Image: Kaylee Walstad, EDRM.In Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024), the Court recognized a split of authority and addressed the interplay between Rule 37(a)’s maxim that “evasive and incomplete” discovery responses are deemed a failure to respond under Subsection (a), on the one hand, and Rule 37(d)’s authorization of game ending sanctions for failures to respond to discovery, on the other. In my opinion, the District Court resolved the split with a common-sense, middle-of-the-road approach.FED.R.CIV.P. 37In general, Fed.R.Civ.P. 37 addresses failure to make disclosure or to cooperate in discovery, and sanctions.Rule 37(a)(4) states that: “For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” [emphasis added]. Rule 37(a)(1) authorizes motions to compel discovery.1Rule 37(b) applies to a failure to comply with a court order. Rule 37(c) applies to certain specific failures, such as failures to make initial disclosures, supplement, or admit.In my view, before imposing the sanction of dismissal, it is appropriate to issue an Order that requires the self-represented plaintiff to provide adequate discovery.Ogunsula v. Warrenfeltz, 2024 WL 298984 (D. Md. Jan. 25, 2024).Rule 37(d) addresses a party’s failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection. A wide range of sanctions, including dismissal and a default judgment, is permitted under Subsection (d).2Thus

ShareThis Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:a U.S. Court of Appeals for the Fifth Circuit decision overturning a lower court order upholding a party’s privilege log claims after concluding that the magistrate judge erred in finding that all communications between a company’s employees and its counsel were per se privilegeda U.S. Court of Appeals for the Ninth Circuit decision ruling that a district court could sanction counsel pursuant to Fed. R. Civ. P. 37 for failing to comply with an order to produce an expert witness for a depositiona U.S. District Court for the Middle District of Louisiana decision rejecting a party’s motion to require the opposing parties to circulate an email to all their employees to determine their personal knowledge of the issues in the litigation, finding such a request unduly burdensome and disproportionate to the needs of the case under Fed. R. Civ. P. 26a U.S. District Court for the Southern District of Florida case denying a motion to compel a forensic examination of plaintiff’s cell phone because that request was not needed to obtain relevant information and was not proportional to the needs of the case1. In EEOC v. BDO USA, LLP, 876 F.3d 690 (5th Cir. Nov. 16, 2017), the Fifth Circuit overturned a lower court ruling that upheld defendant’s attorney-client privilege log claims and granted a protective order over communications involving company attorneys, finding that the lower court erred in concluding t

that a party may request under Court of Chancery Rule 34.”Vice Chancellor Laster next explained that Court of Chancery Rule 37(e), which reflects longstanding public policies, addresses sanctions for failure to preserve ESI:If ESI that should have been preserved in the reasonable anticipation of or actual notice of imminent litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted recklessly or with the intent to deprive another party of the information’s use in the litigation, may, among other things: (A) presume that the lost information was unfavorable to the party; or (B) dismiss the action or enter a default judgment.Vice Chancellor Laster noted that Court of Chancery Rule 37(e) “closely resembles Federal Rule of Civil Procedure 37(e)” with two main differences. Id. at *12. The first is that Court of Chancery Rule 37(e) omits the reference to instructing a jury that it “may or must presume the information was unfavorable,” because the Court of Chancery does not have juries. The second is that Court of Chancery Rule 37(e) authorizes the court to impose sanctions requiring a culpable mental state if the party “acted recklessly or with the intent to deprive another party of the information’s use in the litigation (Ct. Ch. R. 37(e)(2)) whereas the federal version requires that the party have acted “with the intent to deprive another party of the information’s use in the litigation” (Fed. R. Civ. P. 37(e)(2)). Id. at *13.Vice Chancellor Laster rejected an argument by Defendants that Plaintiff’s sanctions motion was premature until trial or just before trial. Surveying the relevant Court of Chancery rules, he explained that there was no rule or requirement to delay adjudicating Plaintiff’s motion. Rather, “when to addres

Image: Kaylee Walstad, EDRM[EDRM Editor’s Note: This article was first published here on April 17, 2023 and EDRM is grateful to Michael D. Berman, founder and managing director of E-Discovery LLC for permission to republish.]Government Employees Health Assoc. v. Actelion Pharmaceuticals, Ltd., __ F.R.D. ___, 2023 WL 316578 (D. Md. Jan. 19, 2023)(Coulson, J.), provides a textbook application of Fed.R.Civ.P. 37(e) in an antitrust lawsuit with a complex fact pattern.The Court rejected Rule 37(e)(2) sanctions and engaged in a sophisticated analysis to fashion Rule 37(e)(1) sanctions that were curative, but did not “have the effect of measures that are permitted [only] under subdivision (e)(2).” Id. at *10, quoting the Advisory Committee Notes to Rule 37(e).In doing so, the Court carefully walked a fine line.RELEVANT, PROPORTIONATE DATA WENT MISSING AFTER THE DUTY TO PRESERVE AROSEIt isn’t possible in this blog to cover every twist and turn in Actelion. Suffice it to say that a legal hold was instituted on a merging company. The successor company relied on the attorney for its predecessor to scope the legal hold. Id. at *2. The spoliation issue centered on ESI of employees of the predecessor who were not hired by the successor. Id. at *2. Unless put on hold, that ESI was deleted during the data migration.The predecessor’s former in-house counsel identified key players; however, five key custodians

E-Discovery UpdateThis Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:a Western District of Pennsylvania decision ordering a party seeking production of electronically stored information (ESI) to first confer with the producing party to come to an agreement on the search terms to be used in determining responsive ESI a District of Utah ruling finding spoliation by defendant but declining to order a terminating sanction or adverse inference because plaintiff failed to show, as required by Fed. R. Civ. P. 37(e), that defendant sought to deprive plaintiff of use of the evidence at trial and ruling instead that the parties could present evidence on the spoliation at trial a Northern District of California order granting two permissive adverse inference instructions against defendant for failing to preserve text messages and for not complying with court orders to produce data in native format a District of Alaska ruling imposing spoliation sanctions against plaintiff after concluding that defendants were prejudiced by such spoliation and ordering measures designed to put the parties on “equal footing” in the litigation with respect to the spoliation 1. In Pyle v. Selective Ins. Co. of America, 2016 WL 5661749 (W.D. Pa. Sept. 30, 2016), U.S. Senior District Court Judge Terrence F. McVerry compelled a party seeking production of ESI to first confer with the producing party to come to an agreement on the search terms to be used in determining responsive emails.

Image: Kaylee Walstad, EDRM.Dismissal of plaintiff’s claims under Fed.R.Civ.P. 37(e)(2) was affirmed in Jones v. Riot Hosp. Grp. LLC, __ F. 4th__, 2024 WL 927669 (9th Cir. Mar. 5, 2024). The case is a textbook example of a plaintiff tanking her own case by deleting relevant texts.Ms. Jones, a former waitress, sued a bar owner-operator and his company, Riot Hospitality Group, Inc., alleging Title VII violations and common-law torts.Because intent can rarely be shown directly, a district court may consider circumstantial evidence in determining whether a party acted with the intent required for Rule 37(e)(2) sanctions…. Relevant considerations include the timing of destruction, affirmative steps taken to delete evidence, and selective preservation.”Jones v. Riot Hosp. Grp. LLC, __ F. 4th__, 2024 WL 927669 (9th Cir. Mar. 5, 2024). One goal of a good evaluation of ESI is to look for gaps, and that is what defense counsel did: “During discovery, Riot obtained text messages exchanged between Jones, her friends, and co-workers between December 2015 and October 2018. Riot identi

The Federal Rules foreclose the exercise of inherent authority to impose sanctions. A recent case offers a cautionary tale of how courts may cite to the requirements of amended Federal Rule of Civil Procedure 37(e), which governs imposing sanctions for failure to preserve electronically stored information (ESI), but then fail to follow the rule. The Committee Note to the 2015 amendment to Rule 37(e) makes clear that the Rule forecloses the exercise of inherent authority to impose sanctions.

John Mellencamp sang, “I fight authority, authority always wins,” but inherent authority may not carry the day anymore when it comes to e-discovery sanctions under the new rules. Federal Rule of Civil Procedure Rule 37(e) now provides the following: (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

E-Discovery UpdateThis Sidley Update addresses the following recent developments and court decisions involving e-discovery issues: An Eastern District of New York case addressing the different spoliation standards applicable to tangible evidence under Second Circuit precedent and to electronically stored information (ESI) under revised Fed. R. Civ. P. 37(e) in rejecting defendants’ sanction motion, finding mere negligence by plaintiff in the loss of the documents and no prejudice to defendants; A multidistrict product liability litigation decision applying amended Fed. R. Civ. P. 26(b) in denying plaintiffs’ efforts to obtain the personnel files of defendants’ employees whom plaintiffs planned to depose; A Northern District of California case disallowing as disproportionate plaintiff’s request for five depositions and additional written discovery on a conflict of interest issue and instead directing the defendant to designate one or more witnesses pursuant to Rule 30(b)(6) to address certain specified issues; and A Northern District of California order denying a spoliation motion because the plaintiff had failed to show that evidence was lost and that it had not been restored and produced by the defendant. 1.

This article was published in Law360 on November 1, 2019. © Copyright 2019, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.Pursuant to Federal Rule of Civil Procedure 37(e)(2), imposition of the most severe sanctions for failure to preserve relevant electronically stored information — a presumption that the information lost was unfavorable, an adverse inference instruction, or a dismissal or default judgment — requires proof that a party intended to deprive another party of the use of that evidence.Unfortunately, the rule does not specify how a court should evaluate a party’s intent, nor under what circumstances a party’s intent should be determined by a jury rather than a judge.Below, we review recent cases that address the issue of intent to deprive and offer best practices and considerations when supporting or defending against a motion for spoliation sanctions under Rule 37(e)(2).