Lack of Cooperation / Inaccurate Representations – Page 45

Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007)

Dec 01 2007

Key Insight: Court ordered defendants to organize and label documents to correspond with discovery requests, or provide an index, and to submit declarations by qualified computer technicians or forensic experts setting forth specific details of any lost or destroyed data or damaged hard drives; court reserved the option to appoint a neutral computer forensic expert as a special master to investigate and assess any claim by defendants that their computer servers or hard drives were damaged during the seizures or that electronic records were lost or destroyed

Nature of Case: Infringement litigation

Electronic Data Involved: Electronic documents, hard drives

CSI Inv. Partners, II v. Cendant Corp., 507 F. Supp. 2d 384 (S.D.N.Y. 2007)

Dec 01 2007

Key Insight: Where defendant lost highly relevant financial and marketing data during data conversion but did not reveal the fact of the lost evidence until 3-1/2 years after plaintiffs originally requested it, and defendant raised frivolous and vexatious objections to plaintiffs’ requests for production, court found bad faith and ordered defendant to pay $720,000 to plaintiffs, representing 15 percent of plaintiffs? attorneys fees, as sanction for discovery misconduct

Nature of Case: Breach of contract

Electronic Data Involved: Financial and marketing data

Horowitch v. Diamond Aircraft Indus., Inc., 2007 WL 1192401 (M.D. Fla. Apr. 23, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff’s motion to compel a more detailed answer to interrogatory seeking information about the “location” of electronically stored information, but ordered defense counsel to immediately provide plaintiff’s counsel with further information about its answer to the interrogatory “and any other information pertaining to electronic discovery issues”

Nature of Case: Breach of contract, specific performance

Electronic Data Involved: ESI generally

Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 3101248 (D. Nev. Oct. 16, 2007)

Dec 01 2007

Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them

Nature of Case: Infringement litigation

Electronic Data Involved: Servers

Synergy Tech & Design Inc. v. Terry, 2007 WL 1288464 (N.D. Cal. May 2, 2007)

Dec 01 2007

Key Insight: Where defendants produced only 82 pages of emails without their attachments, and the record indicated that other responsive material existed, including the email attachments and data being mined by forensic expert hired by defendant, court found that defendants had not fully complied with prior discovery order, imposed monetary sanctions, and ordered defendant to produce additional documents and/or provide declarations detailing their specific efforts to locate responsive material

Nature of Case: Patent litigation

Electronic Data Involved: Email attachments and other data obtained through forensic means

In re Hawaiian Airlines, Inc., 2007 WL 3172642 (Bankr. D. Haw. Oct. 30, 2007)

Dec 01 2007

Key Insight: Finding that Mesa?s CFO deleted files that Mesa had duty to preserve, used special software to wipe hard drives and changed computer’s clock in an attempt to conceal what he had done, and that Mesa could have taken reasonable, inexpensive and non-burdensome steps that would have prevented or mitigated the consequences of CFO’s destruction of evidence, court concluded that adverse inference was appropriate and made certain findings of fact which were binding and conclusive for all purposes in the case

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

In re Gupta, 263 S.W. 3d 184 (2007)

Dec 01 2007

Key Insight: Appellate court denied petition for writ of mandamus where trial court appropriately ordered ?death penalty sanctions? (struck all pleadings) for defendant?s discovery violations including repeated failure to produce relevant information, repeated production of fraudulent materials, including diskettes and computers, and repeated false representations to the court; plaintiff filed three motions to compel and at least two motions for sanctions resulting in more than $60,000 in fines before imposition of ?death penalty sanctions? by trial court

Nature of Case: Fraudulent inducement, breach of contract, conversion

Electronic Data Involved: Computers, diskettes, ESI

Woodburn Const. Co. v. Encon Pacific, LLC, 2007 WL 1287845 (W.D. Wash. Apr. 30, 2007)

Dec 01 2007

Key Insight: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion

Nature of Case: Construction litigation

Electronic Data Involved: ESI

Willbros Eng’rs, Inc. v. Mastec N. Am., Inc., 2007 WL 2891500 (N.D. Okla. Sept. 28, 2007)

Dec 01 2007

Key Insight: Where plaintiff?s attorneys? repeated inaccurate representations that all responsive documents had been produced demonstrated gross negligence but not intentional bad faith, and belated production necessitated re-opening discovery and continuing trial date, court concluded that requested sanction of dismissal of plaintiff’s claims and default judgment against plaintiff on cross-claims was too harsh and that lesser (monetary) sanctions were appropriate

Nature of Case: Construction litigation

Electronic Data Involved: Computer files relating to $100 million construction project, computer index, audiotapes of meetings

In re EZ Pay Servs., Inc., 380 B.R. 861 (Bankr. M.D. Fla. 2007)

Dec 01 2007

Key Insight: Court approved Trustee?s request for permission to pay computer forensics expert $70,000 as a necessary cost and expense of preserving the estate, where recovery of deleted electronic information was necessary to enable Trustee to locate and administer valuable assets of estate and to understand debtor’s prepetition transactions, and where expert?s services provided a concrete benefit for the estate since approximately $400,000 in assets was recovered by Trustee as a result

Nature of Case: Bankruptcy case

Electronic Data Involved: 14 hard drives; deleted data

Tag:Lack of Cooperation / Inaccurate Representations