Electronic Discovery Law
Defendant to Make "All Possible Efforts" to Produce Email from Personal Yahoo! Account; Failure to Timely Identify Account Warrants Sanctions
Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008)
In this breach of employment agreement and misappropriation of trade secrets case, plaintiff moved to compel production of emails from defendant’s personal Yahoo! account. Plaintiff contended that it only recently learned of the account, and that defendant should have disclosed the account in response to an earlier discovery request. Plaintiff argued that emails from the account contained highly relevant information crucial to the issues in the case.
Although defendant claimed he could not produce the emails because they had been destroyed by Yahoo!, he offered only a copy of a generic response from Yahoo! about deactivating accounts. The court observed that Yahoo! may have a process for obtaining emails from deactivated accounts, and declined to accept defendant’s explanation that production was “impossible,” particularly given the important evidentiary value of the emails and the “feeble offering” by defendant in support of the contention.
The court ordered defendant to immediately make all possible efforts to obtain the emails in his personal Yahoo! account, and to produce all documents in the account without further objection or delay. The court further ordered defendant to file a Notice of Compliance with the court, detailing the efforts taken. The court continued:
The Court will not accept Defendant's position that he cannot produce these emails until assurance is given from an executive at Yahoo! responsible for such tasks that this request is indeed impossible. If a subpoena or other court assistance is necessary to achieve this end, then the parties shall take such necessary action, but the burden shall initially be upon Defendant to retrieve these documents and produce them as soon as possible.
In addition, the court found that defendant's representation that he was being “completely truthful” when he did not identify the account because he knew it would be impossible to ultimately produce these emails, to be sanctionable. “It will figure largely into the sanctions ultimately awarded in this matter if it is learned that Defendant's failure to identify this account earlier is the cause of the alleged impossibility.” The court stated the particular sanctions awarded would depend on the outcome of defendant's efforts to obtain the documents, and what was revealed by these efforts as to defendant's actions, if any, that resulted in spoilation of evidence or other more serious discovery violations.
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