Ready to File a Motion for Sanctions? Make Sure You Tell the Court.

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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Chapters

• 1:34 Introduction
• 3:29 Case Facts
• 11:33 Analysis
• 14:04 Key Takeaways

Transcript

Kelly Twigger: 0:14

Welcome to the Case of the Week podcast, where each week, we break down a recent decision in electronic discovery case law and talk about the practical impact for you and your clients and keep you up to date on your obligations with electronically stored information as evidence. If you're a litigator, legal professional or you love the power of ESI as much as I do, this is the place to be. I'm Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys, with more than 25 years of experience navigating the evolving landscape of litigation and e-discovery. I'm a practicing attorney, author, speaker, entrepreneur and now podcaster who works as a discovery strategist and expert for clients at ESI Attorneys and to provide that knowledge to all legal professionals through our e-discovery assistant platform. In each episode, we'll tackle a new decision in eDiscovery case law and how it shapes both your litigation strategy and planning for risk mitigation. If you're ready for blunt, actionable insights that keep you ahead of the curve, and maybe a few laughs along the way, this is your go-to podcast. Subscribe or follow now to start embracing the power of ESI as evidence. Hi and welcome to this week's episode of the Case of the Week series brought to you by eDiscovery Assistant. Thanks so much for joining me today.

Kelly Twigger: 1:42

This week's decision touches on an issue of first impression here on Case of the Week, and that is the timing of when to file a sanctions motion. We talk a lot about sanctions motion and the analysis under the federal rules and state rules on sanctions, but we've not talked about when to file a sanctions motion, and perhaps the most important takeaway from today's decision is this you need to know what your judge prefers on how to handle sanctions motions if you are going to bring one. We talk repeatedly on our Case of the Week series about knowing your judge, and today's decision falls right in line with that thought process. All right, let's dive in. This week's decision comes to us from the Groves Inc versus RC Brimmer Marketing Associates case. This is a decision from United States District Judge Ian Johnston, dated November 22nd 2024. If Judge Johnston's name is ringing a bell, that's because he's written some of the most interesting decisions in electronic discovery, going back to the DR distributors case that we've covered multiple times here on Case of the Week, as well as a total of 17 decisions that are included in our eDiscovery Assistant database. Judge Johnston always adds a dose of humor, reality and some incredible practical application to his decisions and today has taken on the task of talking through when the timing to file a sanctions motion is appropriate, and there are going to be a number of factors that we're going to talk about. As always, we add the issues to our cases in eDiscovery Assistant, and this week's issues include sanctions and spoliation. All right, let's talk a little bit about the decision Now.

Kelly Twigger: 3:31

We're before the court on a motion for sanctions that was filed by Grove against one of the defendants, christopher Shepard. Of its decision which is not particularly wrong long, and I encourage you to read it that it has some pretty big questions about Shepard's conduct and looks forward to resolving the merits of the sanctions motion when it's appropriate. Judge Johnson is known for starting his decisions with quite the quote, and this one is no exception, and here is his opening quote this court attracts Rule 37E motions like chum attracts sharks. So yes, in this simile the court is fish guts and fish heads. This court has been presented with Rule 37E motions at various stages of an action. It has received spoliation motions during discovery. It has received spoliation motions made in the middle of a summary judgment briefing, requiring the briefing to be stayed while the spoliation issue could be resolved. It has received Rule 37E motions in the form of a motion in limine after the issue was raised during summary judgment and in the middle of trial. A party even requested for the first time an adverse inference instruction under Rule 3070 for the spoliation of ESI. But this current motion is just the latest Close quote.

Kelly Twigger: 4:58

Rather than turning to the merits of the decision, judge Johnson noted that the timing of the filing of the fully briefed sanctions motion was too early in this case. According to the court, it's too early for a sanctions motion here. This case is still proceeding with expert discovery including the depositions of a couple of fact witnesses. No date has been set for summary judgment motions and no trial has been set. Judgment motions and no trial has been set.

Kelly Twigger: 5:28

Quote the court takes this opportunity to address the timing of filing spoliation motions seeking sanctions. Spoliation motions can be filed too early and they can be filed too late. As shown in this order, there's a sweet spot when the filing of the spoliation motion is just right, but determining that sweet spot will vary depending on the specific facts presented, as well as the judge who decides the motion. The best way to find that sweet spot is to quote have a conversation in the words of one of the court's former law clerks Notify the court and opposing counsel as soon as possible about a spoliation concern and calmly and professionally talk to them about the most reasonable and best options to address the concern. Close quote the court notes that here in this case counsel has raised its concerns and filed multiple motions of compel to compel with the magistrate judge, which were generally granted motions of compel to compel with the magistrate judge, which were generally granted A forensic examination of data from Shepard. The defendant at issue also revealed damning information against Shepard, but the court notes that no one plaintiff included asked the court about the best time to raise the sanctions motion requesting an adverse inference instruction for alleged spoliation. Sanctions motion requesting an adverse inference instruction for alleged spoliation that included both the magistrate judge and the district court judge. And then Judge Johnson provided perhaps my favorite quote in his decision. But litigation is not high tea at the Savoy. So if there's a legitimate concern about spoliation rooted in fact and law, then counsel should raise it with opposing counsel immediately and then fairly and accurately convey the party's discussion about the concern with the court at the next opportunity. Of course all counsel are duty bound to promptly notify opposing counsel and the court when they have learned that relevant evidence has been spoliated. Close quote. The court also noted that while counsel raised the issue of spoliation with the magistrate judge, the district court did not become fully aware of the motion until it was briefed and quote made its way to the top of a very long motions list. Close quote.

Kelly Twigger: 7:42

The court then spends a fair amount of time addressing the best time to file a spoliation motion. Citing to Judge Paul Grimm's thoughtful decision in Goodman v Praxair from all the way back in 2009,. Judge Johnson listed the five factors a court should consider in determining if a spoliation motion is tardy. One, how long after the close of discovery the relevant spoliation motion has been made. Two, the temporal proximity between a spoliation motion and motions for summary judgment. Three, whether the spoliation motion was made on the eve of trial. Four, whether a rule 16 scheduling order or local rule set a deadline for filing spoliation motions. And five, the moving party's explanation why the spoliation motion was not filed earlier. The first factor is described as key and the second factor assumes that, generally, spoliation motions should be made before summary judgment motions are filed. Also implicit in these factors, according to Judge Johnston is the concept of prejudice, one that we encounter on a regular basis in electronic discovery. The prejudice here is the notion that the time and money required to file a motion for summary judgment, as well as the court's resources to rule on it, are extensive and that a spoliation motion can vastly alter the arguments made on that motion. Similarly, making a spoliation motion on the eve of trial can completely derail proceedings, which prejudices the non-movement.

Kelly Twigger: 9:16

Having reviewed all of this, the court acknowledged that Groh's motion here is not tardy but is instead premature. Now the court notes multiple situations that might result in a motion being premature. That include where discovery is still proceeding and a party does not yet have sufficient facts for the motion, or because a party has not yet determined whether the spoliated ESI can't be restored or replaced as required by Rule 37. The deadlines in the case, according to the court, are also an issue, and the court identified these questions to be asked Is fact discovery closed or when does it close? Can a party still amend pleadings to assert new claims or take away claims where this foliation may be at issue? Has a trial date been set, and when is it? How far in the future are we talking about?

Kelly Twigger: 10:06

What remedy is the moving party seeking that may alter the path of the case. For example, if a motion sinks dispositive sanctions like default judgment or dismissal, it likely makes more sense to file the motion before the summary judgment motion to avoid wasting time and money on summary judgment. Another factor is whether a hearing is required. Although not always required, the rules do contemplate an evidentiary hearing and this court notes that it has heard spoliation motions both with a hearing and without Recall, that the evidentiary hearing in the DR distributors case, after which Judge Johnston issued a 256 page decision, was a full two days of evidence taken by the court. That has a tremendous impact on the court's schedule and it means that they've got to set aside time to be able to review all of the evidence from that hearing in order to be able to rule on the sanctions motion Now per Judge Johnston. Judges will want to consider these critical factors in determining when to address the spoliation issue, but they won't be able to consider the impact of these factors on the timing of the spoliation motion unless the parties inform that judge of the facts that affect those factors. So again, have a conversation. There's a reason why Rule 16 allows judges to require parties to hold a conference with them before filing discovery motions. So let's look at the court's analysis here.

Kelly Twigger: 11:36

Keeping all of that background in mind related to Grove's decision for spoliation. Applying all of that here, judge Johnson denied Grove's motion as premature, but without prejudice, so that Grove can reinstate the motion at the appropriate time. According to the court, the parties were still engaged in fact discovery and expert discovery still has to proceed. But the deciding factor for Judge Johnson really was the relief sought here. Plaintiffs sought a permissive adverse inference instruction that would impact a trial, noting that the parties had a lot of work left to do to get this case to trial. The court also found that there were multiple off-ramps before the case gets to trial.

Kelly Twigger: 12:19

Just another visualization from Judge Johnson that always entertains me. According to the court, the court's resources are better spent hearing the motion after the close of discovery and it directed Grove to raise the motion again at the party's pre-trial filing conference for summary judgment and inform the court whether this boliation motion will affect summary judgment briefing. According to the court, if Groves believes that this spoliation issue will affect any summary judgment briefing, it should inform the court during the summary judgment pre-filing conference so that the issue can be addressed in the most efficient way. If the case bypasses the seemingly obligatory summary judgment process and proceeds directly to a jury trial, then the court will address the issue of an adverse inference instruction by way of a motion in limine with the final pretrial order. Now that's really important that.

Kelly Twigger: 13:13

I know I keep throwing quotes at you from Judge Johnson's decision, but what better to rely your analysis on other than the actual words from the court? And what the court is saying here is what you want and how you want it delivered has a huge impact on when the timing of a sanctions motion should be filed. According to the court, again going forward, consistent with rule one, it would behoove the parties to raise any spoliation concerns with the judge who is going to decide the spoliation motion. In this way, the judge can determine the best way to proceed before the parties engage an extensive briefing that might be unnecessary. Close quote, close quote. So that's what we have from the judge, denying a motion for sanctions as premature based on the timing and the fact that discovery still remained open.

Kelly Twigger: 14:04

What are our takeaways from Judge Johnson's decision? This decision makes it abundantly clear that if you're in Judge Johnson's court, you better consult directly with him about the timing for filing any sanctions motion. How you go about that is really going to depend right the way that the federal court system works. You don't always have contact with the district court judge when the magistrate judge is handling discovery-related issues, and so it may be worth posing a question to the magistrate judge. Your Honor, we've discussed these spoliation-related issues. We've had multiple motions to compel, we do plan to bring a sanctions motion, and we'd like to discuss with the court and whether this judge will hear it or the district court will hear it what the timing of that motion should look like from the court's perspective. So if we could set some time to be able to discuss that or to discuss it now, that would be helpful.

Kelly Twigger: 14:55

That's the sort of approach that you want to be able to take, and you've got to have those things teed up. When you go to the court on other issues, which means if you're part of a litigation team that has identified spoliation concerns, you need to be in communication with the lawyer who's going to court and making the arguments with the judge, so they can raise these things as appropriate. Another potential approach is the letter approach. It really depends on how the court has set things up and how they list things out in their standard practices for the court. Some judges have started including timing on sanctions motion. Very few of them are, so you're going to want to engage with them. This may also be something that judges want to start adding to their standing orders in terms of things to be discussed at the pretrial conference or also to have a summary judgment pre-filing conference involved and have not had a summary judgment pre-filing conference. So I think, if you have that, that's another consideration in terms of timing for raising a potential sanctions motion.

Kelly Twigger: 16:00

Regardless, you really need to think about the factors that are identified here in this decision in terms of that timing. If your sanctions motion is going to dramatically impact discovery going forward and potentially has a very dispositive outcome for the case, those are two things that will impact timing of when you want to file that sanctions motion. But you need to be able to articulate that to the court and that's what the judge says here. He had to look at independent factors and there didn't appear to be or there isn't mentioned here in this decision anything from the plaintiffs on why the motion needed to be heard now as opposed to later in the case in advance of summary judgment or shortly thereafter. This decision also provides a great basis for counsel to evaluate that timing and when the facts that give rise to an otherwise premature motion.

Kelly Twigger: 16:56

Timing and when the facts that give rise to an otherwise premature motion. So make sure to include those facts on why the timing is critical. The decision here also makes excellent points about the value of both the parties and the court's resources and that neither should be expended until the appropriate time. What if the facts change for your motion? As discovery continues, you may find other spoliation issues to be included. You may find that there is another source for the spoliated ESI or that the case resolves before the court need hear the motion.

Kelly Twigger: 17:23

Let's flip this on the other side, from Shepard's perspective, the defendant here who the motion was filed against, is this an argument that Shepard could make to the court that the motion was in fact premature and that there are other information to be had left in discovery? Possibly that's. One defense that you can make to a sanctions motion is whether or not it is actually appropriate, given that you are still investigating other avenues of being able to replace or restore the lost ESI. If in fact that's the case. Sanctions motions are very fact intensive. They take a lot of time and money, just like summary judgment motions. So make sure you're evaluating the factors that Judge Johnson sets forth here and consider that timing when bringing a sanctions motion what makes the most sense for your client.

Kelly Twigger: 18:11

There will be times when an early motion is critical to defining how discovery plays out and other times when, as Judge Johnston suggests, it's more appropriate for a motion and limine prior to trial. Most importantly, know your judge. This is one of our themes here on the case of the week and it is critical. Judge Johnston has put out a written decision here telling you that he wants to be informed when there's a spoliation motion so the court can help determine the right timing for that motion to be filed. Don't ignore that. Make sure your compatriots who are appearing before Judge Johnston in the Seventh Circuit are aware of it. Share the decision. You can use the public link to the case from eDiscovery Assistant to be able to share it with anyone. Anyone can view those links.

Kelly Twigger: 18:59

Next, understand how the courts work. If you're doing all of your motion practice in front of the magistrate judge, don't assume that the district judge knows all the details of what has transpired and don't make the court do the work. Your case is one of hundreds that are sitting on their docket. Be transparent, be upfront and work with the system, not against it. That requires thinking carefully when you discover potential spoliation, about what additional facts that you need to support the motion, what you are asking for and the best timing to bring the motion and why. If you want an early motion, like the plaintiff here, tell the court why it's needed. So timing.

Kelly Twigger: 19:45

Timing is going to be critical in terms of bringing a sanctions motion, ensuring that you have everything that's necessary to be within the complete bounds of the motion, that it's filed at the appropriate time of the motion, that it's filed at the appropriate time in the case. That it allows the court to consider the issues on this boliation motion in the context of everything that is moving forward on the case. One of the things that I think is really interesting here is that Judge Johnston suggests that if you're asking for a permissive adverse inference which many of the sanctions decisions that we discuss here on Case of the Week are that that is more appropriate for a motion in limine prior to trial. That's a pretty significant development, but it also does deal pretty effectively with the issue that I've raised multiple times, and that is, if I get a permissive adverse inference instruction but the case never actually goes to trial, have I actually gotten anything for the sanctions that were awarded? So think carefully about what you're asking for, how that will play out, what is the likelihood of actually going to trial if you're asking for a permissive 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 associated with this foliation motion and the best time to file it. That's our case of the week for this week.

Kelly Twigger: 21:02

Be sure to tune in next week, whether you're watching us via our blog, youtube or downloading it as a podcast on your favorite podcast platform. Thanks so much. Have a great week. Thanks for joining me on the case of the Week podcast. Tune in next episode as I discuss a new decision in e-discovery case law and identify the issues you need to be paying attention to and how they can help you do better discovery for your clients and leverage the power of ESI. Be sure to subscribe and leave a review to help others discover the show and be kept in the know on all things. Electronic discovery. I'm Kelly Twigger. See you next time.