Case Also Addresses Other E-Discovery Issues of Interest.
Although we usually review only California decisions, a recent federal decision has a nice summary of the most typical situations justifying imposition of costs or attorney’s fees in instances where there was spoliation of potential evidence during the discovery phase of a case or after the litigant was on notice that the potential evidence should be preserved. Because California just enacted discovery amendments relating to electronic discovery, the next case is a good one to discuss with respect to the circumstances that normally will give rise to costs and fees as spoliation “sanctions.”
U.S. Magistrate Judge Paul W. Grimm, in Goodman v. Praxair Services, Inc., __ F.Supp.2d __, 2009 WL 1955805 (D.Md. July 7, 2009), listed these situations as the typical ones when courts will grant an award of costs or attorney’s fees when ruling on a spoliation motion:
- First, courts will award legal fees in favor of the moving party as a less drastic alternative to dismissal or an adverse jury instruction;
- Second, courts will grant discovery costs to the moving party if additional discovery must be performed after a finding that evidence was spoliated;
- Third, in addition to a spoliation sanction, a court will award a prevailing litigant the litigant’s reasonable expenses incurred in making the motion (including attorney’s fees); and
- Fourth, in addition to a spoliation sanction, a court will award a prevailing litigant the reasonable costs associated with the motion plus any investigatory costs into the spoliator’s conduct. (Id. at *22.)
Goodman also discussed these issues of importance in the electronic discovery area: (1) factors to be assessed in determining the timeliness of a spoliation motion; (2) whether the defense had a duty to preserve documents in the possession of third party consultants; (3) events that trigger the duty to preserve material evidence during a dispute; (4) delineation of “key players” and “control” for purposes of determining preservation of evidence duties; and (5) the different states of mind that demonstrate culpability for a spoliation determination, along with how those states of mind impact the severity of the sanction to be imposed by the federal judge.