New York Appellate Division: Spoliation Requires Culpable State of Mind

This past Friday, the Fourth Department of the New York State Appellate Division issued a decision affirming a lower court decision declining to impose sanctions against the Defendants for spoliation and granting the Defendants' motion for summary judgment. See, American Recycling & Mfg. Co., Inc. v. Kemp, 961 CA 17-01988, 2018 N.Y. App. Div. LEXIS 6624 (4th Dep't Oct. 5, 2018).

The Court upheld the summary judgment decision in this case, which concerned the alleged breach of a confidentiality agreement, because the Plaintiff did not present a triable issue of fact as to whether or not a Defendant divulged confidential information.

The Fourth Department's opinion stated that the Plaintiffs had the burden of showing that the Defendants possessed an obligation to preserve the email evidence in question, destroyed it with a culpable state of mind, and that the evidence was relevant to a claim or defense. The Fourth Department followed the precedent set by the New York Court of Appeals in Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543 (2015). Emails destroyed by the Defendants were deleted before they receive notice from the Plaintiffs that this evidence might be needed in future litigation. The New York Supreme Court did not abuse its discretion in declining to impose sanctions.

Eastern District of Louisiana: Time Sensitive, Frequently Altered Scheduling Data Must be Produced i

Yesterday, Magistrate Judge Joseph C. Wilkinson, Jr., issued a decision, McDonnel Group v. Starr Surplus Lines Ins. Co., No. 18-1380, 2018 U.S. Dist. LEXIS 170539 (E.D. La. Oct. 3, 2018), granting in part and denying in part the Defendants' Motion to Compel. The case concerns a dispute over whether or not the Defendants should pay insurance claims relating to the renovation of a hotel in New Orleans.

The Defendants requested construction schedules in their native format, which the Plaintiff produced as PDFs. The Court noted that Fed. R. Civ. P. 34 allows a party to request ESI in its native format, and requires the producing party to specify its basis for not doing so. The Plaintiffs', "mindlessly deficient, boilerplate, stonewalling objection" led to the waiver of an objection to producing the schedules in their native format. McDonel, 2018 U.S. Dist. LEXIS 170539, at *3. Judge Wilkinson found that the need for metadata was self-evident for "information in the construction schedule context, with its frequent alterations, change orders, and time sensitive but often disturbed deadlines." Id. at *3-4. He ordered the production of the schedules in their native format.

The Court also ordered new responses to requests for production which state that all non-privileged responsive material has been produced and a log of materials withheld on the basis of attorney-client privilege or work product. The parties were ordered to comply with their own agreement on a supplemental search for emails and the Defendants have to file an affidavit confirming they have made the search in compliance with the agreement.

Judge Wilkinson denied a request for attorney fees and other expenses incurred in connection with the Motion, because substantial production was made by the Plaintiff and the, "principal problem with plaintiff's written responses is deficiency and obfuscation in the manner in which the responses have been made." Id. at *7.

District of New Jersey: Relevance of Documents Not Sufficient Good Cause to Order Discovery of Inacc

This past Friday, Judge Michael A. Shipp in Cristobal v. County of Middlesex, No. 16-4493 (MAS) (TJB) 2018 U.S. Dist. LEXIS 169320 (D.N.J. Sept. 28, 2018), denied a motion to vacate the order of Magistrate Judge Tonianne J. Bongiovanni, which denied a motion compel compliance with a subpoena.

Cristobal issued a subpoena to obtain information from the New Jersey Civil Service Commission about Sheriff's Officers dismissed pursuant to the same regulation that she was terminated under. The NJCSC submitted a certification attesting to the fact that a staff member would have to spend several weeks complying with the subpoena, and describing the search process. It also argued that the Plaintiff did not try to obtain the records from the Middlesex County's Sheriff's Department which issues them and may have them in a more accessible form.

Magistrate Bongiovanni found that the subpoena was unduly burdensome under Fed. R. Civ. P.ED 45, and that the NJCSC had shown the information was not reasonably accessible. Fed. R. Civ. P. 45(e) allows a party to decline to produce ESI which is not reasonably accessible because of undue burden or cost. The party has the burden of demonstrating that the ESI is not reasonably accessible. A court can still order the production of the ESI if the requesting party shows good cause. Fed. R. Civ. P. 26(b)(1) restricts evidence to that which is "proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties'relative access to relevant information, the parties'resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Judge Shipp concluded that, "Rule 26 limits discovery of ESI, despite the broad scope of permissible discovery, in the same manner as Rule 45." Cristobal, 2018 U.S. Dist. LEXIS 169320, at *5.

A magistrate's decision will only be reversed if it is clearly erroneous or contrary to law. Judge Shipp found that because the Plaintiff failed to show this, the decision could not be vacated. The Plaintiff failed to recognize the limits Fed. R. Civ. P. 45 puts on discovery, and show why the ESI was accessible or how there was good cause for the production despite the fact that it was not accessible. "Plaintiff had the opportunity to establish such good cause when briefing the original Motion to Compel. Plaintiff failed to do so as her Motion to Compel relied on arguments regarding the overall relevance of the documents." Cristobal, 2018 U.S. Dist. LEXIS 169320, at *10.