FRCP37(e) – ILS

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December 9, 2016

U.S. Postal Service Sanctioned for Discovery Violations Against Former Employee

In Adcox v. U.S. Postal Service, Case No. 15-9258 (D. Kansas, Nov. 22, 2016), Plaintiff, a rural mail carrier, sued Defendant for gender discrimination, harassment, retaliation and hostile work environment alleged between 2010 and 2012. She filed her case on September 11, 2015. During discovery, Plaintiff had difficulty obtaining discovery responses from Defendant; she had

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November 18, 2016

No Spoliation in Puerto Rico Age Discrimination Case Where No Intent to Deprive Plaintiff of Emails

In Luz Gonzalez-Bermudez v. Abbott Laboratories PR Inc., et. al., Case No. 14-1620 (D. P.R., Oct. 9, 2016), Plaintiff sued her former employer, Abbott, and her supervisor, Perez, for age discrimination and retaliation under the ADEA as well as the laws of Puerto Rico. On October 15, 2013 and December 2, 2013, Plaintiff’s counsel sent

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August 19, 2016

Sixth Circuit Upholds Denial of FRCP 37(e) Sanctions in Personal Injury Case Against Target

The plaintiff in Applebaum v. Target Corporation et. al., Case No. 15-2198 (6th Cir., Aug. 2, 2016) purchased a bicycle from Defendant and, during her first ride, fell off the bike hurt her shoulder. She sued Defendant for selling her a bike with defective brakes. At trial, the case rested on whether the bike was

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May 11, 2016

Adverse Inference Instruction Against Trucking Company for Failure to Preserve Data

O’Berry et. al. v. Turner, et. al., Consolidated Case Nos. 15-00064/15-00075 (M.D. Ga., April 27, 2016) is a consolidated litigation arising out of a tractor trailer accident. Plaintiffs were a driver and a passenger in a car which was struck by the tractor trailer truck driven by Defendant Turner, who suddenly swerved into their car’s lane. The car was run

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April 22, 2016

SDNY Applies Original FRCP 37(e) to Decide Spoliation Motion

An inmate sued the United States and various government employees for violations of his constitutional rights in McIntosh v. U.S. et. al., Case No. 14-7889 (S.D. N.Y., Mar. 31, 2016). Plaintiff filed the suit pro se, and thereafter filed a Motion to Preserve Documents. Plaintiff’s Motion was based on his belief that the prison staff

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March 16, 2016

Spoliation Sanctions Against Plaintiff Limited to Attorney Fees

In Best Payphones, Inc. v. City of New York, et. al., Consolidated Case Nos. 1-3924, 1-8506, 3-0192 (E.D. N.Y., Feb. 26. 2016), Plaintiff sued Defendants alleging violation of Plaintiff’s constitutional rights by instituting a regulatory framework requiring franchises and permits to operate payphones and by discriminating against and retaliating against Plaintiff. Defendants filed a spoliation

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March 4, 2016

Court Denies Spoliation Sanctions for Loss of ESI Discarded Prior to Duty to Preserve

In Marten Transport, Ltd. V. Plattform Advertising, Inc., Case No. 14-02464 (D. Kansas, Feb. 8, 2016), Plaintiff sued Defendant under the Lanham Act for alleged trademark infringement related to Plaintiff’s internet posting on Defendant’s truck driving job search websites. Plaintiff’s counsel sent a cease and desist letter in September 2013, with which Defendant claimed to

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February 25, 2016

The Recent Amendments to FRCP: Retroactive Case Applications

Effective December 1, 2015, new amendments to the Federal Rules of Civil Procedure became law. In the last two months, a number of federal judges have discussed the new discovery rules, and the majority have applied the amendments to cases filed prior to the effective date. Below are highlights from some of the recent decisions:

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February 15, 2016

Southern District of California Applies Amended FRCP to Sanctions Order and Vacates

The Southern District of California has vacated a sanctions order based upon the recent amendments to the FRCP. In Nuvasive, Inc. v. Madsen Medical, Inc. et. al., Case No. 13-2077 (S.D. Cal., Jan. 26, 2016), Defendants filed a Motion for Sanctions based upon destruction of certain text messages. The court granted the motion in part