Archive: May 31, 2007

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Search and Production Costs of $7,200 Render Non-Party’s Ordinary ESI “Not Reasonably Accessible Due to Undue Burden”
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City Barely Avoids Spoliation Sanctions and Receives Harsh Reprimand

Search and Production Costs of $7,200 Render Non-Party’s Ordinary ESI “Not Reasonably Accessible Due to Undue Burden”

Guy Chem. Co. v. Romaco AG, 2007 WL 1521468 (N.D. Ind. May 22, 2007)

In this breach of contract case, plaintiff Guy Chemical sought damages for, among other things, the loss of business from third parties.  Defendant Romaco subpoenaed records from ABRO Industries, Inc., a customer of plaintiff, to learn how much of ABRO’s business plaintiff had lost.  Specifically, Romaco sought correspondence, orders, cancelled orders, or orders that could not be filled between Guy Chemical and ABRO.  Apparently, most of the requested information was stored electronically by ABRO.  ABRO informed Romaco that it used an outside computer firm to handle its electronic data, and that it would have to determine how to search for the records.  ABRO subsequently advised Romaco that the final cost for searching and producing the requested records would be $7,200.  ABRO did not object to producing the material sought, but requested that Romaco pay the cost of production.  Romaco moved to compel, arguing that ABRO was being unreasonable by requiring payment for the cost of production as a condition precedent to production.
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City Barely Avoids Spoliation Sanctions and Receives Harsh Reprimand

Doctor John’s, Inc. v. City of Sioux City, 486 F. Supp. 2d 953 (N.D. Iowa 2007)

Although the parties settled their respective claims, the court retained jurisdiction over the question of whether or not sanctions should be imposed upon the City for the destruction, during the pendency of litigation, of recordings of City Council closed sessions concerning the ordinances challenged in the case.  The court held a conference on the matter and received further information about changes made to the City’s policy regarding retention of recordings of closed sessions of the City Council.

The court began its analysis by remarking:

A first year law student should have–and most would have–known that a party must retain documents or records that are likely to be relevant in pending litigation.  The City’s claim that it was simply following state law in destroying key evidence is laughable and frivolous.  No state or federal statute, rule, or common law allows a party to destroy critical evidence during the pendency of litigation, and the City policy that permitted destruction of certain documents after a specified period of time certainly did not require destruction of such documents.

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