Archive: December 14, 2007

1
Defendant’s Disposal of Laptop and Untruthful Testimony about Circumstances of Disposal Warrant Adverse Inference Instruction and Relaxed Burden of Proof for Plaintiff
2
Native Production Warranted Where Alleged Backdating of Documents is at the Heart of Parties’ Dispute
3
Florida Supreme Court Denies Review of Decision Reversing $1.58 Billion Judgment Against Morgan Stanley

Defendant’s Disposal of Laptop and Untruthful Testimony about Circumstances of Disposal Warrant Adverse Inference Instruction and Relaxed Burden of Proof for Plaintiff

Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. Nov. 30, 2007)

This insurance coverage litigation stemmed from property damage caused by Hurricane Katrina in 2005.  Plaintiff Great American contended that there was a mutual mistake of fact in connection with the formation of the insurance contract, arguing that the parties, acting through their agents, understood that wind damage coverage was excluded.  In this decision, the court ruled on plaintiff’s motion for sanctions for the destruction of a laptop computer by defendant’s insurance agent (Groves), who was also a defendant in the case.

During the summer of 2006, Groves disposed of a personal computer which may have contained information relevant to the issues in dispute.  Although the specific contents of the computer’s hard drive were unknown, the court found that there was evidence in the record that Groves used the computer to prepare correspondence and emails related to the purchase of the policy at issue.  Plaintiff argued that these computer records may have shed considerable light on the question whether Groves believed, at the time he negotiated the purchase of the policy, that the policy would provide coverage for wind damage.  That disputed issue of fact was at the heart of the defense of mutual mistake Great American sought to establish.

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Native Production Warranted Where Alleged Backdating of Documents is at the Heart of Parties’ Dispute

Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007)

In this letter opinion, the court ruled upon a number of discovery disputes, including one relating to the format of production.  Plaintiff sought an order compelling a defendant to respond to documents requests “in native file format, with original metadata, but without a separate production of metadata.”  Granting that portion of plaintiff’s motion, the court explained:

[M]etadata may be especially relevant in a case such as this where the integrity of dates entered facially on documents authorizing the award of stock options is at the heart of the dispute.  This relevance is further illustrated by the fact that Maxim’s special committee, as well as Deloitte & Touche, undoubtedly reviewed metadata as part of their investigation into the backdating problems at Maxim.  This latter fact also undermines the asserted burdensomeness of producing documents in native file format.  Maxim need not produce metadata separately, but the Court does order the production of documents identified in plaintiffs’ July 3rd motion to compel in a format that will permit review of metadata, as plaintiffs have clearly shown a particularized need for the native format of electronic documents with original metadata.

Florida Supreme Court Denies Review of Decision Reversing $1.58 Billion Judgment Against Morgan Stanley

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., No. SC07-1251 (Fla. Dec. 12, 2007)

In a brief order issued on December 12, 2007, the Florida Supreme Court denied Coleman (Parent) Holdings, Inc.’s petition for review of the Florida state appellate court decision which reversed the $1.58 billion against Morgan Stanley.  (View our March 21, 2007 post regarding that reversal, and read the appellate court opinion, here.)  The Florida Supreme Court advised that no motion for rehearing would be entertained.  A copy of the order is available here.

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