First District, Division 5 Sustains Sanctions For Production of Laptop With Deleted or Scubbed Computer Files.
For all of you e-discovery fans out there, here is one where a substantial monetary sanctions—one that could have been much larger—was affirmed on appeal for a defendant’s production of a laptop with deleted and “scrubbed” computer files after a court order had been entered mandating inspection of her computers and computer storage devices.
In OZ Optics Limited v. Hakimoglu, Case No. A118565 (1st Dist., Div. 5 Apr. 15, 2009) (unpublished), the Court of Appeal found that defendant’s action in producing a “scrubbed” laptop violated her discovery obligations and constituted a misuse of the discovery process.
(Code Civ. Proc., secs. 2023.010, (f), (g), 2023.030(a) [monetary sanctions allowable for making an evasive discovery response or disobeying a court order to provide discovery]; see also Pratt v. Union Pacific Railroad, 168 Cal.App.4th 165, 183 (2008) [monetary sanctions encourage voluntary compliance with discovery procedures by assessing the costs of compelling compliance against the defaulting party].) However, the trial court rather thoughtfully only imposed $90,000 in monetary sanctions, because that amount could be apportioned to the post facto deletion/scrubbing and was punitive enough—rejecting plaintiffs’ request for $230,087 in sanctions. (Plaintiffs had requested terminating sanctions, but they were not granted.) The appellate panel found that the sanctions amount balanced the policy of not being overly punitive with the need to allow the plaintiff to obtain the objects of the discovery being sought (i.e., fees and costs plaintiffs incurred to obtain the computer and ascertain whether (and why) documents had been deleted).
Defendant argued that her “error” in deleting computer information was innocent and no willful conduct was shown. The Court of Appeal found this argument nonpersuasive, because willfulness is not required for imposition of monetary sanctions under section 2023.030(a). (Kohan v. Cohan, 229 Cal.App.3d 967, 971 (1991); Ghanooni v. Super Shuttle, 20 Cal.App.4th 256, 260 (1993).)
The appellate panel also rejected plaintiff’s cross-appeal argument that the full amount of requested sanctions should have been imposed, finding no abuse of discretion in the careful ruling of the lower court. “ . . . plaintiffs fail to cite to any authority requiring a trial court to impose the full amount of sanctions requested.” (Slip Opn., at p. 36.)