Electronic Discovery Law
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.
The court further held that, even if the motion had been timely, the court would still decline to grant an adverse inference. The court stated that, although defendant's compliance was "not exactly prompt," it could not find that defendant failed to do a thorough search for responsive documents or that there were documents that existed which defendant had purposefully withheld. On the subject of "missing emails," the court observed that plaintiff had not pointed to any particular documents or even categories of documents that existed and that were not produced. The court also rejected plaintiff's other basis for the motion - "that she wrote a lot of emails, and therefore other people must have written many emails as well, and these emails have not been produced." The court stated that plaintiff was merely speculating as to the "missing" emails, and that "the fact that Wood wrote a lot of emails does not necessarily mean that other people at Sempra did as well."
Denying plaintiff's motion, the court concluded that the defendant had not destroyed any documents, and: "Indeed, it timely froze any destruction that might have taken place in the ordinary course. While its production was tardy in some respects, it eventually produced all documents which reasonably could be said to be responsive to the document requests as modified by the court."
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