Defendant to Certify it Produced All Responsive Documents, Where Deposition Testimony Cast Doubt on Counsel’s Diligence in Monitoring Production Efforts

School-Link Techs., Inc. v. Applied Res., Inc., 2007 WL 708213 (D. Kan. Feb. 28, 2007)

In this contract case, plaintiff sought entry of judgment and other sanctions based upon defendant’s failure to implement a litigation hold to preserve relevant documents in the custody of one of its key employees, and its alleged failure to search for and produce responsive documents. Magistrate Judge David J. Waxse granted the motion in part.

Failure to Implement Litigation Hold

At deposition, a key employee testified that she had never been contacted by defendant or its attorneys and instructed to search, gather, and preserve documents relevant to the litigation. She further testified that she received no request or instructions to search her computer and hard copies files for documents that were requested by plaintiff. When asked whether she had ever searched her computer and home for documents related to the lawsuit, she answered affirmatively that she had, and explained that no one had asked her to do so, she did it on her own initiative. She further testified that she decided, without being directed to do so, to search her computer and home for documents relevant to the parties’ dispute and to send those documents to defendant’s chief executive officer.

After the deposition, plaintiff’s counsel sent a letter expressing serious concerns about the testimony and the potential for spoliation. In response to the letter, defendant produced the entire contents of all folders on the employee’s computer dealing with defendant or the parties’ dispute, a total of over 6,000 images, much of which was duplicative of what had already been produced by defendant. The production was accompanied with an offer to produce the employee for further deposition, if any of the documents should have been disclosed previously.

Although the court found that defendant breached its duty to implement a litigation hold and oversee compliance with the litigation hold by its failure to instruct the employee to gather and preserve relevant documents, there was no showing that, due to this breach, relevant documents and information were destroyed. Thus, the court denied plaintiff’s motion for spoliation sanctions on this ground.

Failure to Search for and Gather Responsive Documents

Opposing the motion for sanctions, defense counsel submitted an affidavit stating that, at the onset of litigation, he instructed defendant to preserve all relevant documents whether in paper or electronic form, and to gather all relevant documents that might be used to support its claims or defense, resulting in the collection of over 7,500 pages of both paper and electronic documents. However, the court found that the deposition testimony of the employee suggested that counsel for defendant was not diligent in overseeing and monitoring to ensure that defendant was compliant with the litigation hold and its efforts to retain and produce all relevant documents. Accordingly, the court ordered defendant to give plaintiff further assurances that all of the employees’ documents and computer files have been produced. It ordered defendant to provide plaintiff with an identical copy of the “memory stick” the employee had provided to defense counsel, and to certify that it had produced all information within its possession, custody or control related to the claims and defenses in the litigation.