Archive - 2009

U.S. v. Maxxam, Inc., 2009 WL 817264 (N.D. Cal. Mar. 27, 2009)

In this case, which arose from the joint purchase of the Headwaters Forest by the United States Government and the State of California, plaintiffs moved for sanctions due to the alleged spoliation of “critical” evidence by defendants Maxxam and Hurwitz.  Despite finding that “certain evidence was not preserved,” the court declined to impose spoliation sanctions where there was no evidence that the destruction was intentional and where, at the time of the destruction, there was no duty to preserve.

In the 1990’s, the U.S. Government and the State of California agreed to purchase the Headwaters Forest from Pacific Lumber, which had recently been taken over by defendant Maxxam, Inc., a company controlled by defendant Hurwitz.  As a condition of purchase, Pacific Lumber agreed to develop and implement a sustained yield plan (“SYP”) for its retained properties, subject to approval.  An SYP was prepared by Pacific Lumber’s consulting company, VESTRA, using computer modeling and was eventually approved.  Later, plaintiffs determined that the SYP was fraudulent in many respects and a lawsuit was filed in December 2006.

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Heriot v. Byrne, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009)

In this declaratory judgment action, the parties sought to settle the issue of copyright ownership over a made-for-television movie called The Secret.  In the course of discovery, due to a mistake by their “document vendor,” plaintiffs inadvertently produced privileged information.  Upon discovery of the inadvertent production, plaintiffs immediately sought to claw back the privileged material.  Defendants resisted, arguing that privilege was waived.  Undertaking an extensive analysis of recently passed FRE 502 and the previously existing tests to determine waiver, the court ruled in favor of plaintiffs and ordered any remaining copies of plaintiffs’ privileged documents in defendants’ possession returned or destroyed.

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White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. Mar. 18, 2009)

In this wrongful termination case, plaintiff discovered discrepancies between certain relevant emails’ sent dates and the creation dates of their attachments. These discrepancies, plaintiff contended, were relevant to the issue of when the decision to terminate her employment was made. Without additional information, however, plaintiff’s forensic expert could not come to a conclusion regarding the meaning of the discrepancies. Accordingly, plaintiff sought the re-production of the emails, in native format, and their attachments from the Outlook accounts of both the sender and the recipient of each email. Plaintiff also sought the production of the relevant PST and OST files and access to the hard drives used to create any of the emails’ attachments. Plaintiff’s motion was granted in part and denied in part.
 

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Anthropologie, Inc. v. Forever 21, Inc., 2009 WL 690239 (S.D.N.Y. Mar. 13, 2009)

In this copyright infringement case, defendants refused to properly respond to discovery and instead provided summaries of the requested information designated “for settlement purposes only.”  Finding these responses inadequate, and noting defendants numerous misrepresentations to the court, the court granted plaintiff’s motion to compel the production of the data underlying the proffered summaries and for all information responsive to plaintiff’s requests.  However, despite finding inspection of defendants’ hard drives justified, the court declined to order such access where plaintiff had failed to provide any specifics of its proposal and where the court sought to avoid additional delay and expense.  Accordingly, upon receipt of defendants’ ordered production, if it still wished, plaintiff was authorized to submit a proposed inspection process and further explanation of its need for access for consideration by the court.

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T.A. Ahern Contractors Corp. v. Dormitory Auth. of State of N.Y., 875 N.Y.S.2d 862 (N.Y. Sup. Ct. 2009)

In this breach of contract action, both parties sought to compel the production of requested discovery.  Specifically, plaintiff sought to compel production of defendant’s project-related emails.  Defendant did not object to such production but, because of technological limitations, indicated the need to hire an outside vendor to assist in the production at an estimated cost of $35,000.  Defendant indicated it would begin the process of production, including hiring the vendor, upon plaintiff’s confirmation that it would bear the production costs.  Plaintiff took the position that defendant should bear the costs.  The court agreed with defendant and, citing the “well-settled rule in New York that the party seeking discovery bear the cost incurred in its production,” ordered plaintiff to bear the cost of defendant’s production.  Defendant was likewise ordered to bear plaintiff’s production costs.

William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)

This case arose from disputes over alleged defects and delay in the construction of the Bronx County Hall of Justice.  In the course of litigation, The Dormitory Authority of New York (“DASNY”) agreed to produce the relevant documents of the non-party construction manager, Hill International (“Hill”).  Disagreement arose amongst the parties, however, regarding appropriate search terms to segregate project related emails from Hill’s unrelated emails.  Hill, despite being in the best position to contribute, suggested no potential search terms and the court was forced into the “uncomfortable position” of crafting a search without adequate information.

Having been put in such a position, the court took its opportunity to write a brief opinion addressing the need for care and collaboration in crafting search terms in light of its assessment that “the message has not gotten through.”  First, the court presented an excerpt from an opinion of Magistrate Judge Paul Grimm, regarding the proper selection and implementation of terms:

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Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. Mar. 19, 2009)

In this case arising from a dispute over sales commissions, the court denied Defendant Ohio Star Forge Company’s (“OSF’s”) motions for contempt and sanctions and granted plaintiff, Technical Sales Associates, Inc.’s (“TSA”), motion for sanctions for destruction of electronic evidence.  The court concluded that OSF deleted approximately 70,000 files and moved several email folders to the recycling bin despite a duty to preserve relevant evidence.

In July 2007, TSA sought the production of all emails between certain specified persons for the purpose of obtaining a particular email alleged by TSA to exist on OSF’s information system and, specifically, in the e-mailbox of OSF employee Patrick Billups.  Notwithstanding numerous targeted requests for the e-mail, OSF did not produce it.

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ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009)

In this case, plaintiffs moved for an adverse inference instruction alleging that Nassau County failed to timely implement a litigation hold which resulted in the destruction of potentially relevant documents and that it failed to adequately search for potentially responsive electronically stored information (“ESI”).  Finding that plaintiffs did not sufficiently demonstrate that any lost materials would have been favorable to them, the court denied the motion.  However, upon the court’s finding that the County’s failure to implement a timely litigation hold amounted to gross negligence, the court awarded plaintiffs their costs and attorney’s fees.  Regarding the County’s failure to search for relevant ESI, the court declined to award sanctions in light of the County’s assertions that manual searches were undertaken, but ordered the County to confirm that their responses were complete.

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State v. Dingman, 202 P.3d 388 (Wash. App. 2009)

On appeal from his conviction for first degree theft and money laundering, Dingman argued that the trial court erred when it denied his repeated discovery requests for meaningful access to the hard drives seized from his house.  The appellate court agreed, and the case was reversed and remanded for a new trial.

On March 19, 2003, officers searched Dingman’s house and seized nine computers.  A detective then created mirror image copies of those computers using a program called EnCase.  Eventually, Dingman was charged with numerous counts of first degree theft and money laundering.

On January 1, 2004 the State provided Dingman with discovery, including a report containing information about the mirror images copies of his computers taken with EnCase.  In August of 2005, Dingman moved for additional discovery, requesting direct access to the computer hard drives or mirror image copies “created in a program used by the defendant’s computer expert.”

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