Key Insight: Defendants’ failure to comply with six separate court orders to produce personal documents and electronic documents in the possession of two law firms that had formerly represented defendants, coupled with inadequate excuses for those defaults, warranted striking of their answer
Electronic Data Involved: CDs containing electronic documents
Key Insight: Magistrate issued Certification of Facts for a Finding of Contempt relating to conduct of non-party Brett Cormier, a relative and employer of plaintiff who had consistently failed to comply with discovery orders or produce salary and employment records; court had previously stated: “The Court is still reluctant to order an inspection of Cormier’s computer, at his expense, to obtain this information since it seems an extreme, expensive, and unnecessarily invasive process to obtain what should be relatively easy information about Plaintiff’s income. However, Cormier must be more cooperative in producing the limited information requested of him or the Court may be left with no other option. . . . Work history and salary information is simple, straightforward information that every reputable business maintains in a variety of easily retrievable formats, and the Court simply does not accept the representations heretofore made for why Brett Cormier cannot locate this information. This issue is getting tiresome and has occupied far too much of this Court’s time and energy.”
Nature of Case: Personal injury
Electronic Data Involved: Salary and employment information
Key Insight: Court granted motion to compel and motion for sanctions, requiring defendant to produce additional documents and file a sworn declaration describing all steps taken to locate particular items; to the extent that defendant’s production did not include responsive documents because they ceased to exist in either paper or electronic format, defendant required to file a sworn declaration stating when it destroyed or ceased to retain these documents, and the policies or reasons for their destruction; to the extent defendant contended that it already produced any of the documents described, defendant to provide a sworn declaration identifying the Bates numbers that correspond to the type of document; defendant further ordered to pay plaintiffs’ reasonable attorneys’ fees and costs associated with the motion
Nature of Case: Class action employment litigation
Electronic Data Involved: Personnel records
Key Insight: Where plaintiff deleted whole directories without looking at their contents and designed drive wiping program to write over data indiscriminately after he had notice of the pendency of the litigation, court concluded that ?the extreme nature? of plaintiff?s bad faith behavior, combined with harm done to defendants, merited dismissal of plaintiff?s claims with prejudice; court further ordered plaintiff to pay defendants $65,000 to reimburse them for expenses incurred in investigating and litigating spoliation issue
Nature of Case: Retaliation under False Claims Act and other federal statutes, and Washington state law claims
Electronic Data Involved: Laptop
Key Insight: Even lacking direct evidence that defendants continued to possess plaintiff?s computer disks and information (which had been seized by the Attorney General in related criminal investigation), trial court erred in denying preliminary injunction given evidence of defendants? knowing and willing participation in criminal, unethical and unscrupulous acts against plaintiff and possibility that information could have been downloaded to other computers, or printed, or handwritten and kept anywhere; trial court’s credibility determination in favor of defendants was abuse of discretion under the circumstances
Nature of Case: Misappropriation of trade secrets and related claims
Electronic Data Involved: CDs and computer disks
Key Insight: Court rejected trustee’s request for entry of default judgment based upon based on law firm’s failure to retain and timely produce relevant documents and electronically-stored information, but found that monetary sanctions were appropriate; trustee awarded his reasonable attorneys’ fees and costs incurred in pursuing all discovery in the adversary proceeding
Nature of Case: Adversary proceeding in bankruptcy court
Electronic Data Involved: Backup tapes
Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful
Nature of Case: Patent infringement
Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery
Key Insight: Court denied motion to reconsider prior discovery ruling that MBNA was not entitled to production of responsive correspondence on diskette, stating that MBNA had remedies under the FRCP if defendants failed to produce legible paper copies as ordered in the prior ruling; court also flatly rejected any attempt by MBNA to obtain discovery through inspection of defendants’ computer hard drives
Nature of Case: Bank alleged firm had conducted “sham” arbitrations with bank’s cardholders
Electronic Data Involved: Word processing files
Key Insight: Adverse inference and monetary sanctions warranted, but not default judgment, where defendant acknowledged that its personnel routinely deleted emails without regard to whether the deleted emails were relevant to the litigation, but behavior did not constitute a pattern of deliberately deceptive litigation practices and there was evidence that the actual number of emails lost was small
Nature of Case: Copyright infringement
Electronic Data Involved: Email
Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged
Nature of Case: Misappropriation of funds
Electronic Data Involved: Accounting files on hard drive
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