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Ellis v. Toshiba America Information Systems, Inc.

California Court of Appeal
160 Cal. Rptr. 3d 557 (2013)


Caddell & Chapman, a Texas law firm, and Lori Sklar, a sole practitioner doing business as Sklar Law Offices, filed a class-action lawsuit against Toshiba America Information Systems, Inc. (Toshiba) (defendant) on behalf of a class of consumers who had purchased a laptop made by Toshiba (plaintiffs). The parties settled the class’s claims. However, Sklar sought over $22 million in attorney’s fees, and Toshiba opposed her request. During discovery about the fee dispute, Sklar provided copies of her time records in .pdf format and said that portions had been redacted under a claim of attorney-client privilege. The records showed that Sklar supposedly worked up to 16 hours per day, seven days a week, for 22 months. The trial court ordered Sklar to produce unredacted records to support her claim for the number of hours billed. Sklar then asserted that the records were unredacted. At Toshiba’s request, the trial court ordered Sklar to provide the records in their native electronic format for further examination. Toshiba also requested all metadata for the records. Metadata would include hidden or embedded information like the author, date and time of creation, and the date the document was modified. At her deposition, Sklar testified that she used a program to regularly delete original files and their metadata. Toshiba moved for sanctions based on the deletion of these original records. At the hearing, Sklar claimed that she had not deleted any records. The trial court then: (1) ordered an inspection of Sklar’s hard drives by an electronic-forensics expert to determine whether Sklar had deleted any time records, (2) ordered Sklar and Toshiba to cooperate to create an acceptable protocol for the hard-drive inspection, and (3) entered a protective order stating that producing this electronic information did not waive any privilege claims for the information. Toshiba tried to negotiate a protocol with Sklar, but Sklar did not cooperate. The day before the scheduled hard-drive inspection, Sklar cancelled the inspection, arguing that imaging her hard drive was not appropriate because there was privileged information on it. Toshiba then requested sanctions for Sklar’s abuse of the discovery process. The trial court imposed monetary sanctions of $165,000 against Sklar. The trial court also limited Sklar’s fee claim to just fees billed by Sklar’s staff. The total fee award was $176,900. Sklar appealed.

Rule of Law


Holding and Reasoning (Johnson, J.)

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