Court to Order Sanctions if Plaintiff Fails to Correct or Clarify Discovery Record

Liafail, Inc. v. Learning 2000, Inc., 2002 WL 31954396 (D. Del. Dec. 23, 2002)

In action for contract breach and trademark infringement, and pursuant to Fed. R. Civ. P. 26(a)(1), Liafail identified its national sales manager as likely to have discoverable information; the sales manager was a former sales manager of defendant (“L2K”). In response to L2K’s discovery requests, the sales manager gave Liafail the L2K-issued laptop that he had used while gaining knowledge of the day-to-day operations of L2K.

Upon receiving the laptop, Liafail allegedly purged all the files from the computer, and allegedly made no attempt to preserve the sales manager’s files by copying them onto another hard drive, disk or other medium before their destruction. Subsequently, L2K was able to reconstruct some, but not all, of the purged files, and maintained that all of the retrieved files were relevant to the litigation and in many cases, were highly incriminating.

L2K alleged that it discovered additional evidence of spoliation during a deposition in which the witness admitted that he “trashed” two laptops by dropping them, and that the information on both laptops was destroyed. 2002 WL 31954396, at *2.

In response, Liafail contended that all of the relevant information was removed from the laptop computers and had been produced or made available to L2K.

The court determined that, based on the record before it, it was unclear what had been produced and what still needed to be produced. Id. at *3. It would not immediately sanction Liafail; rather, it would first afford Liafail the opportunity to correct or clarify the discovery record by producing the requested documents which it claimed were available, or identify the Bates numbers of documents which it claimed had already been produced. The court held that, “should Liafial choose not to heed the court’s order and produce the documents of which it claims to have possession, the court will order sanctions against it in the form of an adverse inference jury instruction.” Id.