Crigger v. Fahnestock & Co., Inc., 2005 WL 783355 (S.D.N.Y. Apr. 6, 2005)

Plaintiffs sought an in limine order precluding the submission of any evidence concerning the loss of audiotapes of conversations that had been mailed to plaintiffs’ counsel but subsequently lost. One of the plaintiffs had made notes of the conversations, which were produced. The court ruled that, since it had no idea what kind of evidence defendants would present concerning the loss of the tapes, it would make evidentiary determinations as objections arose. The court denied the defendants’ related motion in limine which sought to prevent plaintiffs from introducing any evidence whatsoever regarding the tape recordings, including the plaintiff’s notes and all testimony pertaining to the tapes. The court ruled that, absent bad faith in the destruction or loss of the audiotapes, the plaintiff could testify as to his best recollection of the conversations. The court further ruled that the plaintiff’s notes could be provided in order to refresh his recollection, but that the notes themselves would not be admissible.

Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461 (S.D.N.Y. May 2, 2005)

In the course of hearing the parties’ discovery disputes, the magistrate judge ordered defendant to “‘make all Board minutes and related Board documents available in hard copy, and electronic database, for review by plaintiff’s counsel.'” Defendant subsequently informed the magistrate that it would be unable to comply with the order on the grounds that Venezuelan law prohibited it from granting access to the materials. In response, the magistrate ordered an adverse inference, finding that the material was relevant and that defendant’s refusal to allow access to the material was sufficiently culpable. The magistrate noted that defendant continued to argue that the material was irrelevant, despite the prior rulings establishing relevancy, and that there was no proof that the Ministry was properly informed of the court’s rulings on the subject. Citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd Cir. 2002), the district court affirmed the magistrate’s order. The court observed that the defendant had consistently refused to produce the Board materials despite repeated orders to do so, and that the adverse inference “restore[d] the evidentiary balance.”

Hamre v. Mizra, 2005 WL 1083978 (S.D.N.Y. May 9, 2005)

In this medical malpractice case, defendants failed to maintain certain documents in the plaintiff’s chart, including a vital signs flow chart memorializing, inter alia, the plaintiff’s temperature over several days. Plaintiff moved for sanctions, seeking an order striking defendants’ answer or precluding defendants from offering testimony on the issue of liability. The magistrate denied the motion, finding that no showing of willful destruction or bad faith had been made, so the extreme sanction requested by plaintiff was not appropriate. The magistrate also concluded that the lesser sanction of an adverse inference instruction was inappropriate. The district court judge upheld the magistrate’s order, citing Zubulake v. UBS Warburg LLC, 2003 WL 22410619 (S.D.N.Y. Oct. 22, 2003) and Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd Cir. 2002). The court observed that, in order for the sanction of an adverse inference to be imposed, the moving party must present some evidence corroborating its assumption that the missing evidence would have been favorable to its case. Since the plaintiff had failed to put forth any evidence regarding the contents of the destroyed evidence, an adverse inference instruction was not warranted.

White v. Lenox Hill Hosp., 2005 WL 1081443 (S.D.N.Y. May 10, 2005)

The district court affirmed a magistrate’s order denying plaintiff’s application for additional discovery concerning discrepancies between patient data on defendant’s “Invision” computer system, and the “Mediware” system maintained by an independent contractor for the defendant. Plaintiff contended that there were approximately 1,500 Mediware files that did not have corresponding Invision files. However, plaintiff failed to show that the missing files were necessary for her expert’s study to be statistically meaningful, or that the discrepancies resulted from a deliberate effort to skew the data. Further, the defendant had presented testimony explaining that there was no guarantee that the patient data on the two systems would be “totally ‘in synch'” because the data on the Mediware system was entered manually. The court also rejected plaintiff’s request for sanctions based on defendant’s failure to produce the missing Invision files, finding the request to be untimely and unsupported by any evidence that defendant had destroyed any computer files with a culpable state of mind.

Paramount Pictures Corp. v. Davis, 234 F.R.D. 102 (E.D. Pa. 2005)

Paramount Pictures Corporation (“Paramount”) identified John Davis (“Davis”), a computer consultant, as having violated its exclusive rights to reproduce and distribute the motion picture “Lemony Snicket’s: A Series of Unfortunate Events.” Davis had allegedly obtained an illegal copy of the film and distributed it over the Internet via the eDonkey peer-to-peer distribution system. Read More

Elec. Funds Solutions v. Murphy, 36 Cal. Rptr. 3d 663 (Cal. Ct. App. 2005)

In this lawsuit between former business partners, plaintiffs alleged claims for breach of fiduciary duty, intentional interference with economic relations, unfair competition, and related torts. Plaintiffs sought compensatory damages “in an amount in excess of $50,000 and according to proof,” as well as punitive damages. Read More

In re Old Banc One Shareholders Sec. Litig., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005)

In this opinion, the District Court adopted in full the Magistrate’s Report and Recommendation regarding plaintiffs’ motion for sanctions based upon the defendant’s failure to preserve relevant documents.

The court explained that, in securities cases, corporations have a duty to preserve documents pursuant to both the Federal Rules of Civil Procedure and the Public Securities Litigation Reform Act. “However, the duty to preserve potentially discoverable information does not require a party to keep every scrap of paper. Instead, a party is required to keep relevant evidence over which it had control and reasonably knew or could foresee was material to the litigation.” 2005 WL 3372783 at *3 (citations omitted). Read More

In re ATM Fee Antitrust Litig., 2005 WL 3299763 (N.D. Cal. Dec. 5, 2005)

In this class action, plaintiffs propounded requests for production of documents and a request for admissions to all named defendants, including Bank of America Corporation (“BAC”). Plaintiffs also served interrogatories and proposed FRCP Rule 30(b)(6) depositions substantially limited to document and electronic data storage and management issues. Read More

Jinks-Umstead v. England, 2005 WL 3312947 (D.D.C. Dec. 7, 2005) In this matter, a previous decision from which was summarized here, Lavonne Jinks-Umstead alleged that the United States Navy discriminated against her based on her race when it failed to provide her with adequate staff assistance. A jury verdict was granted in favor of Defendant, but a new trial was ordered based on Defendant’s pre-trial failure to produce Work in Progress (“WIP”) reports and the erroneous admission into evidence of certain emails. The new trial is scheduled to begin on January 18, 2006. In this memorandum opinion, Judge Kessler addressed pending motions. Read More

Housing Rights Ctr. v. Sterling, 2005 WL 3320739 (C.D. Cal. Mar. 2, 2005)

Plaintiffs sued Defendants alleging housing discrimination as evidenced by a preference for Korean residents. Defendants allegedly committed discovery violations in connection with the ensuing litigation by failing to instigate a litigation hold, destroying relevant documents, and failing to instruct agents to search for responsive materials. Judge Fischer granted Plaintiffs’ motion for an adverse inference jury instruction and other relief. Read More