Lack of Cooperation / Inaccurate Representations – Page 25

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

Bull v. United Parcel Service, Inc., 665 F.3d (3d Cir. 2012)

Dec 01 2012

Key Insight: Circuit court found that ?producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,? but also found that in the present case the District Court abused its discretion ?in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS? and further abused its discretion when it imposed the sanction of dismissal with prejudice

Nature of Case: Employment litigation

Electronic Data Involved: Copies of hardcopy doctor’s notes

Oyebade v. Boston Scientific Corp., No. 1:11-cv-0968-JMS-DML, 2012 WL 4020971 (S.D. Ind. Sept. 12, 2012)

Dec 01 2012

Key Insight: For a ?pattern of discovery misconduct, including the spoliation of evidence? (an audio tape of a meeting with HR), the court imposed an adverse inference and ordered the jury be instructed that Plaintiff destroyed the audio recording ?under circumstances that suggest that the contents ? would not be helpful in proving his claims? and further ordered that Plaintiff would not be allowed to present evidence regarding the meeting with HR, that the jury be instructed to accept defendant?s evidence about the meeting, and that defendant was entitled to its attorneys fees and expenses incurred in seeking redress for the spoliation

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tape of meeting with HR

McNulty v. Reddy Ice Holdings, Inc., 2011 116892 (E.D. Mich. Jan. 13, 2011)

Dec 01 2011

Key Insight: Where defendant preserved 4 terabytes of electronically stored information and 744 boxes of paper documents to be reviewed for production, court cited Rule 26(b)(2)(B) for the proposition that burdensome discovery should be limited but found that plaintiff had good cause for requesting relevant information and ordered the parties to meet and confer to develop search terms or objective search criteria for identifying responsive ESI as well as to develop a search plan for the hard copy

Nature of Case: RICO

Electronic Data Involved: ESI, hard copy

Bower v. Bower, No. 10-10405-NG, 2011 WL 3702086 (D. Mass. Apr. 5, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel Yahoo! and Google to produce emails in violation of Stored Communications Act and declined to rely upon defendant?s ?status as a fugitive? to find that she was deemed to have given consent or to issue an order requiring consent which, if defied, would allow the implication that consent had been given where the court reasoned that ?there is nothing in [defendant?s] actions from which this court can imply an intent to consent to the disclosure of her information

Nature of Case: Child abduction

Electronic Data Involved: Web-based email

Vieste v. Hill Redwood Dev., No. C-09-0424 JSW (MSR), 2011 WL 2198257 (N.D. Cal. June 6, 2011)

Dec 01 2011

Key Insight: Court ordered defendants to pay sanctions equal to ?reasonable attorneys? fees and costs incurred [by Plaintiffs] in bringing this motion? where defendants were ordered to provide a detailed explanation of their preservation and collection processes but instead submitted declarations which failed to answer basic questions, answered others with minimal information, and relied on conclusory statements; court denied motion for spoliation sanctions where, despite the court?s ?serious concerns? about a certain custodian?s preservation and collection efforts, spoliation was not established, and as to other specific evidence for which the evidence of spoliation was not clear, ordered that if it had not previously been produced, defendants would be barred from its use

Nature of Case: Brach of contract and fraud

Electronic Data Involved: Email, ESI

Tag:Lack of Cooperation / Inaccurate Representations