Case Blurb: Thai Heng Chang; Court discusses documents produced across matters

The Court agrees generally that Defendant should not have to produce documents he has already produced, whether in another cause or not, but he may not simply refer Plaintiff to the other lawsuit with the general objection that he’s already produced responsive documents. Defendant must respond to each discovery request served in this case and identify each responsive document by Bates number or other identifying information that specifies the precise document. Of course, any responsive documents between March 22, 2007, and July 1, 2007, would not be previously produced in response to the subpoena, and therefore, shall now be produced within ten days of this date.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *2 (N.D.Fla. Aug. 29, 2008 ) (emphases in the original).

Case Blurb: Thai Heng Chang; Court orders immediate production of e-mail from previously undisclosed account

Post Process: The court granted Plaintiff’s motion to compel, and motion to impose sanctions for inadequate discovery. The court delayed determination of appropriate sanctions until a later date. Below is an excerpt of the opinion, discusses Defendant’s undisclosed yahoo e-mail account.

At issue are [inter alia]: emails from the account edsmith1818@yahoo.com…
Plaintiff contends that it only recently learned of another email account used by the Defendant that should have been identified in response to Interrogatory No. 2, which Plaintiff served upon Defendant on November 6, 2007. Plaintiff contends that Defendant should supplement his document production to include these emails, which it alleges contain highly relevant information crucial to the issues raised in this case.

Specifically, Plaintiff contends that Defendant used this specific email account to engage in the activities upon which this entire lawsuit is based. Defendant represents to Plaintiff and the Court that he cannot produce the emails because they have been destroyed by Yahoo! He offers a copy of a generic response from Yahoo! regarding deactivating accounts, but Plaintiff has attached to its motion a copy of a letter from Defendant’s counsel to Yahoo! regarding a subpoena served in the Georgia case for the hankchang138@yahoo.com account. Nothing in that letter indicates a problem with Yahoo! complying with a subpoena for emails in that account despite Defendant’s assertion that they had been deleted. Perhaps Yahoo! has a process for obtaining emails from deactivated accounts as well. Regardless, the Court does not at this time accept Defendant’s explanation that production of these documents is “impossible,” particularly given the important evidentiary value of these emails and the feeble offering by Defendant in support of his contention. The Court further finds that Defendant’s representation that he was being “completely truthful” when he did not identify this account because he knew it would be impossible to ultimately produce these emails, to be sanctionable. It will figure largely into the sanctions ultimately awarded in this matter if it is learned that Defendant’s failure to identify this account earlier is the cause of the alleged impossibility.

As an initial matter, Defendant shall immediately make all possible efforts to obtain the emails in account edmith1818@yahoo.com and shall then produce all documents in this account without further objection or delay…The Court will not accept Defendant’s position that he cannot produce these emails until assurance is given from an executive at Yahoo! responsible for such tasks that this request is indeed impossible.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *1 (N.D.Fla. Aug. 29, 2008 ).

Case Blurb: U & I; Discussion of Court’s management of document production under FRCP 26(b)(1)

Rule 26(b) (1), Fed.R.Civ.P., which defines the scope of discovery, was amended in 2000. Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party …” Further, “for good cause shown, the court may order discovery or any matter relevant to the subject matter involved in the action.” Fed.R.Civ.P. 26(b)(1) (emphasis supplied).

The rule change was to involve the court more actively in regulating the breadth of sweeping or contentious discovery. Fed.R.Civ.P., Advisory Committee Note. The Advisory Committee intended by the rule change for the parties and the court to focus “on the actual claims and defenses involved in the action.” The rule change signals to the court that “it has the authority to confine discovery to the claims and defenses asserted in the pleadings …”

U & I Corp. v. Advanced Medical Design, Inc., 2007 WL 4181900 (M.D.Fla. Nov. 26, 2007) (internal citations removed, emphasis in the original)

Case Blurb: L-3; Elements of Spoliation, 11th Circuit

“‘Spoliation’ is the ‘intentional destruction, mutilation,alteration, or concealment of evidence.’” Federal law governs the imposition of spoliation sanctions in this case, but state law may be consulted to guide the Court in its analysis.

Generally, spoliation is established when the party seeking sanctions proves (1) that the missing evidence existed at one time;(2) that the alleged spoliator had a duty to preserve the evidence;and (3) that the evidence was crucial to the movant being able to prove its prima facie case or defense. Additionally, in this circuit sanctions for spoliation of evidence are appropriate “only when the absence of that evidence is predicated on bad faith. . . . ‘Mere negligence’ in losing or destroying the records is not enough for an adverse inference, as ‘it does not sustain an inference of consciousness of a weak case.’”

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 U.S. Dist. LEXIS 79572 (M.D. Fla. Oct. 25, 2007) (internal citations removed).

Case Blurb: Seroquel; Federal Court’s authority to impose sanctions under FRCP 37

Pursuant to Federal Rule of Civil Procedure 37, the Court may impose broad sanctions for discovery-related abuses. Federal Rule of Civil Procedure 37 governs a party’s failure to make a proper disclosure or cooperate in discovery. For purposes of Rule 37, an incomplete response is to be treated as a failure to respond. Fed. R. Civ. P. 37(a)(3). Rule 37(b)(2) states that a court may grant sanctions against a party that “fails to obey an order to provide or permit discovery.”

Sanctions may be granted against a party under Rule 37(b)(2) if there is noncompliance with a court order, notwithstanding a lack of wilfulness or bad faith, although such factors “are relevant … to the sanction to be imposed for the failure.” 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2283, at 608 (2d ed.1994); see Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 671 (7th Cir.1996) (“Bad faith … is not required for a district court to sanction a party for discovery abuses. Sanctions are proper upon a finding of wilfulness, bad faith, or fault on the part of the noncomplying litigant.”); Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 78, 88 (D.D.C.1998) ( “In making the determination of whether to impose sanctions, Rule 37(b)(2) does not require a showing of willfulness or bad faith as a prerequisite to the imposition of sanctions upon a party.” (citations omitted)).

The district court has broad discretion to fashion appropriate sanctions for the violation of discovery orders. United States v. Certain Real Property Located at Route 1, 126 F.3d 1314, 1317 (11th Cir.1997); see also Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)); Friends of Animals, Inc. v. U.S. Surgical Corp., 131 F.3d 332, 334 (2d Cir.1997) (“A district court has broad power to impose Rule 37(b) sanctions in response to abusive litigation practices.”).

Case Blurb: Seroquel; Reason to encourage parties to exchange Evidence in digital form

The goal is to maximize these potential advantages [of digital evidence, such as searchability] while minimizing the potential problems of incompatibility among various computer systems, programs, and data, and minimizing problems with intrusiveness, data integrity, and information overload.
(emphasis in the original)

In re SEROQUEL PRODUCTS LIABILITY LITIGATION, 2007 WL 2412946 (M.D. Fla. July 3, 2007).