1. Supreme Court
1. Child Abuse
2. Torts
2. Court of Appeals
1. Employment
2. Evidence
3. Insurance
4. Improvements To Real Property
5. Medical Malpractice
6. Torts
3. Federal Court
1. Contracts
2. Discrimination
3. Employment
4. Insurance
5. Jurisdiction
6. Torts

4. Minnesota Workers' Compensation
1. Employment Relationship
5. Wisconsin Workers' Compensation
1. There were no updated cases for review as of the printing of this Newsletter.
6. Michigan Workers' Compensation
1. There were no updated cases for review as of the printing of this Newsletter.

7. U.S. District Court

In this case, the Supreme Court found the Child Abuse Reporting Act, Minn. Stat. § 626.556, did not create civil liability for failure to report suspected child abuse to authorities. Further, as to plaintiff's claims that the hospital had a "special relationship" with the infant that created a duty to protect her from further injuries at the hands of her parents, the Court found that when the harm to a child abused by her parents was inflicted away from the hospital by a person over whom the hospital had no control and when the hospital did not accept custody of the child, the hospital had no special relationship with the abused child and had no duty to protect the child from further harm.

The Minnesota Supreme Court recognized the tort of negligent credentialing of a physician by a hospital exists under the common law, concluding this cause of action is reinforced, not precluded, by Minnesota's peer review statute, Minn. Stat. §§ 145.61-.67 (2006). Supporting its conclusion, the Court found the tort of negligent credentialing was inherent in and a natural extension of well-established common law rights. Further, the Court found the tort of negligent credentialing was recognized as a common-law tort by a substantial majority of the other common law states. The Court also concluded the liability provisions of the peer review statute set forth in Minn. Stat. § 145.63 did not materially alter the common law standard of care. While the concurring opinion acknowledged Minn. Stat. § 145.63 contemplates a cause of action against a reviewing organization for negligent credentialing where the organization fails to make a reasonable effort to inform itself of the facts or fails to act reasonably on those facts, it is skeptical of the efficacy of negligent credentialing litigation as a method of improving health care and concerned the peer review statute was not fulfilling its intended purpose.

In this certiorari appeal, Le challenges the City's decision to terminate her employment. Le offered to resign from her employment and waive any hostile work environment, discrimination and retaliation claims she may have against the City if the City would agree to certain severance terms. Following an independent investigation of Le's allegations, the investigator advised the City that awarding a severance package to Le would be beneficial to the City to avoid litigation. The City did not follow the suggestion and instead terminated Le's employment effective immediately. Le challenged the City's decision to terminate her employment arguing the decision was fraudulent, arbitrary, oppressive and unreasonable, and not supported by substantial evidence. The Court found that Le was an at-will employee when the City terminated her employment and the City acted within its authority to terminate her for any reason. The Court also found the facts and information before the Court did not establish a basis to conclude Le's liberty interests were violated so as to warrant a name clearing hearing.

In this case, addressing the admissibility of expert testimony, Sanford challenged the District Court's denial of her motion for a new trial. Following a foot surgery, Sanford brought suit alleging medical negligence, medical malpractice and negligent supervision, training, retention and hiring. At trial, following the presentation of defendant's case, Sanford informed the Court she intended to call a rebuttal witness, a radiologist, to testify. The Court decided additional radiologic testimony was cumulative. The jury returned a verdict finding no negligence. The Court of Appeals affirmed the District Court's decision finding that it did not abuse its discretion.

The Court of Appeals reversed a $52 million judgment against an insurer obtained by a Roseville insulation contractor and distributer of insulation that allegedly contained some asbestos, on the grounds that an insurance company does not have a fiduciary duty to an insured before the company assumes a duty to defend. The relationship between an insurer and insured is contract-based, and no exception exists unless the insurer is obligated to and does assume the defense of the insured. The jury had been erroneously instructed on breach of fiduciary duty and bad faith which required reversal and remand.

This case arises out of asbestos-related claims filed against A.P.I. during the 1980's and 90's arising out of claims that A.P.I. sold asbestos material from the 1940's to 1970's. A.P.I. tendered the lawsuits to its insurers for defense and indemnification including General Accident Insurance Company. General Accident could not locate the actual policies, and its business records contained conflicting information about the policies that General Accident issued to A.P.I. General Accident refused all tenders, and never defended nor participated in the defense of any claims.

The jury found that General Accident had issued three policies with two of the policies having limits of $1 million. The jury found that General Accident breached its contracts by failing to defend or indemnify A.P.I. and those breaches caused direct damages in an amount in excess of $27 million. It also found General Accident acted in bad faith and breached its fiduciary duty and awarded bad faith damages of $10 million and $15 million respectively.

The Court of Appeals ruled that the District Court erred when it instructed the jury that an insurer and its policyholder have a fiduciary relationship and the insurer has a fiduciary duty to the insured. It was also error to instruct the jury that an insurer acts in bad faith when it breaches its fiduciary duty. A fiduciary relationship requires special circumstances that may be over and above reliance on a professional, a degree of trust and a duty of good faith. The rights of an insurer and an insured are determined by the insurance policy, and a fiduciary relationship does not exist at the inception of the policy. A fiduciary duty only arises when an insurer is obligated to and does assume the defense of the insured. There must be a factual basis showing arguable coverage, and the insurer must assume the duty to defend along with a concomitant duty to reasonably settle. If there is no dispute about coverage and the duty to defend, then the insurer owes a fiduciary duty to settle claims in good faith.

Since the instructions on fiduciary duty and bad faith were erroneous, the extra contractual damage awards were reversed. In order to establish a claim for bad faith, the insured cannot simply allege a malicious or bad faith motive in breaking a contract, instead it must prove the elements of an independent tort such as intentional and negligent misrepresentation before the insurer's assumption of the insured's defense.

The Court of Appeals also ordered that the District Court has to retry the issue of when the causes of actions accrued and whether the statute of limitations were tolled. Finally, the court determined that damages should be pro-rated under a time-on-the-risk allocation of coverage method and remanded the question of the total time period over which damages should be pro-rated.

The Minnesota Court of Appeals applied the legislature's recent amendments to statutory new-home warranty law and affirmed the District Court's dismissal of homeowner Roitenberg's claims. In 2006, Minnesota law was amended to expressly require a homeowner to allow a builder to inspect and repair a known loss or damage in order to assert statutory warranty claims. Correspondence between the parties established that the company acknowledged damage to the home following its inspection and that it intended to investigate further to determine the cause of the damage and whether it was responsible. The correspondence also indicated that Roitenberg did not respond to requests for information in a timely manner and that, despite the company's attempts to explore the matter, a subsequent homeowner of the same home began repairs. Finding that Roitenberg did not present any evidence that the builder had refused to or was unable to repair the home and honor its warranty, the dismissal and denial of a new trial was affirmed.

The Minnesota Court of Appeals determined that the trial court did not err by determining that the date the medical malpractice suit arose was the misdiagnosis more than four years prior to the suit being brought. The trial court, therefore, dismissed the medical malpractice action based on the statute of limitations having run.

In this slip and fall case, the Court of Appeals affirmed the decision of the District Court denying defendant's motion for summary judgment. Plaintiff was shopping and slipped and fell at a retail store owned by defendant as she walked towards a group of skies which were located on a landing that was about seven inches lower than the display floor. Defendant moved for summary judgment arguing the landing was open and obvious. The District Court denied the motion finding a question of fact existed as to whether the drop off was open and obvious. Following a trial, the jury found defendant 100% responsible for plaintiff's injuries. On appeal, the Court affirmed the District Court's decision finding that competent expert evidence created a question of fact of whether the landing was open and obvious.

In this slip and fall matter, the Court of Appeals affirmed the District Court's grant of defendant's motion for summary judgment. Plaintiff claimed she slipped and fell on cooked carrots while dining at defendant's restaurant. Defendant's restaurant manager assisted plaintiff and saw smashed carrots on the floor. He offered to take plaintiff to a medical clinic located upstairs from the restaurant following her fall and upon their arrival told the clinic plaintiff fell in his restaurant. Defendant moved for summary judgment which was granted by the District Court. On appeal, the Court of Appeals found that plaintiff did not produce evidence that would permit a fact finder to conclude defendant's employee created a hazard or that defendant had actual or constructive knowledge of the carrots on the floor. The District Court specifically found that, as a matter of law, five minutes between the last inspection and plaintiff's fall failed to establish constructive notice. As to plaintiff's promissory estoppel claim, the Court of Appeals affirmed the District Court's decision finding plaintiff did not cite any evidence that she sought treatment at the clinic in reliance on defendant's manager's promise to pay for the treatment.

An employer-defendant in a personal injury case may not maintain its third-party contribution claims and attempt to modify its settlement agreement with the plaintiffs with an intent to preserve those third-party contribution claims. The Minnesota Court of Appeals held that one of the established principles of a Pierringer Release and Settlement Agreement is that the settling defendant foregoes the opportunity to pursue contribution claims, and Minnesota prohibits an assignment of a cause of action for personal injuries. Therefore, employer-defendant General Pipe Covering, Inc., was able to settle its share of liability for damages arising from second-hand exposure to asbestos but could not then continue its contribution claims against plaintiff's other employers, Quality Insulation, Inc. and Econ Insulation, Inc.

In this contract case, the Court denied the defendant's motion to dismiss. The plaintiff signed an agreement that the parties had drafted, but the defendant decided the timing was not right to sign the agreement and requested that the plaintiff re-sign the agreement with an amended date. Unknown to the plaintiff, the revised agreement not only contained an amended date but also a new clause that made the plaintiff a surety for a bankrupt company's $791,737.63 debt to the defendant. The defendant transferred its claim to another entity for thirty percent of its value. Later, the plaintiff sent an invoice to the defendant for $763,989.71. The defendant offset and deducted $554,216.34 (the remaining balance of the transferred $763,989.71 claim) from that invoice and paid the plaintiff $209,773.37. The plaintiff commenced an action for breach of contract, contract reformation, and alternatively, unjust enrichment.

The Court noted that a recent Supreme Court decision changed the standard for evaluating motions to dismiss. Under the new standard, a complaint must contain enough facts to state a claim to relief that is plausible on its face and facts with enough specificity to raise a right to relief above the speculative level. The new standard calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the claim.

The Court refused to dismiss the breach of contract, reformation, and unjust enrichment claims. The Court found that the plaintiff successfully alleged that (1) the defendant breached the amended agreement when it took an offset from the plaintiff for the same debt it had just sold to another entity, (2) it was required to pay the amount owed by the bankrupt entity, but was foreclosed from fulfilling its obligation when the defendant sold the debt without notifying the plaintiff, (3) it mistakenly believed it was signing the same agreement it had approved months earlier, and (4) the defendant engaged in fraud or inequitable conduct. The Court held that dismissing the unjust enrichment claim was premature because the Court might at a later date dismiss the contract action by finding the amended agreement invalid.

The United States District Court, District of Minnesota determined that the claims brought by Hartford Fire Insurance Company against one of the defendants, Transgroup Express Inc., were time-barred by virtue of the terms and conditions on the Transgroup Express Inc.'s Bills of Lading.

This case involved a scheme by Buffets Inc. through its shipping and warehouse manager, Donald Clark, Jr., and Robert Parsons, through his shipping company, Carr Freight, Inc. The two created a scheme in which Clark would place a shipment with Parsons' company, Buffets would be overcharged for the shipment, and Clark would approve payment of the inflated charges and Parsons would pay Clark kickbacks out of Parsons' proceeds from the scheme. Carr Freight, Inc. was affiliated with defendant Transgroup to ship goods pursuant to a Transportation Services Agreement. Transgroup's Bills of Lading which contained explicit terms that any claims for overcharges must be made directly to Transgroup within a specified period of time were placed on goods shipped by Carr Freight on behalf of Transgroup. Hartford attempted to bring claims based on vicarious or direct liability by virtue of the actions of Mr. Parsons and his company Carr Freight. The Court, however, found that the terms of the Bill of Lading controlled and that the claims brought by Hartford were time-barred. This decision disposed of the case, but the Court in dicta provided that Transgroup could not be held vicariously liable for the actions of Clark, Buffets' agent, because Clark was not a representative of Transgroup nor could Buffets argue that the time period for filing a claim could be tolled due to his actions, as they could have discovered the scheme through reasonable investigation much earlier.

In this case, the Federal District Court analyzed gender discrimination and reprisal claims under the Minnesota Human Rights Act. Employee Robin Vincent brought an action against employer Roundy's, alleging her hours were illegally reduced, then ultimately eliminated, because she was a female and in retaliation for her complaints of gender discrimination.

Although Vincent had earlier sustained a shoulder injury that limited her ability to push, pull, reach and lift, she was able to fill a position for an employee who had taken medical leave. When the employee returned and no other position was available to her that satisfied her work restrictions, Roundy's created a part-time job for her with duties within her work restrictions. Vincent complained that her hours had been reduced due to her gender. Several months later, Vincent was removed from Roundy's work schedule.

The District Court granted Roundy's motion for summary judgment because it offered legitimate, non-discriminatory reasons for reducing Vincent's work hours. First, Vincent could not perform the essential functions of her previous job. Second, since no position was available that included duties consistent with her work restrictions, Roundy's created a part-time job compatible with her work restrictions. The Court further found that Vincent's allegations of retaliatory discharge were not supported by the evidence. Here, Vincent remained under medical restrictions that were inconsistent with the essential functions of her job and failed to obtain a medical release from these restrictions despite being given the opportunity to do so over a period of many months. The Court held that an interval of two months between a discrimination complaint and termination does not justify a causal link because length of time "diluted any inference of causation." Thus, the Court determined there was no causal connection between Vincent's complaints of gender discrimination and her subsequent termination months later.

The Court made the determination that the questionnaire filed with the Minnesota Department of Human Rights (MDHR) should be deemed a timely complaint under the EEOC because there was a workshare agreement between the MDHR and EEOC, and the EEOC received the MDHR questionnaire prior to the expiration of time to file.

Victor B. Fox, Sr., an African American male, brought a racial and gender discrimination action against Thermoform Plastics, Inc. The District Court determined that the summary judgment motion brought by Thermoform Plastics, Inc. made on the basis that Mr. Fox's claims were time-barred should be denied where Mr. Fox filed an unsigned questionnaire with the MDHR.

The Court of Appeals upheld the summary judgment dismissal of the plaintiff's age discrimination claim against Target Corporation agreeing with the District Court's pretext analysis that the defendant did not engage in age discrimination when it terminated plaintiff's employment based on alleged violations of the Age Discrimination and Employment Act and the Minnesota Human Rights Act.

Defendant hired plaintiff, who was then 56 years old, as a recruiter in 2003. In 2004, Target decided to decentralize their executive recruiting by moving recruiters to the regions for which they were recruiting. Plaintiff's position was relocated to Texas. Plaintiff was asked if he was willing to relocate to Texas. Plaintiff advised his supervisor that he preferred to remain in Minnesota and would seek another position. Plaintiff was unsuccessful in obtaining another recruiting position in Minnesota and advised his employer that he was interested in the possibility of relocating to Texas. After a meeting with his supervisor, plaintiff alleges that he was presented with the sole option of termination with severance. Defendant disputed those allegations. Plaintiff failed to return to work and a month later he was terminated. Plaintiff then filed suit alleging age discrimination.

In order to establish a claim of intentional discrimination, a plaintiff may present direct evidence of such discrimination or may prove his claim through circumstantial evidence. The plaintiff was able to establish a prima facie case of discrimination and the burden then shifted to Target to articulate a legitimate non-discriminatory reason for plaintiff's termination. The Court upheld the District Court's ruling that Target had proffered a legitimate non-discriminatory reason for plaintiff's termination and that plaintiff could not sustain the burden that Target's proffered reason for termination was pretextual or that there was a reasonable inference that age was the determinative factor in his termination. The plaintiff's allegations that Target's corporate culture fostered a preference for younger employees was insufficient to establish a reasonable inference that age was the determinative factor in his termination.

In a concurring opinion, Judge Beam concurred with the results but dissented on the grounds that the evidentiary analysis was misdirected and the court misstated the law with respect to recent precedent adopted by the court in support of the majority's refusal to consider the plaintiff's allegations as to why he was a victim of age discrimination.

In this insurance bad faith action, the Court granted defendant's motion for summary judgment finding that defendant acted reasonably and in good bad faith when it failed to settle a wrongful-death lawsuit against Christian Builders. This lawsuit arose out of a motor vehicle accident involving a vehicle driven by an employee of Christian Builders. At the time of the accident, Cincinnati provided $2 million in insurance coverage to Christian Builders. Cincinnati, with the assistance of its counsel, estimated that the settlement value of the case was substantially below the policy limits. The case did not settle and went to trial. The jury returned a verdict in an amount in excess of $3 million. The Court, in granting summary judgment, ruled that Cincinnati 1) evaluated the case reasonably, 2) took its insured's financial exposure into account, 3) was not obligated to make a negotiated settlement after a failed mediation, and 4) informed its insured of a potential conflict of interest. Based on the record presented, the judge ruled that no reasonable jury could find that Cincinnati acted unreasonably or in bad faith in handling the wrongful death claim asserted against Christian Builders, Inc.

Though the applicability of a 180-day vacancy provision in the policy was not raised to the lower court, the Eighth Circuit Court of Appeals held that the insurer failed to bring that governing policy provision to the District Court's attention and remanded this declaratory judgment action for further consideration. In June 2004, the insured's tenants unexpectedly moved out, and on November 21, 2004, the insured discovered extensive damage from water running from an open faucet into a stopped sink. After the insured filed a claim for losses, the insurer sought a declaratory judgment of no coverage because the loss was governed either by a policy provision excluding loss caused by vandalism to a house vacant more than thirty days or by the provision in Minnesota's statutory Standard Fire Policy excluding loss to a house vacant and unoccupied more than sixty days. The Court held that, if the loss was caused by vandalism, Minnesota statutes required expansion of the vacancy period to sixty days, and if the loss was not caused by vandalism, the greater coverage afforded under a 180-day vacancy provision would apply.

In this insurance coverage case, the Court determined that payments made to satisfy one plaintiff's claims, individually and in total, resulted in exhausting the primary insurer's policy limits, thereby triggering the secondary insurer's duties to defend and indemnify the defendant in a suit by a second plaintiff.

This case involved a garbage truck owed by Waste Management of Minnesota, Inc., a defendant in the underlying actions, and driven by Chad Trenhaile. The truck jumped a highway median, rolled over, and struck the car of Brian and Ellen Ross, injuring the Rosses and Trenhaile. Waste Management's primary insurer was Reliance Insurance Company, which provided coverage of $1,000,000 for the accident but which became insolvent. Transcontinental Insurance Company provided excess liability coverage to Waste Management. In the first suit, involving the Rosses, the parties agreed to binding arbitration; and the arbitrator found that Trenhaile and Waste Management were each 50% at fault and that the Rosses were entitled to damages of approximately $3,050,000. The Minnesota trial court entered judgment for the full amount against Trenhaile and Waste Management jointly and also decided priority of coverage issues between the trucking defendants' liability insurer (Tri-State, Trenhaile's liability insurer), the Rosses' underinsured motorist insurer (MSI), Transcontinental, and the Minnesota Insurance Guaranty Association (MIGA), which was obligated by statute to pay certain claims against the insolvent primary insurer, Reliance. The parties appealed and subsequently reached a settlement where the outstanding amount owed, after Tri-State paid $750,000, was approximately $2,305,731 to be split between the MIGA, MSI, Waste Management and Transcontinental. The settlement included a reduction of the judgment amount.

The Court determined that because the policy limits of the Reliance insurance policy of $1,000,000 was well exceeded by the approximately $3,000,000 judgment in favor of the Rosses that Transcontinental, as the excess insurance provider for the accident, became obligated to defend Waste Management in the suit filed by the driver Trenhaile. The Court determined that the insolvency of Reliance did not affect the duty of Transcontinental because it could not benefit due to Reliance's insolvency. It would have been obligated to defend in the Trenhaile suit if Reliance was not insolvent and contribute its policy limits to the settlement.

The Court further concluded that the settlement did not violate a no-drop-down provision to settle a potential drop-down exposure and the Transcontinental policy obligated Transcontinental to pay any "ultimate net loss" in excess of the Reliance policy limit, as opposed to any amount actually paid by Reliance and Waste Management.

The District Court determined that where the only federal claim in a matter between residents of the same state is dismissed a remand to the state court is appropriate.

The plaintiff in this action alleged ten counts against four defendants in her original Complaint which was commenced in the District Court of Minnesota, Fourth Judicial District, Hennepin County. The case was properly removed by the defendants as one of the counts involved a U.S.C. § 1983 claim. When the defendants subsequently moved to dismiss the § 1983 claim and that claim was dismissed, the Court decided that remand to state court was appropriate. The District Court affirmed the decision of the trial court to review its jurisdiction status sua sponte and that the proper forum for state law claims between residents of the same state is the state courts.

The Court granted summary judgment to the defendants in this case involving breach of warranty, lemon law, and revocation of acceptance claims. The plaintiff had purchased a new luxury RV manufactured and sold by the defendants a manufacturer and a dealer. Numerous defects in the RV surfaced, and eventually the plaintiff gave up hope that the RV could ever be put in satisfactory working condition. The plaintiff dropped off the RV at the sales lot and wrote to the manufacturer requesting a refund of the RV's purchase price. The manufacturer refused to give the plaintiff a refund. The dealer agreed to resell the RV on the plaintiff's behalf, and the RV was ultimately sold to a Florida-based dealer. The plaintiff did not give notice to the manufacturer before selling the RV.

With regard to the plaintiff's claims under the RV manufacturer's limited warranty and implied and express warranty theories, the Court found that the plaintiff had failed to bring the claims within the statute of limitations period. The Court held that Minnesota's lemon law was inapplicable because the plaintiff had sold his vehicle before trial rather than returning his lemon to the manufacturer as required by law. Upon lengthy analysis, the Court determined that because the plaintiff revoked his acceptance only against the manufacturer, and not against the dealer, both defendants were entitled to summary judgment on the plaintiff's revocation of acceptance claim.

In this case, involving fraud, negligence, strict products liability, breach of express and implied warranties, and violation of Minnesota statute, the distributor of Cold-Eeze Nasal Spray moved to exclude the testimony of the plaintiffs' expert on causation, and for summary judgment. The Court granted the motions, reasoning that because the expert's testimony would be inadmissible at trial and the plaintiffs relied entirely on the expert testimony to establish causation, they could not prevail on any of their claims. The plaintiffs alleged that they lost their sense of taste and smell due to the cold medication. The plaintiffs' expert, however, had failed to conduct any testing, or cite any relevant authority to show that Cold-Eeze (1) comes into contact with the olfactory epithelium, (2) is toxic to the olfactory epithelium, (3) delivers a toxic amount of zinc to the olfactory epithelium, (4) causes permanent damage in some cases, or (5) caused the plaintiffs' loss of smell.

The issue in this case is whether an employee-employer relationship existed between the petitioner (deceased's wife) and employer on July 29, 2005. On the aforementioned date, the petitioner's spouse, Darrol Spencer, died in a motor vehicle accident. The petitioner and the deceased were over-the-road truck drivers. Both were employed on a part-time and intermittent basis with the employer. At a hearing in this matter, the parties stipulated that Mr. Spencer had permission from the employer to ride along on the trip with his wife, but was expressly told he did not have permission to drive. The petitioner argued that the deceased was working under an implied employment contract on the date of the accident. Specifically, she argued whether the deceased was working as a driver or as a "ride along helper," his work activities benefitted the employer, and, therefore, an implied employment contract for hire existed on the date of the accident. The Compensation Judge and the Workers' Compensation Court of Appeals disagreed.

The Compensation Judge found, and the WCCA affirmed, that there was no evidence the deceased was paid for the road trip. Further, while the deceased may have assisted the petitioner in locating fuel stops and pick up and drop off sites, the WCCA found it was not unreasonable for the Compensation Judge to conclude that such activities did not create an employment relationship with the employer, and on the date of the accident, the deceased was acting unilaterally as a volunteer, not an employee. The Court distinguished this matter from Werneke v. Lakeside Lawn and Landscape, Inc. In Werneke, the court determined the employee was an implied employee of the employer. In Werneke the employee was expressly called and invited to work, was directed to report at the employer's usual start time on the date of injury, was provided a time sheet by the employer, was clearly needed to fill out the crew because the crew was short, performed the same tasks that other members of the crew performed, and benefitted the employer in performing these tasks. In the present case, the deceased was merely a passenger in the truck. His level of involvement amounted to little than more keeping the petitioner company on the trip. He was not requested by the employer to provide any services, and permission to accompany the petitioner on the trip was given as an accommodation to the petitioner, not as part of any employment relationship.

There were no updated cases for review as of the printing of this Newsletter.

There were no updated cases for review as of the printing of this Newsletter.

In this case involving alleged price-fixing by an ATM network, the Court refused to compel the defendants to produce electronic information in native format as required by current Rules of Civil Procedure. A month after the rules were amended, the plaintiffs served their fourth set of Requests for Production of Documents and stated that the defendants must comply with the amended rules in all future productions. The court disagreed, explaining that the rule was amended nearly two years after the litigation began, that the parties had already agreed to produce documents as TIFF files subject to optical character recognition scanning, and that the amendment was no reason to abdicate the parties' agreement.

In this wrongful death action involving numerous discovery issues, the parties disagreed on the method of searching Taser International, Inc.'s electronic databases. In particular, the parties disagreed about the timing of production, the search terms to be used, and Williams' participation in the search. Both parties submitted proposals, which the Court rejected as deficient. The Court then set forth a detailed search procedure for the parties, along with a "clawback provision" to handle any inadvertently produced privileged information.

The Court in this trademark case partially granted Google, Inc.'s motion for sanctions against American Blind & Wallpaper Factory, Inc. The Court imposed a $15,000 sanction to be paid by American Blind to Google within 30 days, and imposed the additional sanction of judicially determined facts. The basis for the sanctions were American Blinds' inadequate efforts to preserve, collect, and produce relevant evidence. American Blind lacked a document retention policy, failed to instruct employees to preserve relevant evidence, allowed employees to routinely delete emails, and only instructed employees to print out emails between American Blind and Google despite the fact that email was regularly used for internal American Blind communications. The Court found that while the evidence did not show intentional destruction of evidence, American Blind was at least willfully indifferent to its discovery obligations.

In this case involving a requirements contract, the plaintiff asserted that purchases had been inappropriately diverted from a requirements contract through the use of government credit cards. The Court found that the government violated its duty to preserve relevant documents over the course of approximately five years, which led to the destruction of admittedly relevant documents. The Court discussed at great length its disagreement with the defendant's argument that it could not be sanctioned because, while negligent, it did not act in bad faith. In part, the Court reasoned that "the history of the spoliation doctrine suggests that it was not designed solely to punish those who consciously destroy inculpatory documents, but also to address the manifest unfairness inherent in the loss of relevant evidence." The Court imposed sanctions including (1) prohibiting the defendant from cross-examining the plaintiff's expert about gaps in the record created by the defendant's spoliation, (2) prohibiting defendant from adducing its own expert testimony regarding the gaps, and (3) ordering defendant to reimburse the plaintiff for additional discovery costs and attorney's fees incurred due to the spoliation.

In this case alleging violations of Title IX of the education amendments of 1972, negligent retention and supervision, and negligent infliction of emotional distress, the Court sanctioned the defendant community college and other defendants by allowing an adverse inference based on spoliation of evidence, plus reimbursement for the retention of a forensic expert.

Doe moved to compel the inspection of certain electronic records possessed by the defendants and retained a forensic expert to inspect the defendants' computer records. She claimed that the hard drives of key witnesses in the case were scrubbed or completely wiped of data.

A plethora of evidence suggested spoliation. The expert had found evidence that electronic data had been altered, destroyed, or filtered. The defendant's head of human resources testified that she had never heard the term "litigation hold" and was never told to refrain from destroying documents during the pendency of the litigation. The Court found that the defendant had tampered with evidence. In addition, it appeared that the defendants had negligently replaced, reimaged, and reissued a key-player's computer just one month after the lawsuit was filed.

The Court disagreed with an argument by the defendants that the duty to preserve evidence did not arise until well after Doe filed her lawsuit. The Court held that, in fact, Doe's demand letter indicating intention to sue triggered the duty to preserve, as did a meeting held between the defendants indicating to the Court that they were aware of Doe's allegations of sexual assault. The Court also held that the good faith exception did not apply because the defendants did not have a system for data retention/destruction, and at any rate failed to affirmatively act to prevent the destruction or alteration of data.