Archive: January 3, 2008

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County’s “Foot Dragging” in Discovery and Failure to Implement Legal Hold Warrant Monetary Sanctions, but not Default Judgment or Adverse Inference Instruction

County’s “Foot Dragging” in Discovery and Failure to Implement Legal Hold Warrant Monetary Sanctions, but not Default Judgment or Adverse Inference Instruction

Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007)

In this case, plaintiffs alleged that their civil rights had been violated when the defendants denied them the opportunity to purchase real estate at auction.  The email dispute was first brought to the court’s attention in August 2006, when the plaintiffs moved to compel supplemental discovery responses from the County.  Plaintiffs’ counsel argued that the County had failed to perform a diligent search for responsive documents, evidenced by the fact that it had only produced two emails.  During a conference with the court on the matter, counsel for the County suggested that since it was "more the exception than the rule," that employees were "communicating be email," a further search was unlikely to uncover additional emails.  However, because it became clear that the County had failed to conduct a system wide search for responsive emails, the court directed the County to have its Information Technology Department search the County’s servers for responsive emails.

In October 2006, plaintiffs moved for sanctions, contending that the County had willfully failed to comply with the court’s order.  In response, the County submitted an affidavit from its Director of Management Information Services, explaining that the County lacked the resources to perform the court-ordered search for additional emails.  He estimated that the cost to restore the County’s backed up data would be roughly $36,000, and that the process would take as much as 1,700 man hours.

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