Lack of Cooperation / Inaccurate Representations – Page 50

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006)

Dec 01 2006

Key Insight: In follow-up to earlier decision awarding sanctions for discovery failings (Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)), court awarded Phoenix its attorney’s fees and costs associated with bringing the motion for sanctions in the amount of $45,162, to be paid equally by the SRC Defendants and their law firm; court further ruled that the SRC Defendants’ share ?may not be borne by their insurance carriers?

Nature of Case: Investment company sued former advisor for breach of fiduciary duty, common law fraud, and negligent misrepresentation

Electronic Data Involved: Computer hard drives and servers

Ryan v. Staten Island Univ. Hosp., 2006 WL 3497875 (E.D.N.Y. Dec. 5, 2006)

Dec 01 2006

Key Insight: Where defendant failed to timely disclose that it was withholding certain information from production and defense counsel made representations several times to plaintiff and to court that she had provided full and complete discovery, court: (1) granted motion to compel production of database in hard copy and in electronic form with specific redactions noted and included in revised privilege log; (2) extended discovery cut-off date; and (3) awarded sanctions solely against defense counsel (and not client) for costs of motion

Nature of Case: Fraud and medical malpractice

Electronic Data Involved: Database

Chavannes v. Protective Life Ins. Co., 232 F.R.D. 698 (S.D. Fla. 2006)

Dec 01 2006

Key Insight: Where plaintiff had originally asserted work product protection regarding videotape recording of insured’s funeral, but failed to adequately explain the circumstances which led to his statements that the video existed or the circumstances surrounding his claimed discovery that no such video existed, court ordered plaintiff to produce video or explain in detail any reasons for non-production

Nature of Case: Beneficiary sued insurer to recover death benefit

Electronic Data Involved: Videotape recording of funeral

Tekena USA, LLC v. Fisher, 2006 WL 2536631 (N.D. Ill. Aug. 31, 2006)

Dec 01 2006

Key Insight: District court affirmed bankruptcy court’s orders appointing a receiver to monitor debtor’s operations in order to preserve debtor’s assets, and restraining debtor from destroying any records or computer files, where trustee showed that, among other discovery abuses, the debtor’s business data contained on hard drives had been destroyed

Nature of Case: Appeal from bankruptcy court ruling

Electronic Data Involved: Business data on hard drives

OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006)

Dec 01 2006

Key Insight: Court denied party’s motion to compel financial data in searchable electronic format in part because moving party had itself refused to produce its financials in searchable electronic format

Nature of Case: Patent litigation

Electronic Data Involved: Financial materials produced on CD in unsearchable “TIFF” format

Barker Capital LLC v. Rebus LLC, 2006 WL 247114 (Del. Super. Ct. Jan. 12, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court directed plaintiff’s counsel to submit an affidavit re attorneys’ fees and expenses incurred in connection with certain depositions and three motions to compel, where defendants produced certain corporate minutes and other documents after the close of discovery, and where defendants had failed to produce emails and other electronic documents from all available sources despite their general counsel’s earlier affidavit to the contrary

Electronic Data Involved: Emails and other electronic documents

Arista Records, LLC v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006)

Dec 01 2006

Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive

Kemper Mortgage, Inc. v. Russell, 2006 WL 4968120 (S.D. Ohio May 4, 2006)

Dec 01 2006

Key Insight: Where plaintiff presented convincing evidence at preliminary injunction hearing of defendant’s intentional spoliation of evidence, including his installation of file ?shredder? program on laptop computer the day before litigation was filed and under threat of its commencement, court allowed inference that that considerably more evidence of misconduct would have been found without the spoliation and granted preliminary injunction barring defendant from, among other things, destroying or deleting relevant ESI

Nature of Case: Breach of employment agreement

Electronic Data Involved: Laptop computer

Pioneer Res. Corp. v. Nami Res.Co., LLC, 2006 WL 1635651 (E.D. Ky. June 8, 2006)

Dec 01 2006

Key Insight: Defendant ordered to make good faith effort to locate responsive emails that were discussed at deposition; if defendant claims that such documents cannot be retrieved, defendant must file a written statement indicating all steps taken to obtain said emails and explain in detail why they could not be retrieved; defendant further warned that failure to comply could result in sanctions being imposed

Electronic Data Involved: Email

Powertrain, Inc. v. Honda Motor Co., Inc. v. 2006 WL 709784 (N.D. Miss. Mar. 15, 2006)

Dec 01 2006

Key Insight: Court granted plaintiff’s request for Rule 56(f) continuance and dismissed defendant’s motion for summary judgment as premature and with leave to refile once defendant had fulfilled all its discovery obligations, where plaintiff had already filed a number of discovery motions and sought, among other things, “information contained in emails which appear to have been deleted by Honda as part of its corporate policy (and which are the subject of a separate Motion for Order Preserving Electronic Data, to Recover[] Deleted Data and Show Cause which is pending before the magistrate)”

Nature of Case: Trademark infringement

Electronic Data Involved: Deleted email

Tag:Lack of Cooperation / Inaccurate Representations