S.D. Cal. Issues Rule 37 Sanctions for Incomplete Text Massage Production

On Friday, Judge Jill Burkhardt issued a decision, Andreoli v.  Youngevity Int’l., No. 16-cv-02922-BTM-JLB, 2019 U.S. Dist. LEXIS 100298 (S.D. Cal. June 14, 2019) granting in part and denying in part the defendants’ Rule 37(b) motion for sanctions.    The defendants’ motion concerned the plaintiff’s incomplete production of text messages, including the omission of a custodian field.  

The Court previously found that the metadata for the headers from text messages was unreliable and faulted the plaintiff for imaging cell phones other than its own for the text message production. 

The production of text messages with misleading metadata meant the production did not comply with a discovery order requiring that metadata be produced.   However Judge Burkhardt declined to rule against the plaintiff because its production was from cell phones not in its own possession, custody, or control. 

The discovery order was violated because the plaintiff fialed to conduct a diligent search to confirm its production was complete.  Specifically, the Court found that, “[p{laintiff's use of the Concurrent Case's deduped text message database is no excuse for his failure to produce his own text messages.”. Id. at *20. 

W.D. Tex. Considers Motion for Sanctions Against Pepper Hamilton

Last week, Judge Robert Pittman issued a decision, Doe 1 v. Baylor Univ., No. 6:16-CV-173-RP, 2019 U.S. Dist. LEXIS 99362 (W.D. Tex. June 7, 2019) discussing the Plaintiff’s motion for sanctions against Pepper Hamilton LLP.   Pepper Hamilton filed a motion to reconsider an order to produce documents regarding its representation of Baylor. 

The Court found that, “Pepper Hamilton's choice to assert two-year-old objections in a motion for reconsideration gives the appearance that Pepper Hamilton's objections are willfully designed to delay and complicate discovery.”. Id. at *45-46.    Attorney-client privilege issues raised in the motion to reconsider were not a defense because they were not raised in a timely manner.    

Judge Pittman will issue a final ruling on the sanctions motion at a hearing on June 17. 

D. Ore.: Permissive Instruction That Information is Damning

On Friday, Judge Michael Simon issued an order granting the plaintiff's Rule 37(e) motion for sanctions in Univ. Accounting Serv. v. Schulton, No. 3:18-cv-1486-SI, 2019 U.S. Dist. LEXIS 96062 (D. Or. June 7, 2019). Judge Simon found that the defendant committed spoliation when he deleted emails and webinar recordings so he could say he did not have access to them (even though it was established that he anticipated litigation), and when he deleted a client list just before a hearing, "because it's exactly the type of damning information that UAS wants to catch me with.". Id. at *20.

Despite this, the decision states that only a permissive, and not a mandatory inference spoliation instruction will be given to the jury.