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computer forensic
Sanctions (Continued)

Thompson v. Jiffy Lube Int'l, Inc., 2007 U.S. Dist. LEXIS 13078 (D. Kan. Feb. 22, 2007).
Plaintiffs' attorney did not have a computer backup system, which crashed and resulted in information regarding witnesses being lost. A default judgment was found to be too severe a sanction and the court determined that an adverse inference sanction was also not appropriate, as the case was at the class certification stage.

Qantum Communications Corp. v. Star Broadcasting, Inc., 2007 U.S. Dist. LEXIS 12009 (S.D. Fla. Feb. 9, 2007).
Plaintiff was granted a summary judgment, including a default judgment against Defendant, due to Defendant's perjury during a deposition and the identification that important emails, which were provided by a third party, were not produced by Defendant.

Industrial Roofing Services v. Marquardt, 2007 Wisc. LEXIS 16 (Wisc. Feb. 8, 2007).
The court found that Plaintiff committed discovery misconduct and ordered Plaintiff's complaint dismissed with prejudice.

DeSantis v. Biehler, No. OCN-C-196-01 (N.J. Sup. Ct. Jan. 30, 2007).
Due to Defendant's assertion that potentially hard drives and backup tapes were missing as a result of their normal business practices, the court did not impose spoliation sanctions.

NSB U.S. Sales, Inc. v. Brill, 2007 U.S. Dist. LEXIS 7813 (S.D.N.Y. Jan. 26, 2007).
The court sanctioned Defendant due to its failure to produce relevant emails and documents.

Williams v. Sprint/United Management Co., 2007 U.S. Dist. LEXIS 5477 (D. Kan. Jan. 23, 2007).
Defendant was not sanctioned for delays in producing electronic data in a static image format, as Plaintiff did not request documents in native format and such delays were caused by unique circumstances.

Riggin v. Snohomish County, 2007 Wash. App. LEXIS 3 (Wash. Ct. App. Jan. 2, 2007).
Plaintiff deliberately failed to comply with discovery orders in an attempt to harm Defendant's ability to prepare for trial, which resulted in a dismissal of Plaintiff's action.

Anadarko Petroleum Corp. v. Davis, 2006 U.S. Dist. LEXIS 93594 (S.D. Tex. Dec. 28, 2006).
The court did not issue spoliation sanctions against Defendant, although Defendant had deleted files. Plaintiff insisted that Defendant return its proprietary files without accessing them again, at which point Defendant provided Plaintiff with a hard drive containing these files and then deleted them from their computer systems.

May v. Pilot Travel Centers LLC, 2006 U.S. Dist. LEXIS 94507 (S.D. Ohio Dec. 28, 2006).
Plaintiff was awarded attorney fees and costs associated with discovery of documents that Defendant failed to produce in a timely manner.

PML North America v. Hartford Underwriters Ins. Co., 2006 U.S. Dist. LEXIS 94456 (E.D. Mich. Dec. 20, 2006).
The court entered a default judgment against Defendant based on a computer expert's assertions that a hard drive had been tampered with, data spoliation had occurred, and a hard drive and thumb drive that the court had ordered to be produced were lost.

Wachtel v. Health Net, Inc., 2006 U.S. Dist. LEXIS 88563 (D. N.J. Dec. 6, 2006).
Defendants were ordered to pay $6.72 million in attorney fees and Plaintiff's costs in obtaining discovery as a result of their "repeated and unabated discovery abuses and lack of candor".

Louis Vuitton Malletier v. Dooney & Bourke, Inc., 2006 U.S. Dist. LEXIS 87096 (S.D.N.Y. Nov. 30, 2006).
After a party used its own IT personnel rather than hiring outside experts to extract relevant email from a database, resulting in the court being misled regarding the availability of such electronic information, the court issued a limited adverse inference sanction.

MacSteel, Inc. v. Eramet North America, 2006 U.S. Dist. LEXIS 83338 (E.D. Mich. Nov. 16, 2006).
Although hand written notes that had been used to write an email were destroyed, sanctions were not imposed.

Plasse v. Tyco Electronics Corp., 2006 U.S. Dist. LEXIS 89829 (D. Mass. Nov. 8, 2006).
Plaintiff's complaint was dismissed after a computer forensics expert showed that plaintiff's resume, which made false claims, had been deleted from a floppy disk and that the system date on Plaintiff's laptop was changed multiple times before production of the laptop for inspection by Defendant's expert. Defendant was also awarded $35,000 in attorney fees and $20,472.32 in costs.

Lerma v. Wal-Mart Stores, Inc., 2006 Okla. LEXIS 88 (Okla. Nov. 7, 2006).
Plaintiff alleged that Defendant had committed discovery abuses in other cases, however, this was not admissible in this jury trial, although similar abuses were being alleged.

Optowave Co. v. Nikitin, 2006 U.S. Dist. LEXIS 81345 (M.D. Fla. Nov. 7, 2006).
Defendant, who had a strong knowledge of computers, allowed for hard drives to be reformatted and email to be destroyed, resulting in the court issuing an adverse inference jury instruction.

Quintus Corp. v. Avaya, Inc. (In re Quintus Corp.), 2006 Bankr. LEXIS 2912 (Bankr. D. Del. Oct. 27, 2006).
Although the parties had a contractual obligation to maintain electronic records, the asset purchaser deliberately destroyed electronic records, resulting in the bankruptcy trustee obtaining a $1.88 million judgment as a spoliation sanction.

In re Napster, Inc. Copyright Litigation, 2006 U.S. Dist. LEXIS 79508 (N.D. Cal. Oct. 25, 2006).
The court gave an adverse inference jury instruction and issued preclusion and attorney fees after gross negligence with regards to deleting communications was found. However, the court also concluded that the deletions were not done willfully and that efforts to preserve the documents were taken, which is why a default judgment was not imposed.

Burkybile v. Mitsubishi Motors Corp., 2006 U.S. Dist. LEXIS 84864 (N.D. Ill. Oct. 17, 2006).
Plaintiff requested a default judgment after Defendant failed to fully comply with a discovery order, however, the court instead awarded fees to Plaintiff.

Delcath Systems, Inc. v. Ladd, 2006 U.S. Dist. LEXIS 67720 (S.D.N.Y. Sept. 20, 2006).
Defendant did not produce relevant email messages, resulting in the court issuing a temporary restraining order that would not allow a corporate takeover to occur.

Leon v. IDX Systems Corp., 2006 U.S. App. LEXIS 23820 (9th Cir. Sept. 20, 2006).
Plaintiff willfully deleted over 2,000 files from his computer system, which was provided by his employer, and also wiped his hard drive, causing the court to affirm dismissal of Plaintiff's complaint.

Crandall v. City & County of Denver, 2006 U.S. Dist. LEXIS 66958 (D. Colo. Sept. 19, 2006).
Defendant continued its normal process of overwriting email messages, however, the court did not issue an adverse inference sanction as Defendant did eventually recover and produce 91,000 overwritten email documents.

Patsy's Italian Restaurant v. Banas, 2006 U.S. Dist. LEXIS 64857 (E.D.N.Y. Sept. 12, 2006).
Defendant's attorney did not respond to Plaintiff's motion to compel or respond to discovery requests in a timely manner and was ordered to pay $250, attorney fees, and Plaintiff's expenses for filing the motion to compel.

United Medical Supply Co., Inc. v. United States, 2006 U.S. Claims LEXIS 270 (U.S. Ct. Claims Sept. 8, 2006).
The court entered a document preservation order after it was identified that defendant had inadvertently destroyed documents.

Plasse v. Tyco Electronics Corp., 2006 U.S. Dist. LEXIS 65463 (D. Mass. Sept. 7, 2006).
Plaintiff's complaint was dismissed after a computer forensics expert showed that plaintiff's resume, which made false claims, had been deleted from a floppy disk and that the system date on plaintiff's laptop was changed multiple times before production of the laptop for inspection by defendant's expert.

Lehman Capital v. Lofland, 2006 Del. LEXIS 447 (Del. Sup. Ct. Aug. 25, 2006).
A sanction of dismissal with prejudice for discovery violations was reversed, as the plaintiff die not show a willful and conscious disregard for discovery obligations.

Krumwiede v. Brighton Associates, "Krumwiede II", 2006 U.S. Dist. LEXIS 60654 (N.D. Ill. Aug. 9, 2006).
The court found that 200 hours of attorney time was not excessive in their attempt to obtain sanctions against the plaintiff, as the evidentiary hearing on the sanctions resulted in a bench trial and the defendants were granted a default judgment against the plaintiff.

Self v. Equilon Enterprises, LLC, 2006 U.S. Dist. LEXIS 58607 (E.D. Mo. Aug. 8, 2006).
The defendants claimed that public records were sufficient to show their pricing data that was sought by the plaintiff during discovery, which resulted in the defendants being barred from challenging the truthfulness or admissibility of the information acquired from the public records.

Paramount Pictures Corp. v. Davis, "Paramount II", 2006 U.S. Dist. LEXIS 50955 (E.D. Pa. Jul. 26, 2006).
A spoliation inference was not negated due to a computer forensic expert's failure to zero out data through an expensive technique normally reserved for use in anti-terrorism efforts.

General Medicine, PC v. Morning View Care Centers, 2006 U.S. Dist. LEXIS 49598 (S.D. Ohio Jul. 20, 2006).
The court confirmed a magistrate's decision to deny a motion to dismiss an action due to the plaintiff's failure to reproduce billing data that no longer existed on their database during discovery. It was found that it would be excessively expensive to retrieve such information from the plaintiff's backup tapes.

Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 U.S. Dist. LEXIS 49650 (M.D. Fla. Jul. 19, 2006).
Although a party moved to transfer to another federal court and to stay discovery, it did not justify their production of over 2,000 pages of email messages a month later than the court ordered, which was also after the deposition of the party's designated representative. The court order the party to pay for the cost of re-deposing their representative and to pay sanctions of $1,500.

Austin v. City and County of Denver, 2006 U.S. Dist. LEXIS 47451 (D. Colo. Jul. 13, 2006).
In this employment discrimination suit, it was found that the plaintiff deleted information from her computer that demonstrated she was seeking re-employment. The court ordered the plaintiff to pay for re-opening her deposition, but did not levy additional sanctions against her for bad faith or willful conduct.

McDowell v. District of Columbia, "McDowell II", 2006 U.S. Dist. LEXIS 46371 (D.D.C. Jul. 11, 2006).
The court found that, although an attorney possessed expertise with regards to electronic discovery, it did not warrant an increase in his hourly rate when seeking discovery to be reimbursed by the defendant.

Oved & Associates Construction Services, Inc. v. Los Angeles County Metropolitan Transportation Authority, 2006 Cal. App. Unpub. LEXIS 5358 (Cal. App. Jun. 22, 2006).
The appellate court confirmed the lower court's decision for default judgments against a party in the amount of $5.2 million after it was found that the party violated discovery orders by accessing documents on a computer hard drive, thus destroying their integrity.

Vela v. Wagner & Brown, Ltd., 2006 Tex. App. LEXIS 3088 (Ct. App. Tex. Jun. 21, 2006).
The appellate court found that the $75,000 in discovery sanctions determined by the trial court was justified as the trial court identified a general pattern of discovery abuse, that frivolous objections to discovery requests had been filed, and false testimony had been given.

Lighthouse Community Church of God v. City of Southfield, 2006 U.S. Dist. LEXIS 38681 (E.D. Mich. Jun. 12, 2006).
The court ordered the defendants to pay $750 for plaintiff's costs and attorney fees for failing to comply with discovery orders.

Morgan v. U.S. Xpress, Inc., 2006 U.S. Dist. LEXIS 36195 (M.D. Ga. Jun. 2, 2006).
The court denied the defendant's motion for summary judgment after unresolved questions regarding possible spoliation were uncovered.

Cardenas v. Dorel Juvenile Group, Inc., "Cardenas II", 2006 U.S. Dist. LEXIS 37465 (D. Kan. Jun.1, 2006).
The court ordered the defendant to pay the plaintiff's costs and attorney fees associated with seeking sanctions, due to the late production of a key document. The court found that the defendant's attorneys had a duty to, "review all documents received from the client to see whether they indicate the existence of other documents not previously retrieved or produced."

Covucci v. Keane Consulting Group, Inc., 2006 Mass. Super. LEXIS 313 (Mass. Sup. Ct. May 31, 2006).
The plaintiff's complaint was dismissed after the court found his attempts to delete email and files from his computer were in bad faith, and that the plaintiff had also engaged in deliberate spoliation and fraud on the court.

Clare v. Coleman (Parent) Holdings, Inc., 2006 Fla. App. LEXIS 8144 (Fla. Ct. App. May 24, 2006).
Morgan Stanley appealed after the court imposed them with sanctions resulting in a $1.45 billion judgment against them; however, Morgan Stanley's out-of-state attorney was denied due process when his pro hac vice admission to the court imposing the sanctions was revoked without a hearing.

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 U.S. Dist. LEXIS 32211 (S.D.N.Y. May 23, 2006).
The court imposed monetary sanction on the defendant due to defendant's late production of hundreds of boxes containing electronic documents that had been printed. Plaintiffs also sought additional sanctions in the form of an adverse inference instruction or barring the filing of a summary judgment motion, however, the court rejected this due to a third party computer technician's discovery that the hard drive contained a dormant, partitioned section with 25 gigabytes of data.

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