Post Process

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Archive for February, 2008

Case Blurb: Lowry Development LLC; Producing Party’s destruction of evidence and untruthful testimony warrant sanctions

Posted by rjbiii on February 28, 2008

In the exercise of my discretion in this matter, I have determined that the destruction of this computer occurred at a time [Producing Party] knew or should have known that the computer and the data it contained were part of the evidence in this case. [Producing Party]’s decision to discard the computer was not the product of simple negligence, and [Producing Party]’s untruthful testimony concerning the manner in which this computer was handled is sufficient to infer the necessary element of bad faith in connection with his actions. I am of the opinion that [Requesting Party] should be allowed to introduce evidence concerning the disposition of this computer and concerning Groves’s untruthful testimony about this matter.

The existence of a mutual mistake of fact in connection with the formation of the [Requesting Party] insurance contract is an issue on which Great American would ordinarily bear an extraordinary burden of proof. The jury’s decision on this issue will depend in substantial part on the credibility of [Producing Party]’s testimony, and the parties have recognized that should [Requesting Party] prevail on the defense of mutual mistake [Producing Party], would be liable to the plaintiff for his wind-related losses. In these circumstances, I find that the appropriate sanction for [Producing Party]’s destruction of the data contained in his computer is to ameliorate the effect of this loss of evidence by reducing [Requesting Party]’s burden of proof to a preponderance of the evidence. See: McGuire v. Sigma Coatings, Inc., 48 F.3d 902 (5th Cir.1995). I will so instruct the jury at the appropriate time.

Accordingly, I will grant [Requesting Party]’s motion for sanctions, and I will permit [Requesting Party] to elicit testimony and introduce other evidence related to the destruction of this evidence. After I have heard the evidence in the case, I will fashion an appropriate jury instruction concerning the inferences or conclusions the jury may draw from [Producing Party]’s actions, and [Requesting Party]’s burden of proof on the issue of mutual mistake will be to prove the facts necessary to establish this defense by a preponderance of the evidence.

Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. Nov. 30, 2007)

Posted in 5th Circuit, Adverse Inference, Case Blurbs, Duty to Preserve, Judge L.T. Senter Jr., S.D. Miss., Spoliation | Tagged: , | Leave a Comment »

Case Blurb: Benefirst; Good Cause Analysis-Seventh Factor

Posted by rjbiii on February 28, 2008

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors four and five: The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; and Predictions as to the importance and usefulness of the further information;]

The parties resources.

While the Defendant has understandably engaged in a lengthy discussion of the cost of production, neither party has provided the court with any information about their resources. BeneFirst does represent that they no longer have a full time staff and that in order to retrieve the images that they would have to hire temporary help. At the same time, as previously noted, the Plaintiffs have significantly narrowed the breadth of their request and therefore, the time and cost for BeneFirst to produce the requested information should be significantly reduced.

Given the lack of information available to the Court, this factor is neutral.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Posted in 1st Circuit, Case Blurbs, Cost of Discovery, Cost Shifting, D. Mass., Discovery Requests, Document Retention, Duty to Disclose, Duty to Produce, FRCP 26(b), Good Cause, Magistrate Judge Timothy S. Hillman | Leave a Comment »