Lack of Cooperation / Inaccurate Representations – Page 28

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, No. 09-23411-CIV, 2011 WL 772855 (S.D. Fla. Feb. 19, 2011)

Dec 01 2011

Key Insight: Where defendants ?failed to properly conduct complete, thorough and timely searches of ESI responsive to Plaintiffs? discovery requests,? which the evidence showed resulted from ?a lack of familiarity and/or training in searching and producing ESI?, the court declined to impose default judgment and instead recommended that defendants? Motions for Summary Judgment be denied and ordered that defendants retain a third party consultant or vendor to perform a search for responsive documents, that responsive ESI be produced in a prescribed format, and that defendants pay plaintiffs? attorneys fees and costs

Nature of Case: Claim for damages arising from defendants? alleged failure to provide proper ship management and care

Electronic Data Involved: ESI

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Dec 01 2011

Key Insight: For Defendant?s and counsel?s discovery violations, including delayed production of relevant information, wrongful certification that discovery was complete, producing a 500-page document 35 times, and failing to conduct adequate searches of responsive information, court evaluated the Enrenhaus factors and imposed monetary sanctions to be paid by both Defendant and its counsel; court?s analysis was particularly critical of counsel who the court concluded had ?abdicated its responsibility to exercise oversight of the discovery process? and who the court found to be subject to sanctions pursuant to both Rule 37 and 26

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: ESI

In re Facebook PPC Adver. Litig., No. C09-03043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

Dec 01 2011

Key Insight: Despite Facebook?s assertions that an ESI protocol was unnecessary and that there was no basis to require rigid up-front requirements, court cited the ?clear thrust of discovery-related rules, case law, and commentary? suggesting that communication among counsel is critical and ordered parties to meet and confer to establish protocol to establish the format of production, search terms, etc.; court ordered re-production of any ESI already produced in non-searchable formats and prohibited Facebook?s further use of Watchdox.com to make ESI available to plaintiffs where the method was unduly burdensome to plaintiffs (in light of Facebook?s control of the documents, ability to track what was reviewed, etc.) and where parties previously agreed to a protective order which provided sufficient protection to the documents at issue

Electronic Data Involved: ESI

United States ex rel Berglund v. Boeing Co., 835 F.Supp.2d 1020 (D. Or. Dec. 2011)

Dec 01 2011

Key Insight: Where plaintiff altered and deleted emails and discarded potentially relevant hard drives the court undertook a substantial analysis of the relevant legal standards surrounding spoliation and, upon consideration of those standards, imposed two monetary sanctions requiring the plaintiff to pay for the reasonable costs and fees arising from his failure to produce a hard drive as he had been directed to do by the court and to pay for Boeing?s costs ?directly connected with the investigation and discovery of the altered emails?; the court also dismissed, with prejudice, plaintiff?s claim of retaliation

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Emails, hard drives

Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2011 WL 2297661 (D. Colo. June 9, 2011)

Dec 01 2011

Key Insight: Court denied request for taxation of costs related to conversion of documents into electronic format for discovery purposes where defendant failed to establish that the conversion costs were ?necessarily incurred in the case preparation?; court denied motion for taxation of costs related to creation of secure database in furtherance of responding to a legitimate discovery request where the court was not authorized to award such costs pursuant to the relevant statute and where it was unaware of authority allowing adjustments to the division of costs based on undue burden, an argument that was available ?during the discovery process?

Electronic Data Involved: Conversion of ESI

IWOI, LLC v. Monaco Coach Corp., No. 07-3453, 2011 WL 2038714 (N.D. Ill. May 24, 2011)

Dec 01 2011

Key Insight: Where defendant failed to conduct a sufficient search for responsive information and where an important email was located only upon a forensic search of defendant?s computer system after plaintiff offered to bear the costs, court ordered that half of the costs of the search be shifted to defendant

Nature of Case: Breach of warranty and violations of certain state law proscriptions against consumer fraud in connection with sale of motorcoach

Electronic Data Involved: Email

Lynn v. Gateway Unified School Dist., No. 2:10-CV-00981-JAM-CMK, 2011 WL 6260362 (E.D. Cal. Dec. 15, 2011)

Dec 01 2011

Key Insight: Where plaintiff unlawfully acquired emails from defendant?s computer system and attempted to utilize them to bolster his case, court granted defendant?s motion for sanctions and precluded plaintiff from ?using the emails, using their contents, or attempting to introduce any evidence about the contents of these emails at trial,? court also granted defendant?s motion to disqualify plaintiff?s counsel and counsel?s entire firm, where the court found counsel took possession of the emails despite knowing they were obtained illegally, among other ethical violations

Nature of Case: Employment discrimination

Electronic Data Involved: Unlawfully obtained emails

Xyience, Inc. v. Zyen, LLC (In re Xyience), Ch. 11 Case No. BK-S-08-10474-MKN, Adv. No. 09-1402-MKN, 2011 WL 5239666 (Bankr. D. Nev. Oct. 28, 2011)

Dec 01 2011

Key Insight: For ?discovery misconduct? including failing to issue a litigation hold; admitted deletion of documents; and failure to promptly search certain repositories for responsive information, including a computer utilized by an individual defendant at an unrelated corporation for which he was an officer (but which he used for matters unrelated to that corporation, including for correspondence related to the underlying lawsuits) and the computer of the same individual?s secretary (albeit at yet a third company which was also a defendant), the court ordered monetary sanctions ?to reimburse Plaintiff?s expenses costs, and reasonable attorney?s fees?

Nature of Case: Bankruptcy

Electronic Data Involved: ESI

F.T.C. v. Asia Pac. Telecom, Inc., No. 10 C 3168, 2011 WL 2110220 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: Court found defendants in contempt and, in the alternative, invoked its inherent authority to sanction where defendants were found to have deactivated a relevant Yahoo! email account in violation of a temporary restraining order which caused the information therein to be permanently lost and where the court found that the deactivation was in bad faith and resulted in prejudice to the plaintiff; court declined to impose default judgment but ordered adverse inferences which substantially eased plaintiff?s ability to establish liability

Nature of Case: Violations of National Do Not Call Registry

Electronic Data Involved: Web based emails

Tag:Lack of Cooperation / Inaccurate Representations