e-Discovery Docket Sheet

In a wrongful-termination case, the plaintiff moved for spoliation sanctions against the defendant for failing to produce and preserve relevant evidence. The defendant failed to produce electronic documents such as e-mail, invoices and payroll records that were central to the plaintiff's case. The defendant claimed not to have the information, but eventually produced some of the requested records after the motion for sanctions was filed. The defendant argued that the plaintiff had provided no proof that it destroyed evidence and that the sanctions should be denied. The defendant also argued that it did not have a duty to supplement discovery disclosures because the plaintiff did not request supplementation during the discovery period. Not satisfied with the defendant's arguments, the court concluded that sanctions were appropriate. The defendant's production of some of the records shortly after the motion was filed was evidence of the defendant's bad faith. Additionally, the burden to prove no destruction occurred was on the defendant because the defendant was in control of the evidence at issue. May v. Pilot Travel Centers LLC, 2006 WL 3827511 (S.D. Ohio Dec. 28, 2006).

In a gender-discrimination case, the defendant brought a cost-sharing motion for discovery costs associated with producing e-mail from 117 employees, as requested by the plaintiff. The e-mail was stored only on disaster-relief backup tapes. The defendant had already spent $20,000 to produce electronic documents from backup tapes and would have to purchase additional software to produce the remaining e-mail. The plaintiff argued that the defendant should incur all the costs because the defendant chose to store the e-mail in an inaccessible format. The court held that the defendant should incur all the discovery costs. It noted that the costs already incurred were irrelevant to a cost-shifting analysis because 'the majority of those expenses do not directly relate to the restoration and search of the backup tape.' The court also noted its power under the amendments to the Federal Rules of Civil Procedure to rule on discovery that was overly broad. The court ordered the plaintiff to reduce the number of e-mail accounts to 50 employees instead of 117, and it also removed several generic search terms from the defendant's list of search terms and reduced the total number to 10 specific terms. Semsroth v. City of Wichita, 2006 WL 3913444 (D. Kan. Nov. 15, 2006).

In this trademark-infringement case, the plaintiff moved for discovery sanctions against the defendant, claiming that the defendant had failed to do the following: conduct complete or timely searches for electronic documents; issue a proper litigation hold; and preserve chat-room discussions taking place on the defendant's Web site. Denying the plaintiff's motion, the court found no discovery misconduct; instead, the court questioned the plaintiff's delay in raising these discovery issues and stated that the plaintiff had failed to demonstrate that the defendant's discovery production was materially incomplete. The court also noted an ambiguity about whether some employees' e-mail accounts had been searched, and ordered the defendant to confirm this in writing. The court also found that the defendant's failure to instruct certain employees to preserve documents after the lawsuit was either imminent or pending did not result in any relevant documents being destroyed. Lastly, the court held that chat-room discussions on the defendant's Web site would not fall under the same discovery requirements as e-mail, and the defendant could not be sanctioned for failure to preserve the discussions. Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006).

In a misappropriation of trade secrets case, the plaintiff alleged that the defendant had stolen confidential and proprietary electronic information when he left the plaintiff's company to work for a competitor. The defendant admitted taking information from the company on his personal laptop. When the plaintiff sent him a preservation letter asking that the information not be destroyed, the defendant, under advice from his attorney, transferred all the data from his laptop to a USB drive and deleted all the plaintiff's data from his hard drive. The plaintiff believed that not all information was transferred and that some relevant information had been deleted. A computer-forensics investigation of the defendant's computer showed that he produced only around 1GB of information on the USB drive, when around 7GB of information was downloaded. The plaintiff asked the court for sanctions based on spoliation of evidence. It argued that the defendant deliberately destroyed evidence when he was under a preservation obligation. The defendant argued that he produced less electronic evidence on the USB drive only because he had deleted any duplicate documents found during the transfer, doing so for the convenience of the plaintiff. Nevertheless, the defendant agreed to a forensic examination of his computers to discover whether any relevant evidence had been deleted. The court ruled that there was not enough evidence to demonstrate the defendant had destroyed records in bad faith. It noted that there was no bad-faith destruction, because the files were copied to a USB drive to be given to the plaintiff and not completely destroyed as in most spoliation-sanction cases. Despite this ruling, the court ordered the plaintiff to supplement its motion for sanctions once the forensic investigation was complete. If the investigation revealed that the defendant had failed to copy relevant documents to the USB drive for the plaintiff's review, then sanctions might be appropriate. Anadarko Petroleum Corp. v. Davis, 2006 WL 3837518 (S.D. Tex. Dec. 28, 2006).

Court Orders Sanctions For Delayed
Production Of Electronic Documents

In a wrongful-termination case, the plaintiff moved for spoliation sanctions against the defendant for failing to produce and preserve relevant evidence. The defendant failed to produce electronic documents such as e-mail, invoices and payroll records that were central to the plaintiff's case. The defendant claimed not to have the information, but eventually produced some of the requested records after the motion for sanctions was filed. The defendant argued that the plaintiff had provided no proof that it destroyed evidence and that the sanctions should be denied. The defendant also argued that it did not have a duty to supplement discovery disclosures because the plaintiff did not request supplementation during the discovery period. Not satisfied with the defendant's arguments, the court concluded that sanctions were appropriate. The defendant's production of some of the records shortly after the motion was filed was evidence of the defendant's bad faith. Additionally, the burden to prove no destruction occurred was on the defendant because the defendant was in control of the evidence at issue. May v. Pilot Travel Centers LLC, 2006 WL 3827511 (S.D. Ohio Dec. 28, 2006).

In a gender-discrimination case, the defendant brought a cost-sharing motion for discovery costs associated with producing e-mail from 117 employees, as requested by the plaintiff. The e-mail was stored only on disaster-relief backup tapes. The defendant had already spent $20,000 to produce electronic documents from backup tapes and would have to purchase additional software to produce the remaining e-mail. The plaintiff argued that the defendant should incur all the costs because the defendant chose to store the e-mail in an inaccessible format. The court held that the defendant should incur all the discovery costs. It noted that the costs already incurred were irrelevant to a cost-shifting analysis because 'the majority of those expenses do not directly relate to the restoration and search of the backup tape.' The court also noted its power under the amendments to the Federal Rules of Civil Procedure to rule on discovery that was overly broad. The court ordered the plaintiff to reduce the number of e-mail accounts to 50 employees instead of 117, and it also removed several generic search terms from the defendant's list of search terms and reduced the total number to 10 specific terms. Semsroth v. City of Wichita, 2006 WL 3913444 (D. Kan. Nov. 15, 2006).

In this trademark-infringement case, the plaintiff moved for discovery sanctions against the defendant, claiming that the defendant had failed to do the following: conduct complete or timely searches for electronic documents; issue a proper litigation hold; and preserve chat-room discussions taking place on the defendant's Web site. Denying the plaintiff's motion, the court found no discovery misconduct; instead, the court questioned the plaintiff's delay in raising these discovery issues and stated that the plaintiff had failed to demonstrate that the defendant's discovery production was materially incomplete. The court also noted an ambiguity about whether some employees' e-mail accounts had been searched, and ordered the defendant to confirm this in writing. The court also found that the defendant's failure to instruct certain employees to preserve documents after the lawsuit was either imminent or pending did not result in any relevant documents being destroyed. Lastly, the court held that chat-room discussions on the defendant's Web site would not fall under the same discovery requirements as e-mail, and the defendant could not be sanctioned for failure to preserve the discussions. Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006).

In a misappropriation of trade secrets case, the plaintiff alleged that the defendant had stolen confidential and proprietary electronic information when he left the plaintiff's company to work for a competitor. The defendant admitted taking information from the company on his personal laptop. When the plaintiff sent him a preservation letter asking that the information not be destroyed, the defendant, under advice from his attorney, transferred all the data from his laptop to a USB drive and deleted all the plaintiff's data from his hard drive. The plaintiff believed that not all information was transferred and that some relevant information had been deleted. A computer-forensics investigation of the defendant's computer showed that he produced only around 1GB of information on the USB drive, when around 7GB of information was downloaded. The plaintiff asked the court for sanctions based on spoliation of evidence. It argued that the defendant deliberately destroyed evidence when he was under a preservation obligation. The defendant argued that he produced less electronic evidence on the USB drive only because he had deleted any duplicate documents found during the transfer, doing so for the convenience of the plaintiff. Nevertheless, the defendant agreed to a forensic examination of his computers to discover whether any relevant evidence had been deleted. The court ruled that there was not enough evidence to demonstrate the defendant had destroyed records in bad faith. It noted that there was no bad-faith destruction, because the files were copied to a USB drive to be given to the plaintiff and not completely destroyed as in most spoliation-sanction cases. Despite this ruling, the court ordered the plaintiff to supplement its motion for sanctions once the forensic investigation was complete. If the investigation revealed that the defendant had failed to copy relevant documents to the USB drive for the plaintiff's review, then sanctions might be appropriate. Anadarko Petroleum Corp. v. Davis, 2006 WL 3837518 (S.D. Tex. Dec. 28, 2006).