Lack of Cooperation / Inaccurate Representations – Page 35

Jones v. Hawley, 255 F.R.D. 51 (D.D.C. Jan. 12, 2009)

Dec 01 2009

Key Insight: Where plaintiffs did not deny their failure to preserve relevant documents previously in their possession, did not deny their failure to search for documents demanded, save one plaintiff who limited search to what he described as ?reasonably accessible? information, did not deny their failure to supplement their responses to interrogatories as promised, and did not deny providing contradictory answers regarding documents in their possession, court rejected arguments that sanctions were unnecessary because of a lack of resulting prejudice and arguments that the documents were ?barely relevant? and ordered an adverse inference instruction in favor of defendants

Nature of Case: Violation of Aviation and Transportation Security Act and Privacy Act

Electronic Data Involved: ESI

Stratienko v. Chatanooga-Hamilton County Hosp. Auth., 2009 WL 2168717 (E.D. Tenn. July 16, 2009)

Dec 01 2009

Key Insight: Court denied defendants? objections to magistrate?s finding that sanctions were warranted (including a possible adverse inference) where defendants delayed production of relevant notes for four years and where, despite a duty to preserve based upon specific requests for the hard drive at issue, defendants re-imaged the drive rendering the information thereon unavailable, and where the information stored on defendants? network was also unavailable

Nature of Case: Action arising from physical altercation resulting in plaintiff’s suspension from work

Electronic Data Involved: ESI, hard drive

Palm Bay Int., Inc. v. Marchesi Di Barolo, S.P.A., 2009 WL 3757054 (E.D.N.Y. Nov. 9, 2009)

Dec 01 2009

Key Insight: Noting a lack of any indication that plaintiff objected to production in electronic format and highlighting the fact that electronic discovery is permitted under the Federal Rules, court ordered production of discovery in electronic format and directed the parties to confer to determine the best method of production; upon defendant’s assertion that plaintiff failed to produce certain relevant communications as evidenced by the production of previously unseen communications by a third party, court declined to impose sanctions absent evidence of bad faith but indicated a willingness to re-open depositions upon defendant?s submission of subjects to be pursued therein

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Grasso v. Bakko, 2009 WL 224022 (W.D. Wis. Jan. 29, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel inspection of plaintiff?s computer, despite plaintiff?s conflicting statements regarding the existence of a contract in 2005 and defendant?s resulting belief that plaintiff created the contract on her computer years later, where court determined the inspection would be unduly burdensome and where plaintiff carried the burden to prove the contract existed in 2005, not defendant

Electronic Data Involved: Hard drive

Gucci Am., Inc., v. Gucci, 2009 WL 440463 (S.D.N.Y Feb. 20, 2009)

Dec 01 2009

Key Insight: Court found that defendant violated temporary restraining order by failing to disclose certain relevant emails and other ESI discovered following forensic examination of defendant?s computer and rejected defendant?s assertions that the failure resulted from his lack of understanding of his discovery obligations, mistake of his counsel, and his own lack of computer savvy; Court ordered defendant to pay attorneys? fees and costs attributable to the additional discovery and motions practice undertaken as a result of non-disclosure

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, email

Sentis v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009)

Dec 01 2009

Key Insight: Where, when imposing discovery sanctions, trial court improperly relied on unreliable evidence of misconduct by plaintiff, including accusations of bribery proffered by defendant following receipt of an anonymous phone tip, where the other findings in support of the sanction were ?close questions,? and where there were accusations of judicial bias and the appearance of judicial partiality, circuit court of appeals reversed the judgment of the district court dismissing plaintiff?s claims and remanded the matter for further proceeding before a different judge

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

Andrew Corp. v. Cassinelli, 2009 WL 736669 (N.D. Ill. Mar. 19, 2009)

Dec 01 2009

Key Insight: Where court ordered discovery into extent of defendant?s compliance with Settlement Agreement upon plaintiff?s showing that confidential information remained on defendant?s computer system and where defendant?s court ordered search for additional information included retention of discovery firm to search seven computers, an email server, and a scratch drive using 26 terms based on the content of the previously discovered confidential information, court found the search ?deficient? and that defendant had failed to confirm that all information subject to the Settlement Agreement was deleted and appointed a Special Master, at defendant?s expense, and ordered defendant to pay plaintiff?s attorneys fees for its Motion to Enforce and Supplement

Electronic Data Involved: ESI

Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)

Dec 01 2009

Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, database information, back up tapes

Tag:Lack of Cooperation / Inaccurate Representations