Importance of Preserving Data: Plaintiff’s Complaint Dismissed due to Failure to Preserve

in Gillett v. Michigan Farm Bureau, unpublished opinion per curiam of the Court of Appeals, decided December 22, 2009 (Docket No. 286076), Plaintiff brought forth the underlying complaint alleging sexual harassment prior to resigning from the workplace. Plaintiff’s counsel presented a demand letter to the opposing counsel, shortly thereafter defendants’ attorney responded with a notification requesting that Plaintiff preserve his e-mails. Although, Plaintiff’s counsel acknowledged the request, Plaintiff failed to preserve all the e-mails prior to delivering his computer hard drive to opposing party for inspection.

Subsequently, Plaintiff acknowledged that emails had been deleted from his account after receiving the notification. Furthermore, an analyst confirmed that massive amount of data had been removed from the hard drive, which was no longer recoverable. Plaintiff claimed the data was removed due to technical issues stemming from software issues, which had to be deleted. However, the analyst opined that such claims were false, considering the software still remained on the hard drive. Due to such failure to preserve, Plaintiff’s complaint was dismissed, and the following appeal ensued.

Issue on Appeal: Plaintiff contends that the trial court abused its discretion by issuing “draconian sanctions” and failed to consider lesser sanctions and also failed to consider whether the deleted electronic evidence was relevant.

The Court of Appeals acknowledged that although trial court has the inhered power to impose sanction for failure to preserve evidence, nonetheless, a dismissal is  a drastic sanction that is only suitable when a party engages in egregious conduct.

Accordingly, Plaintiff argued that the emails were not deliberately deleted, thus such sanctions were improperly assessed and excessive. The court of appeal quickly dismissed Plaintiff’s argument using data provided by the analyst. On average, Plaintiff deleted around 2,000 files each month, however in October 2007 the deletion increased to 200,000 and an additional 28,000 in the first six days of November. Considering Plaintiff’s deliberate actions lead to the inaccessibility of evidence, court found that spoliation has made it impossible to determine the relevance of such data therefore Plaintiff should not reap the benefit of it’s own wrong doings.

Court of appeals concluded that the trial court carefully explored other alternatives prior to dismissing the suit, and properly found that dismissal was the appropriate remedy in this instance. Separately, on defendant’s cross-appeal the court of appeals found that the trial court properly denied monetary sanctions to “make [d]efendants whole for their motion practice and related costs to address the evidence spoliation” the court’s explanation was rather perplexing as it reasoned that, “while the trail court rejected plaintiff’s claim that he inadvertently deleted messages, the trial court did not indicate that plaintiff acted in bad faith. Rather, the trial court simply concluded that plaintiff acted improperly in deleted information.” In my opinion, it’s quite easy to see that someone acting improperly is acting in bad faith. In other words in a legal adversarial setting opposing parties simply do not act “improperly” in good faith. nonetheless, the court of appeal didn’t over rule the trial court, and denied monetary award for sanctions.

This case illustrates the importance of practitioners understanding the proper use of technology to be able to advocate diligently for your client. Here, If the Defense counsel was not aware of the tools available to him, the results might not have been so favorable. Additionally, it’s good practice to request entire hard drives and forensically extract the data to review, rather than relying upon opposing counsel to provide data in non-native format.
The newly-adopted MCR 2.313(E), which state that, “a court may not impose sanctions under these rules on a  party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system”  was not applicable as the underlying complaint was filed prior to the rule being adopted.

Discovery Sanctions: Judge awards cost and dismisses counter claims!

Srvan Brick & Stone, Inc. v. WB Hunt Corp., unpublished opinion per curiam of the Court of Appeals, decided January 22, 2015 (Docket No. 316585, 319213).   


Van Poppelen Bros., Inc. (“VPB”), was in the business of manufacturing concrete blocks, and was wholly owned by Mark Van Poppelen. SRVAN was a separate entity owned by Mark’s wife, Renee Van Poppelen. SRVAN was in the business of selling building materials. As it often occurs when small businesses are owned by family members, the operations became intertwined around 2007.

Due to financial difficulties of VPB, including a $750,000 debt to independent bank, Renee and Mark contemplated an asset sale to William Hunt’s company, WB Hunt, for a total sum of $225,000. Subsequently, due defaulting on their loan secured by Independent Bank, VPB was placed into receivership by the Circuit Court. Due to the intertwined operations, SRVAN claimed that certain assets of VPB were owned by SRVAN and should not be part of the receivership. Despite having full disclosure of VPB’s financial difficulties, WB Hunt entered a conditional purchase agreement for all of SRVAN’s assets as well. This agreement was conditioned upon assuming $34,000 in debt, purchasing VPB’s assets currently tied up in the receivership action and Renee and Mark signing non-compete agreements. The court in the VPB receivership ordered liquidations of VPB’s assets over SRVAN’s objections. Consequently, SRVAN filed claims against WB Hunt for tortious interference of contract, fraud and conversion, and WB Hunt filed counter complaint alleging tortious interference with contract and seeking specific performance of the asset purchase agreement.


SRVAN alleged that WB Hunt failed to turn over requested documents and filed a motion for default judgment as a discovery sanction. The compact disc containing WB Hunt’s files and documents was at the center of the dispute. SRVAN claimed that files produced were not accessible and WB Hunt deleted important documents from the production. Although not clearly stated in the opinion, the record seems to imply that WB Hunt copied the data himself prior to producing it. The presiding Judge found SRVAN’s Motion premature, however warned WB Hunt that failure to comply with the request could subject them to sanctions.

Following an evidentiary hearing on March 20, the Judge concluded that Mr. Hunt had tampered with and attempted to delete electronic data. Therefore, discovery sanctions were awarded, which included dismissal of WB Hunts counterclaim and awarded reasonable attorney fee to SRVAN.


WB Hunt appealed, and the court of appeals provided that standard for review for a decision regarding sanctions for discovery violations is abuse of discretion. Factors to consider prior to imposing sanctions for discovery violations include:

  1. Whether failure to respond to discovery requests extends over a substantial period of time;
  2. Whether an existing discovery order was violated;
  3. Time elapsed between the violation and the motion for Default Judgment;
  4. The prejudice to opposing party;
  5. Whether the conduct was willful.

The sanctions must also be proportionate and just relative to the harm suffered by the opposing party. WB Hunt had received a court order to assist SRVAN in accessing the data provided and also produce any missing information within one week. At a subsequent evidentiary hearing the judge heard testimony of multiple witnesses with personal knowledge of how the data was compiled and produced. The Judge concluded that the data was tampered with prior to production, especially considering Mark Hunt was in possession of the data/disc at the time the tampering could have occurred.

The sanctions were appropriate in this instance because the actions were willful and deliberate, plus the violations had an irreversible impact on the merits of the case, considering SRVAN could no longer properly prosecute their claims. The court may have ruled differently, if WB Hunt had made a good faith efforts in complying with the court orders. Accordingly, the Court of Appeals affirmed the lower court’s decision.

Stating Reality: Imaging a Hard Drive Makes a Copy

6th Circuit, allowing eDiscovery cost when “Reasonably Necessary.”

Bow Tie Law's Blog

Taxation of cost cases do not generally have happy endings for recovering eDiscovery costs. The United States Court of Appeals for the Sixth Circuit issued a very important opinion on March 17, 2015 well grounded in the reality of civil litigation and the law where eDiscovery costs were recovered.

It also takes a swing at Race Tires, which is always a welcome read.


The Court of Appeals held that the cost of video deposition synchronization and transcript were properly taxed. Colosi v. Jones Lang LaSalle Ams., Inc., 2015 U.S. App. LEXIS 4184, 2-3 (6th Cir. Ohio 2015). The Trial Court had determined the synchronized video deposition was “reasonably necessary” and the opposing party never explained how the costs were either unreasonable or unnecessary. Id.

For anyone who has conducted deposition review, this is good news. I have spent many hours reviewing depositions and video depositions. “Reasonably necessary” is an…

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WHOA! A Prevailing Party Recovered $57,873.61 in eDiscovery Costs!

Rule 54 working in conjunction with U.S.C. 1920 can be a powerful tool when appropriately used. Rule 54 of the Federal Rule of Civil Procedure suggests, “(1) cost—other than attorney’s
fees—should be allowed to the prevailing party.” What is considered to be “cost” under rule 54 is further defined by U.S.C. 1920, “A judge or clerk of any court of the United States may tax as cost of the following . . . .

Bow Tie Law's Blog

thumb-456698_1280My God, is it true? Did a Prevailing Party recovered virtually all of their eDiscovery costs?

The answer is yes, thanks to a case in Colorado.

United States District Judge Christine M. Arguello opened her order denying the Plaintiff’s motion to review the clerk’s taxation of costs with the following:

Because Defendants’ costs related to the electronically stored information (“ESI”) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.

Comprehensive Addiction Treatment Ctr. v. Leslea, 2015 U.S. Dist. LEXIS 17878, 1.

Rock on. Let’s review the Court’s reasoning.

The Plaintiff took the position that the Defendants’ eDiscovery cost award be reduced from $57,873.61 to $2,387.03, striking the work of a third-party eDiscovery service provider who performed the “retrieving, restoring, and converting data,” on the…

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Sanctions for Spoliation and Destruction of Evidence in Michigan

In Martinez v. Gen. Motors Corp., No. 266112, 2007 WL 1429632, at *1 (Mich. Ct. App. May 15, 2007) Plaintiff was terminated due to his involvement in a chain of inappropriate email. Plaintiff contends the emails received were not welcomed, and he did not forward those emails to other colleagues. Contrary to Plaintiff’s contention, evidence suggested certain emails were infact forwarded from Plaintiff’s email. Majority of the time Plaintiff’s computer remained logged in with his credentials, even when he was not around. Therefore Plaintiff contends that others had access to his account and must have forwarded the controversial emails. Plaintiff specifically pointed out the ““the computer ‘go-to’ guy for the workers in the small car group,” was in charge of assisting other workers with computer troubleshooting, and therefore had access to the other employees’ passwords.” The computer ‘go-to’ guy testified that, he was “not sure” whether he or plaintiff had forwarded the inappropriate e-mails to his personal e-mail address, and that he simply could not recall whether he had confessed his involvement…”

To investigate the matter, Plaintiff filed a Motion to Compel to have his own expert extract data from Defendant’s hard drive and Lotus Notes E-Mail Server. Upon investigation Plaintiff discovered destruction of data from “Hard Drive 1” believed to be relevant to the case. Defendant pointed out that the initial discovery order of August 2004 merely required GM to produce “copies of existing e-mails sent or received by Plaintiff …” and did not mention hard drives or any other type of computer evidence. The hard drives were destroyed when the computers’ were reformatted by a third-party leasing company in the normal course of business. GM insists that it had no reason to believe prior to the trial court’s January 2005 digital discovery order that Plaintiff would seek discovery of any computer hard drive evidence in this case.

The court relied on Brenner v. Kolk, 226 Mich. App. 149, 159, 573 N.W.2d 65, 70 (1997) stating that, “if material evidence has been spoiled or destroyed by one party, the trial court must carefully fashion a sanction that denies that party the fruits of its misconduct, but that does not interfere with the party’s right to produce other relevant evidence.”

Court in Martinez went onto follow the rule Federal Courts across multiple jurisdictions have been citing, “Even when an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.” This rule has been heavily litigated in other jurisdiction, and lays down a broad duty to preserve. Parties bearing the burden of proof often face difficulty in halting regular work operations to preserve data – this process can be time consuming and costly. Implementing proper protocol and best practices can reduce the pain, but not relieve the stress. That being said, keep reading and we might have an exception to this general rule if you are dealing with the a duty to preserve question under Michigan Court Rules.

In Martinez, Defendant argues that the hard drives are not relevant, because all emails are stored on the internal Lotus system, and not on the external hard drive. Defendant failed to provide any evidence to back-up this claim; nonetheless, the court determined this issue irrelevant. Even if the emails were discovered, it will not increase or decrease the probability that Plaintiff actually forwarded those emails. The court went on to say, “Although a party is prejudiced by the destruction or spoliation of material and relevant evidence, it’s axiomatic that a party cannot be prejudiced by the destruction or spoliation of irrelevant evidence.”

As we know, it’s not always distinguishable whether evidence will be relevant to a specific case without actually reviewing the data. Litigators must be careful not to rely on this distinction and always uphold their duty to preserve any and all potentially relevant data. A question not addressed in by this case was whether intervention and destruction by a third-party will fall within the parameters of “routine, good-faith operation of an electronic information system.Mich. Ct. R. 2.313 (e), Since the actual destruction is not done by an automated electronic information system, but by a third party contractor. As suggested earlier, this exception may provide to be useful considering the limited storage capacity within most servers. Two important questions to ask are:

1. How Michigan courts apply “routine, good faith” exception.

2. Can the intervening actions of people be included in the “Operation of an electronic information system?”

Conclusion: Court upheld the trials court ruling and did not sanction defendant for failing to preserve.


Mich. Ct. R. 2.313

(A) Motion for Order Compelling Discovery. A party, on reasonable notice to other parties and all persons affected, may apply for an order compelling discovery as follows:

(1) Appropriate Court. A motion for an order under this rule may be made to the court in which the action is pending, or, as to a matter relating to a deposition, to a court in the county or district where the deposition is being taken.

(2) Motion. If

(d) in response to a request for inspection submitted under MCR 2.310, a person fails to respond that inspection will be permitted as requested,

(5) Award of Expenses of Motion.

(a) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct, or both, to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

(b) If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion, or both, to pay to the person who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

(B) Failure to Comply With Order.

(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party, or a person designated under MCR 2.306(B)(5) or 2.307(A)(1) to testify on behalf of a party, fails to obey an order to provide or permit discovery, including an order entered under subrule (A) of this rule or under MCR 2.311, the court in which the action is pending may order such sanctions as are just, including, but not limited to the following:

(E) Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

eDiscovery Cost Dilemma – Quotes, Assumptions and Ethical concerns.

While working as an eDiscovery consultant, all my clients had the same question, what’s the final cost? Rightly so, because eDiscovery is not cheap. Just type in “eDiscovery” on Google and you will be flooded by thousands of articles discussing the same issue. Now the real dilemma was to provide a quote that will benefit both parties. As a vendor we wanted higher margins, while my clients wanted everything for free(no joke). Due to uncertainties of data size, file types, custodians, deadlines, review methods etc. providing a hard quote would be similar to guaranteeing your client $500,000 judgment after the first meeting. Just like any ethical-diligent-attorney who needs to do further digging and fact finding, I needed  to ingest all the data in our processing environment and analyze the entire data set.

“Fair enough Yasir, give me an estimate, one of the custodian thinks we have about 4 GB of data. Half of it maybe PST files.” I am going to attempt answering this general question, while assuming tons of random facts. The breakdown I am about to provide should never be cited during cost disputes and even worse, motion to compel for allegedly-overly-burdensome-production request. If an eDiscovery processing engineer is reading this, I am sorry in advance.

For the sake of lovely whole numbers, we will base our analysis on 1 GB worth of data. My goal is not to solve the cost/benefit dilemma faced by litigators, but to provide some guidance to beginners. Catalyst Secure analyzed 29 cases in their database and came up with an average of 2639 documents per GB ( .

the rates are going to be the best rates being offered in Michigan under my experience. If you are quoted anywhere close to these rates, consider yourself lucky. Obviously the rates are inversely correlated with the volume of data.

Hypo 1 – Processing data W/O culling for Tiff Review

Cost: $300/GB.

If the volume justifies the cost, the vendors may offer keyword searching, de-duplicating within the $300, but that’s unlikely. Realistically, litigators can’t predict what percentage of data might be relevant. This calls for keyword searching, de-duplicating etc. (we are not going to discuss Technology Assisted Review A/K/A Predictive Coding). The absolute best rates (for culling) in Michigan are $50/GB prior to processing the data for review.

As provided by Catalyst Secure, on average, you will be reviewing 2639 documents. This will equate to approximately 26,930 pages per Hudson Legal ESI Calculator. On average attorneys review about 52 documents per hour. Knowledge Discovery in Corporate Email, THE COMPLIANCE BOT MEENS ENRON, waterman (2006) Accordingly 1 GB will take just under 58 hours of review. If you don’t work for a law firm that has that can afford a document review software, you will be paying minimum of $75/month hosting fee, $70/month per user fee and on the lower end $250 case setup fee to your vendor. Now you must reprocess the data to produce it to opposing counsel. For 1 GB, you may only be processing 200 MB worth of data, hence the cost of that will be $60. Servient (2012) (Many firms normally assume a 20% responsive rate)

Cost Summary:

Hypo 2 – Processing data W/ culling for Tiff Review

A litigator might decide to cull the data on the front end (pre-processing). Traditional culling methods(which is what we are discussing) can reduce the data from 40% to 50%. Culling Data for Your Case, ABA, If your vendor is in the holiday spirit, and in a giving mood, you might get a quote for $50/GB for culling. Which means you will only have to process around 500 to 600 MB (after culling 1 GB worth of data).

Cost Summary:

  • eDiscovery processing cost for 1 GB: 50 + 150 + 75 + 70 + 250 + 60 = $655
  • 29 Hours of review: 29 x 200 = $5,800 (since you will only review about half the data after culling)
  • eDiscovery processing cost for 100 GB: 5000 + 15,000 + 6000 = $26,000 plus hosting/review cost.

Hypo 3 – PDF Review

The option to review data in PDF format is available for those not willing to invest in a review software. Due to my bias towards technology, I am of the opinion that you are doing yourself and your client a disservice by not utilizing a review tool. At the same time I do appreciate thousands of successful litigators, who have been successful in their ways. To convert data from native format to PDF cost .02/page and .01/page to OCR (Optical Character Recognition). OCR means to make the document text searchable.

Cost Summary:

  • PDF Review 1 GB, 26,930 pages = $807.90
    • 58 Hours of review: 58 x 200 = $11,600
  • PDF Review 100 GB, 2,699,3000 pages = $80,790

* Printing PDF’s can cost between .08/page to .13/page, which equates to $2154.40 to $3500.90


                Technology is constantly evolving to make our life easier, eDiscovery is no exception. Litigators can cut the amount of ESI in half by utilizing simple methods of de-duplication, keyword searches and date ranges. However, the issue we face is whether a litigator can get a soft quote from a vendor prior to committing? The answer is maybe, I KNOW, that’s not helpful Yasir!  The only solutions are if vendors are willing to offer free data analysis or law firms invest in a basic data analysis software.

Litigators face an interesting dilemma while contemplating eDiscovery protocol. They must balance their fiduciary duty to clients with obligation to their partners and business. Majority of the time eDiscovery  is a pass-through-cost to the client. Firms don’t make a profit on data processing, however if they decide not to utilize culling or reducing unnecessary ESI, they will increase their billable hours. Now the dilemma is whether to benefit your client or your own practice. Justification to clients is simple and to an extent i can appreciate it – attorneys feel more comfortable reviewing traditionally. All that can be said is, CLIENTS BEWARE!

This blog contains commentary by a law student. My analysis and thought on the subject are not by any means advisory or binding law. This blog is for awareness purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this blog or any of the e-mail links contained within the site do not create an attorney-client relationship between Yasir Muhammad and the user or browser. The opinions expressed through this site are the opinions of the individual author.

Michigan – eDiscovery Court Rules

While dealing with ESI in Michigan litigators must keep the following rules in mind(certain portions of the rules are omitted, visit for complete rules):

Rule 2.302

General Rules Governing Discovery

(B) Scope of Discovery

(5) Electronically Stored Information. A party has the same obligation to
preserve electronically stored information as it does for all other types of
information. Absent exceptional circumstances, a court may not impose
sanctions under these rules on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith operation of an electronic
information system.

(6) Limitation of Discovery of Electronic Materials. A party need not provide
discovery of electronically stored information from sources that the party
identifies as not reasonably accessible because of undue burden or cost. On
motion to compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the court may
nonetheless order discovery from such sources if the requesting party shows
good cause, considering the limitations of MCR 2.302(C). The court may
specify conditions for the discovery.

Rule 2.310

Requests for Production of Documents and Other Things; Entry on Land for Inspection and Other Purposes

(C) Request to Party.

(1) The request may, without leave of court, be served on the plaintiff after
commencement of the action and on the defendant with or after the service of
the summons and complaint on that defendant. The request must list the items
to be inspected, either by individual item or by category, and describe each
item and category with reasonable particularity. The request must specify a
reasonable time, place, and manner of making the inspection and performing
the related acts, as well as the form or forms in which electronically stored
information is to be produced, subject to objection.

(2) The party on whom the request is served must serve a written response
within 28 days after service of the request, except that a defendant may serve
a response within 42 days after being served with the summons and complaint.
The court may allow a longer or shorter time. With respect to each item or
category, the response must state that inspection and related activities will be
permitted as requested or that the request is objected to, in which event the
reasons for objection must be stated. If objection is made to part of an item or
category, the part must be specified. If the request does not specify the form
or forms in which electronically stored information is to be produced, the party
responding to the request must produce the information in a form or forms in
which the party ordinarily maintains it, or in a form or forms that is or are
reasonably usable. A party producing electronically stored information need
only produce the same information in one form.
(3) The party submitting the request may move for an order under MCR
2.313(A) with respect to an objection to or a failure to respond to the request

Rule 2.313

Failure to Provide or to Permit Discovery; Sanctions


(E) Absent exceptional circumstances, a court may not impose sanctions under
these rules on a party for failing to provide electronically stored information lost as
a result of the routine, good-faith operation of an electronic information system.

Rule 2.401

Pretrial Procedures; Conferences; Scheduling Orders

(A) Time; Discretion of Court. At any time after the commencement of the action,
on its own initiative or the request of a party, the court may direct that the
attorneys for the parties, alone or with the parties, appear for a conference. The
court shall give reasonable notice of the scheduling of a conference. More than one
conference may be held in an action

(c) The scheduling order also may include provisions concerning discovery
of electronically stored information, any agreements the parties reach for
asserting claims of privilege or of protection as trial-preparation material
after production, preserving discoverable information, and the form in which
electronically stored information shall be produced.

Rule 2.506

Subpoena; Order to Attend
(A) Attendance of Party or Witness.

(2) A subpoena may specify the form or forms in which electronically stored
information is to be produced, subject to objection. If the subpoena does not
so specify, the person responding to the subpoena must produce the
information in a form or forms in which the person ordinarily maintains it, or in
a form or forms that are reasonably usable. A person producing electronically
stored information need only produce the same information in one form.

(3) A person responding to a subpoena need not provide discovery of
electronically stored information from sources that the person identifies as not
reasonably accessible because of undue burden or cost. In a hearing or
submission under subrule (H), the person responding to the subpoena must
show that the information sought is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless order
discovery from such sources if the requesting party shows good cause,
considering the limitations of MCR 2.302(C). The court may specify conditions
for such discovery.