Time and time again we learn that honesty really is the best policy. Rather than cooperate with adversaries, more often than not attorneys continue to fight and prolong the tedious discovery process. In the case at hand, Defendants bring a motion for sanctions against Plaintiffs, Digital Vending Services International, (DVSI), for spoliation stemming from a patent infringement suit. Based on the Plaintiff’s behavior, the court determined that sanctions were in fact proper.
This motion for sanctions deals with two separate instances of conduct. First, Defendants allege that the Plaintiff intentionally destroyed/misplaced a thumb drive containing a series of important documents. In order to impose sanctions for spoliation, the court looks to whether “(1) The party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a ‘culpable state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’ to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable fact finder could conclude that the missing evidence would have supported the claims or defenses of the party that sought it.” While DVSI was under a duty to preserve evidence, the court did not believe their conduct rose to a level of spoliation. It is clear that the first prong was met, as DVSI had a duty to preserve, but it does not appear that the destruction of this thumb drive was done in a willful or intentional manner. At most, the court found the presence of negligence surrounding the “loss” of the thumb drive, but no culpable state of mind.
The court then looked to Defendants’ second argument. Defendants alleged that Plaintiffs produced over 7,000 documents regarding interviews with product inventors, after they specifically claimed that these very same documents did not exist. These actions were examined under Fed. R. Civ. P. 37(c)(1), which outlines mandatory disclosure for both parties. After being served with a series of subpoenas, DVSI made attempts to avoid the discovery process and intentionally disregard subpoena instructions. Rather than fully cooperate and disclose all documentation surrounding inventor interviews, DVSI attempted to skirt by the discovery process. In order to impose Rule 37(c) sanctions, the court looks to (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party’s
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explanation for its failure to disclose the evidence. In this case, all factors weighed in favor of the defendants.
Therefore, the court held that DVSI was prohibited from using any unique documents that were part of the late disclosure, including the inventor interviews, to supply evidence on a motion, at a hearing, or at trial. They also ordered DVSI to pay all reasonable expenses including attorneys fees regarding the motion for sanctions. And finally, the court found that a a jury instruction was warranted based on DVSI’s failure to cooperate with discovery.
Alex Bylinkin, a Seton Hall University School of Law student, Class of 2014, focuses
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his studies in the area of litigation. Alex’s experiences include participating in the Juvenile Justice Clinic, acting as a Student Bar Association Class Senator, and externing for a New Jersey Superior Court Judge. Upon graduation, Alex hopes to clerk for a trial Judge in the Superior Court of New Jersey and to pursue a career in criminal/civil litigation. Prior to law school, Alex received a B.A Degree from the University of Delaware, where he double majored in Criminal Justice and Sociology.
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March 17, 2014 at 1:04 AM
The “state of mind” prong in evaluating whether sanctions are appropriate is always intriguing. Here, the court is tasked with making a factual finding of as to whether the thumb drive was “lost” with a culpable state of mind. Of course this is a main role of the judge, but one must nevertheless express skepticism with how effectively a spoliating party’s state of mind can be gleaned. Such a finding no doubt requires hearings on the issue, snow-balling into full-blown (i.e., expensive) satellite litigation on the issue. A strong argument can certainly be made that, in light of these unfortunate outcomes, a stronger presumption against the spoliating party is warranted.