Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006)
In this trademark infringement case, plaintiff sought an array of preclusive sanctions against defendant for alleged discovery misconduct. Specifically, plaintiff argued that defendant did not make complete or timely searches for certain categories of documents and e-mails. It also contended that defendant did not give adequate instructions to its employees to preserve documents and that it improperly deleted e-mails from a customer relations chat room that might have been a source of pertinent information.
The court first faulted the plaintiff for not discussing the perceived deficiencies with defense counsel before seeking the court’s intervention. It then rejected plaintiff’s argument that defendant’s search was inadequate, noting that plaintiff apparently was aware for many months that defendant had produced documents only for the 1999 to 2004 period, and it never objected to that limitation. “The delay in raising this issue until shortly before the end of fact discovery speaks volumes about the plaintiff’s inability to demonstrate meaningful prejudice.”
The court next rejected plaintiff’s argument that the email accounts of various individuals had not been searched, but noted that it was not clear whether defendant had searched its customer service e-mail account or the accounts of unnamed sales representatives. In light of this ambiguity, the court ordered defendant to confirm in writing whether those accounts had been searched, and, if not, to conduct such a search. In the event that defendant represented that such searches had been made, the court stated it would allow plaintiff to conduct a one-hour deposition of a knowledgeable representative of defendant to confirm the facts within seven days after receipt of that notification by defendant.
Next, the court rejected plaintiff’s request for spoliation sanctions related to defendant’s customer relations chat room. Plaintiff argued that defendant never acted to preserve any of the colloquies that appeared on its web site through the chat room. It speculated that some of these conversations were likely to have been relevant and helpful to its case.
The court stated that the “main problem” with plaintiff’s argument was that the chat room was not opened until August 2004, after the reported cessation of sales of the allegedly infringing bags. Moreover, until 2006 the technology that defendant utilized apparently did not provide a ready means for retaining such communications. The court found that only in February 2006 did defendant install software that saved the chat room communications for as long as two weeks, “and by that time it is highly unlikely that any comments by members of the public that would be pertinent to this lawsuit would have been received.” The court explained further:
This set of circumstances is a far cry from the sort of failure to retain and search for e-mails that has recently been the subject of much judicial scrutiny and the issuance of a new provision in the federal rules of civil procedure governing e-discovery. Indeed, it is more akin to a demand that a party to a litigation install a system to monitor and record phone calls coming in to its office on the hypothesis that some of them may contain relevant information. There is no such requirement, and in this case no indication that defendant acted improperly in this regard.
Finally, the court rejected plaintiff’s contention that defendant did not instruct certain employees to preserve documents after the lawsuit was either imminent or already pending. The court stated that, while this may be the case, plaintiff had offered “not a shred of evidence suggesting that any documents (pertinent or otherwise) were destroyed.” It further noted that, ironically, defendant was able to cite deposition testimony from several of plaintiff’s witnesses admitting a similar failure by plaintiff to provide document-retention instructions to its personnel. Accordingly, the court concluded there was no reason to impose sanctions for the omission.