Discovery Law
November 2007
Before the Court was Plaintiffs’ motion to compel requesting, among other things, that a representative of Defendant be present to “provide a download of all available data from event recorders and other components and equipment of the crossing signal system.” Id. at *3. The Court, in granting the motion, ruled that to the extent that the data requested “is relevant and stored on-site”, the request was reasonable. Id. at *7. Specifically, Rule 34(a)(1) contemplates “the translation of electronically-stored information into a ‘reasonably usable form.’” Id. Thus, the Defendant was also “directed to arrange for an employee to be on-site during the inspection to provide a download of all available date from event recorders and other components and equipment of the crossing signal system that is stored on-site.” Id.
The Court granted Defendants’ motion to compel the production of e-mail communications contained on a home computer. Further, the Court noted that if the e-mails were deleted, Plaintiff shall produce for inspection the computer hard drive from which the deleted e-mails were sent – thus allowing the Defendants to use the services of a computer forensic specialist, if necessary, to retrieve them. Id. at **6-8.
Defendant filed a motion seeking to compel Plaintiff to produce documents, for sanctions, and for other relief, stemming from an earlier order compelling the production of “development” documents for a certain period of time. In addition, the motion accuses Plaintiff of spoliation of evidence by “failing to retain key documents” ordered by the court to be produced.
October 2007
Sanctions for spoliation of evidence were not warranted as Plaintiff failed to demonstrate that Defendant “knew or should have known that the destroyed evidence was relevant to pending, imminent or reasonably foreseeable litigation.” Id. at *4. Further, the Court in denying Plaintiff’s request for an adverse inference charge, noted “[i]n order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed.” (internal citations omitted). Id. at *8.
June 2007
On Defendant’s motion to dismiss for spoliation of evidence, the Court found insufficient evidence demonstrating bad faith, willfulness or gross negligence by Plaintiff to warrant such a harsh remedy. The Court did find that Plaintiff negligently failed to implement a timely litigation hold, however, failed to establish by sufficient evidence that the missing records would have been unfavorable to the spoliator.
The Court recognized that Rule 45 of the Federal Rules of Civil Procedure provides for the service of a subpoena “to produce and permit inspection, copying, testing, or sampling of designated books, documents, electronically stored information, or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified.” Fed. R. Civ. P. 45(a)(1)(C). Further, the rule does not prohibit the service of subpoenas upon parties to an action.
Emails were deemed admissible hearsay as (1) admission by a party opponent under Rule 801(d)(2)(A) and (E); and, (2) business records (citing United States v. Childs, 5 F.3d 1328, 1333 (9th Cir. 1993) ( “exhibits can be admitted as business records of an entity, even when that entity was not the maker of those records, so long as the other requirements of Rule 803(6) are met and the circumstances indicate the records are trustworthy.”)).
The Court denied Plaintiff’s motion for a discovery order that would require Defendant to allow a forensic expert to search defendant’s computer systems, network servers and databases and would require defendant to provide back up tapes of certain information systems to include data for the last nine years. The Court found that FRCP Rule 34(a) does not give the requesting party the routine right of direct access to the opposing party’s computer.
The Court held FRCP Rule 37(f)’s safe harbor, from spoliation sanctions, did not apply where Defendant failed to disable the running of a wiping software program as soon as the preservation duty attached and later reinstalled the wiping software after his computers crashed. The Court, in granting Plaintiff’s motion for sanctions, noted: “[j]ust as a litigant may have an obligation to suspend certain features of a ‘routine operation,’ the Court concludes that a litigant has an obligation to suspend features of a computer’s operation that are not routine if those features will result in destroying evidence.”
Court found that bad faith spoliation of key evidence prejudiced Defendant by (1) denying it an opportunity to test the evidence in order to determine whether there were other possible causes or contributing factors to the incident at issue; and, (2) denying it a more reliable means of proving or disproving the validity of Plaintiff’s theories of fault. The Court held that the lesser sanction of an adverse inference instruction to the jury would suffice to cure the prejudice to Defendant.
While the case was filed prior to the amendment to Fed.R.Civ.P. 34(b) pertaining to electronically stored information, the Court noted that the reasoning behind the amendment was particularly apt and raised some concerns as to Plaintiff’s chosen method of production. As such, the Court ordered the Plaintiff to produce all previously produced responsive electronically stored information in an electronic and reasonably usable format.
Monetary sanctions were imposed, pursuant to Fed.R.Civ.P. 37(c)(1), against fourth-party Plaintiff Zurich. The Court noted that (1) Zurich had control over the documents and had an obligation to produce them; (2) Zurich failed timely to produce the evidence with ‘a culpable state of mind’; and (3) the untimely produced documents were ‘relevant’ to their claims or defenses.
May 2007
The Court granted Defendant’s motion for summary judgment noting that there is “no tort of intentional spoliation of evidence under California law.” (internal citations omitted).
February 2007
At issue before the Court was the question of whether the information sought by the Plaintiffs was reasonably accessible within the meaning of Fed.R.Civ.P. 26 (as revised) and if not, whether it still should be produced. First, the Court found that records sought by the Plaintiffs, while stored on a server used by Defendant, were “not readily accessible” within the meaning of Fed.R.Civ.P. 26(b)(2)(B), due to the method of storage and lack of an indexing system. Next, the Court considered whether the Plaintiffs had demonstrated “good cause” to require the production. The Court, in holding that the Defendant was required to produce the requested information, considered the following factors:
Not Categorized
