Federal Court Decisions Involving Electronic Discovery, December 1 ...

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Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 the appropriate sanctions, pending further discovery on the extent of prejudice to the requesting party and the costs incurred. Siemens Aktiengesellschaft v. Jutai 661 Equipamentos Electronicos, Ltda., et al., 2009 WL 800143 (S.D. Fla. Mar. 25, 2009). In this trademark infringement case, the defendants contended that the plaintiff waived its ability to object to discovery by failing to timely respond to an original 30-day deadline and then to a 15-day extension. Defendants further asserted that even if the objections were timely, they were meritless. Plaintiff maintained that its obligation to respond to the request for production did not extend to ESI. The court concluded that both parties’ "all-or-nothing approach" to discovery was incorrect. The defendant was entitled to conduct some discovery with respect to its affirmative defenses, but some of the language in its request was overbroad. "The parties' competing proposed orders fail[ed] to explain their inability to compromise on an electronic discovery plan, nor [did] they set forth the bases of their disagreements." The court struck two of the eight requests as "overbroad" and required the plaintiff to produce the ESI responsive to the defendant’s six remaining requests. The parties were ordered to produce an electronic discovery plan "for the purposes of establishing reasonable limitations on the scope of plaintiff's obligation to produce responsive ESI; for example restricting the search to certain employees and agreeing upon a list of search terms." Simon Property Group, Inc. v. Taubman Centers, Inc., 2008 WL 205250 (E.D. Mich. Jan. 24, 2008). In a commercial real estate sales dispute, one of the parties issued a subpoena for documents under Fed. R. Civ. P. 45 on the nonparty equity agent. The nonparty objected, stating that the subpoena called for the production of over 250,000 electronic files and would take three employees and four weeks to answer. However, the objection was not raised until after the time allowed, and the court deemed it waived, ordering the parties to negotiate a narrower scope to the request to avoid undue burden on the nonparty. Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. Sept 20, 2007). In an employment discrimination case, the defendant moved to allow inspection of emails on a laptop computer furnished to the plaintiff while he was employed by the defendant. The court allowed the defendant access to any emails sent or received using the school’s email system, citing the clearly stated school policy that the system was only for school business, but denied access to emails sent or received using a web-based email account, citing a reasonable expectation in the confidentiality of attorney-client and marital communications. Sit-up Ltd. v. IAC/Interactive Corp., 2008 U.S. Dist. LEXIS 12017 (S.D.N.Y. Feb. 20, 2008). In an action alleging breach of a non-disclosure agreement, plaintiffs sought sanctions for the defendant’s failure to preserve departed employees’ emails. The court found no evidence of negligence or bad faith and declined to impose sanctions. Smith v. Cafe Asia, 246 F.R.D. 19 (D.D.C. 2007). In an employment discrimination suit based on sexual harassment, the defendant employer requested permission to inspect the Copyright © 2009, The Sedona Conference ® 78 www.thesedonaconference.org
Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 plaintiff’s cell phone and copy sexually explicit images it alleges the plaintiff shared with co-workers. The plaintiff acknowledged that he possessed such images of himself and of acquaintances, denied that he willingly shared them, and objected to disclosure because any probative value the images have in discovery or as evidence would be outweighed by the potential prejudice. The court, stating “the question of discoverability is inseparable from admissibility,” ordered that the images be preserved until a determination on admissibility by the trial judge, but that disclosure be limited to one attorney designated by the defendant. Smith et. al. v. Slifer Smith & Frampton/Vail Associates Real Estate, LLC, et. al., 2009 WL 482603 (D. Colo. Feb. 25, 2009). In a real estate transaction dispute, the plaintiffs moved for spoliation sanctions, based on the defendant expert’s own report that one of the individual defendants had installed a wiping program on his home computer. Further investigation by the plaintiff’s expert pinpointed the times when the wiping program was used and the extent of files deleted. Further the defendants failed to preserve relevant data on a central server, based on the assumption that it would be duplicative of data on the individual defendants’ computers. The defendants challenged the plaintiffs’ conclusions that the file deletions were intentional or calculated to impede discovery, but the court held that the circumstance “strongly supports” a finding “by a preponderance of the evidence” that the defendant s destroyed evidence in bad faith to prevent disclosure, that the missing evidence was likely relevant to the issues in the case, and that the plaintiffs’ ability to litigate their claims had been substantially prejudiced. However, the court did not recommend entry of default judgment, but opted for an adverse inference instruction to the jury and granted leave to the plaintiffs to amend their complaint to add a claim for exemplary damages based on the adverse inference. Sonomedica, Inc. v. Mohler, 2009 WL 2371507 (E.D. Va. July 28, 2009). This action arose out of the alleged illegal transfer of the plaintiff’s technology. After two nonparties’ failure to comply with an order enforcing a subpoena for the production of documents, the court held them in contempt and referred the matter to the United States Attorney to investigate criminal contempt proceedings. The court found that one nonparty had failed to testify truthfully at deposition, and both had failed to comply with an order requiring them to turn over a computer for forensic examination “without touching it, except to turn it off.” Instead, the court found that the contents of the computer had been altered. The court also awarded the plaintiff its fees and costs, including the cost of the forensic examination. Southeastern Mechanical Svs., Inc. v. Brody, et al., 2009 U.S. Dist. LEXIS 69830 (M.D. Fla. July 24, 2009). In this case in which the defendants sought spoliation sanctions for failing to implement a litigation hold for two weeks, resulting in the automatic deletion of documents, the defendant argued that the plaintiff deliberately failed to implement a litigation hold and therefore spoliation sanctions were warranted. Borrowing from Florida’s spoliation law because the Eleventh Circuit had not addressed the issue, the court held that mere negligence does not constitute the culpable state of mind to warrant an adverse inference instruction. The court reasoned that spoliation Copyright © 2009, The Sedona Conference ® 79 www.thesedonaconference.org
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