Post Process

Everything to do with E-discovery & ESI

Case Blurb: Nursing Home Pension Fund; Failure to produce ‘duplicate’ emails from different custodian grounds for sanctions

Posted by rjbiii on September 15, 2008

As to [Defendant] Ellison’s email files, the Court finds that sanctions are appropriate. It is undisputed that defendants produced only 15 emails sent or received by Ellison from Ellison’s own email files, and defendants do not contend that all of Ellison’s emails were preserved in his files. Instead, defendants note that over 1,650 of Ellison’s emails were produced to plaintiffs from the files of other Oracle employees. Defendants, relying on Wachtel v. Health Net, Inc., 2007 WL 1101436 (D.N.J. Apr. 10, 2007), argue that plaintiffs are not entitled to receive multiple copies of Ellison’s emails. The Court disagrees. It could have been helpful to plaintiffs to demonstrate that certain emails were discovered in Ellison’s files; otherwise, for instance, Ellison could argue that he never actually read or received an email that was sent to him, and thus had no knowledge of its contents. Moreover, having established with certainty that numerous emails were not produced from Ellison’s email files–because the emails were produced from other files or accounts–it is impossible to know whether additional unproduced emails were also deleted or not turned over. This uncertainty about the existence of other emails is precisely the reason all of Ellison’s emails should have been preserved and produced.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *6 (N.D.Cal. Sept. 2, 2008 )

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