EDiscovery Case Law
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Court Imposes Sanctions for Purposeful Sluggishness in Discovery
In re Seroquel Prod. Liab. Litig., 2007 WL 2412946 (M.D.Fla. Aug. 21, 2007). In this multidistrict product liability litigation, the plaintiffs motioned the court to impose sanctions on the defendant for failing to comply with discovery obligations. The plaintiffs pointed to numerous instances where the defendant failed to produce documents in an accessible or useable format, in addition to missing numerous deadlines. While the court found two of those instances to be excusably negligent, the other behavior warranted sanctions. The court was extremely displeased with the defendant's failure to discuss keyword search terms with the plaintiffs, failure to include page breaks between documents it did produce and failure to produce usable single-page tiff documents. The court also noted the defendant's omission of attachments and relevant e-mails and purposeful sluggishness in making an effective production. The court stayed its determination of which sanctions it should impose to allow the plaintiffs an opportunity to present evidence as to their damages or prejudice.
Wife Allowed to Access Husband's Email in Marital Dissolution Action
White v. White, 781 A.2d 85 (N.J. Super. Ct. Ch. Div. 2001). In a divorce action, the husband filed a motion to suppress his email that had been stored on the hard drive of the family computer. The court held that the wife did not unlawfully access stored electronic communications in violation of the New Jersey Wiretap Act and did not intrude on his seclusion by accessing those emails. "Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed indicated her husband was being unfaithful-Is rummaging through files in a computer hard drive any different than rummaging through files in an unlocked file cabinet-Not really."
Adverse Inference Sanctions Granted Where Plaintiff Destroyed Computer Evidence
Anderson v. Crossroads Capital Partners, L.L.C., 2004 WL 256512 (D.Minn. Feb. 10, 2004). In a sexual harassment and whistleblower lawsuit, the defendants sought to recover the hard drive of plaintiff's personal computer because it allegedly contained an October 2001 document outlining the harassment. After a protracted discovery battle, the defendants sought a Motion to Compel and the judge ordered the plaintiff to furnish the defendant with a "copy of all documents/files relevant to this litigation that exist on Ms. Anderson's personal computer as well as those that have been deleted or otherwise adulterated." Pursuant to the judge's Order, the defendants' computer forensic expert examined the plaintiff's hard drive and discovered that a data wiping software application had been installed after the plaintiff had agreed not to "delete any existing documents" in a deposition. The computer forensic expert also found that the hard drive installed in the machine was manufactured in August 2002. The plaintiff claimed that she did not use the software program to destroy evidence, but that she used it routinely to protect her computer files. She also stated that in her view she owned the same computer throughout the litigation despite changing the hard drive in 2002. The defendants then moved to dismiss the complaint due to plaintiff's alleged discovery violations and destruction of evidence. The court noted that the plaintiff's "exceedingly tedious and disingenuous claim of naiveté! regarding her failure to produce the requested discovery-defies the bounds of reason" but was not sufficiently egregious to warrant dismissal of the case. Instead, the court issued an adverse inference jury instruction because the plaintiff intentionally destroyed evidence and attempted to suppress the truth.
Defendant Ordered to Pay Costs Associated with Computer Forensic Investigation
Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D.Va. 2001); Trigon Ins. Co. v. United States, 2002 WL 31864265 (E.D.Va. Dec. 17, 2002). Based on computer forensic expert analysis, the court found that the defendant willfully and intentionally destroyed documents that should have been produced during discovery. The court issued adverse inferences and reimbursement of plaintiff's attorneys fees as damages for the spoliation. Trigon Ins. Co. v. United States, 2002 WL 31864265 (E.D.Va. Dec. 17, 2002.). Despite objection by the defendant, the court found plaintiff's fees and expenses (in the amount of $179,725.70) for hiring and deposing computer forensics experts and briefing and adjudicating the issues related to the spoliation warranted and reasonable.
Defendants Must Allow Computer Expert Access to Servers and Computers
Tilberg v. Next Mgmt. Co., 2005 WL 2759860 (S.D.N.Y. Oct. 24, 2005). During discovery, the court ordered the defendants to give the plaintiff's computer forensic expert access to two email servers and ordered the parties to split costs. However, when the forensic expert began his examination, he was unable to access the defendants' second server. The defendants claimed this was the result of a system crash. After the discovery deadline passed, the plaintiff again sought access to the second server as well as permission to search the defendants' central non-email server and two specific employees' desktop computers. The defendants submitted an affidavit from its information technology personnel indicating the computer system did not contain relevant documents. However, the plaintiff's expert "found 187 occurrences of the word 'Tilberg' in 'active space,' which could have been found with standard search tools, and 97 occurrences of 'Tilberg' in deleted files." The plaintiff declared the defendants should have produced these files without the need for a forensic search. Additionally, the plaintiff presented documents obtained from third parties that further proved relevant documents existed despite the defendant's contrary claims. Finding the defendants "either inadvertently or deliberately delayed and obstructed discovery in this case," the court ordered the defendants to provide the expert with access to the second email server, the central server, and the two desktop computers. See also Tilberg v. Next Mgmt Co., 2005 WL 3543701 (S.D.N.Y. Dec. 28, 2005)(Addressing issue of privileged emails uncovered in the search).
