A recent blog post here examined the circumstances under which a prevailing party in litigation can obtain reimbursement for deposition-related costs in federal courts. The rules are complicated, constrained by the statutory command that the depositions be “necessarily obtained for use in the case,” 28 U.S.C. 1920(2), and further limited by the need to actually prevail in the litigation. Importantly, reimbursement of depositions taken purely for discovery purposes is not available under federal law.There is, however, another way for a party to obtain reimbursement for the costs of depositions. That way is Rule 37 of the Federal Rules of Civil Procedure, which provides that a party is entitled to the costs of proving the existence of a law or fact, or the genuineness of a document, in response to a request for admissions. A party need not prevail in the litigation to be entitled to recovery of costs under Rule 37; moreover, both deposition costs and attorneys’ fees are recoverable.reimbursement for the costs of a deposition that should not have been necessary if the opposing party had admitted to material facts posited in a request for admissions is clearly available under federal law (and most similar state laws).The relief described under Rule 37 is colloquially known as “costs of proof” – i.e., the costs of proving a matter that should have been admitted in a response to a request for admissions propounded under Rule 36 of the Federal Rules of Civil Procedure. Most states procedural rules provide a similar right to obtain recovery for “costs of proof.”The costs of a deposition that would not have been necessary had the opposing pa

pounded any discovery on Defendants. Id. In opposition to Defendants’ summary judgment motion, Plaintiff argued that Defendants spoliated evidence by failing to produce video footage potentially capturing the use of force that may have been recorded by cameras in the facility or in the handheld video footage taken by one of the Defendants. Id. As a result, Plaintiff sought an adverse inference sanction against Defendants that the recordings would substantiate his excessive force claim, and refuted Defendants’ version of what had occurred. Id.Courts Have Broad Discretion to Impose Spoliation SanctionsSpoliation sanctions “should be designed to: (1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he or she would have been in absent … [the spoliation].” Id. (internal quotations and citation omitted) A party’s obligation to preserve ESI arises from Federal Rule of Civil Procedure 37 (e), which also provides the court the ability to impose sanctions for failing to preserve or for destroying ESI. Id. Rule 37 (e)(2) provides that the court 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 unfavorableto the party;(B) instruct the jury that it may or must presume the informationwas unfavorable to the party; or(C) dismiss the action or enter a default judgment.Id.Plaintiff Failed to Meet His Burden of Proving The Elements of Rule 37 (e)A party seeking spoliation sanctions bears the burden of proving all of the elements of Rule 37(e), and under Fourth Circuit precedent is generally required to do so by a “clear and convincing standard.” Pratt, 2024 WL 234730, *2 (internal citation omitted). Plaintiff failed to establish that Defendants intended to spoliate the missing video footage. The particular Defendant who had, on occas

he Sixth Circuit dismissed the second appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the court had not disposed of Multiject and Elder’s counterclaim (RJ Control II). The case was remanded again. On remand, the district court dismissed the then-pending counterclaim. RJC appealed again.RJC argued that the Sixth Circuit lacked jurisdiction to decide RJ Control I, just as it did in RJ Control II, because at that time the counterclaim remained pending in district court. The Court agreed and vacated its decision in RJ Control I, but then affirmed its original holding because RJC did not argue that the underlying decision was erroneous.RJC next argued that the exclusion of its expert by the district court was erroneous and denied RJC due process. Because RJC never produced an expert report, which Fed. R. Civ. P. 26(a)(2)(B) requires as part of the timely disclosure of an expert witness, the district court excluded the expert under Fed R. Civ. P. 37(c)(1), which bars a party from using information or a witness “to supply evidence on a motion, at a hearing, or at trial” when the party fails to comply with Rule 26(a), unless the party can show that its nondisclosure was substantially “justified or harmless.” The Sixth Circuit used a five-factor analysis to assess substantial justification and harmlessness, ultimately concluding that the district court did not abuse its discretion in excluding RJC’s expert because no report was disclosed.Finally, the Sixth Circuit affirmed the district court’s grant of summary judgment to the defendants on the copyright infringement claim. The district court had previously determined that expert opinion was necessary for it to assess the infringement claim regarding the technical software and had warned RJC of this more than once. Since RJC had presented no expert evidence to rebut the defendants’ evidence, the Sixth Circuit agreed that the doctrines of merger and scenes a faire operated to bar copyright

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

vertime wage cases to over-file their cases or request unreasonable and excessive cost awards free of consequence.” In so stating, the court noted that, “there are still sufficient consequences for attorneys who make unreasonable and excessive requests to recover fees and costs even in the face of a mandatory fee statute like Labor Code section 1194, subdivision (a).”Practical Implications: This case is a bit of a mixed bag. While the court did hold that a prevailing plaintiff in an action to recover unpaid minimum and overtime wages is entitled to attorneys’ fees regardless of the amount recovered, it also emphasized (rather emphatically) that this entitlement is only to reasonable attorneys’ fees and that trial courts should not countenance overlitigation and excessive requests. In other words, defendants are not without relief when the other side is churning up fees on a low-value case.Jones v. Riot Hospitality Group LLC, 95 F.4th 730 (9th Cir. 2024)Summary: To dismiss a case under Federal Rule of Civil Procedure 37(e)(2), a district court need only find that the Rule 37(e) prerequisites are met, the spoliating party acted with the intent required under Rule 37(e)(2), and lesser sanctions are insufficient to address the loss of the electronically stored information.Facts: Plaintiff Alyssa Jones worked as a waitress at a Scottsdale bar owned and operated by Defendant Ryan Hibbert. Plaintiff later sued Hibbert and his company, Defendant Riot Hospitality Group LLC (collectively, “Defendants”) in the United States District Court for the District of Arizona alleging Title VII violations and common law tort claims. During discovery, Defendants obtained text messages between Plaintiff and her coworkers over a nearly three-year period. Defendants later identified instances where Plaintiff appeared to have abruptly stopped communicating with a number of people she had been messaging with on an almost daily basis. Plaintiff’s third-party imaging vendor, in compliance with a subpoena, produced a document showing

d her coworkers between December 2015 and October 2018. After October 2018, the text messaging activity among the group appeared to have abruptly stopped. No messages sent after October 2018 were shared with the employer during discovery.A good deposition not only tilts the playing field in one party’s favor, but it can also secure an early victory without the expense and litigation risk of a trial.The employer was not convinced that the messaging had, in fact, stopped after October 2018. It was able to demonstrate, via forensic evidence from a third-party tech vendor, that some messages between the plaintiff and her coworkers had been deleted from the plaintiff’s phone. Moreover, deposition testimony from the two coworkers (and prospective trial witnesses) revealed that they had exchanged text messages with the plaintiff after October 2018 – a time period when the plaintiff asserted that no text messaging among the group had occurred.The employer moved for terminating sanctions under Rule 37 of the Federal Rules of Civil Procedure. Rule 37 authorizes federal district courts to dismiss a lawsuit or claim if electronically stored information is lost because a party failed to take reasonable steps to preserve it. Dismissal is an extreme and rarely imposed sanction – permissible only when the district court finds that the party that lost the information “acted with the intent to deprive another party of the information’s use in the litigation,” Fed. R. Civ. P. 37(e)(2).The district court found – and the appellate court agreed – that the plaintiff had engaged in “an orchestrated effort to delete and/or hide evidence” that was subject to the court’s discovery order. The district court also found that the plaintiff had “deleted text messages” and “cooperated in the deletion of messages by her witnesses, intending to deprive Riot of their use in litigation.”The defense team in Jones v. Riot Hospitality Group was able to win an early dismissal for the client – thus avoiding the expense of trial and the likely prejudicia

reservation EffortsTo get to the bottom of this, the Court ordered the parties to jointly hire a neutral forensic examiner to image the phones of Jones and three witnesses. The examiner would extract any messages hitting certain agreed-upon search terms and send them to Jones’ counsel, who would review for privilege and produce the rest to Riot.Sounds reasonable, right? Except Jones and her counsel threw up multiple roadblocks:They delayed providing the phones to the examinerJones’ counsel failed to produce the extracted messages to Riot despite court ordersThe Court had to order the examiner to send non-privileged messages directly to RiotJones and a witness conveniently got new phones right after being ordered to turn them overIn the end, Riot was awarded almost $70,000 in fees and costs against Jones and her counsel for their “failure to comply with the Court’s orders.”The Sanctions MotionHaving finally received some of the withheld texts, Riot filed for terminating sanctions under FRCP 37(e)(2) based on an expert’s report finding “an orchestrated effort to delete and/or hide evidence.”The District Court agreed, dismissing the case after finding that Jones intentionally deleted texts and “cooperated in the deletion of messages by her witnesses intending to deprive [Riot] of their use in litigation.”The AppealOn appeal, Jones didn’t contest her duty to preserve, that texts were deleted, or that they couldn’t be recovered. Her only argument? That she didn’t intend to deprive Riot of the messages.That’s a questionable argument – Jones clearly coordinated deletion of relevant messages from multiple devices over an extended period. That’s about as intentional as it gets.The 9th Circuit quickly shut that nonsense down, citing the “ample circumstantial evidence” supporting the District Court’s findings:Jones couldn’t explain why only co-worker messages were deleted in 2017-2018,A screenshot proved she deleted a message “bearing directly” on her claims,Jones and a witness got new pho

mon law tort claims. After two of Jones’ coworkers testified in their depositions that they had exchanged text messages with Jones about the case, the district court ordered Jones to produce the text messages. When Jones failed to produce the text messages, the district court ordered the parties to jointly retain a third‑party forensic search specialist to review Jones’ and the other witnesses’ phones. The forensic search specialist (K.J. Kuchta) extracted messages from Jones’ phone and forwarded them to Jones’ lawyer, who had been ordered to forward the extracted messages to Riot’s lawyer. Despite multiple district court orders and deadline extensions, Jones’ lawyer failed to forward the text messages to Riot’s lawyer. The district court then ordered Kuchta to send all non‑privileged messages directly to Riot and assessed $69,576 in fees and costs against Jones and her lawyer. After receiving the text messages from Kuchta, Riot successfully moved for terminating sanctions pursuant to Fed. R. Civ. P. 37(e)(2) based on an expert report from Kuchta who concluded that “an orchestrated effort to delete and/or hide evidence subject to the Court’s order had occurred.” The Ninth Circuit affirmed the judgment.[View source.]

nd Confer.Collection: Acquire potentially relevant ESI as defined in the identification phase.Processing: Electronically prepare ESI for review.Review:Search, examine, and assess processed ESI.Analysis: Examine, evaluate and interpret the results of your doc review.Production: Share ESI with opposing counsel using established formats.IdentificationIn the EDRM process, the legal team uses the identification phase to develop and execute a plan to identify and validate potentially relevant ESI sources, including people and systems.The scope of this data may be uncertain in the early phases of a legal dispute and may change as the litigation progresses. But learning the location of potentially discoverable data is necessary to issue an effective legal hold in the preservation stage.PreservationKeep in mind that the duty to preserve relevant data does not always flow from a litigation hold notice. It may arise under a common law obligation or a statute or regulation. The Committee Notes to FRCP 37(e) state, in part, “Many court decisions hold that potential litigants must preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve.”In the federal and most state courts, there is no tort cause of action for the intentional destruction of evidence after litigation has commenced. But since such destruction constitutes an abuse of the discovery process, it is subject to a broad range of sanctions. These sanctions are, however, intended to remedy discovery abuse, not to punish the offending party.Also keep in mind that the duty to preserve is not the same as the duty to produce. There may be numerous exceptions to production, even for documents that should be preserved.ConferenceNegotiate the items required by Rule 26(f) and establish ESI protocols to frame the exchanges of ESI. These should include specifications on metadata, production formats, technology that will be used, a

individuals she had been contacting on a daily basis.Following a subpoena issued by Riot’s counsel, a third-party vendor produced a spreadsheet that showed the employee had deleted relevant messages between her and her co-workers. The district court issued an order that the employee produce those text messages, but the employee failed to do so. As a result, the district court allowed Riot to subpoena the phones of the employee and three of her witnesses to a forensic specialist, who would extract messages with specific search terms. The forensic specialist sent the text messages to the employee and her counsel, who failed to ever deliver them to Riot, despite multiple orders from the court to do so. After the court ordered the forensic specialist to send the messages to Riot, the court assessed a nearly $70,000 discovery sanction in fees and costs against the employee and her counsel.Upon receipt of the messages from the forensic specialist, Riot moved for terminating sanctions under Federal Rule of Civil Procedure 37(e)(2), which provides that, where electronically store 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, upon finding that the party acted with the intent to deprive another party of the information’s use in litigation, may dismiss the action. In determining that the employee had intentionally deleted her text messages to deprive Riot of their use in litigation, and acting in concert with her witnesses to do the same, the district court dismissed the employee’s case, with prejudice.On appeal, the employee argued that she did not violate FRCP 37(e) and that the district court abused its discretion in dismissing her case under FRCP 37(e)(2) because her conduct was not willful or prejudicial to Riot.The Ninth Circuit disagreed with the employee, noting that “a district court need only find that the Rule 37(