e-Discovery Docket Sheet

In a suit alleging a fraudulent sale of stock, the plaintiff filed a motion for an adverse inference instruction against the defendant for destroying e-mails and failing to comply with a court order to compel e-mail discovery. Despite an SEC regulation requiring e-mail retention for 2 years, the defendant continued its practice of overwriting e-mails every 12 months. Based on this, the court ordered the defendant to produce backup tapes, review e-mails, conduct searches, produce responsive e-mails and a privilege log, and certify compliance with the order. The defendant issued the compliance certification in spite of having more than 1400 backup tapes containing data not yet processed or produced. Throughout the discovery process, the defendant overwrote e-mails, failed to notify and process in a timely fashion hundreds of DLT and 8 mm tapes, and failed to produce e-mails and attachments. The court found the plaintiff did not receive relevant e-mail because of the defendant's discovery tactics and granted the motion for an adverse inference instruction noting, “[t]he conclusion is inescapable that [the defendant] sought to thwart discovery.” The court ordered the defendant to continue complying with the earlier discovery order and to pay costs associated with the plaintiff's motion. The court also noted the defendant “gave no thought to using an outside contractor to expedite the process of completing the discovery, though it had certified completion months earlier; it lacked the technological capacity to upload and search the data at that time, and would not attain that capacity for months.” Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005). See also, Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. CA 03-5045 AI (Fla. Cir. Ct. Mar. 23, 2005).

Accusation of 'Inexcusable' Discovery
Conduct Results in Dismissal and Sanctions