Court Expands Ediscovery where Defendant’s Sworn Statements that Documents Do Not Exist Appear Erroneous

Tilberg v. Next Mgmt. Co., 2005 WL 2759860 (S.D.N.Y. Oct. 24, 2005)

According to an article in Fashiongates.com, Tasha Tilberg, a Canadian supermodel, sued Next Model Management Company (“Next”) claiming that it had underreported her earnings and “swiped” $150,000. Natalie Tilberg (a/k/a Tasha Tilberg) (“Tilberg”) and Next were to share the cost of having Tilberg’s forensic specialist search Next’s email servers in accordance with an order issued on July 26, 2005 by Magistrate Judge Ellis. Tilberg asserted that the expert was unable to access one of the email servers and found evidence that responsive documents exist despite statements from Next indicating otherwise. Tilberg then asked the Court to order further discovery despite the deadline having passed.

Tilberg asked for an order requiring Next to allow her expert access to the previously unavailable email server, asserting that parties and the Court had contemplated extending the discovery deadline if necessary. She also asked that the expert be allowed to search Next’s central server for non-email documents and search two specific work-stations.

The parties and Court had understood that all documents were saved on work-stations, which would be time consuming and expensive to search. However, Next’s Information Technology consultant, German Galvis, later revealed that some documents were saved centrally. Tilberg asserted that searching the central server for such material would not require substantial additional time or expense.

Tilberg argued that the searching of two work-station machines should be allowed because Mr. Galvis had incorrectly claimed that documents relating to Tilberg did not exist in Next’s computer system yet the forensic expert found otherwise. The expert found 187 occurrences of “Tilberg” in “active space” (which could have been found with standard search tools) and 97 occurrences in deleted files. Tilberg also offered documents from third parties which had not been produced by Next which indicate that responsive material does exist.

Next responded by asserting that the discovery deadline had passed, no relevant email had been discovered in the forensic search, and the email that had been found by the expert is privileged. However, Next did not respond to Tilberg’s assertions regarding the results of the expert’s search or the claim that Next had submitted erroneous sworn statements indicating that no documents existed.

The Court held as follows:

-It should have been clear to Next that Tilberg would be allowed to complete discovery that she had already begun before the discovery deadline. “Indeed, much of the discussion at the July 26, 2005, conference was a method of ascertaining what information was available from a forensic search as a prelude to further application from Tilberg.”

-Discovery orders were based on a balancing of cost and time required with the likelihood of finding responsive documents. The search was initially limited based on sworn statements submitted by Next indicating that it had searched yet found no relevant documents. Apparently, the forensic search could have been avoided had Next produced documents discoverable via a standard search. “Based on the uncontroverted statements by Tilberg, it appears that relevant documents exist on Next’s e-mail servers, central server, and individual work-stations. Having failed to produce these documents, Next will be required to allow Tilberg to perform a complete search of the Next computer system.”

-“Since Next has either inadvertently or deliberately delayed and obstructed discovery in this case, claims that a document is irrelevant shall not justify non-production of such document. Next must produce a privilege log for all documents withheld on that basis.”