Archive - June 2011

Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 10 Civ. 3488 (SAS) (S.D.N.Y. June 17, 2011)

On February 7, 2011, Judge Scheindlin issued an opinion in which she concluded that “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’”  (See a summary of that opinion here.)  The opinion also provided substantial guidance regarding the “minimum fields of metadata that should accompany any production of a significant collection of ESI."  That opinion has now been withdrawn.

The text of the Order withdrawing the opinion is short, and is provided below:

This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).

A copy of the opinion is also available here.

Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662 (D. Md. June 15, 2011)

In another chapter of the Victor Stanley saga, the defendant objected to payment of the remaining balance of the monetary sanction ordered as a result of its spoliation of evidence (see Victor Stanley II).  Specifically, the defendant had been ordered to pay a monetary sanction “equivalent to Plaintiff’s fees and costs ‘associated with all discovery that would not have been un[der]taken but for Defendant’s spoliation, as well as the briefings and hearing regarding Plaintiff’s Motion for Sanctions.’”  The total award of sanctions amounted to $1,049,850.04.  Defendant objected to payment of fees which it alleged were unrelated to its spoliation.  The District Court disagreed and found that the recommended award was proper.  Accordingly, defendant was ordered to pay the remaining balance of the sanction, $571,440.12, by July 15, 2011.

A copy of the order is available here.

Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011)

For discovery violations, including (among others) false certification that all relevant records were kept in paper format, delayed and inadequate production and failure to search for documents in a timely manner, and counsel’s failure to adequately familiarize himself with his client’s document retention practices or to assist in the production of documents, the court imposed monetary sanctions equal to the amount expended because of plaintiff’s discovery abuses, to be born by plaintiff and its counsel jointly and severally.

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Gaalla v. Citizens Med. Ctr., No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011)

Plaintiffs moved for sanctions based on defendant’s failure to preserve its disaster recovery back-up tapes, which were overwritten every seven or fourteen days, even after the filing of this lawsuit.  Further, “as the briefing developed,” plaintiffs “appeared to contend” that even absent a duty to preserve the disaster recovery back-up tapes themselves, “[defendant]’s failure to preserve the back-up tapes in conjunction with the failure to take timely ‘snapshots’… of relevant email accounts, and evidence that certain CMC employees had deleted emails from their account at some point in the past warrant[ed] severe sanctions.” 

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Weatherford U.S., L.P. v. Innis, No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011)

Plaintiff alleged that a former employee had downloaded its confidential information and used it to “jump start” his own competing company.  Defendant Innis acknowledged that he had downloaded the information, but denied accessing or using it as plaintiff alleged.  Forensic examination of the thumb drive containing the downloaded information contradicted his claims.  Thereafter, plaintiff filed a motion to compel production of  materials previously identified in a subpoena duces tecum and, “to minimize disruption to defendants’ operations and alleviate their concerns about the disclosure of privileged communications,” proposed that an expert of plaintiff’s choosing be allowed to image defendants’ computers at plaintiff’s expense, and that defendants be allowed to screen the imaged documents prior to their production.  Citing Innis’s acknowledgment that he had copied plaintiff’s confidential information and evidence that he had accessed it thereafter, the court granted plaintiff’s motion to compel.

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DL v. District of Columbia, No. 05-1437 (RCL), 2011 WL 1770468 (D.D.C. May 9, 2011)

Upon learning that the District intended to produce email on a rolling basis even after trial had concluded despite two prior court orders compelling production, the court held that the District had waived all objections, including privileges, and ordered production within one week of the close of trial.  Defendants moved for reconsideration.  Likening the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes,” the court denied the motion.

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