Court Sets Hearing for Plaintiff to Show Cause Why Complaint Should Not Be Dismissed With Prejudice as Sanction for Discovery Misconduct

Exact Software N. Am., Inc. v. Infocon, Inc., 2006 WL 3499992 (N.D. Ohio Dec. 5, 2006)

In this decision, the court concluded that plaintiff’s “persistent and egregious noncompliance with a series of discovery orders” fully warranted severe sanctions, including dismissal of its complaint and entry of default on defendant’s counterclaims. Among other failings, the court noted that plaintiff’s search for documents from its document storage and retrieval system was largely unproductive, and that plaintiff’s counsel had attributed the lack of success to defects in the keywords provided by defendant. The court rejected this attempt to shift blame:

Here again, counsel seeking in good faith to provide the discovery it was required to provide would have worked with opposing counsel to ensure that production would be accomplished.

ESNA’s counsel has not suggested that she and her client did not know what was being sought. In seeking it, they relied on Infocon’s speculation about how the documents might be retrieved from their system.

Their attitude and approach were not appropriate. Just as a party asking for production of a paper document does not have to specify the room, cabinet, drawer, and file in which the document is to be found, a party calling for production of electronically created and kept information is not required to plot the search with exactitude. If the party from whom discovery is sought can comprehend with reasonable certainty what is being asked for, it is up to it to access its storage system to retrieve the document. If problems are encountered due to uncertainty about what is being sought, the party conducting the search of its own system and records is to ask for further clarification.

The court also faulted the plaintiff for failing to preserve backup tapes. However, because the court was not in a position to ascertain whether the discovery misconduct at issue was due to willfulness or bad faith on the part of plaintiff, its counsel, or both, it set a hearing at which plaintiff would have an opportunity to show cause why it should not be sanctioned. The court further ordered the plaintiff to reimburse defendant for all attorneys’ fees, costs, and expenses reasonably incurred in preparing for and participating in the show cause hearing and related proceedings, including post-hearing briefing, if any, and ordered plaintiff to reimburse defendant for all attorney’s fees, costs, and expenses relating to further discovery in the case. To this end, the court granted leave to defendant to bill the plaintiff on a monthly basis for such reimbursement.