James Marshall “Jimi” Hendrix, whom Rolling Stone ranked the greatest guitarist of all time, died intestate in 1970 at twenty-seven. His heirs have been embroiled in litigation ever since. They have recently entered the fiery realm of e-discovery and sanctions. Experience Hendrix, LLC v. Pitsicalis, No. 17-cv-1927 (PAE) (S.D.N.Y., 11/27/18). The opinion by District Court Judge Paul A. Engelmayer is interesting in its own right, but when you add the Hendrix name and family feud, you have a truly memorable order. After all, we are talking about the artist who created “Purple Haze,” “Foxy Lady,” “The Star-Spangled Banner,” “Hey Joe” and my personal favorite, his rendition of Bob Dylan’s “All Along the Watchtower”.
Case Background: The Hendrix Family Feud
The latest suit involves the usual serial litigants. On one side is Jimi’s step-sister, Janie Hendrix (shown right). She is, as Jimi would have said, a “Foxy Lady”. Janie assumed control of the Estate from Jimi’s natural father, Al Hendrix, when he died in 2002. On the other side is Jimi’s brother, Leon Hendrix and Leon’s business partner, Andrew Pitsicalis. Kerzner, Hendrix Sues Serial Infringer Andrew Pitsicalis (American Blues Scene, 3/20/17). There can be big money in the Hendrix name, the top guitarist of all time. I for one still get choked up when I hear his rendition of “The Star-Spangled Banner”:
Jimi’s father, Al Hendrix, won bitterly fought estate litigation in the seventies, but the trademark litigation has never stopped. Multiple injunctions are in place under the corporate name, Experience Hendrix, LLC, but the infringements just keep coming. Companies keep popping up to sell Jimi Hendrix branded goods. Andrew Pitsicalis and Leon Hendrix are frequently involved. Their latest attempts to profit from the Jimi brand include marijuana related products (apparently “Purple Haze” has long been a well know strain of cannabis. See: Legal Battle Ensues Over Jimi Hendrix Usage Rights (High Times, 3/29/17); Jimi Hendrix’s heirs wage court battle over branded cannabis, other products (Cannifornan, 3/22/17).
I am reminded of the closing line of the Hendrix classic, Are You Experienced:
Ah! But Are You Experienced?
Have you ever been experienced?Not necessarily stoned, but beautiful.
Jimi’s brother, Leon Hendrix (shown right), is an artist and musician himself with his own following. Some think he was treated unfairly by his Dad and Step-Sister. For a variety of reasons, especially I suspect the impact of Pitsicalis, the CEO of “Purple Haze Properties” and Leon’s business partner, there is still bad blood. Chris Fry, Jimi Hendrix’s Brother Fires Back Against Estate (Courthouse News, 3/28/17).
This kind of family feud mentality is not uncommon in litigation, especially in cases involving the intentional destruction of evidence. I am reminded of a Hendrix line from Voodoo Child:
Well, the night I was born. Lord I swear the moon turned a fire red. The night I was born I swear the moon turned a fire red. Well my poor mother cried out “lord, the gypsy was right!” And I seen her, fell down right dead. Have mercy.
Spoliation sanctions generally arise from a haze, just not a stoned purple haze, more like an angry moon turned a fire red haze. Even a seasoned District Court Judge in the SDNY, Paul Engelmayer, was “dismayed” by the conduct of Pitsicalis and Leon Hendrix. Well, what did you expect in matters involving the Estate of a Voodoo Child musical genius? The best guitarist that ever lived?
Judge Engelmayer’s Sanction Order
The scholarly and well-written opinion by District Court Judge Paul A. Engelmayer (shown right) begins by observing:
As the docket in this matter reflects, the Court has been called upon dismayingly often to act when presented with evidence of the PHP defendants’ persistent non-compliance with basic discovery obligations. Plaintiffs now move this Court to sanction these defendants for (1) spoliation of evidence and, more generally, (2) “consistent, pervasive[,] and relentless discovery abuses by [d]efendants and their counsel, Thomas Osinski.” Dkt. 245. Plaintiffs request, inter alia, a preliminary injunction, an order of attachment, an adverse inference instruction at trial, and terminating sanctions. See Dkts. 237, 244. For the reasons below, the Court grants the motion for an adverse inference instruction and directs the PHP defendants to pay the reasonable fees and costs incurred by plaintiffs in bringing this motion.
Experience Hendrix, LLC v. Pitsicalis, No. 17-cv-1927 (PAE) (S.D.N.Y., 11/27/18). Expressing “dismay” is about as emotional as Judge Engelmayer gets in writing an opinion, even one sanctioning a party for destroying evidence and disobeying court orders.
The PHP defendants mentioned are Leon Hendrix, Andrew Pitsicalis and their corporation, Purple Haze Properties (PHP). As you can see from the first quote, the attorney who represents them, Thomas Osinski, was also accused of discovery abuse. That often happens in joker and the thief type cases like this.
A good sanctions case will always have a “parade of horribles” consisting of a list of things the spoliating party supposedly did wrong. Hendrix is no exception. That is how the severe sanctions are justified. It would take too long to list all of the abuses justifying sanctions in Hendrix, but here are the four main ones:
PHP Defendants’ Failure to Produce Forensic Images as Ordered. Apparent intentional disobedience of court orders to make forensic copies of and produce certain drives, even after daily fines are imposed for late production. One of the excuses PHP offered was especially humorous, especially considering the NYC venue, but they actually claimed “that they had had difficulty hiring an expert technician who could image the hard drives.” Yeah, it’s real hard. Need I say more about Osinski’s veracity? When they finally did produce some, but not all of the forensic images, they were not “forensic” images. They were just copies of all active files (a “ghost” copy) with no forensic copy of the slack space. That is what a forensic copy means. It allows for search and examination of deleted files, which was the whole point of the court order.
PHP Defendants’ Use of Anti-Forensic Software. Software allowing for the complete wiping of files was found installed on several of the computer images that were produced. In some there was evidence the software was installed immediately after a court order was entered requiring production. In these the plaintiff’s forensic expert could also show that the software, CleanMyMac, was actually used to wipe files and when, although it was not possible to know what files were destroyed. The moving party (Janie Hendrix and her company Experience Hendrix, L.L.C.) proved the use was knowing when their expert, John T. Myers, showed how the software was configured to have a pop-out and warn the user to confirm complete elimination of the file (it cannot be recovered after that). The defendants testified that they did not recall ever using it. Sure. Spoliate evidence and then cover-up, or try to.
- Andrew Pitsicalis Deleted “Jimi”-related Text Messages from his iPhone. Plaintiff’s forensic expert was able to prove that more than 500 text messages had been deleted from Pitsicalis cell phone after the duty to preserve had arisen (suit was filed). Moreover, they were able to recover nine text messages pertaining to Jimi. As Judge Engelmayer explained: “Fortuitously, Myers was able to recover the deleted text messages from the imaged phone because those communications had been stored not in the applications used to send and receive them (e.g., iMessage), but in databases where files exist until overwritten or otherwise purged.”
Key Computer at First Hidden, then After Discovery in Photograph, Goes South to Florida and is Never Examined. This one sounds like a bad game of Where’s Waldo. A “Seventh Computer” was found, one never reported by PHP, by plaintiff’s study of photos on PHP’s Facebook page. Very clever. One picture on FB showed Andrew Pitsicalis, sitting in his office, in immediate proximity to a mystery desktop computer. When asked about it under oath PHP’s fine attorney, Osinski, swore that he thought it was just a dummy Apple monitor on the office desk, not a computer. He said he did not know that the monitor, and key board next to it, were a real, functional computer, an iMac. What? Did he think these were IKEA props in a display room? They were sitting on his client’s desk in a Facebook photo taken after suit was filed. But wait, there is more, Osinski went on to swear that the computer had moved to Florida. As Judge Engelmayer explained:
“Osinski testified that his present understanding is that the desktop computer belonged to an individual named Hector David, Jr. who has moved to Florida and who, Osinski assumes, took the computer with him. Osinski, however, did not have personal knowledge of this, or of the contents of the desktop in Andrew Pitsicalis’ office. … Andrew Pitsicalis, for his part, denied owning the computer and testified that David was not employed by PHP.”
Apparently no one has been able to locate this mysterious Hector David or know where he took the iMac computer sitting on Pitsicalis desk.
Legal Standards of Spoliation in Hendrix
Judge Engelmayer’s opinion in Hendrix examines two legal standards, Rule 37 and Spoliation. He begins the discussion with the duty to preserve, the threshold issue in spoliation:
The first issue is whether the PHP defendants had an obligation to preserve the categories of evidence at issue. A party has an obligation to preserve evidence when it “has notice that the evidence is relevant to litigation . . . [or] should have known that the evidence may be relevant to future litigation.” Kronisch v. United States, 150 F.3d 112 , 126 (2d Cir. 1998) (internal citations omitted).
That standard is easily met here.
He then goes on to discuss whether that duty as breached, another no-brainer based on the impressive parade of horribles in this case:
The Court further finds—and the evidence to this effect is overwhelming—that the PHP defendants repeatedly breached this duty. The breaches fall in three categories: (1) the use of cleaning software on covered computing devices, (2) the failure to disclose the existence of a seventh computing device containing potentially relevant documents, and (3) the deletion of relevant text messages.
Judge Engelmayer’ then discusses the key issue of intent, the mens rea to spoliate.
Much of the PHP defendants’ spoliation of evidence, the Court finds, was intentional. …
The Court finds that, by installing anti-cleaning software on his own computer and causing it to be installed on Schmitt’s in the face of an unambiguous and known duty to preserve potentially relevant evidence, Pitsicalis intentionally caused the destruction of such evidence.
The defenses proffered by the PHP defendants are unavailing. That Schmitt personally may not have acted with the intent to deleted responsive files is beside the point. The relevant mens rea here is that of Andrew Pitsicalis, who owned PHP, for which Schmitt worked as an independent contractor, and who, despite being a repeat litigant amply on notice of his duty to preserve potentially relevant evidence, urged Schmitt to run this software to delete files. Tr. 125, 133. Also unhelpful is Pitsicalis’ [*13] explanation that, at some unspecified point, he went on “Google to search for ‘top anti-forensic software’ and went through the first 10 pages of search” without finding anything for CleanMyMac. Andrew Pitsicalis Decl. at 2-3. Regardless what Pitsicalis’ internet research may have shown, the evidence adduced at the hearing clearly established both that the CleanMyMac software had the capacity to cause the deletion (and shredding) of files, and that Pitsicalis knew this, not least because the software’s causation of such deletion was made explicit to the user each time. Pitsicalis does not offer any reason for installing and using this software on his computer, let alone for having done so without first creating an image of the full contents of the computer that would have assured preservation of the computer’s contents.
Andrew Pitsicalis’ deletion of relevant text messages was also clearly intentional. By his admission, he personally and deliberately deleted, among other text messages, a series of texts concerning the marketing of “Jimi”-related products, the very subject of this lawsuit. He did so one day after the Court issued an order requiring the Purple Haze Properties defendants to: “produce to plaintiffs the forensic images of” every device, including phones, containing files that are relevant to this action. Pitsicalis did not offer any coherent defense to this misconduct. The Court finds it to have been a willful and blatant violation of the duty to preserve relevant evidence.
Finally, the Court finds that the removal of a computer from Andrew Pitsicalis’ office and its transfer to a Floridian, Hector David, Jr., was an act of intentional spoliation. To be sure, the question is a closer one, if only because the contents of that computer are unknown, and so the Court cannot rule out the possibility that these contents were wholly extraneous to this litigation. The location of the computer in Pitsicalis’ office, however, suggests otherwise. Had the Court been notified of the existence of this computer, it assuredly would have ordered that the computer’s contents be searched for responsive materials. It is also noteworthy that Andrew Pitsicalis did not inform his attorney of the existence of this computer. While conceivably these circumstances, in isolation, might have been consistent with the merely reckless disposal of evidence, when this episode is viewed in the light of Pitsicalis’ other acts of willful spoliation, the Court has little difficulty finding it, too, to bespeak intentional misconduct.
Sanctions Imposed
Judge Engelmayer begins his analysis of the appropriate, proportional sanctions by stating the black letter law:
The trial judge must determine the appropriate sanction for spoliation [*14] of evidence on a case-by-case basis. F, 247 F.3d at 436 . Such sanctions should be designed to:
(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position [they] would have been in absent the wrongful destruction of evidence by the opposing party.
West, 167 F.3d at 779 . Case-dispositive sanctions, however, “should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions.” Id.
Based on these objectives Judge Engelmayer sanctioned defendants as follows:
Considering these objectives, the Court imposes the following two sanctions, regarding (1) Andrew Pitsicalis’ computer, iPhone, and desktop computer; and (2) Schmitt’s computer, as to each of which the Court has found intentional spoliation. First, the Court will instruct the finder of fact that it may draw an adverse inference from the PHP parties’ failure adequately to preserve and produce these materials, to wit, that the devices in question contained evidence of conduct by the PHP defendants in breach of their legal duties to plaintiffs in connection with the sale and marketing of Jimi Hendrix-related materials.8
Second, given the resources plaintiffs again have had to expend in establishing the above-chronicled acts of non-compliance by the PHP defendants with the Court’s discovery orders, plaintiffs are entitled to an award reflecting the reasonable attorneys’ fees and costs incurred in connection with bringing and litigating the instant successful motion.
Judge Engelmayer went on to explain why a lesser sanction was inappropriate:
The Court has carefully considered whether lesser sanctions are adequate to cure the harm caused by the disposition of these materials. The Court’s firm conclusion is that no lesser sanction than the combination of an adverse inference instruction and an order directing the prompt recompense of plaintiffs for costs reasonably incurred litigating the meritorious motions for sanctions based on spoliation would adequately remedy plaintiffs’ injury. See, e.g., Moody v. CSX Transp., Inc., 271 F. Supp. 3d 410 , 432 (W.D.N.Y. 2017) (finding adverse inference appropriate where defendants intentionally lost material evidence); Ottoson v. SMBC Leasing and Finance, Inc., 268 F. Supp. 3d 570 , 584 (S.D.N.Y. 2017) (granting an adverse inference instruction where plaintiff “has acted willfully or in bad faith” in [*15] violation of her duty to preserve certain emails); First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-CV-1893-HRL, 2016 U.S. Dist. LEXIS 140087 , [2016 BL 337069], 2016 WL 5870218 (N.D. Cal. Oct. 7, 2016) (imposing adverse inference instruction for intentional deletion of text messages and awarding plaintiffs attorneys fees incurred in bringing sanctions motions). The Court has also carefully considered whether this is the rare case in which terminating sanctions are merited, as plaintiffs have urged. See Dkt. 237. At the present time, the Court’s judgment is that such extreme sanctions are not warranted, although further acts of spoliation and/or other discovery abuses could produce a different result.
The footnotes in these last paragraphs are interesting. Footnote 8 explains that “The Court defers decision on the precise formulation of the adverse inference instruction until closer to trial.” That means it could become a mandatory presumption, or merely permissive. Footnote 9 acknowledges that there may be more discovery misconduct in the works. The court noted it could still strike all defenses, if the conduct continues, and save everyone the cost of a trial.
Conclusion
Even with just a permissive presumption, the case at this point will almost certainly be won by Janie Hendrix’ company, Experience Hendrix, L.L.C.. Experience Hendrix, LLC v. Pitsicalis. Yet another loss for Jimi’s brother, Leon, in a long list of losses. Another injunction and businesses shut-down, but for how long? The Estate and L.L.C. have won so many times before. Yet they keep coming back. Is this yet another Pyrrhic Victory in a long line of pointless litigation? How long before the next suit? Some things are just beyond Law’s reach. Purple Haze.
Purple Haze
Purple haze all in my brain
Lately things just don’t seem the same
Actin’ funny, but I don’t know why
‘Scuse me while I kiss the sky
Purple haze all around
Don’t know if I’m comin’ up or down
Am I happy or in misery?
Whatever it is, that girl put a spell on me
Help me help me
Oh no no… No
Yeah
Purple haze all in my eyes
Don’t know if it’s day or night
You’ve got me blowin, blowin my mind
Is it tomorrow or just the end of time?
No, help me aw yeah! Oh no no oh help me…
When you are the best in the world at something, like Jimi Hendrix was at guitar playing, and when you are still famous and admired by millions fifty years after your death, there will be profiteers around. When you add sibling rivalry and family resentments to the mix, then the trouble goes from bad to worse.
The Hendrix family saga, and this lawsuit, are tragedies. So too is the destruction of evidence and this Sanctions Order. It is part of his guitar star legend. Jimi Hendrix’ boy genius was born out of a troubled childhood and family. Diamond in the rough. Bigger than life. Exploded with art, fame and fortune in just three years. Dead at age 27 of an overdose. The day he was born the moon turned a fire red, “Lord, the gypsy was right!”
The greatest guitarist of all time was a Phoenix – tragic, fiery, short-lived, but beautiful and spell-binding too. Where will musical genius appear like that again?
Posted by Ralph Losey 
Senior SDNY District Court Judge William Pauley recently reminded the Bar of “the importance of verifying a client’s representations.” Lawrence v. City of N.Y., Case No. 15cv8947 (SDNY, 7/27/18) 
Continuing its tradition as the wrong court in which to play e-discovery games, the SDNY sanctioned the plaintiff in Lawrence by complete and final dismissal of her case. She had tried to hide the ball, at least part of the ball, the important metadata part of seventeen photos. The plaintiff’s attorney produced scanned PDFs of the paper printouts of the original photos, not the actual original photos. The original of the ESI here is the computer files on plaintiff’s phone. The attorney never even looked at the originals. Just the printouts. It never occurred to him to authenticate them, not even through close questioning of his client. She might have lied to her lawyer, but who knows; apparently he never asked.
By hiding the metadata the Plaintiff was obviously trying to perpetrate a fraud on the court. The ultimate sanction was entered in the case. The case was dismissed with prejudice by the District Court Judge. He did not also enter monetary sanctions only because the plaintiff was indigent.
This holding re Rule 37 should be limited to the unusual facts of Lawrence. The production of altered and faked evidence to another party, instead of the originals, certainly can be a Rule 37 violation. You do 
The main grounds for the case dismissal sanction was the inherent power of the court to sanction a party for bad faith litigation conduct. This case should be cited for this proposition, as well as for Rule 26(g). Note that the Plaintiff had a couple of interesting explanations for creating staged photos of her apartment to try to prove her case. First, she said she had a mental illness and that is why she did it. Then, at a deposition, she added that her medications prevented her from testifying truthfully. She did in fact have a history of mental illness, but, of course, that did not justify her attempted fraud on the court. Still, it is an interesting twist that you do not see very often.
The final lesson we learn from Lawrence comes from Judge Pauley’s evaluation of the conduct of the lawyer representing this fraudulent plaintiff, Jason L. Leventhal. Judge Pauley begins his opinion in Lawrence with the statement: This Opinion & Order showcases the importance of verifying a client’s representations. The opinion then makes clear that Leventhal did not do that here. The lawyer just accepted his client’s representations that she had taken these photos and done so at the time of the incident, two years earlier. Jason never asked to see the phone or metadata to verify that these were in fact taken at the time. He just took his client’s word for it that everything was legitimate. This opinion suggests that was a mistake, although the lawyer was not sanctioned this time. It was close. We should all be aware of the Big Bad Wolf client who comes in with computer evidence too good to be true. Look carefully, Grandma may be a wolf and you may be tangled in a web of fraud.
(a) A lawyer shall not knowingly:
If the client comes to you and says they have found great evidence to support their case, then disregard the popular saying. Look the gift horse in the mouth. Look at it carefully, especially if it becomes key evidence to prove your case. If it is too good to be true, maybe it’s not. There could be metadata deep in the ESI, like in this case, that shows the pictures to be fake. Date of Creation is the most common red flag, but there are others, including some little known internal system metadata markers. Sorry, but I am not doing to discuss that publicly for safety concerns.
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 
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. 
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.
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 
There is a new case out of Chicago that advances the jurisprudence of my sub-specialty, Legal Search. 
Judge Johnston begins his order in City of Rockford with a famous quote by 
One of the main points Judge Johnston makes in his order is that lawyers should embrace this kind of technical knowledge, not shy away from it. As 
To be specific, the Plaintiffs wanted a test where the efficacy of any parties production would be tested by use of an Elusion type of Random Sample of the documents not produced. The Defendants opposed any specific test. Instead, they wanted the discovery protocol to say that if the receiving party had concerns about the adequacy of the producing party’s efforts, then they would have a conference to address the concerns.
One of the fundamental problems in any investigation is to know when you should stop the investigation because it is no longer worth the effort to carry on. When has a reasonable effort been completed? Ideally this happens after all of the important documents have already been found. At that point you should stop the effort and move on to a new project. Alternatively, perhaps you should keep on going and look for more? Should you stop or not?
Once a decision is made to Stop, then a well managed document review project will use different tools and metrics to verify that the Stop decision was correct. Judge Johnston in City of Rockford used one of my favorite tools, the Elusion random sample that I teach in the e-Discovery Team TAR Course. This type of random sample is called an Elusion sample.
Judge Johnston’s Footnote Two is interesting for two reasons. One, it attempts to calm lawyers who freak out when hearing anything having to do with math or statistics, much less information science and technology. Two, it does so with a reference to 
Although this is not addressed in the court order, in my personal view, no False Negatives, iw – overlooked documents – are acceptable when it comes to Highly Relevant documents. If even one document like that is found in the sample, one Highly Relevant Document, then the Elusion test has failed in my view. You must conclude that the Stop decision was wrong and training and document review must recommence. That is called an Accept on Zero Error test for any hot documents found. Of course my personal views on best practice here assume the use of AI ranking, and the parties in City of Rockford only used keyword search. Apparently they were not doing machine training at all.
The inherent problem with random sampling is that the only way to reduce the error interval is to increase the size of the sample. For instance, to decrease the margin of error to only 2% either way, a total error of 4%, a random sample size of around 2,400 documents is needed. Even though that narrows the error rate to 4%, there is still another error factor of the Confidence Level, here at 95%. Still, it is not worth the effort to review even more sample documents to reduce that to a 99% Level.
In 
Judge Johnston takes an expansive view of the duties placed on counsel of record by Rule 26(g), but concedes that perfection is not required:
Judge Johnston considered as a separate issue whether it was proportionate under Rule 26(b)(1) to require the elusion test requested. Again, the court found that it was in this large case on the pricing of prescription medication and held that it was proportional:
It will be very interesting to watch how other attorneys argue City of Rockford. It will continue a line of cases examining methodology and procedures in document review. See eg., William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009) (“wake-up call” for lawyers on keyword search); 
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of 
Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using 
