Lack of Cooperation / Inaccurate Representations – Page 23

Tadayon v. Greyhound Lines, Inc, No. 10-1326, 2012 WL 2048257 (D.D.C. June 6, 2012)

Dec 01 2012

Key Insight: In this case, following analysis of several discovery motions, Magistrate Judge Facciola wrote of the need for cooperation: “III. High Noon. As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town-not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.FN3 First, the parties will meet and confer in person in a genuine, good faith effort. . . .”; also, court ruled that where Clawback agreement imposed no conditions on right to recall privileged documents, defendant could do so irrespective of alleged negligence

Nature of Case: Patent Infringement

Electronic Data Involved: All discovery

Davis v. Rouse, No. WDQ-08-cv-3106, 2012 WL 3059569 (D. Md. July 25, 2012)

Dec 01 2012

Key Insight: Where defendant produced more than 61,000 pages of emails but, when faced with Plaintiff?s motion for spoliation sanctions, could not explain how the search for ESI had been conducted (by a vendor) and subsequently produced only 11,411 pages of emails after being ordered to re-run the search, the court imposed sanctions of reasonable attorneys? fees and costs incurred by Plaintiff?s counsel to review the initial large production of emails containing many non-responsive documents and found counsel for plaintiff was also entitled to recover ?some proportional and reasonable? attorneys? fees and costs for litigating the underlying motion for sanctions which brought the overproduction to light

Nature of Case: Allegations of assault pursuant to 42 USC 1983

Electronic Data Involved: Emails

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 95362 (W.D.N.Y. Jan. 10, 2012)

Dec 01 2012

Key Insight: Where plaintiff acted to avoid compliance with court?s order to produce information related to email accounts, including passwords, by repeatedly filing motions to stay discovery and by modifying the consent forms related to the examination of his email accounts to effectively delay the search, despite the court?s denial of his motions to stay discovery, the court ordered civil contempt sanctions and ordered plaintiff to pay $5,000 to the court and also ordered payment of defendants? attorneys? fees and costs related to Defendants? Accelerated Motion to Compel, necessitated by plaintiff?s dilatory behavior

Nature of Case: Breach of contract

Electronic Data Involved: Access to emails (passwords, etc.) for forensic examination

Gottlieb v. Iskowitz, 2012 Wl 2337290 (Cal. Ct. App. June 20, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not abuse discretion in imposing terminating sanctions for plaintiff?s egregious and willful discovery violations, including repeated failure to produce responsive materials in violation of the court?s multiple orders and subsequent ?dump? of 15 million pages of uncategorized documents that were not Bates labeled or accompanied by a corresponding index and which appeared to be largely non-responsive based on a review of 10% of the documents (?A dump of disorganized documents by definition is non-compliant.?); trial court?s award of significant damages was reversed and remanded for a new default proveup hearing on damages

Nature of Case: Libel, intentional infliction of emotional distress, and related claims

Electronic Data Involved: ESI

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

Pacific Coast Marine Windshields Ltd. v. Malibu Boats, LLC, No. 6:12-cv-33-Orl-28DAB, 2014 WL 10817204 (M.D. Fla. Nov. 30, 2012)

Dec 01 2012

Key Insight: Where defendant?s contractor produced CAD files with incorrect creation dates and was subsequently ordered to produce his computer for inspection in an unaltered state, but ran a file-deletion or ?computer cleaning/wiping? program named ?CCleaner? the night before delivering the computer for inspection, court found that sanctions were appropriate to keep defendant from benefitting from contractor?s intentional conduct and to deter others from similar conduct in the future; contractor would not be allowed to testify at trial, all evidence that originated with contractor would be excluded, defendant would not be allowed to rely on contractor?s deposition testimony for summary judgment purposes or at trial, and defendant was required to pay plaintiff?s reasonable attorneys? fees and cost of forensic investigation conducted by plaintiff?s forensic expert

Nature of Case: Patent infringement, misappropriation of trade secrets, unfair competition

Electronic Data Involved: Hard drives of defendant’s contract CAD software operator; metadata and contents of CAD files

Bobrick Washroom Equip., Inc. v. Am. Specialties, Inc., No. CV 10-6938 SVW (PLA), 2012 WL 3217858 (C.D. Cal. Aug. 8, 2012)

Dec 01 2012

Key Insight: Where Defendant (through counsel) revealed on third day of trial that prior representations were inaccurate and that certain discovery had not been produced, or even searched for, court continued trial and ordered appointment of expert to conduct search of Defendant?s servers and produce responsive materials and later found that cost of expert totaling $168,045, to be paid by Defendant, was a sufficient sanction for failure to timely produce relevant documents; where plaintiff sought spoliation sanctions for Defendant?s failure to timely issue a litigation and failure to sufficiently distribute that hold or to follow up with its employees as to their obligations, but where evidence of spoliation of relevant evidence was minimal, court imposed only monetary sanctions

Nature of Case: Trademark infringement

Electronic Data Involved: ESI

Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 WL 940270 (D. Kan. Mar. 20, 2012)

Dec 01 2012

Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)

Nature of Case: Employment discrimination

Electronic Data Involved: Miscellaneous ESI

Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)

Dec 01 2012

Key Insight: Defendant?s lackluster effort to retrieve e-mail after hard drives crashed constituted a conscious disregard of its preservation obligations that could fairly be described as gross negligence or recklessness, and warranted sanctions in the form of an adverse inference instruction; court declined to impose sanctions for defendant?s failure to preserve telephone recordings since there was insufficient evidence that any relevant calls were actually recorded and should have been preserved

Nature of Case: Consumer Protection Procedures Act claims

Electronic Data Involved: E-mails and telephone call recordings

In re Specs, No. C 10-04250 YGR (DMR), 2012 WL 4120246 (N.D. Cal. Sept. 18, 2012)

Dec 01 2012

Key Insight: Court ordered sanctions for Plaintiffs? violation of a court order compelling production where Plaintiffs certified their production was complete and thereafter made at least four additional significant productions such that the court concluded that Plaintiffs? certification of completeness was either ?knowingly false, or ? made without confirming the adequacy of their collection and production efforts? and ordered payment of reasonable expenses including attorneys fees and that Plaintiffs file certification that their discovery is complete and that any documents produced thereafter could not be used by Plaintiff at trial

Electronic Data Involved: ESI

Tag:Lack of Cooperation / Inaccurate Representations