Victor Stanley II: A Swift Kick in the Bass
Regular readers well know the admiration I hold for Magistrate Judge Paul Grimm (D.MD) and his matchless contributions to the scholarship and advancement of electronic discovery. Fanboy? Mea culpa. His Honor has done it again, today issuing a must-read analysis of the law of spoliation as it relates to e-discovery in a case familiar to all who follow EDD: Victor Stanley, Inc. v. Creative Pipe et al.
What will surely be known as Victor Stanley II devotes 35 of its 89 pages (exclusive of 'bonus' 12-page chart re: spoliation sanctions by circuit) to describing the sort of reprehensible data destruction and dissembling that's all-too-familiar to forensic examiners but which Judge Grimm labels, "the single most egregious example of spoliation that I have encountered in any case that I have handled or in any case described in the legion of spoliation cases I have read in nearly fourteen years on the bench." (p.34).
There's too much good stuff for me to summarize here in a hurry, but look for classic Grimm bon mots like "the gang that couldn't spoliate straight" and the following cheeky footnote about an unsavory character named Mark Pappas who Judge Grimm ordered to jail for up to two years if he didn't purge himself of contempt by paying some sure-to-be-massive attorney's fees and costs:
CPI named one of its product lines the “Fuvista” line. Pappas admitted during discovery that “Fuvista” stood for “Fuck you Victor Stanley,”... demonstrating that Pappas’s wit transcended sophomoric pranks such as logging into VSI’s web site as “Fred Bass” and extended to inventing insulting acronyms to name his competing products. When disclosed, the meaning of this acronym removes any doubt about his motive and intent. No doubt Pappas regarded this as hilarious at the time. It is less likely that he still does.
Indeed, "less likely." A wry understatement worthy of Chris Dale. Perhaps we should call the decison Fumapa instead of VS2.
Judge Grimm also challenges Judge Lee Rosenthal (Rimkus Consulting) for the title, "Jurist Most Graciously Dismissive of Judge Scheindlin's Failure to Issue Written Legal Hold = Gross Negligence Pronouncement." Clearly what goes in the 2nd Circuit is turning out to be a dog that won't hunt in the 5th, and now, the 4th.
So read it--but not standing up--and better hit the head first.