Electronic Discovery Law

As to certain invoices that were eventually produced, the court concluded that the documents were in defendant's possession and should have been turned over far before they were. Although their tardy production removed them from the “spoliation realm,” the court found that plaintiff had been prejudiced by the late production since he had been unable to use the documents in depositions or in connection with his summary judgment briefing. As a result, the court ordered defendant to pay plaintiff’s reasonable expenses, including attorneys’ fees, incurred in connection with the sanctions motion.

As to certain month-end reports, two of which had never been produced, the court again faulted the defendant. The court was particularly concerned that defendant had avoided providing a definitive answer as to what had happened to the reports, whether or not they were destroyed, and, if they were, when and why they were destroyed. Defendant had only stated that it appeared that the two documents “might” have been lost when defendant converted over to a new computer system. The court rejected defendant’s attempt to shift the burden and commented that “Defendant's briefing notably and coyly avoids the issue of whether these records do in fact still exist in any form.” (Footnote omitted.) Thus, the court concluded:

The Court is hardly satisfied with Defendant's non-explanation in its memorandum in opposition. If the records exist, then Defendant should know this and must produce them. If the records no longer exist in any form, then Defendant should be able to provide this answer and an explanation as to how and why the records were destroyed-and by whom. To avoid the answer by blaming Plaintiff at this juncture creates an inference of gamesmanship that disturbs this Court. The Court therefore ORDERS Defendant to produce at the final pretrial conference: (1) an answer as to whether the April and May 2004 material exists; (2) if the answer is yes, to turn over this material to Plaintiff at or before the final pretrial conference and to explain the delay to this Court's satisfaction; and (3) if the answer is no, to explain to this Court's satisfaction how these circumstances came about and why the Court should not impose sanctions.