Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 980727 (D. Idaho Apr. 11, 2006)
In this case, plaintiff sued the defendant for breach of contract and fraud, claiming that the software it had leased never worked as promised. After part of the case was resolved on summary judgment, the main issue for trial, scheduled to commence the following week, was whether the software worked as promised. One of defendant’s defenses was that plaintiff was not using the software properly; to pursue this defense, it needed to inspect plaintiff’s computer system to see how the software was working.
Defendant filed a motion in limine that sought sanctions against plaintiff for withholding the computer hard drive that contained the disputed software. Defendant filed the motion when plaintiff allegedly could not find the computer, despite having earlier promised that it would make its computer system available for inspection upon 48 hours’ notice. Later, after it located the system, plaintiff would not allow the inspection on the grounds that discovery had closed.
The court sided with the defendant, noting that plaintiff had promised to make the system available on 48 hours’ notice with no restriction that it occur during the discovery period. Thus, it found that defendant was entitled to inspect the computer system immediately and copy the hard drive.
The court further allowed defendant to informally interview two individuals concerning the details of why the system was missing, how it was found, and whether it was altered in any way. Apparently, the computer had been stored in a particular area, and an employee who had been asked to salvage certain computers mistakenly took the computer home with him. Thus, at the time of defendant’s request to inspect the computer, no one could locate it. Eventually they discovered that the employee had the computer, and the computer was retrieved.
The court expressed its confidence that the interviews and the inspection would be done on an expedited basis with the full cooperation of all counsel, and declined to move the trial date. The court further stated that it would not yet take any action on whether to issue sanctions or exclude evidence, noting that there was no actual proof that evidence had been altered.