Lack of Cooperation / Inaccurate Representations – Page 39

Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel upon finding that defendant ?did not timely comply with its discovery obligations? including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney?s fees

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: ESI

Crews v. Fishburne, 2009 WL 946876 (Cal. Ct. App. Apr. 9, 2009) (Unpublished)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in ordering terminating sanctions where plaintiff (and plaintiff?s counsel) delayed production of discovery, made a ?meaningless production? of an unusable CD upon defendant?s motion to compel, redacted documents without notification to defendants and refused to produce court ordered privilege log, and refused to produce unredacted documents despite a court order

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009)

Dec 01 2009

Key Insight: Court ordered third party, AOL, to show cause why it should not be held in contempt for failing to provide a response to defendant?s motion to compel as ordered by the court and gave leave to defendant to commence discovery on AOL?s ability to retrieve requested emails, among other topics, following contradictory representations from AOL and plaintiff regarding the same; court also noted plaintiff?s grant of permission to AOL to produce his emails and that defendant?s subpoena had been appropriately limited as to scope and thus ordered AOL to produce all responsive emails to plaintiff for review prior to production to defendant

Nature of Case: Civil rights action

Electronic Data Involved: Email

Gamby v. First Nat?l Bank of Omaha, 2009 WL 127782 (E.D. Mich. Jan. 20, 2009)

Dec 01 2009

Key Insight: Where defendant repeatedly violated its discovery obligations, including making misrepresentations of unavailability despite later revelations that documents were available from shared electronic source, and in light of explanations ?entirely unworthy of credence,? among other things, court struck answer of defendant and ordered judgment by default to plaintiff on issue of liability

Nature of Case: Claims arising from the Fair Credit Reporting Act

Electronic Data Involved: ESI

Chambers v. U.S. Dept. of Interior, 568 F.3d 998 (2009)

Dec 01 2009

Key Insight: Court reversed and remanded grant of summary judgment on the issue of the adequacy of the government?s search in response to plaintiff?s FOIA request where a material fact existed as to whether the DOI intentionally destroyed the requested material before undertaking its search which would prevent a finding that the search was adequate

Nature of Case: Freedom of Information Act / FOIA

Electronic Data Involved: Performance appraisal

Reeves v. Case W. Univ., 2009 WL 3242049 (N.D. Ohio Sept. 30, 2009)

Dec 01 2009

Key Insight: Where it remained ?entirely unclear? that defendant performed a ?full and thorough search? for responsive ESI, court ordered defendant to perform a ?comprehensive examination of all electronic storage? and to provide certification of the search to plaintiff; as sanction for ?failing to even search for certain evidence,? court prohibited defendant from re-filing its motion for summary judgment as to two of plaintiff?s claims

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009)

Dec 01 2009

Key Insight: Where, when producing voluminous documents in response to Fed. R. Civ. P. 33 they must be accompanied by indices ?to guide the interrogating party to the responsive documents? and where ?rules applicable to producing documents under Rule 33(d) are generally applicable to Rule 34?, court ordered defendant to provide more detailed responses to plaintiffs requests for discovery upon defendants? production of 7000 pages and indication that ?all 7000 pages of documents were responsive to each request?; court reasoned, ?Defendant’s claims that the documents are sufficiently organized because they are bates-stamped and scanned into a CD-ROM are unavailing. Defendant did not refer to specific bates numbers when it responded to the discovery requests at issue, and the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant’s duty to sufficiently identify the location of the relevant documents.?

Nature of Case: Breach of faith and breach of fiduciary duty

Electronic Data Involved: ESI

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Dec 01 2009

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

Transcap Assoc., Inc. v. Euler Hermes Am. Credit Indemnity Co., 2009 WL 3260014 (N.D. Ill Oct. 9, 2009)

Dec 01 2009

Key Insight: Where defendant ?produced? archived marketing materials by directing plaintiff to website commonly known as the Way Back Machine (which itself warned of missing links and image in webpages) and did not establish or allege that it maintained material on the Way Back Machine in the ordinary course of business, and where the court determined defendant had not adequately investigated the existence of responsive documents in paper form, court granted motion to compel and ordered defendant to conduct ?a thorough search? for responsive documents and to produce them in paper or electronic format within 14 days; court ordered plaintiff to pay attorneys fees and costs and imposed monetary sanctions against plaintiff for the numerous discovery violations addressed in the opinion

Nature of Case: Insurance coverage action

Electronic Data Involved: Way Back Machine

Am. Serv. Mktg., Corp. v. Bushnell, 2009 WL 1870887 (E.D. La. June 25, 2009)

Dec 01 2009

Key Insight: Where plaintiff alleged defendant violated the preliminary injunction by deleting files he was directed to preserve and return to plaintiff, including using wiping software to delete files hours before producing his computer for inspection, court denied plaintiff?s motion for contempt finding that ?without some other indication that [defendant] deliberately deleted files referenced in the preliminary injunction,? plaintiff failed to present the ?clear and convincing evidence? required to warrant a finding of contempt

Nature of Case: Federal trademark and state law breach of contract claims

Electronic Data Involved: ESI

Tag:Lack of Cooperation / Inaccurate Representations