Lack of Cooperation / Inaccurate Representations – Page 48

NSB U.S. Sales, Inc. v. Brill, 2007 WL 258181 (S.D.N.Y. Jan. 26, 2007)

Dec 01 2007

Key Insight: Defendant?s failure to comply with magistrate?s orders compelling production of email and other responsive documents warranted monetary sanctions as follows: (1) $26,667 for legal fees incurred by plaintiff as result of defendant?s discovery misconduct; (2) separate fine of $25,000 for defendant’s contempt of court orders; and (3) separate fine of $5,000 on defense counsel?s law firm for defense counsel?s role in his client?s actions

Nature of Case: Breach of licensing agreement

Electronic Data Involved: Email and other responsive documents

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Wachtel v. Health Net, Inc., 2007 WL 1791553 (D.N.J. June 19, 2007)

Dec 01 2007

Key Insight: Further to its December 6, 2006 Opinion and Order (at 239 F.R.D. 81) sanctioning defendants and awarding plaintiffs their reasonable attorneys’ fees and expenses incurred in connection with ?Rule 37/Integrity hearing? and related discovery motions, court approved $6,723,883 as amount of sanction

Nature of Case: Beneficiaries of employment benefit health plans asserted class action claims under ERISA

Electronic Data Involved: Email and other electronic documents

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

PML N. Am., LLC v. ACG Enters. of NC, Inc., 2007 WL 2156276 (E.D. Mich. July 26, 2007)

Dec 01 2007

Key Insight: Where defendant was insolvent and unable to fund litigation expenses or pay monetary sanctions imposed for electronic discovery abuses (which included among other things the unexplained disappearance of a hard drive from CEO’s laptop), and in light of CEO’s active participation in the fraud, breach of contract and e-discovery abuses, court granted plaintiff’s motion for leave to amend complaint to add defendant’s CEO as an individual defendant

Nature of Case: Fraud and breach of contract

Electronic Data Involved: Hard drive

Network Sys. Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. Ct. Dec. 6, 2007)

Dec 01 2007

Key Insight: Where former employee admitted using file shredder program on his NSA-issued laptop before returning it, and evidence showed use of file shredder program on competitor-issued laptop computer, court found defendants? conduct was ?egregious? and amounted to spoliation but denied plaintiff?s request for entry of default judgment; court instead ordered production of computer hard drive for further examination, dismissed defendants? counterclaims, and ordered defendants to pay attorneys? fees and expenses incurred as a result of defendants? misconduct

Nature of Case: Seller of computer hardware and software sued former employee and competitor for misappropriation of trade secrets, unfair competition and related claims

Electronic Data Involved: Laptop computers

Claredi Corp. v. Seebeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007)

Dec 01 2007

Key Insight: Where plaintiff showed that defendant failed to produce hundreds of responsive emails which plaintiff ultimately obtained through third-party discovery, court found defendant’s discovery conduct to be dilatory and inadequate and imposed sanction of $54,000 for plaintiff’s attorneys’ fees, and another $20,000 payable to the court as sanction for unnecessarily prolonging and increasing the expense of the litigation

Nature of Case: Breach of contract

Electronic Data Involved: Email and other electronic documents

Perez-Farias v. Global Horizons, Inc., 2007 WL 2327073 (E.D. Wash. Aug. 10, 2007)

Dec 01 2007

Key Insight: Where defendants failed to produce email, failed to properly preserve email, and had not complied with orders to timely produce discovery, nor paid plaintiffs’ costs of bringing discovery motions as ordered nor paid sanctions to court as directed, and repeatedly failed to follow local rules with respect to timely and properly filing documents, court granted plaintiff’s motion for case dispositive sanctions; trial would be on the issue of damages only, and only plaintiff’s evidence would be admitted given defendants’ failure to file witness or exhibit lists

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Powertrain, Inc. v. Honda Motor Co., Inc. v. 2006 WL 709784 (N.D. Miss. Mar. 15, 2006)

Dec 01 2006

Key Insight: Court granted plaintiff’s request for Rule 56(f) continuance and dismissed defendant’s motion for summary judgment as premature and with leave to refile once defendant had fulfilled all its discovery obligations, where plaintiff had already filed a number of discovery motions and sought, among other things, “information contained in emails which appear to have been deleted by Honda as part of its corporate policy (and which are the subject of a separate Motion for Order Preserving Electronic Data, to Recover[] Deleted Data and Show Cause which is pending before the magistrate)”

Nature of Case: Trademark infringement

Electronic Data Involved: Deleted email

Plasse v. Tyco Elecs. Corp., 448 F. Supp. 2d 302 (D. Mass. 2006)

Dec 01 2006

Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

Tag:Lack of Cooperation / Inaccurate Representations