Post Process

Everything to do with E-discovery & ESI

Case Blurb: R & R Sails; ‘honest mistake’ does not substantially justify failure to produce database records

Posted by rjbiii on June 17, 2008

[Producing Party’s] production of electronically-stored claim log entries on January 8, 2008 demonstrate that Defendant had made incorrect certifications to [Requesting Party] as well as representations to the Court-that [Producing Party’s] production of discovery was complete.

Sanctions under Rule 26(g) must be issued unless violation of the rule was “substantially justified.” [Requesting Party] claims substantial justification for maintaining the position that no claim log was in [Producing Party’s] possession, based on Lombardo’s misunderstanding of the discovery being requested of [Producing Party]. According to [Requesting Party], [Producing Party’s employee] Lombardo failed to recognize that the AEGIS database that he entered notes into contained the “daily activity logs or telephone records” that [Requesting Party] had been requesting.

Lombardo has been an insurance adjuster for twenty-six years and explains that he did not associate the AEGIS database with the claim file that he maintains because “[t]he AEGIS computer system records are kept on a computer system that is separate from my file materials and I do not have a practice of printing them out to put in my file.” [The Producing Party] argues that this “honest mistake” substantially justifies the incorrect certifications made to [Requesting Party], as well as the false declaration provided to [the Requesting Party] in response to this Court’s Order of November 29, 2007. However, to give meaning to the certifications provided on discovery responses, Rule 26(g) requires attorneys or parties to sign their responses “after a reasonable inquiry.” Evidence of such an inquiry prior to January 2007 may provide this Court with justification for the incorrect certifications provided to [the Requesting Party]. Instead, this Court is presented with evidence that Lombardo was maintaining a claim log on his own computer using the AEGIS system while failing to recognize that this log was the same “record/log” being requested by [the Requesting Party]. Lombardo entered notes of a communication with counsel into the AEGIS system on November 16, 2007, immediately prior to counsel’s representation to this Court that such a system was not possessed by [the Producing Party] and close in time to his signing a declaration that no such notes are maintained. The Court cannot find that a reasonable inquiry was made into whether [Producing Party] possessed discovery responsive to [Requesting Party’s] requests, and therefore the Court does not find [Requesting Party’s] incorrect certifications to be substantially justified.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *5 (S.D. Cal. Apr. 18, 2008 ) (internal citations removed)

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