, Inc. v. B.R. Chase, LLC, No. 1:11-cv-00249-BLW, 2012 WL 4523112 (D. Idaho Oct. 2, 2012) 9 Tr
In this copyright infringement case, the defendant filed a motion to compel a forensic examination. The Venue: D. Idaho
court concluded the plaintiff’s legal hold and document retention policies were “clearly unacceptable” (given Judge: B. Lynn Winmill
the lack of a written legal hold, the timing of the verbal hold coinciding with the plaintiff filing the complaint,
and routine email disposition after six months). The court ordered additional depositions (along with
potential for additional sanctions if spoliation was found to have occurred).
Hynix Semiconductor, Inc. v. Rambus, Inc., No. 00-20905, 2012 WL 4328999 9 Tr

(N.D. Cal. Sept. 21, 2012) Venue: N.D. Cal.
Upon appeal, two federal court cases (Hynix v. Rambus and Micron Techs. v. Rambus) were remanded after Judge: Ronald M. Whyte
finding differing conclusions regarding spoliation claims with nearly identical underlying facts. Originally, in
Hynix, the court determined that Rambus did not spoliate documents. The Federal Circuit court concluded
that the court had “applied too narrow a standard of foreseeability.” Following reconsideration, the court
concluded the earlier date triggered the duty and therefore Rambus had committed spoliation.
Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK, 2012 WL 3763545 9 Sc
(D. Or. Aug. 29, 2012) Venue: D. Or.
The court saw “no principled reason to articulate different standards for the discoverability of Judge: Paul Papak
communications through email, text message, or social media platforms.”
Boeynaems v. LA Fitness Int’l, 285 F.R.D. 331 (E.D. Pa. August 16, 2012) 3 Pr
In this Rule 23 consumer class action involving a dispute over membership termination rights, the plaintiffs Venue: E.D. Pa.
sought to expand the scope of discovery. The court entered a cost-shifting order against the plaintiffs. Judge: Michael Baylson
Apple v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG), 2012 WL 3042943 9 LH
(N.D. Cal. July 25, 2012) Venue: N.D. Cal.
In this patent infringement case, the court agreed with Apple, which sought an adverse inference for data Judge: Paul Grewal
spoliation due to Samsung’s failure to suspend the automated deletion of email protocol (and the lack of
email from 14 key fact witnesses for the relevant time period).
Chin v. Port Authority of N.Y. & N.J., 685 F.3d 135 (2d Cir., July 10, 2012) 2 LH
In this employment discrimination opinion, Chin sought a spoliation sanction for the Port Authority’s Venue: 2d Cir
purported gross negligence for failure to issue a written legal hold. The court rejected the Southern District Judge: Miriam Goldman
of New York’s “per se” gross negligence standard, finding that Chin suffered no prejudice because the Port Cedarbaum
Authority produced ample evidence.
Omogbehin v. Cino, No. 11-2223, 2012 WL 2335319, (3d Cir. June 20, 2012) 3 Pr
This employment discrimination lawsuit involved a plaintiff who filed a motion alleging spoliation. The court Venue: 3d Cir
concluded the plaintiff failed to prove that supposed emails had in fact existed (and there was no allegation Judge: Franklin S.
of faulty legal hold processes). Van Antwerpen
GenOn Mid-Atl., LLC v. Stone & Webster, Inc., 282 F.R.D. 346 (S.D.N.Y. Apr. 20, 2012) 2 Sc
In this contract dispute, the defendant alleged spoliation of data held by a third party. The court found Venue: S.D.N.Y.
that the duty to preserve extended to data under the “practical control” of the party but denied sanctions Judge: Frank Maas
because sufficient prejudice was not shown.
BYU v. Pfizer Inc., No. 2:06-CV-890 TS, 2012 WL 1302288 (D. Utah, Apr. 16, 2012) 10 Tr
BYU alleged that (1) Pfizer’s initial inquiry for legal advice following its withdrawal from the research Venue: D. Utah
arrangement was a preservation “triggering” event and (2) that Pfizer’s 1994 litigation “sensitized” it Judge: Brooke C. Wells
to the possibility that additional interested parties might come forward. The court denied that the
duty to preserve had attached 12 years before the complaint was filed.
Tracy v. NVR Inc., No. 04-CV-6541L, 2012 WL 1067889 (W.D.N.Y., March 26, 2012) 2 Sc
In this FLSA class-action lawsuit, the plaintiffs moved to compel production of legal hold notices and a list of Venue: W.D.N.Y.
recipients, based on a preliminary showing of spoliation of potentially similarly situated opt-in plaintiffs. The Judge: Marian W. Payson
court denied the motion because the plaintiffs failed to demonstrate that the duty to preserve extended
to potential opt-in plaintiffs or that spoliation had occurred. However, the court did grant NVR’s motion for
spoliation against one of the opt-in plaintiffs.
State Nat’l Ins. Co. v. County of Camden, No. 08-5128 (NLH) (AMD), 2012 WL 960431 3 LH
(D.N.J. March 21, 2012) Venue: D. N.J.
Finding the county’s efforts severely lacking (“including a failure to institute a legal hold after the trigger Judge: Noel L. Hillman
event, suspend auto-deletion of email, or retain copies of any back-up tapes”), the court ordered monetary
sanctions despite finding no actual spoliation.
Chura v. Delmar Gardens of Lenexa, Inc., No. 11–2090–CM–DJW, 2012 WL 940270 10 Sc

(D. Kan. Mar. 20, 2012) Venue: D. Kan.
In this employment discrimination action, the plaintiffs expressed concern over the limited production of Judge: David Waxse
ESI, suggesting shortcomings in either the defendant’s preservation efforts or inadequate search protocols.
The court ordered an evidentiary hearing on issues including what actions were taken in response to the
preservation duty.
Danny Lynn Elec. v. Veolia ES Solid Waste, No. 2:09CV 192-MHT, 2012 WL 786843 1 Pr
(M.D. Ala. Mar. 9, 2012) Venue: M.D. Ala.
In denying a motion for sanctions late in the case, the court concluded that the defendant had not acted Judge: Terry F. Moorer
in bad faith, that an effective legal hold process was in place, and that the degree of prejudice suffered
was minimal.
Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012) 10 LH
In this product liability case, the court granted the plaintiff’s motion to sanction the defendant for failing Venue: D.Kan.
to take proper steps to preserve ESI (including a court-ordered legal hold, additional discovery, and costs). Judge: David Waxse
915 Broadway Assocs., LLC, v. Paul, Hastings, Janofsky & Walker, LLP, LH Sc
No. 403124/08, 2012 WL 593075 (N.Y. Sup. Ct. Feb. 16, 2012) Venue: N.Y. Sup.
In this case involving a real estate transaction, the court granted a motion for spoliation sanctions and Judge: Bernard J. Fried
dismissed a claim with prejudice due to the failure to take adequate steps to preserve potentially relevant
evidence (including the failure to implement an effective legal hold process, the failure to suspend the
automated destruction of email, and the decommissioning and discarding of an integral email server).
Pippins v. KPMG LLP, 279 F.R.D. 245 (S.D.N.Y. February 3, 2012) 2 Sc
During a stay of discovery in this FLSA class-action lawsuit, KPMG sought a protective order limiting the Venue: S.D.N.Y.
scope of preservation efforts due to the burden imposed by preserving hard drives for thousands of Judge: James L. Cott
former employees who might fall within a potential FLSA collective action. After failing to resolve the
dispute, the court concluded that it would be premature to limit scope of preservation.
Voom HD Holdings LLC v. EchoStar Satellite LLC, 939 N.Y.S. 2d 321 (N.Y. App. Div. Jan. 31, 2012) NY Tr
In this contract dispute, the appellate court upheld the lower court’s sanctions against EchoStar for failing Venue: N.Y. Sup.
to issue a legal hold once litigation could be “reasonably anticipated” and failing to suspend automatic email Judge: Sallie
deletion until four months after the suit was filed, resulting in the loss of relevant emails. Manzanet-Daniels
In re: Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, 5 Te
on Apr. 20, 2010, MDL No. 2179, 2012 WL 85447 (E.D.La., Jan. 11, 2012) Venue: E.D. La.
The court indicted a former BP drilling engineer for obstruction of justice after he deleted text messages Judge: Carl J. Barbier
relevant to the ongoing lawsuit.
In re: Oil Spill Perez v. Vezer Indus. Prof, Inc., No. CIV S-09-2850 MCE CKD, 2011 WL 5975854 9 LH
(E.D. Cal. Nov. 29 2011) Venue: E.D. Cal.
In this personal injury case, the defendant did not implement a legal hold and took “minimal, if any, efforts Judge: Carolyn K. Delaney
to preserve relevant documents and ESI.” The court awarded a small monetary sanction to the plaintiff due
to a lack of gross negligence and the minimal prejudice suffered.
NACCO Materials Handling Grp., Inc. v. Lilly Co., No. 11-2415 AV, 2011 WL 5986649, 6 Sc
(W.D. Tenn. Nov. 16, 2011) Venue: W.D. Tenn.
In this case involving improper access to a secure dealer website, Lilly failed to take reasonable steps to Judge: Diane K. Vescovo
preserve (e.g., failing to issue a company-wide legal hold due to the scope of allegations, to suspend auto-
delete and routine overwriting features, or to collect ESI), resulting in court-imposed preservation actions
and monetary sanctions.
N.V.E., Inc. v. Palmeroni, No. 06-5455 (ES), 2011 WL 4407428 (D.N.J., Sept. 21, 2011) 3 LH
In this wrongful termination case, the defendant admitted not issuing a legal hold and the court found it Venue: D. N.J.
to be “grossly negligent in failing to preserve” records (e.g., destroying ESI from a computer system that Judge: Esther Salas
was subsequently upgraded). The court found an adverse inference and an award of attorney’s fees and
costs appropriate.
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv58, 2011 WL 2966862 4 Pr
(E.D. Va. July 21, 2011) Venue: E.D. Va.
In this countersuit, Kolon was found to have failed to implement an effective legal hold process and notify Judge: Robert E. Payne
key custodians about the need to preserve evidence. The court issued an adverse inference in lieu of
default judgment (citing efforts in issuing legal holds and subsequent efforts to preserve files).
Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011) 7 LH
In this employment discrimination case, the defendant chose to defer issuing a legal hold or implementing Venue: N.D. Ind.
process to preserve evidence until after the Rule 26(f) conference. The court agreed with the plaintiff’s Judge: Andrew P. Rodovich
motion to compel and ordered the defendant to implement an appropriate legal hold.
Gaalla v. Citizens Med. Ctr., No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011) 5 Sc
The plaintiffs sought sanctions in response to the defendant’s failure to preserve disaster recovery Venue: S.D. Tex.
backup tapes. The court ruled against sanctions, finding preservation efforts that were undertaken were Judge: Janis G. Jack
reasonable, including issuing a timely legal hold, making timely snapshots of relevant email accounts, and
instituting journaling.
Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. C. P. May 19, 2011) PA Te
The court ordered the plaintiff to provide “all passwords, user names and log-in names for any and all Venue: PA
MySpace and Facebook accounts” to the defendant because “no privilege exists . . . for information posted Judge: Charles H. Saylor
in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth
as to alleged claims is a paramount ideal.”
Surowiec v. Capital Title Agency, Inc., No. CV-09 02153 PHX-DGC, 2011 WL 1671925 9 LH
(D. Ariz. May 4, 2011) Venue: D. Ariz.
The court ruled the defendant was grossly negligent for its inadequate preservation efforts and discovery Judge: David G. Campbell
misconduct, including failing to issue a timely legal hold or to suspend routine document destruction when
it should have reasonably anticipated litigation. The court imposed monetary sanctions and an adverse
inference instruction.
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., No. 3:09-CV-58, 2011 WL 1597528 4 Pr
(E.D. Va. Apr. 27, 2011) Venue: E.D. Va.
Despite a claim by the plaintiff that critical information was lost, the court denied sanctions for willful Judge: Robert E. Payne
spoliation, explaining that a defendant’s duty to preserve is not absolute: it must only be reasonable and
proportional to the circumstances.
Steuben Foods, Inc. v. Country Gourmet Foods LLC, No. 08-CV-56IS(F), 2011 WL 1549450, 2 LH
(W.D.N.Y., Apr. 21, 2011) Venue: W.D.N.Y.
In this breach of contract case, the defendant asserted the plaintiff’s reliance on a verbal legal hold and Judge: Leslie Foschio
failure to produce at least three emails warranted spoliation sanctions. The court found no evidence of
spoliation or resulting prejudice.
Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., No. 05-CV-6734T, 2 Tr
2011 WL 1125493 (W.D.N.Y. Mar. 21, 2011) Venue: W.D.N.Y.
Among numerous discovery disputes, the plaintiff sought spoliation sanctions for the destruction of Judge: Marian W. Payson
emails. The court concluded that the duty to preserve arose when the plaintiff filed the complaint (not
earlier, as Star Direct contended). However, failing to issue a legal hold or to take adequate steps to
preserve amounted to gross negligence and warranted the imposition of monetary sanctions.
Green v. Blitz U.S.A., Inc., No. 2:07-cv-372 (TJW), 2011 WL 806011 (E.D. Tex. Mar. 1, 2011) 5 LH
This product liability case involved a defendant who failed to preserve ESI (and even encouraged deletion Venue: E.D. Tex.
in line with records policies). The court imposed a monetary sanction and required the defendant to Judge: T. John Ward
provide a copy of the court’s order to opposing counsel in every lawsuit for the next five years.
Philips Elecs. N. Am. Corp., et al. v. BC Technical, No. 2:08-CV-639-CW-SA, 2011 WL 677462 10 LH
(D. Utah Feb. 16, 2011)
Venue: D. Utah
In this lawsuit involving copyright infringement and misappropriation of trade secrets, the defendant Judge: Samuel Alba
failed to issue a timely legal hold while key players “wantonly destroyed incriminating evidence,” resulting
in extreme sanctions, including summary judgment for the plaintiff.
Viramontes v. U.S. Bancorp, No. 10-761, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011) 7 Tr
The bank’s retention policy kept emails for 90 days, after which the emails were overwritten and destroyed. Venue: N.D. Ill.
However, the retention policy would be promptly suspended on the occurrence of litigation or another Judge: Sharon
triggering event. Because the bank followed its record retention procedures in good faith and suspended Johnson Coleman
auto-deletion on anticipation of litigation, it was protected from court sanctions under the Federal Rule of
Civil Procedure 37(e) “safe harbor.”
United States ex rel. McBride v. Halliburton Co., No 05-CV-828 (HHK/JMF), 2011 WL 208301 DC Pr
(D.D.C. Jan. 24, 2011) Venue: D.D.C.
The plaintiff requested additional production of emails from an expanded list of custodians, although Judge: John M. Facciola
significant production had already been completed. The court determined that the plaintiff had failed to
demonstrate that missing emails were crucial, and that additional discovery was not warranted.
Orbit One Communic’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 2010 WL 4615547 2 LH
(S.D.N.Y., Oct. 26, 2010) Venue: S.D.N.Y.
Despite the failure to “engage in model preservation,” the court denied a motion for spoliation due to Judge: James Francis
insufficient evidence that any lost ESI was relevant to the case (rejecting the notion that failing to issue
a written legal hold is per se gross negligence).
McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 Sc

(Pa. C.P. Sept. 9, 2010) Venue: PA
The court ordered the plaintiff to provide his Facebook and MySpace user names and passwords to Judge: Douglas W. Herman
counsel for defendants, rejecting the plaintiff’s argument that communications shared among one’s
“private” friends is somehow protected against disclosure in discovery and instructing “‘no social
network site privilege’ has been adopted by our legislature or appellate courts.”
Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D.Md, Sept. 9, 2010) 4 Sc
This case involved allegations of copyright and patent infringement and unfair competition as well as Venue: D. Md
the purposeful destruction and overwriting of files to obfuscate incriminating evidence, resulting in Judge: Paul Grimm
sizable monetary sanctions and default judgment on the copyright infringement claim.
Medcorp, Inc. v. Pinpoint Tech., Inc., No. 08-00867, 2010 WL 2500301 (D. Colo. June 15, 2010) 10 LH
The case involved the intentional destruction of 43 hard drives containing relevant information. Finding Venue: D. Colo.
negligence, the court issued monetary sanctions and an adverse inference instruction against Medcorp. Judge: Kristen L. Mix
Jones v. Bremen High Sch. Dist. 228, No. 08-C-3548, 2010 WL 2106640 (N.D. Ill. May 25, 2010) 7 LH
In this wrongful termination lawsuit, the defendant failed to issue a legal hold until well after the trigger Venue: N.D. Ill.
event, did not give meaningful guidance to key custodians to preserve data, and continued the automatic Judge: Susan E. Cox
destruction of ESI (including backup tapes for email). The court found the defendant was grossly negligent
and imposed sanctions, including the shifting of costs and additional depositions.
Passlogix, Inc. v. 2FA Tech. LLC, 708 F. Supp. 2d 378, 2010 WL 1702216 (S.D.N.Y. Apr. 27, 2010) 2 LH
In this breach of contract case, 2FA failed to issue a legal hold (despite being a small company) and Venue: S.D.N.Y.
engaged in intentional bad-faith spoliation, resulting in prejudice. The court imposed a monetary sanction Judge: Peter K. Leisure
designed to punish the bad actors directly.
Merck Eprova AG v. Gnosis S.P.A., 07 Civ. 5898 (RJS), 2010 WL 1631519 (S.D.N.Y. Apr. 20, 2010) 2 LH
This case involved the mislabeling of a nutritional agreement as well as inadequate preservation efforts Venue: S.D.N.Y.
(the lack of a legal hold, the failure to suspend automatic email deletion, and the inadequate supervision Judge: Richard J. Sullivan
of custodian search). The court found gross negligence and ordered monetary sanctions and an additional
deposition.
Crown Castle USA, Inc. v. Fred A. Nudd Corp., No. 05-CV-6163T, 2010 WL 1286366 2 LH
(W.D.N.Y. Mar. 31, 2010) Venue: W.D.N.Y.
This product liability case involved gross negligence due to a failure to monitor the approach used to Judge: Marian W. Payson
determine where and what to look for in terms of responsive documents, the failure to suspend the
automatic deletion of emails, and the failure to issue a legal hold. The court refused to issue an adverse
inference due to lack of bad faith and prejudice.
Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D.Tex, Feb. 19, 2010) 5 Tr
In this litigation over a non-competition agreement and the misappropriation of secrets, the court awarded Venue: S.D. Tex.
monetary sanctions and an adverse inference instruction against the defendants for their failure to issue a Judge: Lee H. Rosenthal
written legal hold and their willful destruction of evidence after the duty to preserve had attached.
Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2 LH
685 F. Supp. 2d 456, 2010 WL 184312 (S.D.N.Y. Jan, 15, 2010)
Venue: S.D.N.Y.
In this complex litigation, several plaintiffs were found to have failed to undertake reasonable preservation Judge: Shira A. Scheindlin
efforts, including failing to issue written legal holds and other shortcomings, resulting in a finding of
gross negligence.
Einstein v. 357 LLC, No. 604199/07 (N.Y. Sup. Ct. Nov. 12, 2009) NY LH
In this lawsuit alleging construction defects, the plaintiff filed a motion to compel discovery. The court Venue: N.Y. Sup.
deemed the defendant’s failure to implement any legal hold, make any attempt to investigate relevant Judge: Charles E. Ramos
data sources, and preserve data (e.g., due to email quota restrictions) grossly negligent and imposed
monetary sanctions and an adverse inference.
Scalera v. Electrograph Sys., Inc., No. CV 08-50 (TCP) (AKT), 2009 WL 3126637 2 Sc
(E.D.N.Y. Sept. 29, 2009) Venue: E.D.N.Y.
In this employment discrimination case, the plaintiff moved for sanctions due to the loss of allegedly Judge: A. Kathleen Tomlinson
relevant emails caused by failing to issue a legal hold notice or to take other steps to preserve ESI.
Despite finding negligence for such missteps, the court denied a request for an adverse inference
because there was no evidence the lost evidence was relevant.
Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. Sept. 28, 2009) 11 Sc
In this personal injury lawsuit, the plaintiff sought sanctions for the intentional destruction of ESI; Venue: M. D. Fla.
the court agreed, finding bad faith, and imposed both attorneys’ fees and an adverse inference Judge: Mary S. Scriven
against the defendant.
Major Tours, Inc. v. Colorel, No. 05-3091 (JBS/JS), 2009 WL 2413631 (D.N.J. Aug. 4, 2009) 3 Tr
The plaintiffs in this discrimination case sought the production of legal hold letters; after concluding that Venue: D. N.J.
spoliation had likely occurred due to delayed recognition of a triggering event and 30(b)(6) testimony, Judge: Joel Schneider
the court agreed and ordered the production of the hold letters.
Pinstripe, Inc. v. Manpower, Inc., No. 07-CV-620-GKF-PJC, 2009 WL 2252131 10 LH

(N.D. Okla. July 29, 2009). Venue: N.D. Okla.
The key takeaway from this case is the need to communicate, communicate, and do some more Judge: Paul J. Cleary
communicating when implementing a legal hold. A quick phone call confirming the steps being taken
to implement the legal hold would have saved more than $30,000 in this case.
Phillip M. Adams & Assocs., LLC v. Dell, Inc., 621 F. Supp. 2d 1173, 2009 WL 910801 10 Tr
(D.Utah March 30, 2009) Venue: D. Utah
In this infringement case, the court ruled that a permissive adverse inference was appropriate where a Judge: David Nuffer
party failed to preserve evidence after the triggering event for the duty to preserve, which was multiple
lawsuits arising out of the same issue (floppy disk errors) some five years earlier when industry was
“sensitized to the issue” in the case.
Synventive Molding Solutions v. Husky Injection Molding Systems, 262 F.R.D. 365 2 LH
(D. Vt. Mar. 13, 2009) Venue: D. Vt.
In this patent infringement lawsuit, the court ultimately ordered the plaintiff to implement a legal hold Judge: John M. Conroy
as to personnel likely to possess discoverable information. The court also ordered the plaintiff to file a
sworn declaration, including, among other things, a description of the “nature and extent of the litigation
hold put in place in response to this Order, including the individual personnel affected by the hold.”
ACORN v. County of Nassau, No. CV 05-2301 (JFB) (WDW), 2009 WL 605859 (E.D.N.Y. Mar 9, 2009) 2 Tr LH
This employment discrimination case involved a plaintiff that claimed the county failed to implement a Venue: E.D.N.Y.
timely hold and adequately search for ESI (formal legal hold issued 15 months after trigger event). The Judge: William D. Wall
court found the county grossly negligent and imposed a monetary sanction but refused to issue an
adverse inference instruction because there was no prejudice to the plaintiff.
Keithley v. HomeStore.com, Inc., No. C-03-04447 SI (EDL), 2008 WL 383384 (N.D. Cal. Aug. 12, 2008) 9 LH
In this intellectual property infringement case, the plaintiff filed a motion claiming spoliation and discovery Venue: N.D. Cal.
misconduct. The court agreed that the “failure to have an adequate litigation hold in place and the failure Judge: Elizabeth D. Laporte
to issue reminders to employees regarding the duty to preserve evidence was at least grossly negligent”
and resulted in the spoliation of relevant ESI. The court awarded $1.4 million in monetary sanctions and
issued an adverse inference instruction.
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Case Law

Ediscovery Case Law Summaries

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Topics: Co Cooperation Pr Proportionality Sc Scope Sp Spoliation

Evidentiary Monetary Sanctions Preclusion Punitive Vacate Judgment

About Brad Harris

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Takeaways on preserving metadata

Court Denies Plaintiff Sanctions for Failure to Prove

Violating a Retention Policy Is Not Necessarily Bad

ePRO Can’t Escape Huge Sanctions for Willful Spoliation

‘Mere Conjecture’ Insufficient to Justify

Court Orders Validation Set

As to privilege, the court ordered the City to produce a

Court Denies Motion to Compel All-Employee Email

Campbell v. Chadbourne & Parke LLP

Court Orders Defendants to Search Personal and

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Takeaways on disclosure of privileged materials

Court Rejects Church’s Appeal, Upholding $4,000

Takeaways on discovery compliance

Topics: Co Cooperation Pr Proportionality LH Legal Hold Sc Scope Sp Spoliation Te Technology Tr Trigger

Evidentiary Monetary Sanctions Preclusion Punitive Vacate Judgment

Rembrandt Diagnostics, LP v. Innovacon, Inc., 2017 U.S. Dist. LEXIS 164015 9 Pr

Hefter Impact Techs, LLC v. Sport Maska, Inc., No. 15-13290-FDS 1 Sp

People v. Miller, No. 16PDJ067, 2017 BL 208514 (Colo. June 1, 2017) 10 Sp

United States v. Volkswagen AG, No. 16-CR-20394 (Jan. 11, 2017) 6 Sp

Rodman v. Safeway Inc., No. 11-cv-03003-JST (N.D. Cal. Oct. 6, 2016) 9 Sp

OrchestrateHR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2016 WL 1555784 5 Sp

Living Color Enters. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATTHEWMAN, 11 Sp

Electrified Discounters, Inc. v. MI Technologies, Inc., No. 3:13cv1332 (RNC), 2015 U.S. Dist. 2 LH

Vladeck, Waldman, Elias & Engelhard, P.C. v. Paramount Leasehold, L.P., LH

Corning Optical Communications Wireless Ltd. v. Solid, Inc., No. 5:14-cv-03750-PSG, 9 Pr

In re Certain Opaque Polymers, Inv. No. 337-TA-883 (Oct. 20, 2014) LH

Small v. Univ. Med. Ctr. of S. Nev., No.: 2:13-cv-00298-APG-PAL, 2014 WL 4079507 9 LH

Regulatory Fundamentals Grp. v. Governance Risk Management Compliance, 2 LH

EEOC v. SunTrust Bank, No. 8:12-cv-1325-T-33MAP (M.D. Fla. Apr. 7, 2014) 11 Tr Sp

In re Ethicon, Inc., 299 F.R.D. 502 (S.D.W.Va. Feb. 4, 2014) 4 LH Tr

Polo-Calderon v. Corporacion Puertorriquena de Salud, 992 F. Supp. 2d 53 (D.P.R., 1 Te

Cottle-Banks v. Cox Commc’ns, Inc., No. 10 CV 2133-GPC (WVG), 2013 WL 2244333 9 Tr

Research Foundation of State Univ. of N.Y. v. Nektar Therapeutics, 2 LH

Dunbar v. Google, No. C12-3305 LHK, (N.D.Cal, Apr. 2, 2013) 9 Sc

EEOC v. JP Morgan Chase Bank N.A., No. 2:09-cv-00864, 2013 WL 765593 6 Tr

Hynix Semiconductor, Inc. v. Rambus, Inc., No. 00-20905, 2012 WL 4328999 9 Tr

Chura v. Delmar Gardens of Lenexa, Inc., No. 11–2090–CM–DJW, 2012 WL 940270 10 Sc

Pippins v. KPMG LLP, 279 F.R.D. 245 (S.D.N.Y. February 3, 2012) 2 Sc

McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 Sc

Pinstripe, Inc. v. Manpower, Inc., No. 07-CV-620-GKF-PJC, 2009 WL 2252131 10 LH

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