Archive - 2006

Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006)

Dr. Mauricio Leon (“Leon”) was hired by the defendant in 2001, and in mid-2002, he began complaining of mismanagement of a federally-funded project.  In April 2003, IDX put Leon on unpaid leave and brought an action for declaratory relief, seeking to establish that it could terminate him without violating the anti-retaliation provisions of the False Claims Act, SOX and the ADA.  In May 2003, Leon filed his own action, which included claims for retaliation under various statutes and state law claims.
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Easton Sports, Inc. v. Warrior LaCrosse, Inc., 2006 WL 2811261 (E.D. Mich. Sept. 28, 2006)

Plaintiff was in the business of manufacturing and selling a variety of hockey equipment; the defendants were related sporting goods companies that, at the time of the events giving rise to the complaint, were entering into the hockey equipment business through the acquisition of a hockey equipment manufacturer. Plaintiff alleged that defendants sought to enter the hockey equipment business through a “campaign of industrial espionage, stealing Easton’s trade secrets and raiding its employees.” Plaintiff alleged that defendants had used secret inducements to entice Hamoyun Ghassemi to steal its proprietary information and go to work for defendants. Before leaving plaintiff’s employ, Ghassemi downloaded numerous files and used his personal Yahoo account to forward files to himself and to defendants. The day after the complaint was filed, in which it was alleged that Ghassemi misappropriated plaintiff’s documents and used his personal Yahoo account to communicate with defendants, Ghassemi cancelled his Yahoo account. (Ghassemi was not named as a defendant in the complaint.) Read More

Arista Records, L.L.C. v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006)

In this copyright infringement action based on internet file-sharing activities, plaintiffs sought terminating sanctions against defendant for spoliation of evidence. Plaintiffs alleged that defendant willfully destroyed critical evidence on her computer hard drive after notice of the lawsuit, notice of her obligation to preserve such evidence, and notice of the court’s order to produce her hard drive to plaintiffs so that a duplicate could be made for examination by plaintiffs’ computer forensics expert. Plaintiffs alleged that defendant deliberately used “wiping” software to permanently remove data from her hard drive – and then attempted to “cover her tracks” by deleting the “wiping” software before producing the hard drive to plaintiffs. Read More

Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006)

In her complaint, plaintiff alleged that the law school had failed to grant her reasonable accommodations necessitated by problems with her vision. Part of the factual basis of plaintiff’s case was the allegation that the computer systems maintained by the law school to assist persons with visual disabilities repeatedly malfunctioned, especially during plaintiff’s final examinations.

Previously, the court had ordered defendant to produce all work orders to the IT Department involving three specified rooms in defendant’s Lansing campus for a particular time period. Plaintiff moved to compel the law school to comply with the prior discovery order, but did not seek permission to allow plaintiff’s expert to conduct an inspection and investigation of defendant’s database to extract allegedly relevant information.
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Crandall v. City of Denver, 2006 WL 2683754 (D. Colo. Sept. 19, 2006)

In this case, plaintiffs alleged that they were exposed to harmful chemicals or other adverse environmental conditions at Denver International Airport (“DIA”). During discovery, the defendant’s practices concerning the deletion of emails came under scrutiny. Plaintiffs contended that, since at least 2003 when a related action was filed in state court and when plaintiffs’ counsel advised the defendant to maintain emails, the defendant was under an obligation to preserve all emails concerning environmental conditions at DIA. This lawsuit was filed on February 7, 2005. Plaintiffs served document requests in August 2005, requesting, among other things, emails pertaining to deicing fluids used at DIA and other environmental issues. Defendants responded to the requests on September 14, 2005.
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3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006)

In this patent infringement litigation, the district court judge affirmed the magistrate’s report and recommendation that plaintiff’s motion for sanctions against the defendant be granted in part. 3M offered three bases for sanctions: (1) Tomar gave false discovery responses; (2) Tomar failed to retain, collect, and produce court-ordered documents; and (3) Tomar engaged in deposition misconduct. 3M requested that judgment be entered against Tomar, or alternatively, that the court issue multiple sanctions including an adverse inference instruction.
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Plasse v. Tyco Elecs. Corp., 2006 WL 2623441 (D. Mass. Sept. 7, 2006)

In this wrongful termination case, defendant Tyco sought to prove that plaintiff had misrepresented his credentials when he applied for employment. At issue were several versions of plaintiff’s resume, some of which had indicated he held an M.B.A.; plaintiff suggested those may have been submitted by “someone else,” possibly a recruiter or headhunter, and claimed he would have indicated he was only a “candidate” for an M.B.A. Previously, Tyco had filed a motion to dismiss the case, alleging that plaintiff had lied at his deposition and fabricated documents. The court denied the motion without prejudice, finding that the evidence was not sufficiently clear and convincing to justify such a serious sanction.
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United Med. Supply Co., Inc. v. United States, 73 Fed. Cl. 35 (2006)

In this decision, the court issued a Document Preservation Order in light of defense counsel’s reports that several boxes of documents had been inadvertently destroyed during the pendency of the case. The court had ordered the parties to brief the issue of spoliation, and to file a joint status report proposing a document preservation order and a revised discovery schedule.

The court determined that a preservation order was appropriate, using the standard articulated in Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2004). There, the court held that it had the power to preserve evidence and issue orders in furtherance thereof under its inherent authority. It rejected the notion that the standards for the issuance of a preliminary injunction (including showing a likelihood of success on the merits) must be met before a preservation order may issue. Instead, the court found that one seeking a preservation order must show (1) that it is necessary, and (2) that it is not unduly burdensome. Id. at 138. To meet the first prong, “the proponent ordinarily must show that absent a court order, there is significant risk that relevant evidence will be lost or destroyed – a burden often met by demonstrating that the opposing party has lost or destroyed evidence in the past or has inadequate retention procedures in place.” Id. As to the latter prong, “the proponent must show that the particular steps to be adopted will be effective, but not overbroad.”
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King Lincoln Bronzeville Neighborhood Ass’n v. Blackwell, 448 F. Supp. 2d 876 (S.D. Ohio 2006)

Plaintiffs in this action are a collection of civic organizations and individuals that filed suit against the Secretary of State for the State of Ohio (J. Kenneth Blackwell) and various unnamed public election officials and private contractors who provided services to the State of Ohio, alleging that defendants had violated plaintiffs’ civil and constitutional rights. Plaintiffs claimed, inter alia, that during the November 2004 presidential election, “Defendants selectively and discriminatorily designed and implemented procedures for the allocation of voting machines in a manner to create a shortage in the number of machines for certain urban precincts wherein large numbers of African American voters resided.” Plaintiffs sought to enjoin Blackwell from violating plaintiffs’ constitutional rights prior to the next statewide election, in addition to other forms of relief. On the same day they filed suit, plaintiffs sent a letter to each of Ohio’s 88 county boards of elections that notified them to preserve the election ballots from the November 2004 presidential election.
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Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006)

Like the plaintiff in the Zubulake v. UBS Warburg LLC, the plaintiff in this case was a highly-paid investment banker who accused her employer of gender discrimination and illegal retaliation. In her requests for production, plaintiff requested that 19 current and former WestLB employees’ email accounts be searched for certain terms alleged to refer to plaintiff in particular or that were potentially sexist in general. Plaintiff also sought emails relating to discrimination against other women at WestLB and e-mails showing that men were more highly compensated than women. Most of the requests were not limited to any particular period of time.

Defendant objected, claiming the requests were overly broad and would result in undue burden. When the parties were unable to agree on the scope of electronic discovery, they sought the court’s help.

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