Lack of Cooperation / Inaccurate Representations – Page 33

Actionlink, LLC v. Sorgenfrei, 2010 WL 395243 (N.D. Ohio Jan. 27, 2010)

Dec 01 2010

Key Insight: Where issues of material fact existed as to the willfulness of defendant?s destruction of potentially relevant ESI and as to whether such destruction ?disrupted? plaintiff?s case, court denied defendant?s motion for summary judgment as to its claim of spoliation and denied plaintiff?s request for an adverse inference as to claims 1 through 4, but indicated its willingness to entertain a motion for an appropriate jury instruction at trial

Nature of Case: Breach of confidentiality agreement and related claims, independant cause of action for spoliation

Electronic Data Involved: ESI

Read v. Teton Springs Golf & Casting Club, LLC, 2010 WL 2697596 (D. Idaho July 6, 2010)

Dec 01 2010

Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored

Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties

Electronic Data Involved: Email, hard drives

Whited v. Motorists Mutual Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010)

Dec 01 2010

Key Insight: For plaintiff?s willful and bad faith violations of the court?s orders which resulted in prejudice to the defendants, including unexplained delays in production and intentional deletion of files on computers which the court had ordered no one to use, and where the court had previously warned that failure to comply could result in dismissal, court ordered dismissal of plaintiff?s claims

Nature of Case: Cross claims arising from insurance payments for home health care

Electronic Data Involved: ESI

Partminer Worldwide, Inc. v. Siliconexpert Techs., Inc., 2010 WL 4004164 (D. Colo. Sept. 23, 2010)

Dec 01 2010

Key Insight: Based upon suspicious timing of the disappearance of ESI, the court inferred that evidence had been destroyed in bad faith by a person who knew that it would ?very well reveal information Defendants did not want revealed? and ordered an adverse inference instruction to the jury at trial, that plaintiff should be permitted to amend its claims to add a claim for exemplary damages based on the adverse inference, that defendants pay plaintiff?s costs and fees, and that defendants make unredacted mirror images of the hard drives of each employee of the corporate defendant at defendants? expense, to be delivered to plaintiff by a date certain; hard drives were covered by a previously entered protective order

Electronic Data Involved: Email, ESI

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

Tag:Lack of Cooperation / Inaccurate Representations