Lack of Cooperation / Inaccurate Representations – Page 52

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

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

Reino de Espana v. Am. Bureau of Shipping, 2006 WL 3208579 (S.D.N.Y. Nov. 3, 2006)

Dec 01 2006

Key Insight: Where Spain failed to place a timely and adequate litigation hold in its agencies and ministries, court found that Spain violated its discovery obligations under the FRCP and observed that relevant email and electronic records probably no longer existed; court granted defendant’s motion to compel and invited defendant to to file an application requesting the relief, remedy, or sanction it deemed appropriate in light of the court?s findings

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email and electronic records

Tech. Recycling Corp. v. City of Taylor, 2006 WL 1792413 (6th Cir. June 28, 2006) (Unpublished)

Dec 01 2006

Key Insight: Sixth circuit affirmed dismissal of complaint as a discovery sanction under FRCP 37(b)(2)(C) and the award of all attorney fees to defendants under 42 U.S.C. ? 1988, where plaintiffs “repeatedly touted and promised to produce critical ‘smoking gun’ evidence, then failed or refused to produce it; belatedly produced an incomplete collection of evidence; falsely stated that they had produced all the evidence ordered; deliberately withheld evidence; strained credulity by claiming that they gave away original tapes of critical conversations, keeping none for themselves, and made no effort to get copies; asserted a nonsensical privilege as a reason for failing to produce more or better evidence of defendants’ allegedly defamatory statements; agreed to seek permission from the state court to produce financial and accounting documents, but never did so; and so on”

Nature of Case: Civil rights

Electronic Data Involved: Audio and videotapes supporting plaintiffs’ claims

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

Dec 01 2006

Key Insight: In follow up to earlier decision dismissing complaint as sanction for plaintiff’s discovery misconduct, court awarded defendant $35,000 in attorneys’ fees and full costs of $20,472 since forensic computer experts were “particularly necessary to uncover plaintiff’s skulduggery”

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

Leviton Mfg. Co., Inc. v. Nicor, Inc., 2006 WL 1305036 (D.N.M. Jan. 6, 2006)

Dec 01 2006

Key Insight: Citing concerns that defendant had not accounted for documents that at one time were in its files, court ordered defendant to produce all responsive documents, submit a sworn declaration from a corporate officer setting forth precisely why it did not produce the documents that had been shown to the court, make its computers available for inspection by Leviton and its experts, and provide Leviton with an authorization to defendant’s email service company to produce all of defendant’s communication with its customers

Nature of Case: Patent infringement

Electronic Data Involved: Electronic documents

Burkybile v. Mitsubishi Motors Corp., 2006 WL 3191541 (N.D. Ill. Oct. 17, 2006)

Dec 01 2006

Key Insight: Court denied motion for entry of default as discovery sanction but ordered defendant to provide a printout of data relevant to the pertinent time period, noting that, although original printouts underlying certain reports no longer existed, the data used to create them still existed in the database and was accessible, and the reports could be recreated, even if not exactly. The court elaborated: “It may in fact be the database, like some sort of digital organism, changes over time. But it does not follow that the critical underlying information is no longer obtainable at all. Perhaps the information utilized . . . in preparing the reports can no longer be reproduced identically . . . But it does not follow that there cannot be some reasonable approximation that will give to the plaintiff the information ordered be produced.”

Nature of Case: Personal injury product liability

Electronic Data Involved: Database reports

Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317 (Ind. Ct. App. 2006)

Dec 01 2006

Key Insight: Court abused its descretion when it refused to enter protective order addressing Allstate’s production of computer program and manuals, since plaintiff made no showing that discovery under a protective order would be detrimental to his case, and it was shown that discovery without a protective order could be detrimental to Allstate

Nature of Case: Bad faith insurance litigation

Electronic Data Involved: Colossus computer program used by Allstate to evaluate claims

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

Ferrero v. Henderson, 341 F.Supp.2d 873 (S.D. Ohio 2004), opinion withdrawn in part on reconsideration, 2005 WL 1802134 (S.D. Ohio July 28, 2005)

Dec 01 2005

Key Insight: Although plaintiff was unable to make out FMLA claim, court sanctioned defendant under Rule 26(g)(3) for failure to timely produce dispositive payroll data, and ordered it to pay plaintiff the reasonable attorney fees and expenses incurred in prosecuting FMLA claim, including but not limited to the time her attorney spent in pretrial preparation of the claim and in prosecuting the claim at trial

Nature of Case: Wrongful termination, FMLA claim

Electronic Data Involved: Payroll data

United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005)

Dec 01 2005

Key Insight: In connection with criminal defendant’s request for certain emails and correspondence, court held that the term “government” included all agencies and departments of the Executive Branch of the government and all subdivisions thereof and it was insufficient for Justice Department merely to state that certain documents were not in its possession and it was continuing to make inquiries; Justice Department ordered to immediately and by formal request in writing, demand that GSA conduct a thorough search and produce all relevant emails, including archived emails on employees’ hard drives

Nature of Case: Criminal prosecution for obstruction of justice

Electronic Data Involved: Email and archived email

Tag:Lack of Cooperation / Inaccurate Representations