Electronic Discovery Law
Court Orders Severe Sanctions for Egregious Discovery Abuses
Metropolitan Opera Association, Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003)
Similar to Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000), this case chronicles the myriad failings and misrepresentations of defense counsel regarding discovery obligations.
Ultimately, the court granted the plaintiff's motion for judgment as to liability against defendants and for additional sanctions in the form of attorneys' fees necessitated by the discovery abuse. Like the Danis case, this case provides a checklist of what not to do in discovery. The court found that defendants committed a number of abuses, including the following:
- In response to plaintiff's counsel's continuing assertions of lack of an adequate document search and demonstrations of non-production, defense counsel repeatedly represented to the court that all responsive documents had been produced when, in fact, a thorough search had never been made and counsel had no basis for so representing.
- Defense counsel knew the defendant's files were in disarray and that it had no document retention policy, but failed to cause a retention policy to be adopted to prevent destruction of responsive documents, both paper and electronic.
- Shortly after plaintiff's counsel announced they might seek permission to have a forensic computer expert examine defendant's computers in an attempt to retrieve deleted emails, defendant replaced those computers without notice.
- Counsel failed to explain to the non-lawyer in charge of the document production, inter alia, that a document included a draft or other non-identical copy and included documents in electronic form.
- The non-lawyer defendant put in charge of document production failed to speak to all persons who might have relevant documents, never followed up with people he did speak to and failed to contact all of defendant's ISP's to attempt to retrieve deleted emails, as counsel represented to the court that he would.
- No lawyer ever doubled back to inquire of the employee in charge of document production whether he conducted a search and what steps he took to assure complete production.
- In the face of plaintiff's counsel's constant assertions that no adequate document search had been conducted and responsive documents had not been produced, defense counsel failed to inquire of several important witnesses until the night before their depositions.
- Defense counsel lied to the court about a witness' vacation schedule in order to delay the witness' court-ordered deposition.
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