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California Appellate Court Upholds Terminating Sanctions Due to Cell Phone Wipe

Posted on January 13th, 2016

In the defamation case Woodell v. Bernstein, et. al., Case No. 14-2836 (Cal. App., Dec. 30, 2015), Plaintiff claimed to have lost his cell phone while out walking his dog. Defendant Bernstein later found the cell phone on his front law near an uprooted sign endorsing Defendant Kiraly for public office. Defendants advised the media and the police that they found the cell phone near the sign and indicated that Plaintiff must have removed the sign. Plaintiff denied any involvement in uprooting the sign, and eventually, he sued Defendants for defamation.

Throughout the course of litigation, Defendants made multiple efforts to access Plaintiff’s cell phone and sought information about photographs taken on the phone the day of the incident. Plaintiff produced the photographs as PDFs without metadata, and Plaintiff had wiped the phone to install a new operating system since the incident. The trial court ordered terminating sanctions and dismissed Plaintiff’s case due to his delay and obstruction of Defendants’ access to the phone.  The court also found that Plaintiff had purposefully destroyed evidence harmful to his case. Plaintiff moved for a new trial, which the court denied. Plaintiff then appealed the order denying the motion for a new trial.

The appellate court upheld the order. Plaintiff argued that terminating sanctions were not appropriate because there was no pattern of conduct with regard to discovery. The court rejected that argument, noting that the law provides that one instance of egregious misconduct is sufficient, even if there is no violation of court order compelling production. The appellate court agreed with the trial court that it would not be appropriate to make Defendants litigate a case in which the key piece of evidence no longer existed.

ILS – Plaintiff Electronic Discovery Experts

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