Post Process

Everything to do with E-discovery & ESI

Case Blurb: APC Filtration; Parties held culpable for violating court order before it was ever issued

Posted by rjbiii on October 23, 2007

Becker and SourceOne failed to comply with [the court’s] order to produce documents because Becker had earlier discarded the computer. Becker and SourceOne’s own answers to APC’s interrogatories indicate that Becker communicated by email with Zehua but that “[t]he dates and times of these e-mail exchanges are unknown” because “Becker no longer is in possession of the e-mails.” (Defs.’ Answer to Pl.’s Interrog. No. 5.) Becker and SourceOne provided a similar answer with respect to Becker’s communications with AmSan. (Defs.’ Answer to Pl.’s Interrog. No. 15.) It is now clear that there must have been some communications between Becker, Zehua, and AmSan during Becker’s period of employment with APC because, as the parties agreed at oral argument, Becker and SourceOne had established contractual relationships with both of these companies prior to his termination in January 2007. Furthermore, the parties now agree that AmSan has responded to a subpoena by producing over 300 pages of e-mail correspondence, containing approximately 60 messages. Whether these represent the entirety of Becker’s communications in furtherance of his plan to compete with APC or merely the tip of the iceberg is impossible to tell, since the computer no longer exists. This is precisely the situation that the rules governing discovery are intended to prevent.

The Court specifically finds, in light of what Becker did (traveling 20 miles to dispose of the computer in a construction site Dumpster) and when he did it (within days of receiving notice of APC’s lawsuit), that Becker acted in bad faith in order to prevent APC from discovering potentially damaging evidence. See Langley, 107 F.3d at 514 (Rule 37 sanctions may only be imposed where a party displays willfulness, bad faith, or fault). Although this conduct occurred prior to the Court’s order, it is enough that Becker’s culpable conduct “eventually culminated in the violation.” Id. (quoting Marrocco v. Gen, Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992)). Therefore, because Becker acted in bad faith and violated a discovery order issued by this Court, Becker and SourceOne are subject to sanctions under Rule 37(b).

(emphasis added)

APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007)

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