Tag:Lack of Cooperation / Inaccurate Representations

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Brown v. Coleman, 2009 WL 2877602 (S.D.N.Y. Sept. 8, 2009)
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Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)
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Williams v. Taser Int’l, Inc., 2008 WL 192991 (N.D. Ga. Jan. 22, 2008)
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Anderson v. Am. Airlines, Inc., 2008 WL 4816620 (N.D. Cal. Nov. 5, 2008)
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Flying J, Inc. v. TA Operating Corp., 2008 WL 5449714 (D. Utah Dec. 31, 2008)
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J&M Assocs., Inc. v. Nat?l Union Fire Ins. Co. of Pittsburgh, Pa., 2008 WL 5102246 (S.D. Cal. Dec. 2, 2008)
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Keithley v. Homestore.com, 2008 WL 4830752 (N.D. Cal. Nov. 6, 2008)
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S. Capitol Enters., Inc. v. Conseco Servs., Inc., 2008 WL 4724427 (M.D. La. Oct. 24, 2008)
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Matthews v. Baumhaft, 2008 WL 2224126 (E.D. Mich. May 29, 2008)
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Jones v. Jones, 995 So.2d 706 (Miss. 2008)

Brown v. Coleman, 2009 WL 2877602 (S.D.N.Y. Sept. 8, 2009)

Key Insight: Where expert witness destroyed relevant surgical logs and resisted production of alternative evidence upon the objection that a review of all patient files would be unduly burdensome, court denied motion to compel production of the logs but ordered that as a sanction for spoliation, the expert would not be allowed to testify as to the number of fat grafting procedures he had performed, and would have to be qualified as an expert based on other information

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical records

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

Williams v. Taser Int’l, Inc., 2008 WL 192991 (N.D. Ga. Jan. 22, 2008)

Key Insight: Where privilege log entries failed to identify who sent or received documents, disclosed little or no information about actual contents of documents, used boilerplate objections which court had previously ruled were insufficient, and court had previously ordered Taser to provide more information in privilege logs, court concluded that Taser?s unjustified delay in providing a meaningful privilege log was inexcusable, in bad faith and deserving of sanctions; Taser?s assertions of attorney client privilege and work product doctrine were deemed waived and court ordered Taser to produce all documents identified in privilege logs

Nature of Case: Wrongful death

Electronic Data Involved: Privileged email and other documents

Anderson v. Am. Airlines, Inc., 2008 WL 4816620 (N.D. Cal. Nov. 5, 2008)

Key Insight: Plaintiff?s motion for contempt sanctions for discovery abuse denied where defendant indicated no documents responsive to subpoena existed, where search for documents entailed ?paper files, electronic files, hard drives, archives, computers, etc.?, where search was performed in presence of defendant?s paralegal and where defendant hired a contractor to search for archived emails but still found nothing; court found plaintiff?s reliance on ?passing statement? regarding email communication at deposition ?insufficient to prove that the purported emails ever existed?

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, email

Flying J, Inc. v. TA Operating Corp., 2008 WL 5449714 (D. Utah Dec. 31, 2008)

Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order

Nature of Case: Unlawful conspiracy to prevent and suppress competition

Electronic Data Involved: ESI on back up tapes

J&M Assocs., Inc. v. Nat?l Union Fire Ins. Co. of Pittsburgh, Pa., 2008 WL 5102246 (S.D. Cal. Dec. 2, 2008)

Key Insight: Where plaintiff deleted potentially relevant emails despite a duty to preserve, court granted defendants access to plaintiff?s servers to perform electronic recovery of deleted emails; court ordered defendant to retain independent professional to perform recovery at defendants? expense and for recovered emails to be provided directly to plaintiff?s counsel for review and production

Electronic Data Involved: Deleted emails

Keithley v. Homestore.com, 2008 WL 4830752 (N.D. Cal. Nov. 6, 2008)

Key Insight: Where late production of documents resulted in some prejudice to defendants but where prejudice was minor in light of limited relevance of the documents produced and their limited value to defendants? case and where defendants failed to show that documents missing from production were destroyed rather than ?simply lost? or a significant degree of resulting prejudice, court declined to impose dismissal or adverse inference but ordered monetary sanctions pursuant to Rule 37; monetary sanctions in the amount of $205,507.53 were subsequently ordered (Keithley v. Homestore.com, 2009 WL 55953 (N.D. Cal. Jan. 7, 2009))

Nature of Case: Patent Infringement

Electronic Data Involved: ESI, email

S. Capitol Enters., Inc. v. Conseco Servs., Inc., 2008 WL 4724427 (M.D. La. Oct. 24, 2008)

Key Insight: Noting that ?perfection in document production is not required?, court denied plaintiffs? motion for sanctions or additional discovery orders where defendants offered valid reasons for the non-production of some data, performed a thorough search of their systems for the requested information, and explained that there were no other sources to search and where the burden of production outweighed the likely benefit; court indicated that ?experts can extrapolate and estimate from available data in order to perform calculations and provide opinions.?

Electronic Data Involved: ESI

Matthews v. Baumhaft, 2008 WL 2224126 (E.D. Mich. May 29, 2008)

Key Insight: District judge upheld as neither clearly erroneous nor contrary to law magistrate judge?s order for forensic imaging of defendants’ computers, where defendants had refused to provide documents plaintiff requested, providing only “sample” appraisals, and where relevant appraisals and software used to generate appraisals resided in computer and were relevant to parties’ claims and defenses

Nature of Case: Fraud, RICO and breach of fiduciary duty claims

Electronic Data Involved: Appraisals and software used to generate appraisals

Jones v. Jones, 995 So.2d 706 (Miss. 2008)

Key Insight: Where party admitted to deliberate destruction of personal computer and was thus unable to produce it in response to discovery requests and where party also admitted to perjury, Supreme Court held chancellor abused his discretion in failing to impose sanctions pursuant to his obligation to ?consider sanctions that are severe enough to deter other from pursuing similar action? and remanded for reconsideration accordingly

Nature of Case: Divorce

Electronic Data Involved: Computer

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