Lack of Cooperation / Inaccurate Representations – Page 30

Susquehanna Commercial Finance, Inc. v. Vascular Res., Inc., No. 1:09-CV-2012, 2010 WL 4973317 (M.D. Pa. Dec. 1, 2010)

Dec 01 2010

Key Insight: Despite a prior agreement between plaintiff?s counsel and former defense counsel that parties would produce documents on disc or in hard copy, court ordered production of ESI in electronic format citing the ?halting nature of this action since it commenced, the questions that have come up regarding the sufficiency of Plaintiff?s production and efforts to identify responsive documents, and the absence of any showing that responding [to] Defendants? request for ESI would be unduly burdensome?

Nature of Case: Action to recover monies advanced

Electronic Data Involved: ESI

Global Naps, Inc. v. Verizon New England d/b/a Verizon Mass., 603 F.3d 71 (1st Cir. 2010)

Dec 01 2010

Key Insight: District court did not abuse discretion in ordering default judgment as sanction for discovery violations where evidence indicated that defendants lied to the court regarding its record keeping practices and the timing of their alleged ?loss? of financial records and withheld and destroyed financial records, including intentionally wiping relevant evidence from a hard drive using scrubbing software

Nature of Case: Litigation arising from defendants’ failure to pay access charges for services provided

Electronic Data Involved: ESI

State v. Norris, 236 P.3d 225 (Wash. Ct. App. 2010)

Dec 01 2010

Key Insight: Where State refused to produce images to be used against defendant in court and, to avoid being subject to subpoena, gave possession of the evidence to the federal government who was not subject to subpoena, the appellate court granted defendant?s petition for discretionary review, stayed the trial court?s proceedings, and held that the Adam Walsh Act (a federal statue restricting copying and distribution of image of child pornography in federal court proceedings) does not preempt state law requiring full disclosure of the State?s evidence; the case was remanded for further proceedings

Nature of Case: Sex offenses against minors

Electronic Data Involved: Hard drive, copies of electronic images

Rhea v. Washington Dep?t of Corr., 2010 WL 5395009 (W.D. Wash. Dec. 27, 2010)

Dec 01 2010

Key Insight: Court found that defendant had failed to ask all employees with potentially relevant documents to search for and produce them, that some employees who were asked to search had not complied, and that employees who had complied failed to search for documents in all possible locations and granted plaintiff?s motion to compel additional searching and production; court granted motion to compel defendants to provide a complete answer to an interrogatory seeking detailed information on steps taken to locate responsive materials and ordered defendant to ?certify that all employees with potentially responsive documents searched all locations where such documents are typically stored in paper or electronic format?

Nature of Case: Claims that defendant refused to provide necessary medical care or accommodate plaintiff’s disability

Electronic Data Involved: ESI, emails

Secure Energy, Inc. v. Coal Synthetics, 2010 WL 597388 (E.D. Mo. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion to compel re-production of ESI in native format because the motion was untimely filed but went on to find that defendants? production of ESI in .PDF format was reasonable absent plaintiffs? request for production in native format and that compelling re-production would prejudice defendants where the metadata produced would likely necessitate additional expert involvement and discovery resulting in an adjustment to the case management schedule

Electronic Data Involved: ESI

Palm Bay Int., Inc. v. Marchesi Di Barolo S.P.A., 2010 WL 1688203 (E.D.N.Y. Apr. 26, 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to produce 15 emails (which were discovered in a productions from third parties), court declined to find that plaintiff had waived its objections to defendant?s request but ordered plaintiff to file an affidavit from a representative with first hand knowledge of how the search was undertaken providing ?a specific explanation of what information was discovered concerning how and why the email at issue were not picked up during the course of that search? and noted that defendant was free to raise the failure to produce those emails with the witnesses at trial

Nature of Case: Breach of contract

Electronic Data Involved: Emails

In re Stern, 321 S.W.3d 828 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: On petition for a writ of mandamus, the Supreme Court held that the trial court abused its discretion in ordering petitioner to produce communications between himself and nearly forty individuals where such discovery was not narrowly tailored to avoid the inclusion of ?tenuous information irrelevant to the establishment of jurisdiction? (the subject of petitioner?s special appearance) and held that the trial court abused its discretion in appointing a special master to conduct a forensic examination of petitioner?s hard drive where there was no showing that petitioner had defaulted in his discovery obligations, where there was no showing that a search of the hard drive would recover relevant information (particularly in light of petitioner?s use of web-based email), where the special master was appointed without following the procedures called for by the Texas Rules of Civil Procedure, where the special master?s broad authorization to search the hard drives (including the authority to choose search terms) amounted to an ?impermissible fishing expedition?, and where the trial court required no showing of the feasibility of retrieving the data by the party requesting the search

Nature of Case: Defamation

Electronic Data Involved: Emails, hard drive

Rosenbaum v. Becker & Poliakoff, P.A., 708 F. Supp. 2d 1304 (S.D. Fla. 2010)

Dec 01 2010

Key Insight: In an order addressing several discovery disputes court ordered re-production of information downloaded from relevant Blackberry telephones where defendant produced the requested data in hard copy and where the information was not fully readable

Electronic Data Involved: ESI from Blackberry telephones

Merck Eprova AG v. Gnosis S.P.A., 2010 WL 1631519 (S.D.N.Y. Apr. 20, 2010)

Dec 01 2010

Key Insight: Court found defendants were ?at least? grossly negligent for failing to issue a written litigation hold and ordered defendants to pay the costs of plaintiff?s motion to compel as well as a $25,000 fine; in devising its sanction, the court considered defendants other conduct, including defendants? deficient search for responsive documents, defense counsel?s lack of meaningful supervision in the discovery process, and defendants? decision to withhold certain documents deemed insufficiently important, among other things

Nature of Case: Lanham Act/ mislabeled ingredients

Electronic Data Involved: Emails

Maggette v. BL Dev. Corp., 2010 WL 3522798 (N.D. Miss. Sept. 2, 2010)

Dec 01 2010

Key Insight: Where the defendant was warned that failure to uphold discovery obligations would result in severe sanctions and where, with the help of a special master, it was determined that defendant ?repeatedly and knowingly? concealed information from the court and acted in bad faith to prevent the discovery of relevant information, including interfering with counsel?s efforts to identify responsive information, the court ordered dispositive sanctions and found that an agency relationship existed as a matter of law between defendant and the bus company involved in the fatal accident that was the basis for plaintiffs? claims

Nature of Case: Claims arising from fatal bus accident

Electronic Data Involved: ESI

Tag:Lack of Cooperation / Inaccurate Representations