Lack of Cooperation / Inaccurate Representations – Page 43

Matthews v. Baumhaft, 2008 WL 2224126 (E.D. Mich. May 29, 2008)

Dec 01 2008

Key Insight: District judge upheld as neither clearly erroneous nor contrary to law magistrate judge?s order for forensic imaging of defendants’ computers, where defendants had refused to provide documents plaintiff requested, providing only “sample” appraisals, and where relevant appraisals and software used to generate appraisals resided in computer and were relevant to parties’ claims and defenses

Nature of Case: Fraud, RICO and breach of fiduciary duty claims

Electronic Data Involved: Appraisals and software used to generate appraisals

Jones v. Jones, 995 So.2d 706 (Miss. 2008)

Dec 01 2008

Key Insight: Where party admitted to deliberate destruction of personal computer and was thus unable to produce it in response to discovery requests and where party also admitted to perjury, Supreme Court held chancellor abused his discretion in failing to impose sanctions pursuant to his obligation to ?consider sanctions that are severe enough to deter other from pursuing similar action? and remanded for reconsideration accordingly

Nature of Case: Divorce

Electronic Data Involved: Computer

S. Capitol Enters., Inc. v. Conseco Servs., Inc., 2008 WL 4724427 (M.D. La. Oct. 24, 2008)

Dec 01 2008

Key Insight: Noting that ?perfection in document production is not required?, court denied plaintiffs? motion for sanctions or additional discovery orders where defendants offered valid reasons for the non-production of some data, performed a thorough search of their systems for the requested information, and explained that there were no other sources to search and where the burden of production outweighed the likely benefit; court indicated that ?experts can extrapolate and estimate from available data in order to perform calculations and provide opinions.?

Electronic Data Involved: ESI

Yeisley v. PA State Police, 2008 WL 906465 (M.D. Pa. Mar. 31, 2008)

Dec 01 2008

Key Insight: Denying plaintiff?s motion for sanctions based on non-production of email, court ordered defendants to promptly undertake requisite search of electronic records and warned: ?To the extent that electronic records may have been lost during the pendency of this litigation as a result of the failure to conduct an adequate search of this font of information prior to this time, sanctions may be appropriate.?

Nature of Case: Civil rights litigation

Electronic Data Involved: Email

MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 4940361 (E.D. Mich. Sept. 9, 2008)

Dec 01 2008

Key Insight: Special Master recommended production of un-redacted source code repository, development ?twiki? and operational versions of programs at issue to experts and plaintiff?s counsel where access to current versions was ?reasonable? before experts drafted reports and where prior orders did not prohibit it; Special Master also recommended in-person confirmation that production included all required information as kept in usual course of business

Nature of Case: Theft of trade secrets

Electronic Data Involved: source code repository, development “twiki”

Aecon Buildings Inc. v. Zurich N. Am., 253 F.R.D. 655 (W.D. Wash. 2008)

Dec 01 2008

Key Insight: Court imposed significant monetary sanction upon finding that defendant violated both the letter and spirit of discovery rules where defendant deliberately concealed existence of electronically stored information by making repeated misrepresentations regarding completeness of production and the existence of additional information and for defendant?s failure to produce the necessary privilege log

Nature of Case: Bad faith failure to defend or indemnify

Electronic Data Involved: Notes made in electronically stored case file

Whitney v. JetBlue Airways Corp., 2008 WL 2156324 (E.D.N.Y. Apr. 29, 2008)

Dec 01 2008

Key Insight: Where handwritten IIR was included with numerous other similar documents and destroyed en masse by airline under document retention policy, court found that, although there was a ?disturbing amount of carelessness on defendant’s part? in its retention and production of the IIRs, plaintiff had not demonstrated that handwritten IIR would have been favorable to her case or that she was prejudiced by its absence; accordingly, court declined to impose any spoliation sanctions but awarded plaintiff her fees and costs in connection with motion

Nature of Case: Airline passenger allegedly injured by another passenger sued airline claiming negligent failure to protect and gross negligence

Electronic Data Involved: Original handwritten ?Inflight Irregularity Report? and conflicting electronic versions of same

Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution

Nature of Case: Wrongful termination, discrimination

Electronic Data Involved: Laptop

Fharmacy Records v. Nassar, 572 F. Supp. 2d 869 (E.D. Mich. 2008)

Dec 01 2008

Key Insight: Court declined to reconsider dismissal of plaintiffs? case as sanction for ?campaign of fraud? that included intentionally wiping data, ?losing? original CDs and tape recordings, and misrepresentations to the court where the court found plaintiff?s behavior willful and prejudicial and where lesser sanctions would not have sufficed and where plaintiffs? alleged ?new evidence? was also ?suspect?; dismissal affirmed on appeal (2010 WL 2294538)

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Americas LLC, 516 F.3d 623 (7th Cir. 2008)

Dec 01 2008

Key Insight: Seventh Circuit upheld trial court’s dismissal of plaintiffs’ claims as sanction for flagrant discovery misconduct

Nature of Case: Dealerships sued for breach of contract and other claims

Electronic Data Involved: Financial data

Tag:Lack of Cooperation / Inaccurate Representations