Archive - 2006

Cardenas v. Dorel Juvenile Group, Inc., 2006 WL 1537394 (D. Kan. June 1, 2006)

In this product liability action involving a Touriva child safety seat, plaintiffs sought sanctions against the defendant pursuant to Rule 37 for various claimed discovery abuses. Among other things, plaintiffs argued that DJG had attempted to conceal a crucial and damaging document known as “CEA 416.” (Plaintiffs explained that “CEA” was an acronym for a “Capital Expenditure Authorization” and was a DJG form which provided a description and justification for a design modification made during the life of a product.) Plaintiffs asked the court to strike DJG’s Answer and preclude DJG from pursuing any of its affirmative defenses in this matter, which would effectively result in the entry of default judgment against DJG. Read More

Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June 5, 2006)

In this insurance coverage case, defendant had earlier moved to compel the production of documents by plaintiff. Plaintiff responded that it had taken several months to gather the voluminous documents and review them for privileged materials, and finally made available “41 large-sized boxes” of documents for inspection. By agreement of the parties, the documents were digitally imaged and then burned to CD for production. Plaintiff represented that the documents were imaged in the same order as they existed in hard copy, and were numbered in continuous order as found in the boxes. However, plaintiff did not provide any table of contents or index for the imaged materials. Read More

Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006)

In this case, plaintiffs sued for copyright infringement, contending that defendant unlawfully downloaded and distributed copyrighted materials through the use of a peer-to-peer, online media distribution system. Defendant denied the allegations and further denied giving anyone permission to use the computer to conduct the activities complained of. Discovery disputes ensued, and plaintiffs filed motions to extend the discovery deadline and to compel full and complete answers to interrogatories. Read More

Morgan v. U.S. Xpress, Inc., 2006 WL 1548029 (M.D. Ga. June 2, 2006)

This case involves a motor vehicle accident about which plaintiffs and defendant offered entirely different theories. Plaintiffs alleged that the accident occurred when a U.S. Xpress tractor-trailer pulled out from the shoulder of the road and turned sharply in front of Wes Morgan’s semi-oil tanker, forcing Mr. Morgan to veer to the right shoulder of the road to avoid hitting the truck and, in the process, lose control. Defendant alleged that the accident was a single-vehicle accident involving only Mr. Morgan, pointing to the results of a police investigation, which found no physical evidence of a second vehicle, and no eyewitnesses to the accident. Read More

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1520227 (S.D.N.Y. June 1, 2006) and Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1295409 (S.D.N.Y. May 10, 2006)

In these two opinions, the magistrate denied motions to compel plaintiff to produce document retention notices that it had issued regarding the litigation. Plaintiff resisted on privilege grounds, and the moving parties argued that any privilege had been waived by plaintiff’s failure to list the document retention notices on its privilege log.

The court determined that the plaintiff’s document retention (or “litigation hold”) notices were relevant: “Like a party’s destruction of relevant documents, if plaintiff’s document retention notices are patently deficient or inadequate in some other respect, they might support a negative inference concerning the merits of plaintiff’s claims.”

However, since neither of the two notices were in existence at the time plaintiff’s response to the requests for production was due, the court found that plaintiff’s failure to list them on a privilege log did not waive any privilege that applied.

Ayers v. SGS Control Servs., 2006 WL 1519609 (S.D.N.Y. Apr. 3, 2006) In a previous ruling, summarized here, the court ordered defendants to produce spreadsheets containing mathematical calculations regarding the payroll and timekeeping data. See Ayers v. SGS Control Servs., 2006 WL 618786 (S.D.N.Y. Mar. 9, 2006), and Ayers v. SGS Control Servs., 2006 WL 859362 (S.D.N.Y. Apr. 3, 2006) (denying defendants’ requests for reconsideration). In addition, the court had previously ordered plaintiffs to produce their damage calculations. In order to do these calculations, however, plaintiffs needed raw payroll and timekeeping data from defendants. Read More

J.C. Associates v. Fidelity & Guar. Ins. Co., 2006 WL 1445173 (D.D.C. May 25, 2006)

In this insurance coverage dispute, plaintiff sought discovery of the 1.4 million active and inactive claim and litigation files in defendant’s possession. Although the defendant did not physically search the 1.4 million files, it conducted an electronic search of the files, using internal codes that identify the category of the claim. This search identified 454 claims, including the six claims at issue in the case. Read More

O’Grady v. Superior Court, 2006 WL 1452685 (Cal. Ct. App. May 26, 2006)

Apple Computer, Inc. (Apple) brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. Read More

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)

In this opinion, the court ruled on plaintiff’s motion for sanctions against certain defendants and their counsel Mound Cotton Wollan & Greengrass (“Mound Cotton”) for destruction and late production of evidence. Plaintiff requested: (1) an adverse inference instruction; (2) that defendants be precluded from making a summary judgment motion; (3) that defendants be precluded from raising certain claims and defenses, submitting any dispositive motions or asserting any defenses that cite to, or rely on, information contained in the recently retrieved documents, and that they be deemed to have admitted certain facts; (4) monetary sanctions; and (5) any other sanctions deemed appropriate. The court granted monetary sanctions only. Read More

Clare v. Coleman (Parent) Holdings, Inc., 2006 WL 1409137 (Fla. Ct. App. May 24, 2006)

The petitioner in this case, Thomas A. Clare, is a partner in the law firm of Kirkland & Ellis, LLP, who was admitted to appear pro hac vice on behalf of Morgan Stanley & Company in the suit brought by Coleman Holdings, Inc. in Florida state court. In that capacity, the petitioner served as the primary intermediary between Morgan Stanley and Coleman on discovery matters. The petitioner’s pro hac vice admission was revoked in the trial court’s March 23, 2005 order granting the entry of default judgment against Morgan Stanley (a copy of which is available here). On the same day the court entered the order, the court also heard Kirkland and Ellis’s motion to withdraw from its representation of Morgan Stanley. During that hearing, the court commented that there was “nothing in this record that indicates that any misconduct on the part of Kirkland and Ellis was anything other than as a consequence of their serving as messengers. . . . ” Read More