Who says sanctions don’t have teeth since 2015? Here are ten BRUTAL sanctions case law rulings in just the past three years!
Believe it or not, there are several other cases I could have included as well, but I decided to continue the “ten” theme of last week’s ESI Protocol post. So, here are ten BRUTAL sanctions case law rulings over the three year history of eDiscovery Today!
#1: The Case Where They Decided to Start Using DingTalk After the Case Was Filed
Using ephemeral messaging app DingTalk was only one of several efforts to spoliate data in WeRide Corp. v. Huang et al. End result: terminating sanctions against most of the defendants.
#2: The Case Where the Screenshot “Spoiled” the Source Code Control System Data
Another terminating sanction case: QueTel Corp. v. Abbas, where defendants were shown to have intentionally destroyed relevant evidence several times, including their source code control system. They claimed they didn’t use one, but the named defendant sent a screen shot of code to a colleague that proved they did. Whoops.
#3: The “Smoking Emoji” Case
The plaintiff in Rossbach v. Montefiore Med. Ctr. produced a text exchange that seemed to back up her claim of sexual harassment. However, there were several indicators that it was fabricated, including the fact that the emoji used wasn’t possible on her iPhone 5. Case dismissed!
#4: The Case That Can’t Seem to End
This is the only case I’ve ever covered that took two posts to cover it! In DR Distribs. v. 21 Century Smoking, the defendants received several significant sanctions. Even defense counsel was sanctioned, having to get 8 hours of CLE on ESI and having to read the entire order (which, at 200+ pages might be worse). Twenty-one months later, the plaintiffs were awarded $2.5 million(!) in fees as a result of the sanctions. Yet, the case continues.
#5: The Case Where the Court Sent a “Signal” to the Defendants
In Fed. Trade Comm’n v. Noland, the defendants began using ephemeral messaging app Signal and encrypted email platform ProtonMail upon learning of the FTC’s investigation. The Court also found that the named defendant lied about their use in a deposition and the individual defendants deleted the Signal app before turning in their mobile devices (to avoid discovery of any lingering Signal messages), all of which the Court found “deeply troubling”, leading to an adverse inference instruction sanction.
#6: The “Text Book Case of Spoliation” Case
Hey, I covered this case last week too! In the Matter of In Re Skanska USA Civil Southeast Inc., et al., Skanska informed claimants and the Court that cell phone data had either been wiped clean, deleted, or lost for five custodians and text messages were lost for several other custodians as well. The Court called it a “text book case of spoliation”, granted in part the claimants’ spoliation motion – an adverse inference and monetary sanctions, (which turned out to be over $92,000).
#7: The “Kitchen Sink” of ESI Spoliation Case
To paraphrase Ferris Bueller, the question wasn’t what ESI sources the plaintiff would spoliate, it was which ones she wouldn’t in Fast v. GoDaddy.com LLC, where the spoliated ESI sources included Facebook and Facebook Messenger, Telegram and more. Adverse inference sanctions, costs and fees and more were issued as sanctions for her conduct.
#8: The File Shredder Case
When the defendant in GMS Indus. Supply, Inc. v. G&S Supply, LLC decided to start using the file deletion software File Shredder after being advised of his duty to preserve evidence, adverse inference and cost and fees sanctions were sure to follow.
#9: The Smoking Gun Slack Message Case
When the defendants fail to follow so many court orders that the Court says that it’s the worst it has seen in 37 years (and states that four times within the order), that’s not good. In Red Wolf Energy Trading, LLC v. BIA Capital Mgmt., LLC, the defendants in this IP case had so many discovery failures, they were ordered to provide the plaintiff with a copy of their Slack archive, which had 87 empty folders, but also contained a message between individual defendants essentially admitting their algorithm was “derivative from IP”. The Court issued a default judgment sanction.
#10: The “Covert Government Agents” Were Responsible Case
It’s not a good sign when your counsel moves to withdraw three days after your deposition. In Gunter v. Alutiiq Advanced Sec. Sols., LLC, the plaintiff suggested that Verizon erased missing text messages excluded from his production and also that covert government agents were responsible. While still on site at plaintiff’s deposition, the defendant requested a forensic examination of the plaintiff’s phone, which was granted and showed not only spoliated messages, but that others were fabricated. Case was dismissed and the plaintiff had to $10K for the forensic examination.
Hopefully, these ten BRUTAL sanctions case law rulings will show that significant sanctions do still occur! Don’t let parties get away with intentional acts like these!
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