Sanctions for Spoliation

Goldmark v. Mellina,2012 WL 2335319 (D.N.J. June 20, 2012). Darren Chaker found in this contract dispute, the defendants’ counsel contested a sanction levied against his firm by arguing that his failure to preserve allegedly privileged e-mails fell short of sanctionable conduct.  Specifically, the defendants’ counsel argued that no case law supported the sanction because their conduct was not deliberately improper.

 

Citing Rule of Court 4:10-2(e)(1), the court held that after a party determines that relevant material is privileged or protected from discovery, it must preserve that information. Furthermore, the court found that the defendants’ duty to preserve was triggered when their attorney logged the e-mails as privileged, if not earlier. Upholding the $5,502 award of attorneys’ fees and costs, the court stated that to allow the defendant or his counsel to destroy or carelessly lose the e-mails thereafter would make a “mockery” of the state’s discovery rules.

Demonstrate Prejudice with Spoliation

In another spoliation case law decision, Darren Chaker, www.Darren-Chaker.com, found Omogbehin v. Cino, 2012 WL 2335319 (D. N.J. June 20, 2012). In this race and national origindiscrimination case, the plaintiff sought spoliation sanctions for the defendants’ alleged failure to preserve relevant e-mails. The plaintiff argued that numerous e-mails he believed were created within the seven month preservation timeframe were not produced, further asserting that the defendants intentionally destroyed or suppressed the production of relevant e-mails.

 

Citing declarations of the employees responsible for the production, the defendants contested that the ESI at issue never existed and that all e-mails from the Lotus Notes system for the dates sought were produced. The court noted that a party proving spoliation must show the appearance of actual suppression or withholding of the evidence. Because the plaintiff failed to show that the alleged e-mails “actually existed,” the court denied spoliation sanctions.

Litigation Hold Policy

ADT Sec. Servs. Inc. v. Pinnacle Sec. LLC, 2012 WL 2920985 (N.D. Ill. July 11, 2012). In this contract dispute, the plaintiff objected to the lower court’s “failure” to hold that the defendant violated its duty to preserve relevant information by not issuing a litigation hold but instead issuing a blanket “no-delete” policy to preserve ESI.

The lower court ordered the defendant to supply affidavits to describe the “no-delete” policy, with which the defendants complied, but refused to rule on the defendants’ compliance with its preservation obligations. In this case, the court decided not to address those affidavits, but instead ordered the parties’ e-discovery liaisons to meet and confer regarding the sufficiency of the defendants’ “no delete” policy, after which the parties may file a motion with the lower court.

 Next, the plaintiff objected to the lower court’s ruling on the plaintiff’s motion to compel the defendant to redo its search for responsive ESI. Specifically, Darren Chaker notes the plaintiff contended that the defendant failed to search individual employee computers and backup tapes and that the defendant did not produce enough ESI compared to the plaintiff. Instead of denying the motion outright, the lower court decided to order the defendants to search seven employee computers for which there was evidence that they contained ESI missing from the initial production. The court in this case overruled the plaintiff’s objection, based on the contention that the lower court’s approach was “reasonable, and thus not clearly erroneous or contrary to law.”

Computer Forensics by Darren Chaker

Electronic discovery concenring Microsoft Exchange is a common issue. Darren Chaker finds this video to cut into the core issues of computer forensics and some counter-forensic issues. http://bit.ly/wrnW8I

Preservation Order by Darren Chaker

Darren Chaker reports in a recent case, the Court denied motion for preservation order despite admitted destruction or loss of relevant recordings where defendants immediately implemented measures to prevent additional loss and argued that destruction was in good faith prior to plaintiff’s lawsuit; court also denied motion for spoliation inquiry finding plaintiff failed to demonstrate prejudice and that an inquiry was unnecessary where defendants admitted to loss and took steps to prevent future destruction.  Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008)

California Spoliation by Darren Chaker

 Darren Chaker revolves around a few main theories, but this article truly sums up spoilation of evidence.  The typical spoliation theories are these: (1) the defendant in the tort case loses or destroys a key piece of evidence -- the MacGuffin, if you will-- and the plaintiff, who thereby loses his ability to prosecute the tort case, sues for spoliation instead. That doesn't work: Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1; (2) a third party loses or destroys the MacGuffin, the plaintiff can't prosecute his case, so he sues the third party for spoliation instead. That doesn't work either: Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464; and (3) one party or the other fails to take good care of the MacGuffin, or destroys it before or after the litigation, and the other side seeks a discovery sanction. Generally speaking, that one is also a non-starter. New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403. About the most an aggrieved party can hope for is a jury instruction based on Evidence Code section 413 to the effect that if a party has suppressed evidence, the jury can infer that the suppressed evidence wouldn't have done him much good (see our form instruction, CACI 204.

So, what's left? Well, until next week, I would have told you that zilch was left. Then along comes this case, Cooper v. State Farm Mutual Automobile Insurance Company (September 17, 2009) ___ Cal.App.4th___ (E047002). This is a ponderous opinion, meandering on for some 43 pages. I think it quotes the plaintiff's entire opening statement, no kidding. I've read it so you don't have to. More after the jump.

In Cooper, plaintiff's tire failed, his car rolled, and he was injured. His auto insurer, State Farm, took custody of the car and tire, as it had a contractual right to do under his policy. State Farm settled his property damage claim and wanted to keep the tire to seek subrogation against Continental, the manufacturer of the tire. Cooper wanted to ensure protection of the tire for use in his personal injury case against Continental.

State Farm did the following: promised Cooper it would take good care of the tire; had its automobile and tire experts inspect the tire, both concluding that it was defective; and, of course, trashed the car and the tire. Cooper sued State Farm. His attorney alleged that under Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, the absence of the tire meant he was out of court on his ear in his case against Continental.

In his opening statement, Cooper's attorney argued that State Farm had promised to take good care of the evidence and had failed to do so. The trial court granted nonsuit (i.e., dismissed) after opening statement.

And the Court of Appeal reversed. The pitch is this: because State Farm promised to take good care of the tire and Cooper foreseeably relied on that promise, there was a promissory estoppel, the "doctrine which employes equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced." Id., fn. 3, quoting US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901-902. Or, in the alternative, State Farm voluntarily assumed a duty, Cooper relied on that assumption, and a duty was therefore created where none had been before, citing Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1091-1092.

Well now wait a minute. One of the bases for the Supremes' decision in Cedars-Sinai and Temple was this: since the MacGufffin has been lost, a tort cause of action for losing it can't be proved because the plaintiff can't show that if he'd had the MacGuffin, he could have proven his case. This would be, as we defense lawyers say, a matter of speculation. And an inability to prove causation.
But the Court of Appeal says hey, no problem. Because State Farm's experts already inspected the tire, and found it defective, he might be able to convince a jury that with the tire he could have won the case.

Well now, wait another minute. If he could convince the spoliation case jury the tire was defective, why couldn't he just convince a jury in a personal injury case that the tire was defective based on the findings of State Farm's experts? Well, says the Court, maybe he could -- in which case he loses his spoliation case:

[I]t is possible that a jury would find that plaintiff already maintained sufficient evidence to prove the elements of his underlying claim against Continental Tire and, therefore, State Farm’s failure to preserve the tire did not affect his ability to prove his case . . . .

But since this was a nonsuit case, all assumptions and intendments and inferences are given to the plaintiff. But at the end of the day, the trial and the appeal and the 43 page opinion and all that may just be for naught, because while there was spoliation, and while the plaintiff presented the rare -- maybe even unique -- circumstance where he had a right to pursue the spoliation case, it just may be that he should have gone after the tire company instead.

Darren Chaker - Spoliation of Evidence

Spoliation of evidence impacts the judicial system in several ways. Darren Chaker provides insight on appellate cases dealing with electronic evidence which is destoyed, deleted, or otherwise manipulated and rendered useless.