First District, Division 4 Finds Sanctions Proper Under CCP § 2023.030(a).
We do not see that many e-discovery sanction cases at the state level, with most of the law being decided by federal courts–notwithstanding that the Evidence Code definition of “writing” does include electronic information. Here is one where a $13,500 discovery sanction was affirmed in an e-discovery dispute.
In Moreno v. Ostly, Case No. A127780 (1st Dist., Div. 4 Feb. 22, 2011) (unpublished), a trial court awarded a $13,500 discovery sanction under CCP § 2023.030(a) (a nonexclusive listing of the types of misconduct that are considered to be a misue of the discovery process) against plaintiff and her attorney in a sexual harassment/retaliation/back wages case. The basis for the sanctions was that both were evasive with respect to the existence of cell phones containing potentially discoverable information, first saying no emails were on the phones and then indicating that the cell phones did not exist at all. The trial court was not amused, and neither was the appellate court under the abuse of discretion standard. “Like the trial court, we are mystified, at the very least, that counsel did not disclose to opposing counsel and the court that at least the cell phones used by [plaintiff] during the relevant period were no any longer in her possession.” (Slip Opn., p. 11.) Lesson from this one: don’t waffle on the existence or non-existence of electronic information.
Queen Victoria: “We are not amused.”
BLOG BONUS–Use our search function and enter “E-Discovery” to get federal decisions in this area.
