Lack of Cooperation / Inaccurate Representations – Page 29

Whitby v. Chertoff, 2010 WL 431974 (M.D. Ga. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for sanctions for a myriad of alleged violations, including failure to preserve emails and failure to adequately search for responsive ESI, where plaintiff failed to offer sufficient evidence of such violations and where the court found defendant?s search was reasonable; court ordered defendant to show cause why it failed to produce emails from certain supervisors in response to the court?s prior order where plaintiff offered evidence that such emails existed

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email

Amerisource Corp. v. RX USA Int?l, Inc., 2010 WL 2730748 (E.D.N.Y. July 6, 2010)

Dec 01 2010

Key Insight: Where a non-party principal of defendant fabricated emails, used those emails to support defendant?s claim, and testified to their authenticity during the course of litigation, the court sanctioned the non-party and defendant and found them jointly and severally liable for payment of $100,000 – half to be paid to plaintiff and half to be paid to the clerk of the court; to sanction non-party, court reasoned that as ?the majority shareholder, chief executive, and only person affiliated with [defendant] to have a substantive role in this litigation?, ?[the principal] is RxUSA? and relied upon its inherent authority to sanction him for litigation misconduct

Nature of Case: Contract dispute

Electronic Data Involved: Fabricated emails

Hennigan v. Gen. Elec. Co., 2010 WL 4189033 (E.D. Mich. Aug. 3, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to compel production of data related to certain product defects and ordered defendant to bear plaintiff?s costs incurred for the 30(b)(6) deposition which revealed the existence of accessible, relevant information upon finding that both defendant and counsel failed to take reasonable efforts to locate responsive information; court ordered defendant?s to conduct searches using plaintiffs? proposed terms where the information sought was relevant and where defendant?s proposed terms were too narrow to identify all responsive information

Nature of Case: Product liability

Electronic Data Involved: Incident reports

ANZ Advanced Techs., LLC v. Bush Hog, LLC, No. 09-00228-KD-N, 2010 WL 3699917 (S.D. Ala. Sept. 9, 2010)

Dec 01 2010

Key Insight: Court declined to reconsider its prior order directing plaintiff to produce certain hard drives and other data storage devices for forensic inspection where plaintiff failed to establish that such production was prohibited by Indian law and where plaintiff offered no evidence to rebut the court?s prior determination that plaintiff?s behavior ?cast serious doubt on the authenticity of any document produced? by plaintiff such that actual production of the devices was warranted

Electronic Data Involved: Hard drive, data storage devices

In re Hecker, 2010 WL 654151 (Bankr. D. Minn. Feb. 23, 2010)

Dec 01 2010

Key Insight: Where debtor committed numerous discovery violations including making misrepresentations to the court regarding his possession of relevant ESI and the completeness of his productions, among other things, and where debtor ?intentionally withheld relevant, admissible evidence in order to delay and obfuscate?, court granted plaintiff?s motion for default judgment after finding that ?no lesser sanction would result in defendant?s compliance?

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: ESI

Moore v. Napolitano, 723 F. Supp. 2d 167 (D.D.C. 2010)

Dec 01 2010

Key Insight: District court upheld sanction precluding defendant from presenting evidence of non-discriminatory reasons for non-promotion upon a prima facie showing of disparate treatment where defendant failed to conduct a reasonable search for responsive paper documents, despite a court order to do so, including providing ?ambiguous and deficient? search instructions to employees; failing to follow up when employees failed to uncover responsive information; and failing to credibly explain defendant?s search efforts, and where the Magistrate Judge properly concluded the sanction was proportional to the offense(s)

Nature of Case: Putative class action for discriminatory non-promotion

Electronic Data Involved: Hard copy

VFI Assoc., LLC v. Lobo Mach. Corp., 2010 WL 4716215 (W.D. Va. Nov. 15, 2010)

Dec 01 2010

Key Insight: For defendant?s knowing refusal to produce responsive data and bad faith alteration of data in an effort to hide relevant evidence, the court declined to impose terminating sanctions but precluded defendants from offering any “defense, evidence, or argument” as to several disputed issues and indicated it willingness to ?take under advisement? additional sanctions, including monetary sanctions, a finding of contempt of court, and a possible adverse inference instruction [on Nov. 22, 2010, a second opinion was issued, identical to the first except that the footnote regarding the court’s consideration of future sanctions discussed only an adverse inference instruction and did not include mention of a finding of contempt or monetary sanctions, 2010 WL 4868110]

Nature of Case: Allegations that business manager accepted kickbacks from equipment supplier

Electronic Data Involved: ESI

Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., 2010 WL 4337388 (W.D. Pa. Oct. 27, 2010)

Dec 01 2010

Key Insight: Where defendants sought to avoid searching and producing emails and related documents maintained by defendants? CEO and CTO and argued that they had already produced 5.5 million pages and that the information sought was cumulative and therefore imposed an undue burden, the court noted defendants admission that they had not searched or reviewed the materials of the relevant executives and found that plaintiff had shown the likelihood that such a search could lead to the discovery of relevant evidence and ordered the executives? materials to be searched and if responsive, produced

Electronic Data Involved: Executives’ ESI

In re Subpoenas, 692 F.Supp.2d 602 (W.D.Va. 2010)

Dec 01 2010

Key Insight: Where recipient of government subpoenas refused to comply on grounds of unreasonableness and burden, court approved government?s offer to reduce number of custodians from 13 to 3 (out of a workforce of approximately 72,000) and ordered recipient to produce live emails and snapshot of emails from backup tapes for each of the years between 2002 and 2008 which, the court noted, had been preserved for other litigation

Nature of Case: Government investigation

Electronic Data Involved: Email, snapshot of email from backup tapes

Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y. 2010)

Dec 01 2010

Key Insight: For ?defendant?s recalcitrance in meeting its discovery obligations?, namely refusing to produce certain discovery on the basis of foreign secrecy laws (a justification previously rejected by the court), the court imposed severe sanctions, including adverse inference instructions and an order precluding the presentation of certain evidence

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

Tag:Lack of Cooperation / Inaccurate Representations