Federal Court Decisions Involving Electronic Discovery, December 1 ...

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
2001) to rule that the defendant should restore a portion of its backup tapes to assist the
court in determining whether cost-sharing was appropriate.
Acker v. Workhorse Sales Corp., 2008 WL 1902034 (E.D. Mich. April 28, 2008).
After a series of delays in the production of electronically stored information, the
defendant moved to compel. The parties appeared before the Magistrate Judge and
reached a stipulated agreement during a recess in the hearing. The Magistrate Judge
endorsed the agreement, but went on to award the defendant costs and attorneys’ fees
incurred in litigating the motion to compel. The plaintiff appealed the costs award to the
District Judge, claiming that the delay in production was attributable to the defendant’s
failure to give adequate production format directions. The court upheld the Magistrate
Judge’s order as authorized by Rule 37(a)(5)(A), finding no error in law or abuse of
discretion.
Acorn, et al. v. County of Nassau, et al., 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009). In
this civil right case, the plaintiffs moved for sanctions against the County for its failure to
implement a legal hold. The court concluded that the defendant had a duty to preserve
evidence in June of 2005, but it did not take any steps to preserve until September of
2006. The court found the County’s failure to execute a proper litigation hold amounted
to gross negligence. The court held, however, that the "plaintiffs have not sufficiently
demonstrated that any destroyed or lost materials would have been favorable to them and
thus, to the extent plaintiffs’ motion seeks an adverse inference instruction is denied."
The court imposed monetary sanctions on the defendants for the grossly negligent
conduct in failing to implement a litigation hold and awarded the plaintiffs the costs of
making the motion, including reasonable attorneys' fees.
Adele S.R.L. v. Filene’s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009).
In a trademark infringement suit, the plaintiff sought monetary sanctions against the
defendant for failing to perform adequate searches and repeatedly making false assertions
that discovery was complete. The court held that sanctions were available and that the
defendant’s desire to shield adverse information was a likely motive for their inadequate
production, but noted that motive was unnecessary in determining the appropriate
monetary sanction. On another issue, the court denied the plaintiff’s request for
reimbursement of costs for extracting and reviewing raw data from backup tapes
produced by the defendants, ruling that the plaintiffs failed to establish that such costs
would normally have been assumed by the defendants under Rule 26(b)(2).
Adorno, et al. v. Port Authority of New York and New Jersey, 2009 U.S. Dist.
LEXIS 27505 (S.D.N.Y. Mar. 31, 2009). In this racial discrimination case, the plaintiffs
moved for sanctions for the defendants’ failure to implement a litigation hold and
preserve certain relevant documents. The court held that there was not a sufficient
showing to support an adverse inference instruction, as any failure to preserve documents
was mere negligence, that the plaintiffs did not carry their burden in showing that the
failure to produce documents was prejudicial, that there was other demographic
information available, and that the hiring memos sought were only one-line statements of
whether the individual was interested in a promotion.
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