Fourth District, Division 3 Finds Sanctions Were No Abuse of Discretion.
The next case is one in which the Fourth District, Division 3 affirmed monetary and terminating sanctions against either plaintiff’s attorney or plaintiff based on failure to respond to requests or failing to be candid in electronic discovery matters. This shows how one needs to be diligent in discovery, responding once extensions have expired and investigating issues relating to e-discovery—and being candid to opposing counsel and the court in the process.
Most of the monetary sanctions in Estrada v. Delhi Community Center, Case No. G040405 (Oct. 20, 2009) (unpublished) were sustained against plaintiff’s attorney Jim Toledano. Outside of the merits, he never appealed the sanctions assessed only against him as an attorney, but only appealed through plaintiff. However, plaintiff did not have standing to challenge sanctions against Mr. Toledano, who had a distinct right to appeal the sanctions orders. (Lachkar v. Lachkar, 182 Cal.App.3d 641, 645 n.1 (1986); 20th Century Ins. Co. v. Choong, 79 Cal.App.4th 1274, 1277 (2000); Calhoun v. Vallejo City Unified School Dist., 20 Cal.App.4th 39, 42 (1993).) However, the monetary sanctions were justified on the merits, where the circumstances showed either (1) Mr. Toledano only provided responses on the eve of a motion to compel hearing after indicating that he was too busy or attending to his father’s estate, or (2) Mr. Toledano refused to produce certain photographs without showing the refusal was justified.
With respect to terminating
sanctions, plaintiff’s installation of a new operating system that damaged existing data was found to be prejudicial when her attorney was alerted by defense counsel that plaintiff’s home computer would be sought long before installation of the new operating system that did result in some data alteration. Spoliation of evidence only needs some showing that the documents were potentially relevant to the litigation, as the e-documents were to plaintiff’s emotional distress claims. (Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006).) [BLOG OBSERVATION—This shows the wisdom of sending a “duty to preserve” warning to the other side in cases involving e-discovery.]