Second Circuit Uses “Klipsch” to Speak Loud and Clear on e-Discovery Misconduct

Klipsch makes some of the best speakers in the world, especially their high-end Klipschorn speaker series shown here. The Second Court of Appeals used a Klipsch in a dispute recently to sound an alarm about e-discovery abuse and how it will not be tolerated. Klipsch Group, Inc. v. ePRO E-Commerce Ltd., 880 F. 3d 620 (2d Cir, 2018). The unanimous opinion written by Circuit Judge Gerard E. Lynch upheld the lower court’s sanctions against Klipch’s adversary in the suit, ePro. The adverse inference sanction entered means that Klipsch will now almost certainly win the case.

The Second Circuit also affirmed the full amount of monetary sanctions, $2,680,000. Klipsch was compensated for almost* all of the additional discovery efforts occasioned by ePRO’s misconduct. ePro was also required to immediately secure payment of the full $5 Million amount of any future judgment against them, which includes damage trebling and fees. I know that sounded great to Klipsch and their attorneys. Especially since they had a four day evidentiary hearing on their spoliation motion to get there.

* Somewhat sadly for Klipsch, however, as the third footnote explained, under the lower court’s opinion all of Klipsch’s fees and costs incurred were not awarded. There was another $300,000 or so that was not included, only because Klipsch could not produce proper credentials for one of the billing attorneys. Ouch. That is extremely rare and odd. Details are so very important.

The Second Circuit Court’s Rare Ruling on e-Discovery and Sanctions

The Klipsch opinion has language that will carry great weight, not only because it makes sense, but also because it is from a United States Court of Appeals panel. There are not that many appeals court opinions on sanctions or e-discovery so this is a rare and important opinion. It will certainly encourage more courts to do as the trial judge did here and sanction offending parties. It is also controlling law for all federal courts in its jurisdiction, which is Vermont, Connecticut and the all important New York.

In the rest of this blog I will let the language of the Klipsch opinion speak for itself with a few of my favorites selections. Klipsch Group, Inc. v. ePRO E-Commerce Ltd., 880 F. 3d 620 (2d Cir, 2018). The first quote from Circuit Judge Gerard Lynch’s opinion lays out the background.

In the course of defending against claims that it sold counterfeit products, defendant-appellant ePRO E-Commerce Limited (“ePRO”) engaged in persistent discovery misconduct: it failed to timely disclose the majority of the responsive documents in its possession, restricted a discovery vendor’s access to its electronic data, and failed to impose an adequate litigation hold even after the court directed it to do so, which omission allowed custodians of relevant electronic data to delete thousands of documents and significant quantities of data, sometimes permanently. As a result, the United States District Court for the Southern District of New York (Vernon S. Broderick, J.) concluded that ePRO had willfully engaged in spoliation. It accordingly granted in substantial part plaintiff-appellee Klipsch Group, Inc.’s (“Klipsch”) motion for discovery sanctions, including a $2.7 million monetary sanction to compensate Klipsch for its corrective discovery efforts and a corresponding asset restraint in that amount, permissive and mandatory jury instructions, and an additional $2.3 million bond to preserve Klipsch’s ability to recover damages and fees at the end of the case. . . .

We find no error in the district court’s factual findings, and we conclude that the monetary sanctions it awarded properly compensated Klipsch for the corrective discovery efforts it undertook with court permission in response to ePRO’s misconduct. In particular, we emphasize that discovery sanctions should be commensurate with the costs unnecessarily created by the sanctionable behavior. A monetary sanction in the amount of the cost of discovery efforts that appeared to be reasonable to undertake ex ante does not become impermissibly punitive simply because those efforts did not ultimately uncover more significant spoliation and fraud, or increase the likely damages in the underlying case. The district court’s orders imposing sanctions *624 are accordingly AFFIRMED in all respects.

The next quote gives you a good glimpse into the degree of frustration that recalcitrant attorneys who excel in gamesmanship can engender, even in an appellate court panel located in New York City:

[T]he history of the case makes clear that the sanctions and fees awarded in this case were carefully limited to costs Klipsch incurred in direct response to ePRO’s misconduct. Klipsch obtained approval from the magistrate judge prior to each of its substantive efforts, and in each case, that approval was given only after ePRO had already squandered an opportunity to correct its own errors.

For example, ePRO’s failure to implement a litigation hold was first discovered in March 2013, during Klipsch’s first round of depositions with ePRO employees, but ePRO was not sanctioned at that time, nor was Klipsch given carte blanche to explore ePRO’s files. Instead, ePRO was permitted to hire its own discovery expert to correct the error, which resulted in the production of substantial additional discovery. Klipsch then spent approximately $550,000 on a second round of depositions occasioned by that late production.

It is evident that the district court did not detect any abusive conduct on the part of Klipsch, such as the piling on of discovery demands and investigatory initiatives in order to burden its *633 adversary with wasteful expenses, motions practice, and sanctions. ePRO does not appear to contest the reasonableness of permitting Klipsch to take those remedial depositions, nor can it plausibly assert that Klipsch would have insisted on doing so even if ePRO’s initial production had been complete or timely. And only in March 2014, after ePRO had repeatedly shown itself to be an untrustworthy participant in the discovery process, did the magistrate judge determine that Klipsch was “fully justified” in seeking to undertake an independent forensic examination. Joint App. at 1187.

Because the costs for which Klipsch is being compensated were reasonably incurred in direct response to ePRO’s misconduct, we cannot conclude that the district court abused its discretion by requiring ePRO to pay monetary sanctions in that amount.^[7]

The defendant ePro then tried the “proportionality card” arguing that the multi-million dollar punitive damages exceeded the amount at issue in the case. That did not work. The Second Circuit explained that is not how proportionality works in sanctions. It has no bearing to the value of the case itself, just the amount of additional reasonable costs incurred because of the unreasonable conduct to be sanctioned. One party should not be damaged by the unreasonable conduct of the other. The offended party, here Klipsch, should, in effect, be indemnified from all of the burden and expense incurred because of what the offending party did or did not do. They are the innocent party. Here is how the court put it.

In sum, we see nothing in ePRO’s proportionality arguments compelling us to conclude that the district court abused its discretion by awarding full compensation for efforts that were ex ante a reasonable response to ePRO’s own evasive conduct.^[9] The proportionality that matters here is that the amount of the sanctions was plainly proportionate — indeed, it was exactly equivalent — to the costs ePRO inflicted on Klipsch in its reasonable efforts to remedy ePRO’s misconduct.

The Second Court was cognizant of the issues and problems concerning electronic discovery. They had been briefed on the potential for misuses of spoliation sanctions motions. Although this was not at all present in the Klipsch, Judge Lynch address this concern near the end of the opinion.

Nothing that we say in this opinion should be taken as condoning excessive and disproportionate discovery demands, countenancing the tactical use of discovery sanction motions to inflict gratuitous costs on adversaries, or derogating from the responsibility *636 of district courts to ensure that litigation proceeds in a responsible and cost-efficient manner. See Fed. R. Civ. P. 1 (directing that the Rules of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action”) (emphasis added); Fed. R. Civ. P. 26(b)(1) (scope of discovery should be “proportional to the needs of the case, considering [inter alia] the amount in controversy”). If it turns out, as the district court has estimated, that the amount of actual damages in this case is modest in relation to the costs spent on the litigation, that would be a highly regrettable outcome.

But the question before the district court, and before us, is which party should be held responsible for those costs. ePRO does not ever contend that Klipsch’s initial discovery demands were unreasonable or disproportionate to the merits of the case. Nor does it seriously argue that the magistrate judge erred in allowing Klipsch to take the steps it took to remedy ePRO’s refusal to comply with those demands. The district court reasonably concluded, after a full and fair hearing, that it was ePRO’s noncompliance with its legal obligations that occasioned the excessive costs in this case, and we find no reason why ePRO should not therefore be required to pay them.

I leave you with a short video biography of Paul Klipch, a recognized audio engineer leader whom I have long admired.