“Victor Stanley 2″ – Judge Grimm Imposes Prison Sanction for Spoliation by a Defendant Reminiscent of the Leader of “The Gang That Couldn’t Shoot Stra

The sequel to Judge Paul Grimm’s landmark Victor Stanley case was issued September 9, 2010, and is one for the record books. Victor Stanley II has morphed from a search case, to a sanctions thriller. It records one of legal history’s strongest examples of lawyers behaving badly in e-discovery, so bad, in fact, that Judge Grimm ordered the spoliating party to jail. The defendant, Mark T. Pappas, can only avoid two years imprisonment if he immediately pays all of the plaintiff’s fees and costs award. I am sure that those fees, yet to be determined, will be enormous.

As I will explain at the end of this essay, this strong sanction order is important to the future of our system of justice, a unique common law system where discovery is lawyer driven and trust-based. Should a decision by one of our country’s most prominent jurists be reversed, could a move to the civil law, inquisitorial, judge-based system be far behind? I hope not. This decision needs to be affirmed.

This 103-page opinion includes a 12-page chart summarizing spoliation sanctions law by Circuits. Judge Paul Grimm has, once again, considerably advanced the jurisprudence of discovery, this time in sanctions, a key area of law today. One filled with conflicts and inconsistencies. He emphasizes the need for proportionality and reasonability in all things, including preservation. Thank you for that Judge Grimm. Too many lawyers and judges do not understand the need to resize efforts and expense to fit the case. Reasonability is a sliding scaling following the metrics of Rule 26(b)(2)(C). Perfection is an ideal, not a requirement, and one mistake in e-discovery is never per se negligence, much less a sufficient grounds for sanctions. A deep dive into the facts is always necessary. Victor Stanley II is a deep dive into both ugly facts and mixed law.

The Gang That Couldn’t Spoliate Straight

The facts of this case are so bizarre that Judge Grimm invoked the title of the comedic novel by Jimmy Breslin called The Gang That Couldn’t Shoot Straight:

Pappas’s zeal considerably exceeded his destructive skill and his judgment in selecting confederates to assist in his efforts to destroy ESI without detection. While Pappas succeeded in destroying a considerable amount of ESI, Plaintiff was able to document this fact and ascertain the relevance of many deleted files. At the end of the day, this is the case of the “gang that couldn’t spoliate straight.”

The complex facts of fraud and spoliation in Victor Stanley are egregious and manifold. (Recall in Victor Stanley I the allegation of the crime fraud exception to attorney-client privilege?) There is a long laundry list of court nose-thumbing and nonchalant lying by defendants in this case. As far as we know, however, there is no proof that lions were used to extort anyone. Recall the famous scene in the movie of The Gang That Couldn’t Shoot Straight shown above. Unlike Breslin’s book, the facts here are sad and anger provoking, not comedic. Indeed, Judge Grimm found this case to be:

… 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.

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Source: e-discoveryteam.com
By: Ralph Losey