Bistline et al v. Jeffs et al

Filing 115

MEMORANDUM DECISION AND ORDERgranting 99 Motion for Short Term Discovery; denying 106 Motion for Sanctions. The court further orders Defendant to provide an update to the court and Plaintiffs on the status of recovering any data that was subject to the cybersecurity attack within fourteen (14) days from the date of this order. Signed by Magistrate Judge Dustin B. Pead on 03/04/2021. (jl)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ALYSSA BISTLINE, et al.,
v.

Plaintiffs,

SNOW CHRISTENSEN & MARTINEAU,
P.C., et al.,
Defendants.

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
SHORT FORM DISCOVERY MOTION
AND DENYING PLAINTIFFS’ MOTION
Case No. 2:16-cv-788 TS
District Judge Ted Stewart
Magistrate Judge Dustin B. Pead

This matter is referred to the undersigned from Judge Ted Stewart pursuant to 28 U.S.C.
§ 636(b)(1)(a). (ECF No. 57.) Pending before the court are two motions. Defendants move the
court for an extension of time to respond to Plaintiffs’ revised discovery requests and to file a
privilege log. (ECF No. 99.) Plaintiffs seek sanctions from the court for the lack of discovery
produced, including the privilege log, and the delay in producing it. Specifically, Plaintiffs
request “default judgment, or at the very least an Order precluding the defense from entering into
evidence any evidence they have not yet disclosed and … attorneys’ fees and costs.” (ECF No.
106 p. 3.) The court finds the unique circumstances here warrant an extension of time and do not
justify the extreme sanctions sought by Plaintiffs. As such, the court will grant Defendants’
motion and deny Plaintiffs’ motion.
This dispute arises largely from the court’s prior order. On July 31, 2020, the court
ordered Plaintiffs to revise their discovery requests and ordered Defendants to file a privilege log
as required by Rule 26. (ECF No. 86.) The court found specific problems with Plaintiffs’
discovery requests including that they were unspecified as to a time frame, sought privileged

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information, and sought irrelevant information. (ECF No. 86 p. 4.) After Plaintiffs redrafted their
discovery requests more narrowly, Defendants were ordered to then produce a privilege log.
Subsequent to the court’s order the parties moved forward, however, Defendant Snow
Christensen & Martineau, P.C. experienced a “cybersecurity incident … that disabled the law
firm’s access to its electronic files and data, including files related to this case.” (ECF No. 101 p.
1.) This necessitated Defendants’ Motion for an Extension of Time. Defendant noted that it
experienced a ransomware attack restricting access to its files unless money was paid to the
attackers. Defendant is unaware of any loss or manipulation to their data and is working with
cyber security experts to resolve the issue. Defendant also represented that it will produce the
documents and a privilege log once systems are restored to normal.
Plaintiffs became frustrated with the delay this cybersecurity incident caused and filed a
motion for sanctions. Plaintiffs assert Defendant has refused to produce a privilege log and has
failed to “take reasonable steps to preserve electronically stored information.” (ECF No. 106 p.
3.) These arguments are not supported by the record. There is no evidence at this time that data
has been lost. And contrary to Plaintiff’s unsupported assertions, Defendant has not refused to
produce a privilege log.
Rule 37(e) provides for sanctions if electronically stored information that should have
been preserved is “lost because a party failed to take reasonable steps to preserve it.” Fed. R.
Civ. P. 37(e). Plaintiffs request “default judgment, or at the very least an Order precluding the
defense from entering into evidence any evidence they have not yet disclosed and … attorneys’
fees and costs.” (ECF No. 106 p. 3.) Yet, such severe sanctions require a court “finding that the
party acted with the intent to deprive another party of the information's use in the litigation” Fed.
R. Civ. P. 37. There is simply no evidence of malicious intent by Defendant to avoid their

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discovery obligations. Rather, Plaintiffs’ motion is more akin to that which is sanctionable under
28 U.S.C. § 1927 for “unreasonably and vexatiously” multiplying proceedings. 1 The facts before
the court are not remotely close to those found in Klein-Becker USA, LLC v. Englert, 711 F.3d
1153 (10th Cir. 2013), where the imposition of default judgment was upheld as a sanction.
Unfortunately, in the modern world cybersecurity attacks are far too common. The court finds no
need on the facts before it to needlessly multiply the unfortunate events that have already
transpired by entering unwarranted sanctions.
ORDER
Accordingly, Defendants’ Motion for an Extension of Time is GRANTED. Plaintiffs’
Motion for Sanctions is DENIED. The court further orders Defendant to provide an update to the
court and Plaintiffs on the status of recovering any data that was subject to the cybersecurity
attack within fourteen (14) days from the date of this order.

DATED this 4 March 2021.

Dustin B. Pead
United States Magistrate Judge

28 U.S.C. § 1927 provides: “Any attorney or other person admitted to conduct cases in any court of the United
States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.” Plaintiffs’ motion comes dangerously close to warranting sanctions.

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