December 5, 2024 • 21 mins
Unlock the secrets of perfectly timed sanctions motions in electronic discovery with insights from Judge Ian Johnston's recent decision in Groves Inc versus RC Bremer Marketing Associates. Join me, Kelly Twigger, as we dissect the intricacies of when to file these critical motions without missing the mark. You'll gain valuable perspectives on how strategic communication with the court and proactive dialogues with opposing counsel can dramatically shape litigation outcomes. This episode promises to equip litigators and legal professionals with actionable strategies to navigate the complex world of spoliation issues and sanctions with precision.
Ready to master the timing of your legal strategy? Discover how aligning with judicial preferences and understanding court procedures can lead to successful sanctions motions. This episode delves into the potential impact of permissive adverse inference instructions on trial outcomes, underscoring the importance of knowing the judge's expectations and ensuring transparency. Embrace the wisdom of Judge Johnston's practical approach, and learn how strategic timing and collaboration can optimize your litigation efforts and keep you ahead in the fast-paced realm of electronic discovery.
Groves Inc. v. R.C. Bremer Mktg. Assocs.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:14):
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:35):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and e-discovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:58):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in eDiscovery case
law and how it shapes both yourlitigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
(01:19):
Subscribe or follow now tostart embracing the power of ESI
as evidence.
Hi and welcome to this week'sepisode of the Case of the Week
series brought to you byeDiscovery Assistant.
Thanks so much for joining metoday.
(01:42):
This week's decision touches onan issue of first impression
here on Case of the Week, andthat is the timing of when to
file a sanctions motion.
We talk a lot about sanctionsmotion and the analysis under
the federal rules and staterules on sanctions, but we've
not talked about when to file asanctions motion, and perhaps
(02:04):
the most important takeaway fromtoday's decision is this you
need to know what your judgeprefers on how to handle
sanctions motions if you aregoing to bring one.
We talk repeatedly on our Caseof the Week series about knowing
your judge, and today'sdecision falls right in line
with that thought process.
All right, let's dive in.
(02:25):
This week's decision comes tous from the Groves Inc versus RC
Brimmer Marketing Associatescase.
This is a decision from UnitedStates District Judge Ian
Johnston, dated November 22nd2024.
If Judge Johnston's name isringing a bell, that's because
he's written some of the mostinteresting decisions in
(02:46):
electronic discovery, going backto the DR distributors case
that we've covered multipletimes here on Case of the Week,
as well as a total of 17decisions that are included in
our eDiscovery Assistantdatabase.
Judge Johnston always adds adose of humor, reality and some
(03:07):
incredible practical applicationto his decisions and today has
taken on the task of talkingthrough when the timing to file
a sanctions motion isappropriate, and there are going
to be a number of factors thatwe're going to talk about.
As always, we add the issues toour cases in eDiscovery
Assistant, and this week'sissues include sanctions and
spoliation.
(03:28):
All right, let's talk a littlebit about the decision Now.
We're before the court on amotion for sanctions that was
filed by Grove against one ofthe defendants, christopher
Shepard.
Of its decision which is notparticularly wrong long, and I
encourage you to read it that ithas some pretty big questions
(03:52):
about Shepard's conduct andlooks forward to resolving the
merits of the sanctions motionwhen it's appropriate.
Judge Johnson is known forstarting his decisions with
quite the quote, and this one isno exception, and here is his
opening quote this courtattracts Rule 37E motions like
chum attracts sharks.
So yes, in this simile thecourt is fish guts and fish
(04:16):
heads.
This court has been presentedwith Rule 37E motions at various
stages of an action.
It has received spoliationmotions during discovery.
It has received spoliationmotions made in the middle of a
summary judgment briefing,requiring the briefing to be
stayed while the spoliationissue could be resolved.
It has received Rule 37Emotions in the form of a motion
(04:39):
in limine after the issue wasraised during summary judgment
and in the middle of trial.
A party even requested for thefirst time an adverse inference
instruction under Rule 3070 forthe spoliation of ESI.
But this current motion is justthe latest Close quote.
Rather than turning to themerits of the decision, judge
(05:01):
Johnson noted that the timing ofthe filing of the fully briefed
sanctions motion was too earlyin this case.
According to the court, it'stoo early for a sanctions motion
here.
This case is still proceedingwith expert discovery including
the depositions of a couple offact witnesses.
No date has been set forsummary judgment motions and no
(05:21):
trial has been set.
Judgment motions and no trialhas been set.
Quote the court takes thisopportunity to address the
timing of filing spoliationmotions seeking sanctions.
Spoliation motions can be filedtoo early and they can be filed
too late.
As shown in this order, there'sa sweet spot when the filing of
the spoliation motion is justright, but determining that
(05:45):
sweet spot will vary dependingon the specific facts presented,
as well as the judge whodecides the motion.
The best way to find that sweetspot is to quote have a
conversation in the words of oneof the court's former law
clerks Notify the court andopposing counsel as soon as
possible about a spoliationconcern and calmly and
(06:05):
professionally talk to themabout the most reasonable and
best options to address theconcern.
Close quote the court notesthat here in this case counsel
has raised its concerns andfiled multiple motions of compel
to compel with the magistratejudge, which were generally
granted motions of compel tocompel with the magistrate judge
(06:27):
, which were generally granted Aforensic examination of data
from Shepard.
The defendant at issue alsorevealed damning information
against Shepard, but the courtnotes that no one plaintiff
included asked the court aboutthe best time to raise the
sanctions motion requesting anadverse inference instruction
for alleged spoliation.
Sanctions motion requesting anadverse inference instruction
for alleged spoliation thatincluded both the magistrate
judge and the district courtjudge.
(06:48):
And then Judge Johnson providedperhaps my favorite quote in
his decision.
But litigation is not high teaat the Savoy.
So if there's a legitimateconcern about spoliation rooted
in fact and law, then counselshould raise it with opposing
counsel immediately and thenfairly and accurately convey the
(07:10):
party's discussion about theconcern with the court at the
next opportunity.
Of course all counsel are dutybound to promptly notify
opposing counsel and the courtwhen they have learned that
relevant evidence has beenspoliated.
Close quote.
The court also noted that whilecounsel raised the issue of
spoliation with the magistratejudge, the district court did
(07:33):
not become fully aware of themotion until it was briefed and
quote made its way to the top ofa very long motions list.
Close quote.
The court then spends a fairamount of time addressing the
best time to file a spoliationmotion.
Citing to Judge Paul Grimm'sthoughtful decision in Goodman v
Praxair from all the way backin 2009,.
(07:54):
Judge Johnson listed the fivefactors a court should consider
in determining if a spoliationmotion is tardy.
One, how long after the closeof discovery the relevant
spoliation motion has been made.
Two, the temporal proximitybetween a spoliation motion and
motions for summary judgment.
Three, whether the spoliationmotion was made on the eve of
(08:16):
trial.
Four, whether a rule 16scheduling order or local rule
set a deadline for filingspoliation motions.
And five, the moving party'sexplanation why the spoliation
motion was not filed earlier.
The first factor is describedas key and the second factor
assumes that, generally,spoliation motions should be
(08:37):
made before summary judgmentmotions are filed.
Also implicit in these factors,according to Judge Johnston is
the concept of prejudice, onethat we encounter on a regular
basis in electronic discovery.
The prejudice here is thenotion that the time and money
required to file a motion forsummary judgment, as well as the
court's resources to rule on it, are extensive and that a
(09:01):
spoliation motion can vastlyalter the arguments made on that
motion.
Similarly, making a spoliationmotion on the eve of trial can
completely derail proceedings,which prejudices the
non-movement.
Having reviewed all of this, thecourt acknowledged that Groh's
motion here is not tardy but isinstead premature.
(09:22):
Now the court notes multiplesituations that might result in
a motion being premature.
That include where discovery isstill proceeding and a party
does not yet have sufficientfacts for the motion, or because
a party has not yet determinedwhether the spoliated ESI can't
be restored or replaced asrequired by Rule 37.
The deadlines in the case,according to the court, are also
(09:45):
an issue, and the courtidentified these questions to be
asked Is fact discovery closedor when does it close?
Can a party still amendpleadings to assert new claims
or take away claims where thisfoliation may be at issue?
Has a trial date been set, andwhen is it?
How far in the future are wetalking about?
(10:06):
What remedy is the moving partyseeking that may alter the path
of the case.
For example, if a motion sinksdispositive sanctions like
default judgment or dismissal,it likely makes more sense to
file the motion before thesummary judgment motion to avoid
wasting time and money onsummary judgment.
Another factor is whether ahearing is required.
(10:27):
Although not always required,the rules do contemplate an
evidentiary hearing and thiscourt notes that it has heard
spoliation motions both with ahearing and without Recall, that
the evidentiary hearing in theDR distributors case, after
which Judge Johnston issued a256 page decision, was a full
two days of evidence taken bythe court.
(10:48):
That has a tremendous impact onthe court's schedule and it
means that they've got to setaside time to be able to review
all of the evidence from thathearing in order to be able to
rule on the sanctions motion Nowper Judge Johnston.
Judges will want to considerthese critical factors in
determining when to address thespoliation issue, but they won't
(11:10):
be able to consider the impactof these factors on the timing
of the spoliation motion unlessthe parties inform that judge of
the facts that affect thosefactors.
So again, have a conversation.
There's a reason why Rule 16allows judges to require parties
to hold a conference with thembefore filing discovery motions.
(11:33):
So let's look at the court'sanalysis here.
Keeping all of that backgroundin mind related to Grove's
decision for spoliation.
Applying all of that here,judge Johnson denied Grove's
motion as premature, but withoutprejudice, so that Grove can
reinstate the motion at theappropriate time.
According to the court, theparties were still engaged in
(11:55):
fact discovery and expertdiscovery still has to proceed.
But the deciding factor forJudge Johnson really was the
relief sought here.
Plaintiffs sought a permissiveadverse inference instruction
that would impact a trial,noting that the parties had a
lot of work left to do to getthis case to trial.
The court also found that therewere multiple off-ramps before
(12:18):
the case gets to trial.
Just another visualization fromJudge Johnson that always
entertains me.
According to the court, thecourt's resources are better
spent hearing the motion afterthe close of discovery and it
directed Grove to raise themotion again at the party's
pre-trial filing conference forsummary judgment and inform the
court whether this boliationmotion will affect summary
(12:40):
judgment briefing.
According to the court, ifGroves believes that this
spoliation issue will affect anysummary judgment briefing, it
should inform the court duringthe summary judgment pre-filing
conference so that the issue canbe addressed in the most
efficient way.
If the case bypasses theseemingly obligatory summary
judgment process and proceedsdirectly to a jury trial, then
(13:02):
the court will address the issueof an adverse inference
instruction by way of a motionin limine with the final
pretrial order.
Now that's really importantthat.
I know I keep throwing quotes atyou from Judge Johnson's
decision, but what better torely your analysis on other than
the actual words from the court?
And what the court is sayinghere is what you want and how
(13:27):
you want it delivered has a hugeimpact on when the timing of a
sanctions motion should be filed.
According to the court, againgoing forward, consistent with
rule one, it would behoove theparties to raise any spoliation
concerns with the judge who isgoing to decide the spoliation
motion.
In this way, the judge candetermine the best way to
(13:49):
proceed before the partiesengage an extensive briefing
that might be unnecessary.
Close quote, close quote.
So that's what we have from thejudge, denying a motion for
sanctions as premature based onthe timing and the fact that
discovery still remained open.
What are our takeaways fromJudge Johnson's decision?
This decision makes itabundantly clear that if you're
(14:10):
in Judge Johnson's court, youbetter consult directly with him
about the timing for filing anysanctions motion.
How you go about that is reallygoing to depend right the way
that the federal court systemworks.
You don't always have contactwith the district court judge
when the magistrate judge ishandling discovery-related
issues, and so it may be worthposing a question to the
magistrate judge.
(14:31):
Your Honor, we've discussedthese spoliation-related issues.
We've had multiple motions tocompel, we do plan to bring a
sanctions motion, and we'd liketo discuss with the court and
whether this judge will hear itor the district court will hear
it what the timing of thatmotion should look like from the
court's perspective.
So if we could set some time tobe able to discuss that or to
(14:52):
discuss it now, that would behelpful.
That's the sort of approach thatyou want to be able to take,
and you've got to have thosethings teed up.
When you go to the court onother issues, which means if
you're part of a litigation teamthat has identified spoliation
concerns, you need to be incommunication with the lawyer
(15:12):
who's going to court and makingthe arguments with the judge, so
they can raise these things asappropriate.
Another potential approach isthe letter approach.
It really depends on how thecourt has set things up and how
they list things out in theirstandard practices for the court
.
Some judges have startedincluding timing on sanctions
(15:33):
motion.
Very few of them are, so you'regoing to want to engage with
them.
This may also be something thatjudges want to start adding to
their standing orders in termsof things to be discussed at the
pretrial conference or also tohave a summary judgment
pre-filing conference involvedand have not had a summary
(15:55):
judgment pre-filing conference.
So I think, if you have that,that's another consideration in
terms of timing for raising apotential sanctions motion.
Regardless, you really need tothink about the factors that are
identified here in thisdecision in terms of that timing
.
If your sanctions motion isgoing to dramatically impact
discovery going forward andpotentially has a very
(16:15):
dispositive outcome for the case, those are two things that will
impact timing of when you wantto file that sanctions motion.
But you need to be able toarticulate that to the court and
that's what the judge says here.
He had to look at independentfactors and there didn't appear
to be or there isn't mentionedhere in this decision anything
(16:36):
from the plaintiffs on why themotion needed to be heard now as
opposed to later in the case inadvance of summary judgment or
shortly thereafter.
This decision also provides agreat basis for counsel to
evaluate that timing and whenthe facts that give rise to an
otherwise premature motion.
Timing and when the facts thatgive rise to an otherwise
(16:57):
premature motion.
So make sure to include thosefacts on why the timing is
critical.
The decision here also makesexcellent points about the value
of both the parties and thecourt's resources and that
neither should be expended untilthe appropriate time.
What if the facts change foryour motion?
As discovery continues, you mayfind other spoliation issues to
be included.
You may find that there isanother source for the spoliated
(17:18):
ESI or that the case resolvesbefore the court need hear the
motion.
Let's flip this on the otherside, from Shepard's perspective
, the defendant here who themotion was filed against, is
this an argument that Shepardcould make to the court that the
motion was in fact prematureand that there are other
information to be had left indiscovery?
(17:38):
Possibly that's.
One defense that you can maketo a sanctions motion is whether
or not it is actuallyappropriate, given that you are
still investigating otheravenues of being able to replace
or restore the lost ESI.
If in fact that's the case.
Sanctions motions are very factintensive.
They take a lot of time andmoney, just like summary
(18:00):
judgment motions.
So make sure you're evaluatingthe factors that Judge Johnson
sets forth here and considerthat timing when bringing a
sanctions motion what makes themost sense for your client.
There will be times when anearly motion is critical to
defining how discovery plays outand other times when, as Judge
Johnston suggests, it's moreappropriate for a motion and
(18:20):
limine prior to trial.
Most importantly, know yourjudge.
This is one of our themes hereon the case of the week and it
is critical.
Judge Johnston has put out awritten decision here telling
you that he wants to be informedwhen there's a spoliation
motion so the court can helpdetermine the right timing for
that motion to be filed.
(18:41):
Don't ignore that.
Make sure your compatriots whoare appearing before Judge
Johnston in the Seventh Circuitare aware of it.
Share the decision.
You can use the public link tothe case from eDiscovery
Assistant to be able to share itwith anyone.
Anyone can view those links.
Next, understand how the courtswork.
(19:01):
If you're doing all of yourmotion practice in front of the
magistrate judge, don't assumethat the district judge knows
all the details of what hastranspired and don't make the
court do the work.
Your case is one of hundredsthat are sitting on their docket
.
Be transparent, be upfront andwork with the system, not
against it.
That requires thinkingcarefully when you discover
(19:27):
potential spoliation, about whatadditional facts that you need
to support the motion, what youare asking for and the best
timing to bring the motion andwhy.
If you want an early motion,like the plaintiff here, tell
the court why it's needed.
So timing.
Timing is going to be criticalin terms of bringing a sanctions
(19:48):
motion, ensuring that you haveeverything that's necessary to
be within the complete bounds ofthe motion, that it's filed at
the appropriate time of themotion, that it's filed at the
appropriate time in the case.
That it allows the court toconsider the issues on this
boliation motion in the contextof everything that is moving
forward on the case.
One of the things that I thinkis really interesting here is
that Judge Johnston suggeststhat if you're asking for a
(20:10):
permissive adverse inferencewhich many of the sanctions
decisions that we discuss hereon Case of the Week are that
that is more appropriate for amotion in limine prior to trial.
That's a pretty significantdevelopment, but it also does
deal pretty effectively with theissue that I've raised multiple
times, and that is, if I get apermissive adverse inference
(20:32):
instruction but the case neveractually goes to trial, have I
actually gotten anything for thesanctions that were awarded?
So think carefully about whatyou're asking for, how that will
play out, what is thelikelihood of actually going to
trial if you're asking for apermissive or a mandatory
adverse inference instruction,and think how those are going to
factor in best for your client,as well as the cost and expense
(20:55):
associated with this foliationmotion and the best time to file
it.
That's our case of the week forthis week.
Be sure to tune in next week,whether you're watching us via
our blog, youtube or downloadingit as a podcast on your
favorite podcast platform.
Thanks so much.
Have a great week.
Thanks for joining me on thecase of the Week podcast.
(21:15):
Tune in next episode as Idiscuss a new decision in
e-discovery case law andidentify the issues you need to
be paying attention to and howthey can help you do better
discovery for your clients andleverage the power of ESI.
Be sure to subscribe and leavea review to help others discover
the show and be kept in theknow on all things.
Electronic discovery.
I'm Kelly Twigger.
See you next time.
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:35):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and e-discovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:58):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in eDiscovery case
law and how it shapes both yourlitigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
(01:19):
Subscribe or follow now tostart embracing the power of ESI
as evidence.
Hi and welcome to this week'sepisode of the Case of the Week
series brought to you byeDiscovery Assistant.
Thanks so much for joining metoday.
(01:42):
This week's decision touches onan issue of first impression
here on Case of the Week, andthat is the timing of when to
file a sanctions motion.
We talk a lot about sanctionsmotion and the analysis under
the federal rules and staterules on sanctions, but we've
not talked about when to file asanctions motion, and perhaps
(02:04):
the most important takeaway fromtoday's decision is this you
need to know what your judgeprefers on how to handle
sanctions motions if you aregoing to bring one.
We talk repeatedly on our Caseof the Week series about knowing
your judge, and today'sdecision falls right in line
with that thought process.
All right, let's dive in.
(02:25):
This week's decision comes tous from the Groves Inc versus RC
Brimmer Marketing Associatescase.
This is a decision from UnitedStates District Judge Ian
Johnston, dated November 22nd2024.
If Judge Johnston's name isringing a bell, that's because
he's written some of the mostinteresting decisions in
(02:46):
electronic discovery, going backto the DR distributors case
that we've covered multipletimes here on Case of the Week,
as well as a total of 17decisions that are included in
our eDiscovery Assistantdatabase.
Judge Johnston always adds adose of humor, reality and some
(03:07):
incredible practical applicationto his decisions and today has
taken on the task of talkingthrough when the timing to file
a sanctions motion isappropriate, and there are going
to be a number of factors thatwe're going to talk about.
As always, we add the issues toour cases in eDiscovery
Assistant, and this week'sissues include sanctions and
spoliation.
(03:28):
All right, let's talk a littlebit about the decision Now.
We're before the court on amotion for sanctions that was
filed by Grove against one ofthe defendants, christopher
Shepard.
Of its decision which is notparticularly wrong long, and I
encourage you to read it that ithas some pretty big questions
(03:52):
about Shepard's conduct andlooks forward to resolving the
merits of the sanctions motionwhen it's appropriate.
Judge Johnson is known forstarting his decisions with
quite the quote, and this one isno exception, and here is his
opening quote this courtattracts Rule 37E motions like
chum attracts sharks.
So yes, in this simile thecourt is fish guts and fish
(04:16):
heads.
This court has been presentedwith Rule 37E motions at various
stages of an action.
It has received spoliationmotions during discovery.
It has received spoliationmotions made in the middle of a
summary judgment briefing,requiring the briefing to be
stayed while the spoliationissue could be resolved.
It has received Rule 37Emotions in the form of a motion
(04:39):
in limine after the issue wasraised during summary judgment
and in the middle of trial.
A party even requested for thefirst time an adverse inference
instruction under Rule 3070 forthe spoliation of ESI.
But this current motion is justthe latest Close quote.
Rather than turning to themerits of the decision, judge
(05:01):
Johnson noted that the timing ofthe filing of the fully briefed
sanctions motion was too earlyin this case.
According to the court, it'stoo early for a sanctions motion
here.
This case is still proceedingwith expert discovery including
the depositions of a couple offact witnesses.
No date has been set forsummary judgment motions and no
(05:21):
trial has been set.
Judgment motions and no trialhas been set.
Quote the court takes thisopportunity to address the
timing of filing spoliationmotions seeking sanctions.
Spoliation motions can be filedtoo early and they can be filed
too late.
As shown in this order, there'sa sweet spot when the filing of
the spoliation motion is justright, but determining that
(05:45):
sweet spot will vary dependingon the specific facts presented,
as well as the judge whodecides the motion.
The best way to find that sweetspot is to quote have a
conversation in the words of oneof the court's former law
clerks Notify the court andopposing counsel as soon as
possible about a spoliationconcern and calmly and
(06:05):
professionally talk to themabout the most reasonable and
best options to address theconcern.
Close quote the court notesthat here in this case counsel
has raised its concerns andfiled multiple motions of compel
to compel with the magistratejudge, which were generally
granted motions of compel tocompel with the magistrate judge
(06:27):
, which were generally granted Aforensic examination of data
from Shepard.
The defendant at issue alsorevealed damning information
against Shepard, but the courtnotes that no one plaintiff
included asked the court aboutthe best time to raise the
sanctions motion requesting anadverse inference instruction
for alleged spoliation.
Sanctions motion requesting anadverse inference instruction
for alleged spoliation thatincluded both the magistrate
judge and the district courtjudge.
(06:48):
And then Judge Johnson providedperhaps my favorite quote in
his decision.
But litigation is not high teaat the Savoy.
So if there's a legitimateconcern about spoliation rooted
in fact and law, then counselshould raise it with opposing
counsel immediately and thenfairly and accurately convey the
(07:10):
party's discussion about theconcern with the court at the
next opportunity.
Of course all counsel are dutybound to promptly notify
opposing counsel and the courtwhen they have learned that
relevant evidence has beenspoliated.
Close quote.
The court also noted that whilecounsel raised the issue of
spoliation with the magistratejudge, the district court did
(07:33):
not become fully aware of themotion until it was briefed and
quote made its way to the top ofa very long motions list.
Close quote.
The court then spends a fairamount of time addressing the
best time to file a spoliationmotion.
Citing to Judge Paul Grimm'sthoughtful decision in Goodman v
Praxair from all the way backin 2009,.
(07:54):
Judge Johnson listed the fivefactors a court should consider
in determining if a spoliationmotion is tardy.
One, how long after the closeof discovery the relevant
spoliation motion has been made.
Two, the temporal proximitybetween a spoliation motion and
motions for summary judgment.
Three, whether the spoliationmotion was made on the eve of
(08:16):
trial.
Four, whether a rule 16scheduling order or local rule
set a deadline for filingspoliation motions.
And five, the moving party'sexplanation why the spoliation
motion was not filed earlier.
The first factor is describedas key and the second factor
assumes that, generally,spoliation motions should be
(08:37):
made before summary judgmentmotions are filed.
Also implicit in these factors,according to Judge Johnston is
the concept of prejudice, onethat we encounter on a regular
basis in electronic discovery.
The prejudice here is thenotion that the time and money
required to file a motion forsummary judgment, as well as the
court's resources to rule on it, are extensive and that a
(09:01):
spoliation motion can vastlyalter the arguments made on that
motion.
Similarly, making a spoliationmotion on the eve of trial can
completely derail proceedings,which prejudices the
non-movement.
Having reviewed all of this, thecourt acknowledged that Groh's
motion here is not tardy but isinstead premature.
(09:22):
Now the court notes multiplesituations that might result in
a motion being premature.
That include where discovery isstill proceeding and a party
does not yet have sufficientfacts for the motion, or because
a party has not yet determinedwhether the spoliated ESI can't
be restored or replaced asrequired by Rule 37.
The deadlines in the case,according to the court, are also
(09:45):
an issue, and the courtidentified these questions to be
asked Is fact discovery closedor when does it close?
Can a party still amendpleadings to assert new claims
or take away claims where thisfoliation may be at issue?
Has a trial date been set, andwhen is it?
How far in the future are wetalking about?
(10:06):
What remedy is the moving partyseeking that may alter the path
of the case.
For example, if a motion sinksdispositive sanctions like
default judgment or dismissal,it likely makes more sense to
file the motion before thesummary judgment motion to avoid
wasting time and money onsummary judgment.
Another factor is whether ahearing is required.
(10:27):
Although not always required,the rules do contemplate an
evidentiary hearing and thiscourt notes that it has heard
spoliation motions both with ahearing and without Recall, that
the evidentiary hearing in theDR distributors case, after
which Judge Johnston issued a256 page decision, was a full
two days of evidence taken bythe court.
(10:48):
That has a tremendous impact onthe court's schedule and it
means that they've got to setaside time to be able to review
all of the evidence from thathearing in order to be able to
rule on the sanctions motion Nowper Judge Johnston.
Judges will want to considerthese critical factors in
determining when to address thespoliation issue, but they won't
(11:10):
be able to consider the impactof these factors on the timing
of the spoliation motion unlessthe parties inform that judge of
the facts that affect thosefactors.
So again, have a conversation.
There's a reason why Rule 16allows judges to require parties
to hold a conference with thembefore filing discovery motions.
(11:33):
So let's look at the court'sanalysis here.
Keeping all of that backgroundin mind related to Grove's
decision for spoliation.
Applying all of that here,judge Johnson denied Grove's
motion as premature, but withoutprejudice, so that Grove can
reinstate the motion at theappropriate time.
According to the court, theparties were still engaged in
(11:55):
fact discovery and expertdiscovery still has to proceed.
But the deciding factor forJudge Johnson really was the
relief sought here.
Plaintiffs sought a permissiveadverse inference instruction
that would impact a trial,noting that the parties had a
lot of work left to do to getthis case to trial.
The court also found that therewere multiple off-ramps before
(12:18):
the case gets to trial.
Just another visualization fromJudge Johnson that always
entertains me.
According to the court, thecourt's resources are better
spent hearing the motion afterthe close of discovery and it
directed Grove to raise themotion again at the party's
pre-trial filing conference forsummary judgment and inform the
court whether this boliationmotion will affect summary
(12:40):
judgment briefing.
According to the court, ifGroves believes that this
spoliation issue will affect anysummary judgment briefing, it
should inform the court duringthe summary judgment pre-filing
conference so that the issue canbe addressed in the most
efficient way.
If the case bypasses theseemingly obligatory summary
judgment process and proceedsdirectly to a jury trial, then
(13:02):
the court will address the issueof an adverse inference
instruction by way of a motionin limine with the final
pretrial order.
Now that's really importantthat.
I know I keep throwing quotes atyou from Judge Johnson's
decision, but what better torely your analysis on other than
the actual words from the court?
And what the court is sayinghere is what you want and how
(13:27):
you want it delivered has a hugeimpact on when the timing of a
sanctions motion should be filed.
According to the court, againgoing forward, consistent with
rule one, it would behoove theparties to raise any spoliation
concerns with the judge who isgoing to decide the spoliation
motion.
In this way, the judge candetermine the best way to
(13:49):
proceed before the partiesengage an extensive briefing
that might be unnecessary.
Close quote, close quote.
So that's what we have from thejudge, denying a motion for
sanctions as premature based onthe timing and the fact that
discovery still remained open.
What are our takeaways fromJudge Johnson's decision?
This decision makes itabundantly clear that if you're
(14:10):
in Judge Johnson's court, youbetter consult directly with him
about the timing for filing anysanctions motion.
How you go about that is reallygoing to depend right the way
that the federal court systemworks.
You don't always have contactwith the district court judge
when the magistrate judge ishandling discovery-related
issues, and so it may be worthposing a question to the
magistrate judge.
(14:31):
Your Honor, we've discussedthese spoliation-related issues.
We've had multiple motions tocompel, we do plan to bring a
sanctions motion, and we'd liketo discuss with the court and
whether this judge will hear itor the district court will hear
it what the timing of thatmotion should look like from the
court's perspective.
So if we could set some time tobe able to discuss that or to
(14:52):
discuss it now, that would behelpful.
That's the sort of approach thatyou want to be able to take,
and you've got to have thosethings teed up.
When you go to the court onother issues, which means if
you're part of a litigation teamthat has identified spoliation
concerns, you need to be incommunication with the lawyer
(15:12):
who's going to court and makingthe arguments with the judge, so
they can raise these things asappropriate.
Another potential approach isthe letter approach.
It really depends on how thecourt has set things up and how
they list things out in theirstandard practices for the court
.
Some judges have startedincluding timing on sanctions
(15:33):
motion.
Very few of them are, so you'regoing to want to engage with
them.
This may also be something thatjudges want to start adding to
their standing orders in termsof things to be discussed at the
pretrial conference or also tohave a summary judgment
pre-filing conference involvedand have not had a summary
(15:55):
judgment pre-filing conference.
So I think, if you have that,that's another consideration in
terms of timing for raising apotential sanctions motion.
Regardless, you really need tothink about the factors that are
identified here in thisdecision in terms of that timing
.
If your sanctions motion isgoing to dramatically impact
discovery going forward andpotentially has a very
(16:15):
dispositive outcome for the case, those are two things that will
impact timing of when you wantto file that sanctions motion.
But you need to be able toarticulate that to the court and
that's what the judge says here.
He had to look at independentfactors and there didn't appear
to be or there isn't mentionedhere in this decision anything
(16:36):
from the plaintiffs on why themotion needed to be heard now as
opposed to later in the case inadvance of summary judgment or
shortly thereafter.
This decision also provides agreat basis for counsel to
evaluate that timing and whenthe facts that give rise to an
otherwise premature motion.
Timing and when the facts thatgive rise to an otherwise
(16:57):
premature motion.
So make sure to include thosefacts on why the timing is
critical.
The decision here also makesexcellent points about the value
of both the parties and thecourt's resources and that
neither should be expended untilthe appropriate time.
What if the facts change foryour motion?
As discovery continues, you mayfind other spoliation issues to
be included.
You may find that there isanother source for the spoliated
(17:18):
ESI or that the case resolvesbefore the court need hear the
motion.
Let's flip this on the otherside, from Shepard's perspective
, the defendant here who themotion was filed against, is
this an argument that Shepardcould make to the court that the
motion was in fact prematureand that there are other
information to be had left indiscovery?
(17:38):
Possibly that's.
One defense that you can maketo a sanctions motion is whether
or not it is actuallyappropriate, given that you are
still investigating otheravenues of being able to replace
or restore the lost ESI.
If in fact that's the case.
Sanctions motions are very factintensive.
They take a lot of time andmoney, just like summary
(18:00):
judgment motions.
So make sure you're evaluatingthe factors that Judge Johnson
sets forth here and considerthat timing when bringing a
sanctions motion what makes themost sense for your client.
There will be times when anearly motion is critical to
defining how discovery plays outand other times when, as Judge
Johnston suggests, it's moreappropriate for a motion and
(18:20):
limine prior to trial.
Most importantly, know yourjudge.
This is one of our themes hereon the case of the week and it
is critical.
Judge Johnston has put out awritten decision here telling
you that he wants to be informedwhen there's a spoliation
motion so the court can helpdetermine the right timing for
that motion to be filed.
(18:41):
Don't ignore that.
Make sure your compatriots whoare appearing before Judge
Johnston in the Seventh Circuitare aware of it.
Share the decision.
You can use the public link tothe case from eDiscovery
Assistant to be able to share itwith anyone.
Anyone can view those links.
Next, understand how the courtswork.
(19:01):
If you're doing all of yourmotion practice in front of the
magistrate judge, don't assumethat the district judge knows
all the details of what hastranspired and don't make the
court do the work.
Your case is one of hundredsthat are sitting on their docket
.
Be transparent, be upfront andwork with the system, not
against it.
That requires thinkingcarefully when you discover
(19:27):
potential spoliation, about whatadditional facts that you need
to support the motion, what youare asking for and the best
timing to bring the motion andwhy.
If you want an early motion,like the plaintiff here, tell
the court why it's needed.
So timing.
Timing is going to be criticalin terms of bringing a sanctions
(19:48):
motion, ensuring that you haveeverything that's necessary to
be within the complete bounds ofthe motion, that it's filed at
the appropriate time of themotion, that it's filed at the
appropriate time in the case.
That it allows the court toconsider the issues on this
boliation motion in the contextof everything that is moving
forward on the case.
One of the things that I thinkis really interesting here is
that Judge Johnston suggeststhat if you're asking for a
(20:10):
permissive adverse inferencewhich many of the sanctions
decisions that we discuss hereon Case of the Week are that
that is more appropriate for amotion in limine prior to trial.
That's a pretty significantdevelopment, but it also does
deal pretty effectively with theissue that I've raised multiple
times, and that is, if I get apermissive adverse inference
(20:32):
instruction but the case neveractually goes to trial, have I
actually gotten anything for thesanctions that were awarded?
So think carefully about whatyou're asking for, how that will
play out, what is thelikelihood of actually going to
trial if you're asking for apermissive or a mandatory
adverse inference instruction,and think how those are going to
factor in best for your client,as well as the cost and expense
(20:55):
associated with this foliationmotion and the best time to file
it.
That's our case of the week forthis week.
Be sure to tune in next week,whether you're watching us via
our blog, youtube or downloadingit as a podcast on your
favorite podcast platform.
Thanks so much.
Have a great week.
Thanks for joining me on thecase of the Week podcast.
(21:15):
Tune in next episode as Idiscuss a new decision in
e-discovery case law andidentify the issues you need to
be paying attention to and howthey can help you do better
discovery for your clients andleverage the power of ESI.
Be sure to subscribe and leavea review to help others discover
the show and be kept in theknow on all things.
Electronic discovery.
I'm Kelly Twigger.
See you next time.
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