Archive - 2009

Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009)

In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely respond to plaintiff’s requests for production of documents and failed to offer adequate justifications or explanations for such behavior.  Additionally, despite initial representations that certain documents had been produced or were not in their possession, at hearing it became clear that such representations were not true.  For example, despite claiming that all responsive documents had been produced, defense counsel admitted at hearing that defendants had not performed a search of all deleted and unsaved electronic documents.  For defendants’ discovery failures, the court granted plaintiff’s motion to compel and ordered an independent forensic expert be allowed access to defendants’ computer systems to search for “deleted responsive files.”  The court also granted plaintiff’s motion for attorney’s fees.

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Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. May 1, 2009)

In ongoing litigation over sales commissions, Plaintiff Technical Sales Associates, Inc. ("TSA") claims that Defendant Ohio Star Forge Comapny ("OSF") breached two separate sales representative agreements.  After a protracted discovery dispute, TSA and OSF agreed to a forensic examination of OSF’s computers to search for a particular e-mail.  The forensic examination was performed by a company hired by TSA called Midwest Data Group LLC ("Midwest").  During the forensic examination, Midwest found evidence that certain files had been deleted by OSF. Midwest’s reporting of its findings to TSA became the subject of cross-motions for sanctions which were ruled upon by the court on March 19, 2009.  (See summary of March 19, 2009 opinion available here.)

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Oz Optics, Ltd. v. Hakimoglu, 2009 WL 1017042 (Cal. App. Apr. 15, 2009) (Unpublished)

In this case arising from defendant/appellant Hakimoglu’s breach of her employment contract, the trial court awarded $90,000 in monetary sanctions upon finding that Hakimoglu violated a court order to produce her laptop and spoliated evidence by using wiping software to delete potentially relevant data.  Upon appeal of this issue, among others, the appellate court affirmed.

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Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. Apr. 14, 2009)

In this case, defendants filed a motion seeking a hearing to address plaintiffs’ suspected spoliation of evidence, for an order forbidding plaintiffs from asserting that their drug, escitalopram, did produce unexpected results, and for plaintiffs to pay attorney fees.  Defendants’ motion alleged plaintiffs had destroyed or rendered unsearchable “key electronic records” tending to show that the drug did not produce unexpected results.  Plaintiffs denied the allegation arguing they had preserved all emails on their active file server and had continued their standard operating procedures in good faith.  Finding that inaccessible information stored on plaintiffs’ disaster recovery back up tapes had been destroyed after the duty to preserve arose, the court held that a hearing was necessary to determine whether that information was subject to an exception that would have required the tapes to be preserved.

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Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982460 (S.D. Fla. Apr. 9, 2009)

Following defendant’s discovery of thousands of relevant documents two months after the close of discovery and one month before trial, defendant ordered its employees to print the information and then to delete that information from their computers.  Defendant argued the information was deleted in furtherance of its obligations under a Confidentiality Agreement requiring the destruction of the information discovered and that printing the information fulfilled its preservation obligations related to litigation.  Finding that sanctions were warranted, the court ordered additional discovery into issues revealed by the newly discovered evidence at defendant’s expense and for defendant to allow plaintiffs to conduct a forensic examination of defendant’s backup system to verify its maintenance of deleted emails and to verify that all relevant emails were produced despite defendant’s directive to its employees to print and delete.

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Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009)

In this patent infringement case, plaintiff, Phillip M. Adams & Associates (“Adams”), alleged that defendants ASUSTEK Computer Inc. and ASUS Computer International (collectively “ASUS”) spoliated relevant evidence and should therefore be sanctioned.  Finding that ASUS violated its duty to preserve and that the loss of evidence could not be excused as a “routine, good faith operation of electronic information systems,” the court ruled that sanctions were appropriate, but reserved imposition pending the close of discovery and a determination of prejudice.

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State v. Rivas, 121 Ohio St. 3d 469, 905 N.E.2d 618 (Ohio 2009)

In this case, the Supreme Court of Ohio was asked to address the question of whether “in a case in which a prosecutor has complied with its duty to provide discovery by delivering a transcript of evidence from the hard drive of a police computer, the accused has the right to obtain a mirror image of the computer hard drive without making a prima facie showing that the information in the transcript is false, incomplete, adulterated, or spoliated.”  The court concluded that without making such a showing, a defendant has no right to obtain a copy of the hard drive.

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