Discovery Sanctions

News & Analysis as of

Piracy Pays (The IP Owner) – Judge Whyte Grants Motion for Default Judgment After Awarding Sanctions in Unauthorized Software...

Order Granting Motion for Default Judgment, Adobe Systems Inc. v. Software Tech, et al., Case No. 5:14-cv-02140-RMW (Judge Ronald M. Whyte) - Everyone in the software field (and probably every computer user) is familiar...more

Counsel Sanctioned for Misrepresentations and Citations to “Badly Out of Date” Federal Rules

Fulton v. Livingston Fin., LLC, No. C15-0574JLR, 2016 WL 3976558 (W.D. Wash. July 25, 2016). After a motion to compel in which the defendant sought to obtain all “relevant and non-privileged” information, the court...more

$3 Million Spoliation Sanction Despite Company’s Litigation Hold

Manufacturers involved in litigation must properly preserve electronically-stored information (“ESI”) or potentially face daunting sanctions. A recent antitrust case, however, demonstrates that lessons—multi-million dollar...more

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

A Tale of Two Rules - The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on...more

E-Discovery Update: Does Authority Always Win?

John Mellencamp sang, “I fight authority, authority always wins,” but inherent authority may not carry the day anymore when it comes to e-discovery sanctions under the new rules. Federal Rule of Civil Procedure Rule 37(e) now...more

2016 Updates to Ediscovery for Defendants Cheat Sheet

We’ve been remiss in updating our cheat sheet devoted to ediscovery for defendants. Because of the broad nature of the topic – these cases can and do arise in a wide variety of non-drug/device contexts – we have to research...more

Party’s Willful Destruction of Data Did Not “Optimize” the Case for Dismissal

Ericksen v. Kaplan Higher Educ., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016). Where a plaintiff “willfully [ran] a computer program that she knew, given her computer expertise, would destroy at least some...more

Amended Rules Five Months Later: Early Trends in Case Law and What It Means

The amendments to the Federal Rules of Civil Procedure have been in effect since December. It didn't take long for the courts to cite them with a steady stream of opinions beginning with CAT3, LLC v. Black Lineage and Gilead...more

"The E-Discovery Digest - June 2016"

The fourth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney-client privilege and work-product doctrine, spoliation, cost shifting and other e-discovery...more

Amended Rules Five Months Later: Early Trends in Case Law and What It Means  [Video]

The amendments to the Federal Rules of Civil Procedure have been in effect since December. It didn't take long for the courts to cite them with a steady stream of opinions. The first opinion arrived with CAT3, LLC v. Black...more

Want Sanctions? Establish That Relevant Information Was Actually Lost

FiTeq, Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016). In an order disposing of eleven motions in limine, the court denied the plaintiff’s request for sanctions from alleged...more

Defendant's "Piecemeal" Approach to Discovery and Review of Only Select Files of Corporate Employees Results in Sanctions

In this patent infringement action, the defendants conducted a "piecemeal approach to discovery, reviewing only the files of select corporate employees." The district court found that this approach was contrary to the Federal...more

Real Property & Title Insurance Update: Weeks Ending May 29 & June 3, 2016

REAL PROPERTY UPDATE - Foreclosure/Bankruptcy Stay: because borrower’s notice of appeal was filed during pendency of bankruptcy stay it was a nullity, and appellate court lacked jurisdiction to consider appeal –Hewett v....more

District Court Strikes Infringement Contentions and Sanctioned Plaintiff for Taking Inconsistent Positions

The defendant, Echoworx, brought a motion to strike ZixCorp's infringement contentions. ZixCorp had served its original infringement contentions on Echoworx, contending that the elements of the patent-in-suit are software...more

I’ve Made a Huge Mistake: Intentional Destruction of ESI is No Illusion

In season three of the series Arrested Development, episode 11 finds George Bluth, Sr. unsurprisingly using a giant electromagnet in an attempt to delete electronic computer files, which could potentially indict him for...more

You Can’t Delete and You Can’t “Hide” (New York)

Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016) - In this Fair Housing Act case, the defendants motioned for sanctions against the plaintiff for deleting Facebook posts. The plaintiff argued that the posts...more

Court Holds High Bar for Imposing Sanctions under Rule 37(e) (Texas)

Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016) - In this case regarding a non-compete agreement, plaintiffs motioned for sanctions against one of the defendants for deleting emails which they...more

Litigants Need to Prove Existence of Missing Data for FRCP 37(e) Sanctions California

FiTeq Inc. v. Venture Corp., 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016) - In this contract law case, the plaintiff moved for sanctions against the defendant for failing to produce emails related to the litigation. Namely,...more

LBL’S Persistence Pays Off With Sanctions Against Plaintiff's Counsel

LBL is currently defending a big box store in an alleged bedbug infestation case. During the course of litigation, Plaintiff’s counsel cancelled three properly-noticed depositions of his client. Upon cancelling the third...more

Can Amended Federal Rule of Civil Procedure 37(E) Rewrite Plaintiffs' Spoliation Playbook?

The application of Rule 37(e) may limit spoliation litigation to issues relevant to underlying claims and defenses. A key component in plaintiffs’ playbook when facing a corporate defendant is to attempt to try cases...more

Case and Sanctions Dismissed in Light of New Evidence (New York)

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016) - In this trademark infringement case, the parties stipulated to dismissal, with prejudice, of all remaining claims in the case. Previously, the...more

Claims of Lightning Strike and Power Surge Fail to Protect Against Sanctions (California)

InternMatch v. Nxtbigthing, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016) - In this trademark infringement case, the plaintiff brought terminating sanctions against the defendants, accusing the defendants of intentionally...more

Court Orders Document Production Without Prejudice To Later Sanctions

Stark, C. J. Sanctions motion is considered. Defendant seeks sanctions for plaintiff’s failure to comply with a court order to produce documents....more

Federal Court Offers Clues in How the Newly Amended Rule 37(e) Will Be Applied When Electronically Stored Information Is Not...

Among the most significant changes to the Federal Rules of Civil Procedure that went into effect in December 2015 were amendments to Rule 37(e), which defines spoliation in the context of electronically stored information...more

Court Vacates Prior Adverse Inference Order in Light of Amended Rule 37(e) (California)

Nuvasive v. Madsen Med., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016) - In this case, the court granted the plaintiff’s motion to vacate a prior order that imposed an adverse inference for the plaintiff’s failure to preserve...more

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