Lack of Cooperation / Inaccurate Representations – Page 52

Smoliak v. Greyhound Lines Inc., 2006 WL 1029643 (N.D. Fla. Apr. 19, 2006)

Dec 01 2006

Key Insight: Magistrate issued Certification of Facts for a Finding of Contempt relating to conduct of non-party Brett Cormier, a relative and employer of plaintiff who had consistently failed to comply with discovery orders or produce salary and employment records; court had previously stated: “The Court is still reluctant to order an inspection of Cormier’s computer, at his expense, to obtain this information since it seems an extreme, expensive, and unnecessarily invasive process to obtain what should be relatively easy information about Plaintiff’s income. However, Cormier must be more cooperative in producing the limited information requested of him or the Court may be left with no other option. . . . Work history and salary information is simple, straightforward information that every reputable business maintains in a variety of easily retrievable formats, and the Court simply does not accept the representations heretofore made for why Brett Cormier cannot locate this information. This issue is getting tiresome and has occupied far too much of this Court’s time and energy.”

Nature of Case: Personal injury

Electronic Data Involved: Salary and employment information

Satchell v. Fedex Express, 2006 WL 2884318 (N.D. Cal. Oct. 10, 2006)

Dec 01 2006

Key Insight: Court granted motion to compel and motion for sanctions, requiring defendant to produce additional documents and file a sworn declaration describing all steps taken to locate particular items; to the extent that defendant’s production did not include responsive documents because they ceased to exist in either paper or electronic format, defendant required to file a sworn declaration stating when it destroyed or ceased to retain these documents, and the policies or reasons for their destruction; to the extent defendant contended that it already produced any of the documents described, defendant to provide a sworn declaration identifying the Bates numbers that correspond to the type of document; defendant further ordered to pay plaintiffs’ reasonable attorneys’ fees and costs associated with the motion

Nature of Case: Class action employment litigation

Electronic Data Involved: Personnel records

Leon v. IDX Sys. Corp., 2004 WL 5571412 (W.D. Wash. Sept. 30, 2004), affirmed, 464 F.3d 951 (9th Cir. 2006)

Dec 01 2006

Key Insight: Where plaintiff deleted whole directories without looking at their contents and designed drive wiping program to write over data indiscriminately after he had notice of the pendency of the litigation, court concluded that ?the extreme nature? of plaintiff?s bad faith behavior, combined with harm done to defendants, merited dismissal of plaintiff?s claims with prejudice; court further ordered plaintiff to pay defendants $65,000 to reimburse them for expenses incurred in investigating and litigating spoliation issue

Nature of Case: Retaliation under False Claims Act and other federal statutes, and Washington state law claims

Electronic Data Involved: Laptop

B & G Crane Serv., L.L.C. v. Duvic, 2006 WL 1194775 (La. Ct. App. May 5, 2006)

Dec 01 2006

Key Insight: Even lacking direct evidence that defendants continued to possess plaintiff?s computer disks and information (which had been seized by the Attorney General in related criminal investigation), trial court erred in denying preliminary injunction given evidence of defendants? knowing and willing participation in criminal, unethical and unscrupulous acts against plaintiff and possibility that information could have been downloaded to other computers, or printed, or handwritten and kept anywhere; trial court’s credibility determination in favor of defendants was abuse of discretion under the circumstances

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: CDs and computer disks

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

Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful

Nature of Case: Patent infringement

Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery

MBNA Am. Bank, N.A. v. Cioe & Wagenblast, P.C., 2006 WL 1408402 (N.D. Ind. May 19, 2006)

Dec 01 2006

Key Insight: Court denied motion to reconsider prior discovery ruling that MBNA was not entitled to production of responsive correspondence on diskette, stating that MBNA had remedies under the FRCP if defendants failed to produce legible paper copies as ordered in the prior ruling; court also flatly rejected any attempt by MBNA to obtain discovery through inspection of defendants’ computer hard drives

Nature of Case: Bank alleged firm had conducted “sham” arbitrations with bank’s cardholders

Electronic Data Involved: Word processing files

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

United States v. Arthur Andersen, LLP, 374 F.3d 281 (5th Cir. 2004), rev’d, 125 S.Ct. 2129 (2005)

Dec 01 2005

Key Insight: Conviction of Arthur Anderson for obstructing an official proceeding of the SEC affirmed; conviction was based on government’s allegations that, in order to protect the firm and the firm’s largest single account (Enron), Anderson ordered a mass destruction of documents to keep them from the hands of the SEC; Anderson unsuccessfully attempted to cloak the destruction of documents under the auspices of its document retention policies

Nature of Case: Criminal charge of obstructing an official proceeding of the SEC

Electronic Data Involved: Email and hard copy documents

Advantacare Health Partners, LP v. Access IV, 2005 WL 1398641 (N.D. Cal. June 14, 2005) (Unpublished)

Dec 01 2005

Key Insight: Court denied individual defendant’s motion for reconsideration of default judgment entered against her and other defendants for continued destruction of evidence and continued possession of plaintiff’s proprietary files; although there was no evidence that individual defendant personally engaged in wrongful acts, she was not insulated by simply leaving compliance with court orders to other defendant; further, individual had numerous opportunities to disavow knowledge of misconduct or detail what efforts she personally took to comply with court orders but never did so

Nature of Case: Misapproriation of trade secrets and related torts

Electronic Data Involved: Proprietary information in electronic form

Tag:Lack of Cooperation / Inaccurate Representations

Smoliak v. Greyhound Lines Inc., 2006 WL 1029643 (N.D. Fla. Apr. 19, 2006)

Satchell v. Fedex Express, 2006 WL 2884318 (N.D. Cal. Oct. 10, 2006)

Leon v. IDX Sys. Corp., 2004 WL 5571412 (W.D. Wash. Sept. 30, 2004), affirmed, 464 F.3d 951 (9th Cir. 2006)

B & G Crane Serv., L.L.C. v. Duvic, 2006 WL 1194775 (La. Ct. App. May 5, 2006)

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

Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

MBNA Am. Bank, N.A. v. Cioe & Wagenblast, P.C., 2006 WL 1408402 (N.D. Ind. May 19, 2006)

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

United States v. Arthur Andersen, LLP, 374 F.3d 281 (5th Cir. 2004), rev’d, 125 S.Ct. 2129 (2005)

Advantacare Health Partners, LP v. Access IV, 2005 WL 1398641 (N.D. Cal. June 14, 2005) (Unpublished)