Lack of Cooperation / Inaccurate Representations – Page 26

Mikhlyn v. Bove, No. 08-CV-3367 (ARR) (RER), 2011 WL 4529619 (E.D.N.Y. Aug. 3, 2011); Mikylyn v. Bove, No. 08-CV-3367 (ARR) (RER), 2011 WL 4529613 (E.D.N.Y. Sept. 28, 2011)

Dec 01 2011

Key Insight: Upon reconsideration of prior order awarding sanctions against defendants, court found that additional evidence indicated culpability on the part of defense counsel that justified joint and several liability for sanctions; defendants? discovery violations included willful failure to produce certain documents and the destruction of other ESI; counsels? discovery failures included defense counsels? failure to adequately communicate with opposing counsel resulting in court intervention and failure to comply with court orders; as sanction, court ordered defendants and counsel to pay specifically delineated portions of plaintiffs? attorneys? fees and costs

Nature of Case: trademark infringement, unfair competition, and related claims

Electronic Data Involved: ESI

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)

Dec 01 2011

Key Insight: Where plaintiffs challenged the sufficiency of defendants? search, including whether defendants had used the agreed-upon search terms, and the format of defendant?s production, and where plaintiff specifically pointed to an email that should have been produced but was not, the court noted plaintiffs? concession that defendants? search methodology did not result in plaintiff receiving fewer documents and that they had been able to use the information produced, despite their arguments regarding format, but ?nevertheless concluded? that defendants should provide additional information and ordered the submission of an affidavit detailing defendants? search efforts; the court concluded that the dispute in this case was ?caused primarily by the parties? mutual failure to communicate and work together in good faith to resolve the areas of dispute? and counseled that in future the parties should more clearly specify the way in which discovery will be conducted and, if they cannot agree, should seek judicial assistance

Nature of Case: Suit for damages arising from failure to provide proper ship management

Electronic Data Involved: ESI

Harmon v. Lighthouse Capital Funding, Inc. (In re Harmon), 2011 WL 302859 (Bankr. S.D. Tex. Jan. 26, 2011)

Dec 01 2011

Key Insight: Providing a detailed explanation of defendant?s and counsel?s discovery abuses, including failing to search for internal emails, ignoring plaintiff?s subpoena, and counsel?s offering of ?evasive and unfounded testimony in an effort to rationalize his inexcusable non-production? of certain relevant (and repeatedly requested) documents, among other things, the court denied defendant?s motion for reconsideration and upheld as a sanction the establishment of a particular fact in plaintiff?s favor, namely that Lighthouse did not establish an escrow account in accord with its obligations under its agreement with plaintiffs

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Emails, bank statements

Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011)

Dec 01 2011

Key Insight: Where plaintiff failed to timely produce relevant evidence despite two court orders and then wrongly certified that the production was complete, the district court granted defendant?s motion to dismiss; on appeal, the circuit court affirmed the sanction (in a colorful opinion full of quotable quotes), holding that ?no one . . . should count on more than three chances to make good on a discovery obligation? and that the district court was within its considerable discretion in granting dismissal

Nature of Case: Breach of contract

Electronic Data Involved: Tax records

Ashton v. Knight Transp., Inc., No. 3:09-CV-0759-B, 2011 WL 734282 (N.D. Tex. Feb. 22, 2011)

Dec 01 2011

Key Insight: Where, in a case arising from a fatal accident, the court determined that defendants? failure to preserve the tires of the involved truck and Qualcomm messages between the driver and the truck company was in bad faith and where that failure resulted in prejudice to the plaintiff, the court ordered that defendants? pleadings and defenses to liability be struck and, ?because defendants? misconduct led to the late discovery of a potential claim for punitive damages,? granted plaintiff leave to file an amended her complaint to add such a claim

Nature of Case: Hit and run

Electronic Data Involved: Qualcomm messages (“email type messages”)

Kosher Sports Inc. v. Queens Ballpark Co., LLC, No. 10-CV-2618 (JBW), 2011 WL 3471508 (E.D.N.Y. Aug. 5, 2011)

Dec 01 2011

Key Insight: Where plaintiff and counsel failed to disclose the existence of relevant audio recordings (of secretly recorded conversations) and attempted to conceal their existence (including by false certifications pursuant to Rule 26(g)), but where defendant was allowed to cure the prejudice through additional discovery, court ordered plaintiff and counsel to bear joint responsibility for payment of defendant?s expenses related to the delay and concealment; for destruction of relevant audio recordings with a ?sufficiently culpable? state of mind, court imposed an adverse inference instruction

Nature of Case: Contract dispute

Electronic Data Involved: Audio recordings

ANZ Advanced Techs., LLC v. Bush Hog, LLC, 2011 WL 814463 (S.D. Ala. Jan. 26, 2011)

Dec 01 2011

Key Insight: Where plaintiffs admitted to fabricating evidence and failed to comply with court orders to produce certain hard drives and other data storage and instead argued, among other things, that the hard drives etc. were in possession of an unrelated foreign corporation (ANZ International) and that ANZ USA was not involved in the discovery violations (including the fabrication of evidence), the court rejected such arguments upon establishing the connection between ANZ Int. and ANZ USA and ordered that plaintiffs? claims be dismissed

Nature of Case: Contract dispute

Electronic Data Involved: Fabricated evidence, hard drives, other storage devices

Chen v. LW Restaurant, Inc., No. 10 CV 200 (ARR), 2011 WL 3420433 (E.D.N.Y. Aug. 3, 2011)

Dec 01 2011

Key Insight: Court imposed sanctions, including preclusion of evidence/witnesses, an adverse inference instruction (upon plaintiffs? request) and payment of attorney?s costs and fees for defendant?s discovery violations, including repeated failure to produce evidence despite court orders, and ?loss? of a flash drive and its contents under circumstances which supported a finding of gross negligence or intentional spoliation; court invited plaintiffs to seek sanctions against defense counsel, too, for counsel?s egregious violations of his duties, including failure to issue a litigation hold, failure to be candid regarding the loss of evidence, and failure to ensure compliance with client?s discovery obligations, among others

Nature of Case: Employment litigation (wages)

Electronic Data Involved: Flash drive containing original payroll records for purpose of analyzing metadata

Suntrust Mortg., Inc. v. AIG United Guaranty Corp., No. 3:09cv529, 2011 WL 1225989 (E.D. Va. Mar. 29, 2011)

Dec 01 2011

Key Insight: For fraud on the court (attributed to plaintiff as the result of employee?s alteration of emails) and for abuse of the litigation process (resulting from in-house counsel and management?s failure to adequately investigate the existence of other altered emails and subsequent reliance on one such altered email in the filing of their first complaint), court ordered plaintiff to pay attorneys? fees and costs associated with defendant?s sanctions motion but denied the request for additional sanctions, including dismissal, adverse jury instructions, and issue preclusion

Nature of Case: Breach of insurance contract

Electronic Data Involved: Altered emails

Britton v. Wal-Mart Stores East, L.P., No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)

Dec 01 2011

Key Insight: Where defendant?s employee(s) were found to have allowed the loss of relevant video surveillance tape, despite repeated notification of its relevance and requests for preservation, and to have done so intentionally and in bad faith, court declined to enter default judgment but precluded defendant?s presentation of certain defenses and ordered payment of attorney?s costs and fees related to the motion for sanctions and payment of half of such costs and fees related to a prior motion in which defendant?s dishonesty regarding the existence of the at issue vide resulted in costs to the plaintiffs

Nature of Case: Claims arising from alleged wrongful detention of teens for shoplifting

Electronic Data Involved: Video surveillance

Tag:Lack of Cooperation / Inaccurate Representations