Lack of Cooperation / Inaccurate Representations – Page 24

Pringle v. Adams, No. SACV 10-1656-JST (RZx), 2012 WL 1103939 (C.D. Cal. Mar. 30, 2012)

Dec 01 2012

Key Insight: In copyright infringement action where the creation date of certain evidence was highly relevant, the court granted defendant?s motion for terminating sanctions for plaintiff?s spoliation where plaintiff had a duty to preserve but nonetheless spoliated relevant evidence by sending a relevant hard drive for ?repairs? and where he indicated he no longer had possession of another hard drive, without explanation for its unavailability, and where the court found that defendants were prejudiced by the loss of the hard drives

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drives containing information regarding creation date of allegedly infringed song

Coquina Invs. v. Rothstein, No. 10-60786-Civ., 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012)

Dec 01 2012

Key Insight: Court found that counsel for Defendant ?acted negligently in failing to comply with its discovery obligations in this case? and that Defendant ?acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case? and ordered that certain adverse facts were established for purposes of this action and that counsel and Defendant pay Plaintiff?s reasonable attorney?s fees and costs associated with its fourth and fifth motion for sanctions; discovery violations identified included: late (including after trial) production of relevant documents, counsel?s failure to produce relevant evidence ?in a manner that preserved the documents qualities? (i.e., with highly relevant formatting changes (e.g. no color) and without metadata), both Defendant and counsel?s failure to ?conduct an adequate search,? and the conspicuous absence of Defendant?s in-house counsel in assisting or supervising the litigation; court also noted that ?[i]n many ways, this is a case of too many cooks spoiling the broth? where the defense included two firms, hundreds of lawyers, and a consultant that only one firm was aware of, for example

Nature of Case: Fraud

Electronic Data Involved: ESI

Apple, Inc. v. Samsung Co., Ltd., No. C 11-1846 LHK (PSG), 2012 WL 1595784 (N.D. Cal. May 4, 2012)

Dec 01 2012

Key Insight: For defendant?s significant delay in producing source code for ?design-around? products despite a court order compelling such production and because the delay resulted in prejudice to the plaintiff because of its inability to follow up (because the source code was produced after the close of discovery), the court imposed substantial sanctions and ordered that defendant would be precluded from offering ?design-around? evidence for three patents and from arguing that the design-arounds were in any way distinct from version of the code produced in accordance with the court?s order: ?Samsung must instead rely on versions of the code that were produced on or before December 31, 2011.?

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

Sloan Valve Co. v. Zurn Indus., Inc., No. 10-cv-204, 2012 WL 1886353 (N.D. Ill. May 23, 2012)

Dec 01 2012

Key Insight: Finding defendants? search efforts inadequate, court ordered discovery re-opened and that defendant conduct specific additional discovery, including additional searches on specific repositories, and provide specific information regarding how its search efforts were conducted and by whom; the court also provided a good discussion of preservation obligations, but ultimately concluded that additional information was necessary to make a determination regarding the reasonableness of defendants efforts; ultimately, court declined to impose drastic sanctions, but ordered additional discovery and that defendants pay monetary sanctions (attorneys? fees and cost)

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 2072866 (N.D. Ill. June 8, 2012)

Dec 01 2012

Key Insight: Where defendants indicated that a relevant hard drive had crashed and been disposed of but that some relevant information had been recovered and where plaintiff was unable to establish that defendants acted in bad faith, court found defendants were grossly negligent in their failure to preserve the relevant hard drive which resulted in prejudice to the plaintiff and ordered a ?spoliation charge? allowing but not requiring the jury to determine whether the spoliation warranted an adverse inference; opinion includes comprehensive discussion of relevant law and standards surrounding spoliation

Nature of Case: Racketeering and fraud

Electronic Data Involved: Hard drive

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”

Tag:Lack of Cooperation / Inaccurate Representations