Category Archives: Spoliation

Victor Stanley II: The “Gang that couldn’t Spoliate Straight.”

Pony Up! Anyone remember this?  Back in December 2008, I warned that someday, eDiscovery misconduct would result in a bad actor going to jail.  Well, we've arrived at that point.  Judge Paul Grimm deemed Defendant's spoliation misconduct so serious that if he doesn't immediately pony up for Plaintiff's attorney fees and costs, he faces two years in prison.

As I mentioned last week, I've been tied up in trial, so I'm going to send you to Ralph Losey's excellent (as always) post about the case.

As someone who has personal experience with attorneys hiding the EDD football, I'm all for this ruling.

Note: I included this post in the "Criminal Liability" category because I believe it's an important read to anyone researching the subject; but this isn't a criminal sanction.  I just want to make that clear.

CA Lawyer: IT from Mars, Lawyers from Venus

CA Lawyer May 2010

Folks, I'm going to trial Monday so forgive the sparse posts.  I wanted to point you to this article in CA Lawyer magazine from my colleague, Robert Brownstone.  He and I are both on the CA State Bar's Law Practice Management & Technology executive committee.  We were amused to discover that his article would be published this month, and my next article (on the intersection of e-discovery and privacy) is scheduled for July's issue.

We're also presenting a CLE seminar along with a third colleague (for you non-lawyers, that's "continuing legal education") at the CA State Bar annual meeting in September.

In the same issue is this blurb about e-discovery coming back in-house.  It's funny because I recently observed that more corporations are attempting to handle e-discovery internally to save costs and that lately all of my new clients are law firms.

NOAA Didn’t Preserve Two of Everything

J0437388 NOAA's Top Cop Ousted.

Spoliation knocks off another one.  Dale J. Jones was director of law enforcement at NOAA, aka the National Oceanic and Atmospheric Administration.  There were allegations of impropriety.  An Inspector General was appointed to look into it.  Fully aware of this – and while the investigation was underway – Jones ordered the shredding of pertinent documents.  Obviously, the most disturbing part of this story is that he was the nation's chief of police for the oceans.

e-Discovery LOL: Creative Spoliation

Adir-sign Normally, we think of spoliation – at least in e-discovery terms – as someone negligently or deliberately deleting digital evidence.  Certainly, the idea of someone swallowing evidence isn't a new concept either, although we usually think of it in terms of drug balloons or something of that nature.

This story about a criminal who swallowed a USB drive probably wouldn't have registered on my radar screen save for the headline: "An alleged cybercriminal
who swallowed a USB drive thought to contain credit card data to destroy
evidence has been charged with obstruction."

You just can't make this stuff up…

You Asked for it, You Got it, Toyota! (Biller Re-Visited)

In light of the mechanical defect issues at Toyota, here are some of the other commercial slogans they probably wish they hadn't created:

The best built cars in the world.

I love what you do for me – Toyota!

And, irony fully present, my personal favorite:

Your new experience of motoring.

Ok, so maybe I'm still bitter because I tried to get Toyota to hire me as a consultant a few times last decade (they're in Torrance, which is fairly close to where I lived at the time) to no avail.  Nah, it can't be that, since I drive a Toyota now – although thankfully, not one of the models subject to recall.

Maybe there was something to the claims made by Biller, after all.  From my post September 4th, 2009:

"We won't know more details about this for a while, but it's one to
watch.  My immediate thoughts are, 1) Plaintiff had better have some
convincing evidence to back up his claims and 2) Toyota had better hope
he doesn't."

Why do I think this is going to become a lead federal spoliation case somewhere down the road?  [Sorry, I couldn't help myself.  There had to be at least one automobile-related pun in here somewhere]  Not only that, there's the cross-over to the attorney's ethical obligations that I discussed in my prior post.

Yes, I wanted to make a catchy closing sentence, but I've already used up my one-pun allocation.

Case Got Your Tongue? Corrections, Cavalier Attitudes & Black Holes

J0309277 Our 'privacy' theme continues on…

Like it or not, you don't enjoy the level of privacy you think you do, and copping an attitude about it only makes things worse.  For example, I regularly caution my clients about their third-party agreements.  I don't care that your contract says the third-party is required to cooperate.  When litigation arises, many of those same third-parties will ignore the agreement and circle the wagons.

Take a look at Dawe v. Corrections USA, 2009 U.S. Dist. LEXIS 96461 (E.D. Cal. Oct. 1, 2009).  The third-party defendant refused to comply with plaintiff's request to inspect defendant's personal computer.  I'll make this short and sweet; defendant lost the argument.

Third-parties aside, how about non-parties?  In Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS 84176 (N.D. Ill. Sept. 11, 2009):

"A non-party email service provider that displayed a "cavalier attitude"
toward defendant's subpoena seeking email deleted by plaintiff prompted
the court to order the provider to show cause why it should not be held
in contempt and to pay defendant's reasonable fees and costs in
obtaining discovery about the provider's ability to recover plaintiff's

I'm including Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009) simply for the eloquence of the judge in explaining where e-discovery has brought us:

The defendant's motion for sanctions is "a further example of how discovery has become a veritable 'black hole'
having the potential to draw in and annihilate the case itself,".

In a perfect world, cases are decided on the merits.  Instead, parties are increasingly using procedural moves as battering rams, and I think this does a disservice to us all.

Case Got Your Tongue? Arrest, Lies & Videotape

J0407481 Hat tip to my colleague William Hoffman…

I thought I wasn't going to find anything relevant for my usual Friday post, but Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) has it all; alleged crimes, police brutality and missing video from a police cruiser.  I'm pressed for time, so I ported you over to K&L Gates for a look at the details, but here are Mr. Hoffman's comments:

that a video of Peschel’s arrest was lost as a result of the city’s
recklessness, the court granted defendant’s motion for sanctions and
“designat[ed], for purposes of the case, that the arresting officers used
unreasonable force to effect the arrest of [defendant].”  What struck me
was the failure of the city to back up the data on its computer (particularly
the video) was determined to be reckless, thus paving the way for severe

From the case itself:

“The department failed to have any type of
back-up system in place to ensure the preservation of the video recordings. In
view of the importance of the video recordings, it went beyond mere negligence
for the department not to have adequate safeguards in place for protection of
the recordings.”

Have a good weekend.

Case Got Your Tongue? Interceptors, Drug Problems, Home Sweet Home & the Raspberry

J0321090 Ok…so I was gone a little longer than intended…let's get down to business.  We have four cases to examine this month.

United States v. Comprehensive Drug Testing,
, 2009 WL 2605378 (Cal. App. 9 Dist. Aug. 26, 2009).

This is an extremely important fourth amendment case that arises out of the Major League Baseball steroid investigation.  The California 9th Circuit has established new guidelines for the search and seizure of ESI.  A must-read, in my opinion.

In re Weekley Homes, L.P., 2009 Tex. LEXIS 630 (Tex. 2009).

This is a very good case out of Texas regarding an overly broad request for ESI.  The court likened computer data to that held in file cabinets and reasoned (I think eloquently) that it is highly intrusive to expect easy access to employees' ESI when these employees are indirectly-relevant to the litigation at hand.  The court stated that the least intrusive means necessary should always be utilized.

Se. Mech. Servs., Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009).

There have been a series of decisions from this case and I'm numbering this one "Brody IV".  As you know, I've avoided most sanction cases, however, this one resulted in an adverse inference by the court due to the defendant's intentional and deliberate wiping of BlackBerry data.  We all had to know a case like this was coming…

Gurevich v. Gurevich, 2009 N.Y. Misc. LEXIS 1045 (N.Y. Sup. Ct. 2009).

This case should send shivers down your spine, due to its greater implications regarding privacy and were it to ever be applied more broadly, such as in a business environment.

Wife used husbands password to access his email and found incriminating information to use in their divorce proceedings.  I'll let you decide for yourself what you think of the court's opinion.