Guest Blog: A Tale of Three Sanctions’ Motions – You Don’t Have To Be Perfect, Just Good

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A blog post on eDiscovery News by Hayley, with a guest blog article from James Cook.

This article discusses 3 examples of cases in which sanctions were sought by parties involved in the case, based on allegations of abuse of the eDiscovery process.

The article focuses on three recent opinions, "The first two opinions are in the same case, E.I. du Pont de Nemours and Company v. Kolon Industries, Inc. This is a case about misappropriation of trade secrets associated with DuPont’s Kevlar® business. The second case,Gentex v. Sutter, et al., is also a trade secrets misappropriation case concerning Gentex’s Advanced Combat Helmet design."

In the du Pont matter the article states, "Although noting a litigant’s obligation to preserve relevant evidence, the Court observed that upon “recognizing the threat or anticipation of litigation, litigants are not required to ‘preserve every shred of paper, every e-mail or electronic document, and every back up tape,’ for ‘[s]uch a rule would cripple large corporations.’”  (Citation omitted)

The Court also observed that a “discussion of reasonableness as an underlying consideration when analyzing a litigant’s compliance with its duty to preserve is particularly appropriate in these circumstances. (Citation omitted) The Court noted the following the following factors supporting its conclusion that DuPont acted reasonably and in good faith."

In addition, duPont was awarded sanctions against the opposition.  The article describes a long list of improper conduct on the part of duPont's adversary and states, "The Court determined that sanctions were appropriate because it found that key employees of Kolon intentionally, and in bad faith, deleted files and email after they learned of the lawsuit. The Court decided that entry of default judgment was not warranted because it was “neither proportionate to Kolon’s conduct nor necessary to cure any prejudice to DuPont.” The Court noted that Kolon “did attempt to put in place two litigation hold orders and it implemented a widespread effort to preserve files.”  Kolon was also “aided by good fortune in that many deleted items were recoverable because of the preservation of Kolon’s backup tapes.” (Citations omitted).

The article goes on to state that the third opinion discussed resulted in a default judgement, "The Court determined that the most severe sanction against Sutter and Walker, a default judgment, was appropriate because they admitted they had Gentex information and intentionally destroyed relevant and irretrievable information, which prejudiced Gentex. The Court further noted that it was “especially conscious of the deterrence value of harsh sanctions in cases like this where the crucial evidence exists in electronic form, and a party may destroy its opponent’s case with the mere click of a button.”"

The article offers some advice to litigants as to how to avoid sanctions, included in this discussion are:

•  Act in good faith
• Acquire sufficient knowledge about technology related issues and problems that can arise in identifying and preserving electronically stored information 
• Put together a team of people with the requisite knowledge, skills, and experience to deal with the e-Discovery issues
• Don’t attempt to preserve “everything.”
• Do use the principles of proportionality, reasonableness, and cooperation to resolve potential disputes 
• Seek assistance from the court if an opposing party will not cooperate or an issue cannot be resolved.
• Document your decisions and all key events.
• Consider any motivations that individuals may have to destroy evidence and take steps to prevent it before they have a chance to cause spoliation.