Lack of Cooperation / Inaccurate Representations – Page 53

Appraisal Mgmt. Co. III v. FNC, Inc., 2005 WL 3088561 (N.D. Ohio Nov. 17, 2005)

Dec 01 2005

Key Insight: Court dismissed complaint as discovery sanction finding that: (1) plaintiff’s failure to cooperate in discovery was willful, (2) plaintiff’s conduct had prejudiced the defendant by impairing its ability to prepare its defense, (3) plaintiff had received sufficient warnings that its failure to cooperate could lead to dismissal, and (4) lesser sanctions would not protect the integrity of pretrial procedures or ameliorate the prejudice already visited upon the defendant

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Email and computer code

Ferrero v. Henderson, 341 F.Supp.2d 873 (S.D. Ohio 2004), opinion withdrawn in part on reconsideration, 2005 WL 1802134 (S.D. Ohio July 28, 2005)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

Ferrero v. Henderson, 2004 WL 1802134 (S.D. Ohio July 28, 2005)

Dec 01 2005

Key Insight: Where parties had settled the amount of attorney fees to be paid to plaintiff as sanction for defendant’s failure to produce crucial payroll records until first day of trial, court reconsidered and withdrew finding of bad faith on part of defense counsel since she had made at least some effort to reasonably investigate, and the failure to produce the material was blamed on two employees in defendant’s HR department

Nature of Case: Wrongful termination, FMLA claim

Electronic Data Involved: Payroll data

Krausz Puente LLC v. Westall, 2005 WL 236862 (Cal. Ct. App. Jan. 25, 2005) (Unpublished)

Dec 01 2005

Key Insight: Trial judge did not err in imposing monetary sanctions and evidentiary sanction against individual defendant limiting the scope of his testimony, where defendant delayed for several days and deleted relevant computer files in violation of court’s order requiring defendant to “immediately make available to Plaintiff’s designated expert all computers, including hard drives and all other electronic storage media in [defendant’s] possession, custody and/or control”

Nature of Case: Breach of contract and fraud

Electronic Data Involved: 5,300 computer files

Crown-Life Ins. Co. v. Craig, 995 F.2d 1376 (7th Cir. 1993)

Dec 01 2004

Key Insight: Insurer’s willful failure to comply with discovery orders and failure to produce database warranted evidentiary preclusion order amounting to entry of default judgment on agent’s counterclaim

Nature of Case: Insurer sued former general agent and agent counterclaimed for renewal commissions owed

Electronic Data Involved: Database containing raw data regarding policies sold by agents

In re Livent, Inc. Noteholders Sec. Litig., 2003 WL 23254 (S.D.N.Y. Jan. 2, 2003)

Dec 01 2004

Key Insight: After defendant accounting firm produced only 25 pages of email from one custodian plus 14 emails from other employees, and plaintiffs voiced suspicions that production was incomplete, court directed defendant to fax to plaintiffs a written explanation of all the steps taken to find responsive emails; as to any further steps, court directed parties to read Magistrate Judge Francis’ opinion in Rowe Entertainment, then meet and confer re eight Rowe factors

Nature of Case: Securities litigation

Electronic Data Involved: Email

Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), amending 341 F.3d 978 (9th Cir. 2003), cert. denied, 543 U.S. 813 (2004)

Dec 01 2004

Key Insight: Defendant’s subpoena to ISP of plaintiff, which sought all copies of all email sent or received by anyone at plaintiff with no limitation as to time or scope, was “massively overbroad,” “patently unlawful,” and “transparently and egregiously” violated federal rules; besides warranting sanctions in underlying suit, subpoena was grounds for separate action by employees of plaintiff against defendant for violation of federal Stored Communications Act and Computer Fraud and Abuse Act, and state law

Nature of Case: Violation of federal electronic privacy and computer fraud statutes

Electronic Data Involved: Email stored by Internet Service Provider

Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332 (D.N.J. 2004) (“Mosaid IV”)

Dec 01 2004

Key Insight: Finding defendant’s actions went “far beyond mere negligence, demonstrating knowing and intentional conduct that led to the nonproduction of all technical e-mails,” district court affirmed the spoliation inference jury instruction and monetary sanctions imposed by magistrate

Nature of Case: Patent infringement

Electronic Data Involved: Email

Cumis Ins. Co. v. Diebold, Inc., 2004 WL 1126173 (E.D. Pa. May 20, 2004)

Dec 01 2004

Key Insight: Court ordered defendant to respond to document requests by searching its electronic storage devices and electronic data compilations; plaintiff convinced court that defendant may not have satisfied its discovery obligations by showing that responsive Diebold documents and emails had been obtained from other sources, but had yet to be produced by Diebold itself

Nature of Case: Insurance coverage

Electronic Data Involved: Emails

Tag:Lack of Cooperation / Inaccurate Representations