Craig Ball & Tom O On New E-Discovery Cases for 2016

We’re halfway thru the second month of 2016 and we have three new eDiscovery cases of note already. Here’s a short synopsis of all three and you can hear Craig and Tom discuss them in more detail on the EDiscovery Channel on YouTube at

The first case is Nuvasive, Inc. v. Madsen Medical, Inc.; SD California 1-26-16 (Chief Judge Moskowitz). In July of 2015, Nuvasive was sanctioned for failing to enforce a litigation hold such that key text messages were destroyed by its executives. The sanction then was a permissive adverse inference instruction but since the case had not yet been tried it never was given to a jury. On December 10, 2015, Nuvasive sought re-consideration of the sanction, and on the eve of trial, the Court withdrew its sanction, pointing to amended Rule 37(e) and its requirement of intent to deprive an opponent of evidence.
So Judge Barry Ted Moskowitz relies upon the amended Rule to reverse his own decision with an air of “my hands are tied by the Rules.” See what Craig thinks of that attitude in the EDiscovery channel video.

The second case is CAT3, LLC v. Black Lineage, Inc.; SD New York; 1/12/2016) (Judge Francis) in which Magistrate Judge James Francis weighs in on new rules and whether they do in fact serve to tie the hands of judges re: spoliation under inherent authority.
The case involved a clear intentional falsification of evidence which apparently prompted CAT3’s counsel to resign. After a forensic examiner uncovered the original documents CAT3’s too the position that, yes, pretty clearly e-mail was altered but we have no idea how. Criags reaction to that position is hilarious.
, but we have no idea HOW that happened. They even get their IT guy to testify that “[n]obody would have doctored, falsified or materially altered any of these documents or files without my knowledge or approval” by claiming that he is “the gatekeeper of all systems.”
They then went on to argue that because the original e-mails were recovered, there was no spoliation under amended Rule 37(e). In essence no harm, no foul. Judge Francis rejected the basketball analogy and stated in dicta that, notwithstanding the intent of the Rules committee to limit the inherent power to sanction spoliation of ESI, , “… sanctions would be available under the court’s inherent authority even if Rule 37(e) did not apply. A party’s falsification of evidence and attempted destruction of authentic, competing information threatens the integrity of judicial proceedings even if the authentic evidence is not successfully deleted.”
Although Craig admires this position he feels the resulting sanction was too lenient and explains why in the video.

The final case we discuss is Gilead Sciences, Inc. v. Merck & Co., Inc., (N.D. Cal. Jan. 13, 2016) in which Judge Paul Grewal invokes discovery proportionality in the Gilead Sciences case even though it was not ESI that was being sought.
The Judge says “…. [i]n the absence of any reason to doubt the proof [Plaintiff] has tendered about the identity of the disputed compounds, and given the cost and potential delay introduced by the requested production, [Defendant’s] request is precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.”
So there you have it: three new cases and we’re seeing spoliation, sanctions and proportionality. Stay tuned to the EDiscovery Channel as we bring you more new cases as the year unfolds.

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