Lack of Cooperation / Inaccurate Representations – Page 33

Trusz v. USB Realty Investors LLC, 2010 WL 3583064 (D. Conn. Sept. 7, 2010)

Dec 01 2010

Key Insight: Where plaintiff accused defendant of a ?document dump? in the wake of its production of 4,004,183 pages of documents and where defendants argued that the high volume was a result of plaintiff?s overbroad discovery requests, the court reasoned that the issue could have been avoided had counsel conferred to refine search terms and ordered the parties to confer in good faith to reach agreement regarding reducing the volume of discovery and that absent agreement, a special master would be appointed

Nature of Case: Claims arising from alleged concealment of overvaluing real estate investments

Electronic Data Involved: ESI

Estate of Boles v. Nat?l Heritage Realty, Inc., 2010 WL 2976076 (N.D. Miss. July 23, 2010)

Dec 01 2010

Key Insight: Court denied defendants? motion to produce the ?general ledger? in hard copy, with redactions, where the record made clear that defendants made no real attempt to comply with the court?s order compelling electronic production and, where defendant offered no proof of any court order prohibiting disclosure of the information contained in the ledger, where there was a sufficient protective order in place, and where ?matters involving payment of attorney fees are generally not privileged,? the court vacated prior orders allowing redactions and ordered production of the general ledger on CD or DVD within 3 days

Electronic Data Involved: Electronic copy of general ledger

United States v. Perraud, 2010 WL 228013 (S.D. Fla. Jan. 14, 2010)

Dec 01 2010

Key Insight: Despite finding Fed. R. Crim. P. 16 did not require the government to identify the evidence upon which it intended to rely at trial where defendants claimed the government had attempted to overwhelm them by providing access to a database containing millions of documents, and despite government?s production of an index to the database and directions to the materials it deemed most relevant, magistrate recommended the government be ordered to provide defendants with an exhibit list and hard copies of the exhibits ten days before trial, for the government to supplement that list as necessary, and for the government to comply in good faith where the government had previously offered to supply the same

Nature of Case: Conspiracy to destroy records and destruction of records

Electronic Data Involved: ESI

Soileau v. Smith?s True Value & Rental, 40 So.3d 379 (La. Ct. App. 2010)

Dec 01 2010

Key Insight: Appellate court affirmed lower court?s order finding defendants in contempt, ordering their immediate production of outstanding discovery and establishing facts sufficient to satisfy 2 of the 4 elements of plaintiff?s liability claim where defendants failed to timely produce relevant discovery in violation of the trial court?s order and provided no satisfactory explanation for such failure, and where the trial court determined that defendants were ?hiding? discoverable information

Nature of Case: Personal injury resulting from alleged product defect

Electronic Data Involved: ESI, hard copy

Meridian Fin. Advisors Ltd. v. Pence, 2010 WL 2772840 (S.D. Ind. July 12, 2010)

Dec 01 2010

Key Insight: For the receiver?s failure to disclose the existence and specific location of relevant emails by the required initial disclosure deadline pursuant to Rule 26, the court imposed sanctions and precluded the receiver?s use of such ESI at trial; for the receiver?s failure to disclose its access to defendants? privileged communications (including accessing, through the actions of a third party, the personal and privileged emails of one defendant by accessing his personal email accounts without his knowledge), the court imposed monetary sanctions, including payment of the costs of investigating and bringing the motion as well as payment of one defendant?s attorney?s fees during the time his co-defendant provided the receiver with access to his privileged communications

Nature of Case: Receiver filed suit against former officers and employees for myriad of claims, including breach of fiduciary duty, unfair competition, civil conspiracy, etc.

Electronic Data Involved: Emails

Nycomed U.S. Inc. v. Glenmark Generics, Ltd., 2010 WL 3173785 (E.D.N.Y. Aug. 11, 2010)

Dec 01 2010

Key Insight: For failing to abide by its good-faith discovery obligations by withholding from production, without justification, certain relevant ESI and ?willfully fail[ing] to search two important and obvious repositories for responsive ESI?, the court determined that ?substantial monetary fines, payable to Nycomed and to the Clerk of the Court, are appropriate sanctions, as they will adequately advance ?the prophylactic, punitive and remedial rationales? of discovery sanctions? and ordered Glenmark to pay $100,000 to Nycomed ?to cover a portion of its costs? and to pay an additional $25,000 to the Clerk of the Court

Electronic Data Involved: ESI

MLM Props., LLC v. Country Cas. Ins. Co., 2010 WL 1948609 (D. Or. May 7, 2010)

Dec 01 2010

Key Insight: Where the court ordered plaintiffs to pay defendant?s expenses and fees related to a motion for sanctions arising from plaintiff?s delayed production of documents previously characterized as unrecoverable due to a damaged backup tape, court denied motion for additional sanctions where plaintiffs argued no prejudice resulted from the delay and where the court found no evidence to justify sanctions beyond those already imposed

Nature of Case: Breach of insurance contract and intentional inter-ference with economic relationships

Electronic Data Involved: ESI

State of California ex rel Fowler v. Caremark RX, LLC, 2010 WL 3991298 (Cal. Ct. App. Oct. 13, 2010):

Dec 01 2010

Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal

Nature of Case: Violation of False Claims Act

Electronic Data Involved: Archived ESI

Jeanes-Kemp, LLC v. Johnson Controls, Inc., 2010 WL 3522028 (S.D. Miss. Sept. 1, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for protective order as to two inadvertently produced privileged documents where the production was inadvertent, where discovery was reviewed by three attorneys prior to production and thus efforts to prevent disclosure were reasonable, and where upon notice of disclosure, counsel took immediate steps to retrieve the documents; court declined to sanction defense counsel for threatening use of the inadvertently disclosed documents where plaintiff?s motion for protective order was granted and where defendants had not yet had the opportunity to use the documents as threatened

Electronic Data Involved: Inadvertently produced emails

Alexander v. Archuleta County, 2010 WL 363390 (D. Colo. Jan. 27, 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to timely produce relevant communications despite a court order and offered no explanation for the delay and where the court determined the delayed production resulted in prejudice to the defendants, that the prejudice could not be cured by additional discovery, and that plaintiff?s discovery conduct was ?in bad faith and willful?, court ordered two affidavits in support of plaintiff?s response to summary judgment stricken and prohibited plaintiff from introducing those witnesses? testimony at trial and for plaintiff to pay defendant?s reasonable attorney?s fees and expenses

Nature of Case: Wrongful termination

Electronic Data Involved: Emails

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