Archive: December 2005

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Magistrate Recommends Adverse Inference Instruction as Sanction for Defendant’s Negligent Failure to Institute Litigation Hold
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Sanctions Not Warranted For Negligent Failure to Preserve Surveillance Video
3
Motion for Exclusion of Evidence or Adverse Inference Denied as Untimely and Because Defendant Produced All Responsive Documents
4
Sanctions Against Defendant and Its Counsel Not Warranted In Contentious Discovery Dispute Involving Production of Email Stored on Backup Tapes
5
Court Sets Out Detailed “Directives” for Production of Electronically Stored Information
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Insufficient Precautions Against Inadvertent Disclosure and Inordinate Delay in Seeking Judicial Intervention Waived Any Privilege Otherwise Applicable to Emails
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Party’s Speculation That More Emails Exist Does Not Entitle Her to More
8
Loss of Audiotapes Did Not Warrant Exclusion of All Evidence Regarding Taped Conversations
9
Consistent Refusal to Produce Materials Deemed Sufficiently Culpable to Warrant Adverse Inference Instruction
10
Without Some Evidence That Missing Documents Would Have Been Favorable to Case, Sanctions Not Appropriate

Magistrate Recommends Adverse Inference Instruction as Sanction for Defendant’s Negligent Failure to Institute Litigation Hold

DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22, 2005)

Plaintiff sought sanctions for defendant’s failure to preserve evidence, and the matter was referred to a magistrate for hearing and determination. Defendant asserted that email messages were lost by reason of a preexisting feature of its computer system. Defendant explained that its computer system was set up to delete both internal and external email messages automatically, unless affirmative efforts were taken to preserve them. It further showed that such messages, once deleted, were not subject to retrieval by the defendant or by its computer support company. Read More

Sanctions Not Warranted For Negligent Failure to Preserve Surveillance Video

Hamilton v. Signature Flight Support Corp., 2005 WL 3481423 (N.D. Cal. Dec. 20, 2005)

In this employment discrimination case, the court decided that sanctions were not warranted for the defendant’s failure to preserve a surveillance video that captured an altercation between one of the plaintiffs and a customer. Although defendant preserved and produced what it claimed to be the only video of the incident, there was a gap in the middle of the tape, and the recording ended prematurely, as the incident appears to continue and the recording abruptly ends. Read More

Motion for Exclusion of Evidence or Adverse Inference Denied as Untimely and Because Defendant Produced All Responsive Documents

Wood v. Sempra Energy Trading Corp., 2005 WL 3465845 (D. Conn. Dec. 9, 2005)

In this wrongful termination case, the court denied plaintiff’s motion to preclude certain evidence or for the granting of an adverse inference against defendant. The court concluded that the timing of plaintiff’s motion, alone, provided sufficient reason to deny it. Discovery had closed in May 2004, and the court noted that plaintiff had not previously complained of any deficiencies in the defendant’s responses to discovery. It stated: “While a motion for an adverse inference can be filed just in advance of the trial itself, it should be preceded by efforts to compel compliance with discovery requests, and even motions for contempt.” The court noted that, while there had been motions to compel, “no follow-up motions” were filed by plaintiff. Read More

Sanctions Against Defendant and Its Counsel Not Warranted In Contentious Discovery Dispute Involving Production of Email Stored on Backup Tapes

Quinby v. WestLB AG, 2005 WL 3453908 (S.D.N.Y. Dec. 15, 2005)

In this gender discrimination suit, plaintiff sought sanctions against defendant and its counsel for their conduct in connection with the production of email stored on backup tapes. Earlier, the parties had sought the court’s intervention to resolve the scope of electronic discovery. At that time, the court ordered defendant to provide an affidavit addressing the technical issues raised by plaintiff’s discovery requests for emails and other electronic communications. Specifically, the court had directed the parties’ attention to Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), and further directed that the affidavits address the devices used by defendant to store the data and the seven cost-shifting factors identified in the opinion. The court had further ordered defendant to produce for deposition a witness who could discuss the relevant e-discovery issues, and to restore, as a sample, the backup tape or tapes that contained emails from a particular time frame into a readable, searchable format. Read More

Court Sets Out Detailed “Directives” for Production of Electronically Stored Information

In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 88 (D. Conn. 2005)

In this securities class action, plaintiffs brought a motion to compel the production of electronically stored information. Although the defendants did not object to producing responsive information, there was substantial disagreement between the parties regarding how responsive information should be produced. The court’s decision sets out detailed e-discovery “directives” for the parties to follow. In one of the directives, the court rejects plaintiffs’ request that material be produced in native format, and orders defendants to produce responsive information contained in stored data files to plaintiffs in TIFF or PDF form with Bates numbering and appropriate confidentiality designations, and to produce searchable metadata databases, and also to maintain the original data itself in native format for the duration of the litigation. The court also states that “[c]ost-shifting shall be applied for in the method set forth in the proposed revisions to Rule 26(b)(2) and the Committee Note attendant thereto.”

Insufficient Precautions Against Inadvertent Disclosure and Inordinate Delay in Seeking Judicial Intervention Waived Any Privilege Otherwise Applicable to Emails

de Espana v. Am. Bureau of Shipping, 2005 WL 3455782 (S.D.N.Y. Dec. 14, 2005)

In this case arising out of the casualty and sinking of a vessel at sea, the defendant (“ABS”) inadvertently produced email communications allegedly protected by the attorney client privilege. Read More

Party’s Speculation That More Emails Exist Does Not Entitle Her to More

Washington v. Thurgood Marshall Academy, 232 F.R.D. 6 (D.D.C. 2005)

In this wrongful discharge case, plaintiff moved to compel the defendant to produce additional emails between defendant and plaintiff and others concerning plaintiff’s claims. In support of her argument that the defendant’s responses were deficient, she stated that she and other employees of defendant “‘e-mailed each other constantly,'” that she had produced over 15 such emails in discovery, and that defendant had produced only five such emails. Plaintiff’s argument was essentially that there “must be” more emails. Magistrate Judge Facciola denied the motion, concluding: “[P]laintiff’s speculation that more e-mails exist does not entitle her to more and, therefore, the court will not compel defendant to produce more emails.” 232 F.R.D. at 11.

Loss of Audiotapes Did Not Warrant Exclusion of All Evidence Regarding Taped Conversations

Crigger v. Fahnestock & Co., Inc., 2005 WL 783355 (S.D.N.Y. Apr. 6, 2005)

Plaintiffs sought an in limine order precluding the submission of any evidence concerning the loss of audiotapes of conversations that had been mailed to plaintiffs’ counsel but subsequently lost. One of the plaintiffs had made notes of the conversations, which were produced. The court ruled that, since it had no idea what kind of evidence defendants would present concerning the loss of the tapes, it would make evidentiary determinations as objections arose. The court denied the defendants’ related motion in limine which sought to prevent plaintiffs from introducing any evidence whatsoever regarding the tape recordings, including the plaintiff’s notes and all testimony pertaining to the tapes. The court ruled that, absent bad faith in the destruction or loss of the audiotapes, the plaintiff could testify as to his best recollection of the conversations. The court further ruled that the plaintiff’s notes could be provided in order to refresh his recollection, but that the notes themselves would not be admissible.

Consistent Refusal to Produce Materials Deemed Sufficiently Culpable to Warrant Adverse Inference Instruction

Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461 (S.D.N.Y. May 2, 2005)

In the course of hearing the parties’ discovery disputes, the magistrate judge ordered defendant to “‘make all Board minutes and related Board documents available in hard copy, and electronic database, for review by plaintiff’s counsel.'” Defendant subsequently informed the magistrate that it would be unable to comply with the order on the grounds that Venezuelan law prohibited it from granting access to the materials. In response, the magistrate ordered an adverse inference, finding that the material was relevant and that defendant’s refusal to allow access to the material was sufficiently culpable. The magistrate noted that defendant continued to argue that the material was irrelevant, despite the prior rulings establishing relevancy, and that there was no proof that the Ministry was properly informed of the court’s rulings on the subject. Citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd Cir. 2002), the district court affirmed the magistrate’s order. The court observed that the defendant had consistently refused to produce the Board materials despite repeated orders to do so, and that the adverse inference “restore[d] the evidentiary balance.”

Without Some Evidence That Missing Documents Would Have Been Favorable to Case, Sanctions Not Appropriate

Hamre v. Mizra, 2005 WL 1083978 (S.D.N.Y. May 9, 2005)

In this medical malpractice case, defendants failed to maintain certain documents in the plaintiff’s chart, including a vital signs flow chart memorializing, inter alia, the plaintiff’s temperature over several days. Plaintiff moved for sanctions, seeking an order striking defendants’ answer or precluding defendants from offering testimony on the issue of liability. The magistrate denied the motion, finding that no showing of willful destruction or bad faith had been made, so the extreme sanction requested by plaintiff was not appropriate. The magistrate also concluded that the lesser sanction of an adverse inference instruction was inappropriate. The district court judge upheld the magistrate’s order, citing Zubulake v. UBS Warburg LLC, 2003 WL 22410619 (S.D.N.Y. Oct. 22, 2003) and Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2nd Cir. 2002). The court observed that, in order for the sanction of an adverse inference to be imposed, the moving party must present some evidence corroborating its assumption that the missing evidence would have been favorable to its case. Since the plaintiff had failed to put forth any evidence regarding the contents of the destroyed evidence, an adverse inference instruction was not warranted.

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