Lack of Cooperation / Inaccurate Representations – Page 51

In re Atlantic Int’l Mortgage Co., 2006 WL 2848575 (Bankr. M.D. Fla. Aug. 2, 2006)

Dec 01 2006

Key Insight: Court rejected trustee’s request for entry of default judgment based upon based on law firm’s failure to retain and timely produce relevant documents and electronically-stored information, but found that monetary sanctions were appropriate; trustee awarded his reasonable attorneys’ fees and costs incurred in pursuing all discovery in the adversary proceeding

Nature of Case: Adversary proceeding in bankruptcy court

Electronic Data Involved: Backup tapes

In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060 (N.D. Cal. 2006)

Dec 01 2006

Key Insight: Adverse inference and monetary sanctions warranted, but not default judgment, where defendant acknowledged that its personnel routinely deleted emails without regard to whether the deleted emails were relevant to the litigation, but behavior did not constitute a pattern of deliberately deceptive litigation practices and there was evidence that the actual number of emails lost was small

Nature of Case: Copyright infringement

Electronic Data Involved: Email

Reino de Espana v. Am. Bureau of Shipping, 2006 WL 3208579 (S.D.N.Y. Nov. 3, 2006)

Dec 01 2006

Key Insight: Where Spain failed to place a timely and adequate litigation hold in its agencies and ministries, court found that Spain violated its discovery obligations under the FRCP and observed that relevant email and electronic records probably no longer existed; court granted defendant’s motion to compel and invited defendant to to file an application requesting the relief, remedy, or sanction it deemed appropriate in light of the court?s findings

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email and electronic records

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

Dec 01 2006

Key Insight: In follow up to earlier decision dismissing complaint as sanction for plaintiff’s discovery misconduct, court awarded defendant $35,000 in attorneys’ fees and full costs of $20,472 since forensic computer experts were “particularly necessary to uncover plaintiff’s skulduggery”

Nature of Case: Wrongful termination

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

Burkybile v. Mitsubishi Motors Corp., 2006 WL 3191541 (N.D. Ill. Oct. 17, 2006)

Dec 01 2006

Key Insight: Court denied motion for entry of default as discovery sanction but ordered defendant to provide a printout of data relevant to the pertinent time period, noting that, although original printouts underlying certain reports no longer existed, the data used to create them still existed in the database and was accessible, and the reports could be recreated, even if not exactly. The court elaborated: “It may in fact be the database, like some sort of digital organism, changes over time. But it does not follow that the critical underlying information is no longer obtainable at all. Perhaps the information utilized . . . in preparing the reports can no longer be reproduced identically . . . But it does not follow that there cannot be some reasonable approximation that will give to the plaintiff the information ordered be produced.”

Nature of Case: Personal injury product liability

Electronic Data Involved: Database reports

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

Malletier v. Dooney & Bourke, Inc., 2006 WL 3476735 (S.D.N.Y. Nov. 30, 2006)

Dec 01 2006

Key Insight: Where plaintiff provided only partial production and made false representations to court about non-existence of responsive documents, court imposed monetary sanctions and would deem as true certain contentions

Nature of Case: Trademark infringement

Electronic Data Involved: Email concerning customer communications

Jacobson v. Starbucks Coffee Co., 2006 WL 3146349 (D. Kan. Oct. 31, 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions, ordered defendant to submit to Rule 30(b)(6) deposition regarding its efforts to locate and produce responsive documents, and ordered defendant to produce key player’s computer for inspection by plaintiff, where evidence showed that the home and/or work computers of a key player and several witnesses had not been searched for responsive documents

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive; computerized records

PML N. Am., LLC v. Hartford Underwriters Ins. Co., 2006 WL 3759914 (E.D. Mich. Dec. 20, 2006)

Dec 01 2006

Key Insight: Where one defendant failed to comply with court’s orders regarding forensic inspection and copying of hard drives, and there was evidence of data spoliation and physical tampering with computer hardware, court concluded that default judgment was appropriate sanction and also ordered the defendant to pay the reasonable attorney fees and costs that its misbehavior caused plaintiff to incur

Nature of Case: Insurance fraud, insurance coverage

Electronic Data Involved: Various hard drives and backup drives

MGE UPS Sys., Inc. v. Titan Specialized Servs., Inc., 2006 WL 3524502 (M.D. Tenn. Dec. 6, 2006)

Dec 01 2006

Key Insight: Where evidence showed that defendant had not fully complied with preliminary injunction and had continued to retain and use disputed software, court ordered defendant to produce all of its computers for inspection by plaintiff’s computer expert to ensure that all plaintiff’s software and trade secrets were removed; court further ordered defendant to bear costs of expert’s work and to pay plaintiff its reasonable fees and expenses in bringing the motion

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Software programs, disks, hard drives

Tag:Lack of Cooperation / Inaccurate Representations