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Archive for the ‘Motion to Compel’ Category

Case Summary: Seven Seas Cruises; Gaps in the Production Examined

Posted by rjbiii on March 24, 2011

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, 09-23411-CIV-UNGARO/SIMONTON, 2011 U.S. Lexis 19465 (S.D. Fla., Feb. 19, 2011).

Plaintiff Seven Seas initiated the action against multiple defendants, claiming damages from defendants’ “failure to provide proper ship management, care and oversight for several cruise ships…”. Specific accusations included, inter alia: negligent representations, negligence, and breach of contract. After defendants answered, and both sides filed tit for tat motions for summary judgment, the court issued an order granting a motion to compel filed by Plaintiffs. The motion required defendants to:

  • Identify which employees’ systems had been searched;
  • Explain the absence of certain documents from production; and
  • Describe search terms used to conduct ESI searches.

The order allowed that after defendants filed an affidavit with the information required by the order, plaintiffs were free to renew their motion for to compel further discovery. They elected to do exactly that, resulting in this opinion.

Plaintiffs’ position:

Plaintiffs maintain that they have discovered “gaps” in the production by plaintiffs, despite defendants’ repeated assurances to the contrary. First, plaintiffs contend defendants searched (and produced) the ESI for a mere nine employees, failing to search other custodians likely possessing relevant data. Seven Seas had submitted a list of 19 employees/custodians or email addresses that were incorrectly excluded from searches.

Next, Seven Seas argue that the production for those custodians that were searched was incomplete. To bolster their claim, plaintiffs identified specific time frames where ESI was not produced for those custodians. They claimed this was the case for at least four custodians. Plaintiff’s attorneys approach in pressing their case is described by the court:

At the hearing, Plaintiffs chronologically recounted each request made by Plaintiffs through the course of discovery regarding the production of ESI, and also reiterated the representations made by the Defendants in response to those requests. Generally, throughout the course of the ESI discovery, Defendants assured Plain-tiffs that Defendants were conducting complete ESI searches for materials responsive to Plaintiffs’ requests. Plaintiffs contend, however, that each time such production or representation regarding the thoroughness of the production was made, that Plaintiffs later found out that the production was not, in fact, complete.

In addition, throughout the hearing, Plaintiffs pointed to statements made by Defendants in submissions to the Court wherein Defendants repeatedly asserted that all relevant custodians’ computers and laptops had been searched. According to Plaintiffs, as a result of the repeated assurances by Defendants that ultimately proved to not be true, Plaintiffs have no confidence in the Defendants’ ability to conduct proper ESI searches, and further have no faith in the Defendants’ representations regarding the same.

And then they bring it home with this:

Thus, Plaintiffs argue that because the Defendants’ failure to produce all responsive ESI discovery has prejudiced the Plaintiffs and because such omissions are ongoing and intentional, that the Court should strike the Defendants’ pleadings and enter a final default judgment against both Defendants. In addition, Plaintiffs request that the Defendants be ordered to pay the costs associated with Plaintiffs having to bring the Renewed Motion to Compel.

Post Process Comment: From the outside looking in, it really looks like counsel for Seven Seas went about this the right way. We have analyzed, in the past four years, innumerable cases where the court felt the need to admonish counsel for vagueness, or making conclusory statements without backing them up with evidence. Here, counsel went through a round of “attack analytics,” (we’ll look at this in a moment) during which they analyzed the production, documented what they perceived as deficiencies, and presented their findings as argument, while including specific examples for the court to hang its hat on. Of course, we aren’t done…defendants get their chance to speak.

Defendants position:

Defendants “generally took exception” with some of the “missing custodians” included on Plaintiffs list, and supplemented their arguments with specific information to explain the absence of either custodians from the search, or for data missing for specific time periods from produced custodians.

Defendants then acknowledged that not all relevant ESI had been produced, and then conceded that “in hindsight” and e-discovery consultant or vendor should have been retained to assist them.

Post Process Comment: This is a telling admission. It is an implicit acknowledgment that eDiscovery methodologies weren’t solid due to the inexperience of their staff who were engaged in the project.

In an effort to put the best face on things, V. Ships Leisure reiterated earlier assertions (at least to effort…doesn’t seem possible that they continued to claim the production wasn’t deficient in light of their earlier admission). They also noted that they had supplemented production with additional data, and were prepared to hand over more data that very day. V Ships Leisure then noted went to the “volume defense” by noting that they had already produced hundreds of thousands of documents (ESI and hard copy). They also defended their efforts by noting that some of their custodians were overseas, complicating the logistics behind their project.

V Ships Leisure continued their arguments by stating that the bulk of the relevant evidence was contained in correspondence between plaintiffs and defendants, so plaintiffs already had most of the evidence prior to their suit. Defendants complained that Seven Seas had never alerted them to the gaps prior to filing their motion. Although defendants agreed to re-execute the searches on both already produced custodians and on “missing” custodians, they also claimed that no prejudice to plaintiffs had been demonstrated, an argument plaintiffs could not refute.

Post Process Commentary: Defendants fought back hard, but is it enough? Their admissions may be the most significant part of their arguments, but perhaps their efforts in already producing substantial volumes of data, and the potential lack of prejudice to plaintiffs will carry the day.

The court began by reciting the law behind FRCP 37.

Federal Rule of Civil Procedure 37 addresses a litigant’s failure to make disclosures or to cooperate in discovery and sets forth sanctions that may be imposed by a Court. Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Thus, Federal Rule of Civil Procedure 37 gives a district court the power to enter a default, strike pleadings, or render judgment against a party that disobeys the court’s discovery or pretrial scheduling orders. However, the severe sanction of a default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders. In addition, Rule 37(b) only permits imposition of the ultimate sanction if a party willfully or in bad faith failed to obey a discovery order. It is not justified under Rule 37(b) if a party’s failure to comply with a discovery order was caused by simple negligence or a misunderstanding of the court order. If the party does not provide a credible explanation of how he interpreted an order compelling discovery in a way that excluded certain documents from the scope of the order, the party’s unsupported assertion that it misunderstood the order is insufficient, and it is not clear error for the district court to find that the party’s failure to comply with the discovery order was willful and in bad faith. Further, when a party claims that he was unable to produce documents in the time allowed by the court, but he does not produce any evidence to support the argument, a district court’s finding of willfulness is not clearly erroneous. Nonetheless, a district court is not required to first impose lesser sanctions if the lesser sanction would be ineffective.

Defendants’ Failure to Produce ESI:

The court began by reciting a history of disputes caused by defendant’s failures to produce or thoroughly search for potentially relevant ESI. The court then admonished both parties for failing to conduct an early meet and confer:

[I]t appears that many of the disputes related to the production of e-discovery could have been significantly narrowed, if not totally avoided, had the Parties held an e-discovery conference early-on in the litigation as required by Federal Rule of Civil Procedure 26(f), wherein issues regarding disclosure and production of ESI could have been thoroughly discussed.

Continuing on, the court articulated its first major conclusion:

[I]t is clear that the Defendants have failed to properly conduct complete, thorough and timely searches of ESI responsive to the Plaintiffs’ discovery requests. There is no doubt that the manner and method in which the Defendants conducted their ESI searches were wholly inadequate.

That said, the court noted that because the production gaps had not yet been plugged, the damage done to plaintiff’s case could not yet be determined. The court also applied some blame to Seven Seas, noting that they could have identified missing custodians or data sources earlier. While the court granted that defendant’s deficiencies were more likely due to its staff’s “unfamiliarity” with e-discovery, and not any malfeasance, the continued inability to conduct EDD competently at this point in the game is inexcusable.

On this point, the court stated:

Indeed after this Court’s January 19th Order, if not before, the Defendants should have reasonably known that they needed to retain an E-discovery consultant to ensure that they properly conducted their ESI searches.

Because of this, said the court, sanctions were appropriate. The ordered defendants to engage an electronic discovery vendor to assist in searching and producing ESI from certain custodians included on plaintiff’s “missing custodian list.” Plaintiff’s request to re-execute searches over the data sets associated with custodians whose ESI had already produced was denied, as in the court’s view, the production of this data was sufficient.

The court concluded that the appropriate sanctions were to:

  • Deny defendants motion for summary judgment;
  • Award plaintiffs attorneys costs, to be paid by defendants.

The court declined to enter a default judgment on behalf of plaintiffs, as had been requested in the Motion to Compel.

Post Process Comment: The sanctions imposed might be considered fairly mild, considering some of the language contained within the opinion. The biggest mitigating factor for defendants appeared to be the lack of any evidence concerning damage done to plaintiffs case by the omissions in production.

I’d like to reflect a bit on the evidence and arguments brought by Plaintiffs to demonstrate that deficiencies exist in the production. There are two common methods of attacking document productions. You can impugn the results–that is, the contents in the production dataset–or you can question the methodology that produced the dataset. Here, we see examples of both.

In attacking the production, plaintiffs examined the production and reviewed what custodians might be missing. This can be done by reviewing correspondence. When you get significant email or mail traffic going to or coming from individuals whose data has not been produced, a flag should come up. And that’s what was done here.

Another way to look at custodians or data sources is to obtain knowledge of opposing party’s IT systems to ensure that all repositories were searched. Perhaps a Sharepoint site was established where an implicated project’s documents were stored, but not searched or produced.

By attacking the results, you eventually hope to discover a weak methodology or holes in the workflow…because merely pointing out bad results can sometimes be dismissed by legitimate factors (so-called safe harbor deletions, or data residing in sources which are “not readily accessible”).  Of course, if production results are obviously deficient, then perhaps that in itself can provide sufficient ammunition to warrant sanctions or other measures.

Next, plaintiffs looked at material from those custodians whose data was produced, and analyzed its completeness by focusing on chronology. This “production gap” analysis has proven very effective, in my experience. Sometimes such gaps can be legitimately explained, but their existence, especially across multiple custodians, should be explored.

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Posted in 11th Circuit, Case Blurbs, Cooperation Between Parties, Cost of Discovery, Discovery Requests, Duty to Disclose, Duty to Produce, FRCP 26(f), FRCP 37, Magistrate Judge Andrea M. Simonton, Meet and Confer, Motion to Compel, S.D. Fla., Sanctions | 2 Comments »

Case Summary: Genworth Fin. Wealth Mgmt.; Court Mandates Forensic Imaging and Imposes Sanctions

Posted by rjbiii on December 12, 2010

The case: Defendants were former employees of Plaintiff company, and were alleged to have misused plaintiff’s proprietary client information, including a database, after leaving. Defendants, according to Plaintiff, used this information to solicit clients of their ex-employer in violation of the Computer Fraud and Abuse Act, the Connecticut Uniform Trade Secrets Act, the Stored Communications Act, and Connecticut common law’s prohibition of tortious interference with business relationships. Defendants asserted that they identified client information for solicitation through permissible means including internet searches and memory.
At Issue Here: Plaintiff filed a motion to compel defendants to submit their computers and media for production and inspection. Plaintiff further requested reasonable attorney’s fees and costs associated with its motion.
Discussion: Defendants productions in response to Plaintiff’s discovery requests, failed to include any e-mail, TJT’s Junxure client management database, or the Portfolio Center client invoicing database (allegedly stolen by Defendants). The Plaintiff sought the Defendants’ assurance that forensic imaging had been undertaken, noting concerns that relevant data was at risk of being erased through automatic deletion of temporary and inactive files. Defendants’ counsel conceded that the Defendants had no intention of imaging any of their computer devices, causing Plaintiff to file the motion to compel. After the Plaintiff filed its motion, Onsite IT Consulting performed imaging of TJT Financial’s computer devices and business laptops used by Defendants McMullan, Cook, and McFadden.
Pursuant to a subpoena, the Charles Shwabb Corp., a custodian of assets for TJT Financial, produced email correspondence from Defendant McMullan and Cook’s personal email account and computer that was not produced as part of the Defendants’ response to Genworth’s discovery requests. The correspondence reflects the Defendants’ submission of Genworth client data and information to Schwab, while still employed by Genworth, as part of efforts to establish TJT Capital and secure Genworth clients for the new entity.
During the proceeding, Defendant McMullan testified that, prior to the start of the instant litigation, he discarded the personal computer onto which he downloaded ACT client information and from which he conducted correspondence with Schwab in anticipation of his departure from Genworth and the formation of TJT Financial. Testimony further reflected however, that the disposal of the personal computer may have occurred after Genworth submitted letters to the Defendants to preserve all relevant documents in anticipation of litigation.

Court’s Analysis: The court began by noting that Rule 34 and Rule 26(b)(2)(B) “strongly suggested” that on such requests is discretionary and should take into account substantive considerations of the burden and expense of the request. . . . and that such relief is entirely within the discretion of the Court to grant or deny.
Defendants contended that the Plaintiffs have “not proffered a sufficient basis with which to justify its demands.” The court referred to FRCP 26(b)(1), however, to quote the rule that a party is entitled to discover any unprivileged matter relevant to a party’s claim or defense, where the discovery “appears reasonably calculated to lead to the discovery of admissible evidence.”

Referring to Rule 34(a) the court noted that a party is required to “produce and permit the party making the request . . . to inspect, copy, test, or sample any . . . electronically stored information.” This right is counter-balanced, however, by a responding party’s confidentiality or privacy interests. A party is therefore not entitled to “a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.”
In defining the extent of discovery to afford to a party, a court should: consider the relationship between the plaintiff’s claims and the defendants’ computers and, in some cases, whether the defendant has fully complied with discovery requests, in determining how the requested electronic discovery should proceed. Even in cases where courts have nonetheless adopted procedures to protect privilege and privacy concerns (quoting Calyon v. Mizuho Securities USA Inc., No. 07 CIV0224IRODF, 2007 U.S. Dist. LEXIS 36961, 2007 WL 1468889, at *3 (S.D.N.Y., May 18, 2007).
The court found persuasive the opinion from Ameriwood Industries, Inc. v. Liberman, No. 4:06 CV 524-DJS, 2006 U.S. Dist. LEXIS 93380, 2006 WL 3825291, at *3, *6 (E.D. Mo. Dec. 27, 2006), amended by 2007 U.S. Dist. LEXIS 98267, 2006 WL 685623 (E.D. Mo. Feb. 23, 2007).

Courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature. For example, a party may not inspect the physical hard drives of a computer merely because the party wants to search for additional documents responsive to the party’s document requests. [A court has previously] declined to allow the examination of any ESI other than the information that had been deleted because the requesting party had not demonstrated that the producing party was unwilling to produce relevant evidence. [Evidence] raises the question of whether defendants have in fact produced all documents responsive to plaintiff’s discovery requests. Furthermore, in cases where a defendant allegedly used the computer itself to commit the wrong that is the subject of the lawsuit, certain items on the hard drive may be discoverable. Particularly, allegations that a defendant downloaded trade secrets onto a computer provide a sufficient nexus between the plaintiff’s claims and the need to obtain a mirror image of the computer’s hard drive.

The Ameriwood court therefore concluded that because the defendants were accused of using “the computers, which [were] the subject of the discovery request, to secrete and distribute plaintiff’s confidential information. How and whether defendants handled those documents and what defendants did with the documents [were] certainly at issue.” The court then adopted the Ameriwood three step protocol for imaging, discovery, and disclosure for hard drives.

Ameriwood Imaging and Production Protocol:

  • Imaging:The parties select a computer forensic expert who, operating pursuant to a confidentiality agreement, inspects, copies and images the targeted computer systems at a “non-disruptive” time. The expert provides a detailed report of the “equipment produced and expected.”
  • Recovery:The expert recovers, from the mirrored images, all available targeted file types. In Ameriwood, these consisted of word-processing documents, incoming and outgoing email messages, presentations, and files, including “deleted” files. The expert provides the recovered documents in a reasonably convenient and searchable form to the producing party’s counsel, with notice to the requesting party.
  • Disclosure:Producing party’s counsel reviews the recovered files for privilege and relevance, supplements earlier responses, creates or appends to a privilege log, and produces relevant non-privileged documents to opposing counsel.

Post Process Note: The court is merely describing a micro version of any e-discovery review project, in which data must first be collected, filtered, reviewed, and finally produced. While the court describes the process as three steps, we prefer to break it down a little differently, as visually depicted in the figure below. Even with the slight increase in granularity below, we note that the process can continue be visually depicted in far more detail than we choose to do.

Neutral Forensics Expert Needed:

The court reasoned that the instant case was sufficiently analogous to Ameriwood to warrant using the imaging protocol. Factors present mandating the use of a neutral forensics expert included:

  • One of the defendants used his personal computer and personal e-mail address to download, access, and transmit the Plaintiff’s proprietary information without a scintilla of a reasonable expectation to his entitlement thereto.
  • One of the defendants admitted that he spoliated evidence when he discarded a personal computer after having been advised by counsel that he had no right to the data that he had downloaded whille employed by Plaintiff;
  • Defendants’ testimony on handling electronic media and on how they had obtained the information at issue in the case had been impeached, indicating inaccuracy or deception on the part of defendant.

Cost-Shifting Analysis:

Producing party contended that they should not be forced to pay for the forensics expert, because they had already hired an expert (although they did not image the drives of the systems at issue here). They also claimed that they were unable to pay. The court was unconvinced by their arguments. The court noted that producing party had initially refused to image any of their systems, and only relented once the motion to compel had already been filed with the court. The motion to compel was only filed once producing party admitted they did not intend to image any of their systems. Their initial refusal was “wholly unjustified” as they “tacitly admitted” by their belated engagement of an expert. The court assigned the producing party 80% of the costs, and the requesting party 20%.

Conclusion:
The court ordered the following:

  1. Granted the Plaintiff’s motion to compel forensic imaging to be performed by a neutral court-appointed expert.
  2. Producing party was required to submit the targeted systems for inspection by a specific date.
  3. The expert is to format the targeted data types in an appropriate structure and provide producing party’s counsel access for privilege and responsiveness review.
  4. Cost is distributed, as described above, 80% for producing party, 20% for requesting party.
  5. Reasonable attorney fees awarded to requesting party, pending a detailed accounting of those costs.
  6. Further sanctions will be imposed should producing party again fail in their obligations.

Genworth Fin. Wealth Mgmt. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010)

Posted in 2nd Circuit, Case Summary, Computer Fraud and Abuse Act, Connecticut Uniform Trades Secrets Act, D. Conn., FRCP 26(b), FRCP 34, FRCP 37(a), Judge Vanessa L. Bryant, Motion to Compel, Neutral Third Party, Stored Communications Act | 3 Comments »

E-Discovery Pitfalls: Court dictates collections and search protocols

Posted by rjbiii on November 9, 2007

The latest in our series on e-discovery pitfalls.

K&L Gates has posted an opinion in which U.S. Magistrate Howard R. Lloyd dictates the collection and search protocols of a set of data over which the parties have become somewhat contentious. Let us begin with His Honor’s description of the dispute:

According to defendants, there are two hard drives in question. In July 2007, they reportedly made bit-for-bit copies of those hard drives (including recovered deleted files and fragments) and produced documents responsive to plaintiff’s requests. Plaintiff is skeptical about the production.

Well, the requesting party is always skeptical, isn’t it? What circumstances give merit to plaintiff’s suspicions?

[Plaintiff/Requesting Party] says that, to date, defendant Romi Mayder has produced only one email pertaining to his work at Silicon Test Systems, Inc. whereas Bob Pochowski, a third-party witness, has produced a host of documents (emails, data sheets, and the like) from Mayder that apparently were created during Mayder’s employment at Verigy.

Oops. This illustrates the dangers of working with highly distributable and “copyable” documents, such as e-mail, and not producing a full set (for whatever reason). Even in the days of paper, you never knew where all the copies might have been hiding. In this digital age of ours, with the ease of replication and distribution, the dangers are exponentially higher. So let us remember two things: do a good job on formulating an appropriate search protocol; and, of course, never deliberately exclude relevant documents not subject to privilege from production. But the court isn’t finished with plaintiff’s suspicions.

Verigy also contends that other documents produced to date demonstrate Mayder’s willingness to manipulate evidence. Plaintiff also asserts that, when defendant Mayder left plaintiff’s employ, a system or software upgrade was performed which may have deleted files from defendants’ hard drives.

So now they walk beyond the line of suggesting the producing party could have accidentally failed to produce, but suggest defendant is indifferent with respect to its obligation to produce, or that it even purposefully manipulates data to protect itself. This serves to illustrate the importance of following a defensible, documented collection plan. The documentation may serve to refute allegations of impropriety or mismanagement. The importance of retaining a third party to execute the collection process is also on point, as such an expert tends to lend an objective voice to any dispute over procedure.

Now, this next bit is interesting, and potentially really bad for the defendant.

[Requesting Party] argues that it needs to conduct additional discovery of those hard drives, not only to determine whether any relevant documents have been withheld from defendants’ production, but also to examine what may have happened on the hard drives and why.

The requesting party wants to examine the drives to see if defendants failed in their responsibilities. The request is not made merely for the sake of satisfying their curiosity. The possibility that such intrusive measures might be allowed should be a warning shot over the bow for any party engaged in discovery. Make sure your processes are thorough, managed competently, well documented, and defensible.

[Producing Party does] not dispute that a system or software upgrade was performed which may have deleted files from their hard drives. However, they maintain that all deleted files have been recovered and preserved and that they have produced all information responsive to plaintiff’s requests.

All deleted files have been recovered? That’s far from certain, especially with respect to an operation as extensive as a software upgrade. The percentage of deleted files forensically recovered is based on many factors. Was “wiping” involved? If not, has the drive been defragmented? What is the “data turnover” (number of files deleted vs. number of new files written to the drive) of the drive at issue? Under only a very limited set of circumstances might one be able to say with any semblance of certainty that every single deleted file was recovered. As we see, the judge doesn’t appear convinced either. Upon considering the arguments, the court sets a two-tiered plan into place.

Defendants propose a two-tier protocol which (a) permits discovery in areas that defendants deem presumptively relevant; and (b) allows plaintiff to request that the expert conduct other searches, subject to an opportunity by defendant to review and object to the proposed search requests.

Defendants sought to protect themselves from abuse:

Defendants express concern that plaintiff will propound unduly burdensome or otherwise abusive searches beyond the scope of permissible discovery under Fed.R.Civ.P. 26. At the motion hearing, it was suggested, somewhat facetiously, that Verigy might attempt to request a search for all documents with the letter “A.” Indeed, documents submitted on supplemental briefing indicate that Verigy apparently has previously requested a search for all documents containing the letter “V” (see Pasquinelli Decl., Ex. C)–a request which strikes this court as being patently overbroad.

In an interesting note, the requesting party argued that disclosure of additional search terms it wanted to use might infringe attorney work product. The court, however, was not persuaded.
In concluding its opinion, the court felt the urge to remind counsel and the parties of their duties under the law:

Although it should go without saying, the parties are admonished to proceed in good faith and to refrain from conduct designed to unnecessarily encumber or retard discovery or to impose unnecessary expense or burden on the opposing parties or the court.

To reiterate the lessons of the case: engage in an honest, thorough, and well documented discovery plan; think about retaining a third party to serve as an objective, knowledgeable voice; and scrutinize the implementation of processes (such as software upgrades) that endanger the integrity of the litigation hold.

Posted in 9th Circuit, Case Summary, Computer Forensics, Discovery Requests, Motion to Compel, N.D. Cal., Search Protocols | Tagged: , | Leave a Comment »

Case Summary: Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007); Court denies motion to compel production of hard drive

Posted by rjbiii on September 26, 2007

In this employment discrimination case, Magistrate Judge Gerald Rushfelt denied defendant’s request to compel the plaintiff to “produce the hard drive of her personal computer for inspection and copying.” In response to defendants’ discovery requests, some of which sought correspondence between plaintiff and defendant National American University or her students at the university, plaintiff produced one e-mail. After defendant informed plaintiff that it believed her responses to the discovery requests were deficient, and after agreeing to supplement those responses, Ms. Benton declared that all e-mails from her students had been deleted, and therefore could not produced. She also resisted producing her hard drive, as requested by defendants.

Defendants argued that Ms. Benton failed to “produce[] any e-mail communications that took place after February 2007,” and that they believe she had been deleting those emails relating to her employment since that date. Defendants contended that because Ms. Benton had admitted to deleting some emails, and because she had only produced one e-mail dated after February 2007, she must have destroyed other relevant documents.

The court disagreed. Defendants were speculating as to the whether plaintiff complied with their discovery requests, and have not met their burden to support their contentions of spoliation. The court refused to assume the plaintiff’s failure to comply. Therefore, the court denied the motion, and any calls for sanctions, without prejudice to any future motion should further discovery show that plaintiff did, in fact, fail to produce responsive documents or had spoliated relevant evidence.

Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007)

K&L Gates has the full text of the opinion here, as well as their own summary here.

Posted in 10th Circuit, Case Summary, D. Kan., Discovery, Discovery Requests, Form of Production, Magistrate Judge Gerald L. Rushfelt, Motion to Compel | Leave a Comment »