Lack of Cooperation / Inaccurate Representations – Page 23

St. Louis Produce Mkt. v. Hughes, No. 4:09CV1912 RWS, 2012 WL 4378194 (E.D. Mo. Sept. 25, 2012)

Dec 01 2012

Key Insight: In a case where defendant tried to ?pull a fast one? by altering material terms to a contract and inducing plaintiff to sign it, defendant sought but was repeatedly unable to procure production of defendant?s laptop — which it suspected was used to alter the contract — and when the laptop was produced, it had been substantially damaged. Moreover, evidence indicated that defendant had destroyed relevant cell phone records and emails and that defendant?s counsel made repeated misrepresentations to the court. Thus, the court struck defendant?s pleadings as a sanction.

Nature of Case: Declaratory judgment that contract was invalid because procured by fraud

Electronic Data Involved: Laptop

Chevron Corp. v. Wienberg Group, No. 11-406 (JMF), 2012 WL 4480697 (D.D.C. Sept. 26, 2012)

Dec 01 2012

Key Insight: Addressing the state of the ?modern privilege log? Judge Grimm noted the strong trend toward mechanically produced privilege logs with boilerplate information which do not sufficiently describe the documents and the nature of the privilege and ordered defendant to produce factual work product and to properly describe the redacted portions and indicated that he would hold defendant to their 26(g) obligations ?ruthlessly?

Nature of Case: Environmental damages

Electronic Data Involved: Privileged/work product ESI

Wynmoor Cmty. Council, Inc. v. QBE Ins. Co., —F.R.D.—, 2012 WL 716480 (S.D. Fla. Mar. 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to allow forensic imaging of plaintiff?s computers for purposes of discovery where plaintiff?s production of ESI was very small, where plaintiff?s CIO admitted he had taken no efforts to retrieve any ESI, and where it was established that ESI may be present on plaintiff?s computers?possibly including electronic copies of hard copy documents which may have been shredded; court?s order called for court-appointed forensic expert to conduct examination and established other protocols to be followed

Nature of Case: Breach of insurance contract

Electronic Data Involved: ESI

Short v. Manhattan Apartments, Inc., —F. Supp. 2d—, 2012 WL 4829615 (S.D.N.Y. Oct. 11, 2012)

Dec 01 2012

Key Insight: For failure to produce unredacted database entries despite three court orders to do so, court found that defendant had acted in bad faith to withhold relevant documents and, as a sanction, ordered that facts be established in plaintiffs? favor, namely that the rental listing database included directives from landlords that clients receiving government housing assistance should not be assisted in applying for housing with those landlords; court also ordered defendant to pay Plaintiffs $231,000 in attorneys fees

Nature of Case: Housing discrimination

Electronic Data Involved: Database

Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012)

Dec 01 2012

Key Insight: Where evidence indicated that defendant?s responses to discovery were incomplete, court ordered defendant to ?proceed with the forensic search of their computer systems using protocols agreed upon by the parties? but declined to compel defendant to bear the cost of the examination until final costs were known; defendant was also ordered to institute a litigation hold where defendant?s deposition testimony established that none had previously been issued

Nature of Case: Malpractice

Electronic Data Involved: ESI

Coral Group Inc. v. Shell Oil Co., No. 4:05-CV-0633-DGK, 2012 WL 4569468 (W.D. Mo. Sept. 30, 2012)

Dec 01 2012

Key Insight: For intentional spoliation resulting in irreparable prejudice, including a ?discernible pattern? of efforts to deprive Plaintiffs of relevant financial information contained on the computer of Plaintiff?s outside accountant and the failure to preserve other data, the court ordered that plaintiff?s claims were dismissed with prejudice

Nature of Case: Fraud, breach of contract

Electronic Data Involved: ESI

Lake Village Healthcare Ctr., LLC v. Hatchett, 407 S.W. 3d 521 (Ark. 2012)

Dec 01 2012

Key Insight: Trial court did not err when it struck part of defendants’ answers as sanction for discovery violations where trial court’s order specifically detailed the opportunities afforded defendants to either comply with the email request or furnish a basis upon which the court could determine they were trying to comply with the request, and trial court found that defendants failed to produce the emails in response to the discovery request, failed to produce the emails when ordered by the court, failed to timely notify the court of compliance problems, failed to furnish sufficient information of their good faith efforts, and failed to furnish information regarding when compliance could be expected

Nature of Case: Wrongful death, negligence, breach of fiduciary and confidential duty, medical malpractice

Electronic Data Involved: Email

Thermotek, Inc. v. Orthoflex, Inc., No. 3:11-cv-870-D (BF), 2015 WL 4138722 (N.D. Tex. July 7, 2012)

Dec 01 2012

Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000

Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud

Electronic Data Involved: ESI, including QUickbooks

Tracy v. NVR, Inc., No. 04-CV-6541L, 2012 WL 1067889 (W.D.N.Y. Mar. 26, 2012)

Dec 01 2012

Key Insight: Where plaintiffs sought to compel production of defendant?s litigation hold and a list of its recipients, court identified the underlying question as whether defendant?s duty to preserve extended to all potential opt-in plaintiffs and found that plaintiffs? significant delay in moving for conditional certification and the indirect nature of the evidence sought distinguished the case from Pippins v. KPMG and that plaintiffs failed to make the necessary preliminary showing of spoliation (which would justify production of the litigation hold notice) because they did not establish ?that documents that should have been preserved? were lost or destroyed; court granted defendant?s motion for sanctions for opt-in plaintiff?s spoliation of hard copy evidence (originals of a calendar indicating her daily activities, two disparate copies of which had been produced) and ordered that she be precluded from testifying as to her daily work activities during a three year period

Nature of Case: FLSA Class action

Electronic Data Involved: litigation hold notice, hard copy calendar

United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)

Dec 01 2012

Key Insight: Court adopted lower court?s report and recommendation which denied defendant?s motion for sanctions related to the government?s discovery behaviors, including its production of ESI in searchable PDF but without the ability to manipulate the data, which defendant alleged failed to comply with the courts? prior order; court?s opinion, like prior opinions in this case, made clear the difficulties associated with a lack of controlling e-discovery case law/guidelines in criminal cases and put the Government ?on notice? that the Court would ?not hesitate to scrutinize the Government?s ESI discovery procedures to ensure responsiveness and fairness.?

Nature of Case: Criminal

Electronic Data Involved: Database, esi

Tag:Lack of Cooperation / Inaccurate Representations