Tagged: Sanctions

SDNY Expands Interpretation of “Possession, Custody, or Control” – Orders Adverse Inference Against Company for Spoliation of Text Messages by Non-Party, Independent Contractor on Personal Phone

SDNY Expands Interpretation of “Possession, Custody, or Control” – Orders Adverse Inference Against Company for Spoliation of Text Messages by Non-Party, Independent Contractor on Personal Phone

In Van Zant, Inc. v. Pyle, et al., 270 F. Supp. 3d 656 (S.D.N.Y. 2017), the Southern District of New York ordered an adverse inference against Los Angeles-based Cleopatra Entertainment LLC (“Cleopatra”), based on the conduct of its independent contractor and non-party to the case, Jared Cohn (“Cohn”). Cohn had been hired by Cleopatra to write and direct a motion picture about the 1977 plane crash that killed two members of the Southern rock band Lynyrd Skynyrd. During the film’s production, Cleopatra and Cohn enlisted the aid of Lynyrd Skynyrd drummer Artimus Pyle (“Pyle”), who, along with other surviving band members (and the estates of deceased members), was party to a 1988 Consent Order that set limits on the permissible use of the Lynyrd Skynyrd name; the likenesses, names, and biographical material of its members; the band’s history; and related items. The Consent Order also detailed the respective parties’ rights to royalties from Lynyrd Skynyrd music, merchandise, and other proceeds, and prohibited the parties from “implicitly or through inaction authoriz[ing] the violation of the terms [of the agreement] by any third party.” Pyle initially did not make Cleopatra aware of the Consent Order, but plaintiffs (also parties to the 1988...

Defendant Acting With “A Pure Heart But Empty Head” Not Subject to Spoliation Sanctions Under Amended Rule 37(e)

Defendant Acting With “A Pure Heart But Empty Head” Not Subject to Spoliation Sanctions Under Amended Rule 37(e)

A recent decision denying a motion for spoliation sanctions highlights that a moving party must show that even clearly spoliated ESI is not available from other sources to qualify for an award of any form of sanction under Rule 37(e). In Snider v. Danfoss, LLC, the Northern District of Illinois held that a defendant’s admitted and erroneous destruction of duplicative ESI did not prejudice the plaintiff and therefore sanctions were not warranted. In other words, “no harm, no foul.” Plaintiff Snider worked for Danfoss for a number of years, during which time she was sexually harassed by another employee. Plaintiff informed her acting supervisor of the harassment, and was later transferred to a different position, which she viewed as a demotion and retaliation for her complaint. Approximately one week after the transfer, Plaintiff’s counsel sent a generalized, “preserve all evidence” letter to Danfoss. She then quit, and, pursuant to Danfoss’s policy, her emails were deleted 90 days after her employment ended. Plaintiff’s acting supervisor also later left Danfoss’s employment, and her emails were deleted in accordance with Danfoss’s auto-deletion policy. After the case was filed, Plaintiff deposed her acting supervisor, who suffered from a case of “testimonial amnesia” and was...

Signs of Life?  – Judge Francis Opines that “Inherent Authority” to Sanction Spoliation Related Conduct Survives Amended Rule 37(e) 0

Signs of Life? – Judge Francis Opines that “Inherent Authority” to Sanction Spoliation Related Conduct Survives Amended Rule 37(e)

In perhaps the first published decision since the amended Federal Rules took effect on December 6, 2015, United States Magistrate Judge James C. Francis IV, a preeminent judicial e-discovery authority, relied upon amended Rule 37(e) and, somewhat controversially, his inherent authority, to sanction a litigant for evidence tampering and spoliation. The opinion is significant, not solely because it invokes the newly-minted rule, but because it interprets amended Rule 37(e) as not foreclosing the court’s inherent authority as a viable alternative to sanction spoliation-related conduct that may not strictly satisfy the new Rule’s elements.

N.Y. Court Grants Spoliation Sanctions for Destruction of Documents Decades Ago 0

N.Y. Court Grants Spoliation Sanctions for Destruction of Documents Decades Ago

In Warren v. Amchem Products, Inc., Justice Peter Moulton sanctioned defendant J-M Manufacturing Company for destroying documents in 1990 and 1997 – 24 years and 17 years, respectively, before the Warren Estate filed suit against asbestos manufacturers in 2014. The Court granted plaintiff’s motion for spoliation sanctions and ordered that, should the case proceed to trial, the jury will be instructed that it may infer that the destroyed documents would have supported plaintiff’s claims and would not have supported J-M’s defenses.

Rule Amendments Update: U.S. Supreme Court Adopts Proposed Amendments 0

Rule Amendments Update: U.S. Supreme Court Adopts Proposed Amendments

On April 29, 2015, the United States Supreme Court adopted, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from September 25, 2014, June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013. Absent action by the United States Congress, the proposed amendments will take effect on December 1, 2015.

Two Failures to Preserve, Two Starkly Different Results in New York 0

Two Failures to Preserve, Two Starkly Different Results in New York

Two recent spoliation decisions, both out of the same New York Court and issued within a week of each other, demonstrate the potential for starkly different sanctions results depending on the level of culpability of the spoliator. AJ Holdings Group, LLC, v. IP Holdings, LLC, Index No. 600530/2009 (Sup. Ct. N.Y. County, September 19, 2014) and L&L Painting Co., Inc. v. Odyssey Contracting Corp., 2014 N.Y. Misc. LEXIS 4300 (Sup. Ct. N.Y. County, September 25, 2014) are both breach of contract actions in which plaintiffs were accused of spoliating evidence.

Rule Amendments Update: Judicial Conference Approves Proposed Changes 0

Rule Amendments Update: Judicial Conference Approves Proposed Changes

On September 16, 2014, the Judicial Conference approved, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments and the approval process, see our previous blog posts from June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013.) The proposed amendments, which include changes to the definition of the scope of discovery in Rule 26(b)(1) and the applicable standard courts should apply when considering sanctions for ESI spoliation under Rule 37(e), will now be submitted to the U.S. Supreme Court for consideration and approval. If adopted by the Supreme Court before May 1, 2015, and Congress does not intervene, the proposed amendments will take effect on December 1, 2015.

Rule Amendments Update: Standing Committee Approves Proposed Changes 0

Rule Amendments Update: Standing Committee Approves Proposed Changes

On May 29-30, 2014, the Judicial Conference’s Standing Committee on Rules of Practice and Procedure (the “Standing Committee”) met and approved the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from May 27, 2014, February 10, 2014, and May 6, 2013.) The Standing Committee approved the entire slate of proposed amendments, including changes to the scope of discovery, as defined in Rule 26(b)(1), and changes to the standard to be applied by courts when imposing curative measures or sanctions for the spoliation of electronically stored information, as per Rule 37(e). Before approving the proposed amendments, the Standing Committee made several minor revisions, including changes to the proposed Committee Notes to Rules 26 and 37 (the meeting minutes setting forth the precise changes were not available as of writing). The Agenda Book from the Standing Committee’s meeting is available.

Adverse Inference Instruction Warranted For Insurer’s Breach of Retention Policy 0

Adverse Inference Instruction Warranted For Insurer’s Breach of Retention Policy

It should come as no surprise that litigants continue to ignore such basic discovery obligations as the duty to preserve potentially relevant documents once litigation is reasonably anticipated. A recent case out of the Northern District of New York exemplifies the importance of patience in establishing a record of discovery abuses, including data deletion, before seeking sanctions to address such situations.