Preservation

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This is what it sounds like, when sanctions are granted.

In March 2019, a federal judge in Minnesota sanctioned Defendants for their failure to preserve text messages in a copyright infringement suit brought in part by the estate of the late musician commonly known as “Prince”.

Representatives for Prince’s estate brought suit against Defendants George Ian Boxill, Rogue Music Alliance (“RMA”), Deliverance LLC (“Deliverance”), David Staley, Gabriel Solomon Wilson, and other parties alleging copyright infringement.  Plaintiffs filed suit for copyright infringement after learning that Defendants Boxill and RMA created Deliverance to market and release previously unreleased recordings that Prince created during recording sessions in 2006.  Defendant Boxill worked as Prince’s sound engineer during the 2006 recording sessions. Plaintiffs allege that a confidentiality agreement with Boxill placed ownership of the recordings solely on Prince.

Before releasing the music, Defendant Staley sent an email to Sensibility Music indicating that Defendant Boxill would indemnify RMA if Plaintiffs challenged the release. Shortly thereafter, Plaintiff’s estate sent a cease and desist letter, then filed suit.

The parties agreed to certain stipulations regarding discovery of ESI including taking “reasonable steps to preserve reasonably accessible sources of ESI.” The court did not enter an order concerning the stipulation but noted that it will enforce the agreement and warned that any non-compliance will be met with all available remedies, including sanctions. The Court also issued a pretrial scheduling order for both parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of this lawsuit.” The court issued two additional pretrial scheduling orders each containing similar language to the first regarding preservation and warnings regarding consequences for violations.
Continue Reading Court Sanctions Defendant for Failure to Preserve Text Messages in Copyright Infringement Suit Brought by Prince’s Estate

By now, most litigators should know that they have an affirmative duty to advise their clients about the duty to preserve potentially relevant documents.  Despite this, the United States District Court for the Southern District of New York recently denied an attorney defendant’s motion for summary judgment in part because the record was not clear as to whether the attorney defendant fulfilled its obligations with respect to the duty to preserve.

Industrial Quick Search, Inc., Michael Meiresonne, and Meiresonne & Associates (collectively “Plaintiffs”) sued their law firm Miller, Rosado & Alogis, LLP (“Defendants”) for malpractice.  Neil Miller and Chris Rosado, named partners of the firm, were also individually named as Defendants.  Defendants represented Plaintiffs in an underlying copyright infringement lawsuit in which default judgement was entered against Plaintiffs for misappropriating confidential information, plagiarizing copyrighted material, and for deliberately destroying potentially relevant documents.
Continue Reading FAILURE TO ADEQUATELY ADVISE CLIENTS ON THEIR PRESERVATION OBLIGATIONS CAN BE CONSIDERED MALPRACTICE

A trial court opinion involving allegations of spoliation of text messages on a mobile phone in the Southern District of New York has gotten attention because of the application of legal preservation standards.  Ronnie Van Zant, Inc. v. Pyle 2017 BL 3018, S.D.N.Y. 17 Civ. 3360 (RWS), 8/23/17) is an interesting read, not just because it involves odd characters, intrigue and drama surrounding one of the greatest Southern Rock bands of all time.  It also includes some instructive information about the application of the “practical ability” test for preservation, and the uphill battle for witnesses who lose credibility in testimony about what they did and did not do in a preservation effort.

Not long after the tragic plane crash that resulted in the deaths of Lynyrd Skynyrd lead singer Ronnie Van Zandt and his co-founding band member Steven Gaines,  Artimus Pyle, the former drummer, entered an agreement with the surviving heirs and other members of the band.  The agreement involved promises to never perform as “Lynyrd Skynyrd,” or to generally profit from the name of the band or the tragic deaths of Van Zant or Gaines without approval of the original parties to the agreement.  Their dramatically named “blood oath” agreement was more concretely memorialized in a Consent Order in 1988, following other litigation, which Pyle signed.

Over 20 years after the 1988 Consent Order, the drama that spawned the litigation began in a story that sounds like it came from a Netflix mini-series.  A film director named Jared Cohn, who worked under contract for an independent record label-turned movie producer, Cleopatra Records, Inc. (“Cleopatra”) reached out to Pyle about making a movie centered around the band and Pyle’s life in it.  Cohn was hired by the founder and co-owner of Cleopatra Records, Brian Perera, who is another interesting character in his own right. Pyle met and consulted with Perera on multiple occasions about ideas for a film generally depicting his life and the plane crash, which Pyle survived.  In their first conversations, Pyle did not mention the 1988 Consent Order, but the Order eventually was delivered to Cleopatra.  The copy of the Order was also eventually followed by a “cease and desist” letter and other correspondence from the Plaintiffs’ counsel.  All the while, Cleopatra’s movie production work continued.
Continue Reading Spoliation and Southern Rock

Court Denies Plaintiff’s Motion to Compel

In Mirmina v. Genpact LLC, 2017 BL 260425, D. Conn., Civil No. 3:16CV00614 (AWT), the Court denied Plaintiff’s motion to compel additional responsive electronic communications despite the fact that an individual directly involved in the underlying claims of the suit “self-identified” potentially responsive emails.  The Court based its…

In an interesting decision regarding the spoliation of evidence via a mobile device, Magistrate Judge Terry F. Moorer determined that the newly amended Federal Rule 37(e) – enacted on December 1, 2015 – did not apply to the spoliation case, as the case was filed prior to the rule’s enactment.  (Morrison v. Charles J. Veale, M.D., P.C., 2017 BL 21478, M.D. Ala., No. 3:14-cv-1020-TFM, 1/25/17).

Karla Morrison, a former employee of the medical practice Charles J. Veale, M.D., P.C. sued her employer in October of 2014 alleging that the practice violated the Fair Labor Standards Act.  Following the close of discovery in August of 2016, the defendant filed a motion for sanctions for spoliation of evidence alleging that Morrison logged into her office email account after her termination and deleted emails from the account.  The defendant bolstered this argument by alleging that Morrison added 2-step verification to her log-in process in April 2015 – almost 6 months after her termination.  Morrison admitted to accessing her office email days after her termination to “close out” items, but denied any further use of the account.

For those unfamiliar, 2-step verification is an additional security measure that confirms a user’s identity through two components, usually a password followed by a code sent to a personal device, for example.  When in place, it adds an additional level of security to an account, thus making it less susceptible to hacking. 
Continue Reading Interesting Sanctions Analysis Applies “Old” Bad Faith Standard Post-December 2015 Amendments