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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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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