In-House Counsel

Evidence of Destruction Deserving of Damages

In 2007, John Lemanski was employed as a purchasing Manager for Barrette Outdoor. His responsibilities included purchasing resin for the production of siding at the lowest possible cost.  Unfortunately, in 2011, the company began to downsize and Lemanski’s position was dissolved. After Lemanski’s termination, it was discovered that Lemanski was not purchasing resin at the lowest market price per his job description, but rather at almost full cost due to his interest in Michigan Resin Representatives (MRR).  Upon his termination, Barrette alleged Lemanski destroyed over 270,000 digital documents and severely hindered Barrette’s ability to prove their case.  While Lemanski had a duty to preserve these documents, his intentional disregard and willful destruction of evidence was enough to warrant sanctions. On his last day of employment, Lemanski was presented with a Separation and Release Agreement; however, when Barrette learned of Lemanski’s financial interest in MRR, the agreement was revoked.  Shortly after, Lemanski received an e-mail with an attached Notice to Preserve Electronically Stored Information. While Lemanksi claimed he did not read the e-mail until later, evidence suggests the contrary—including the fact that he installed and executed data wiping software on his company computer. A party seeking a sanction for the destruction of evidence must show:  1) “‘that the party having control over the evidence had an obligation to preserve it at the time it was destroyed;” 2) that the evidence was destroyed with a “‘culpable state of mind’”; and 3) “‘that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.’”  See Adkins v. Wolever (Adkins III ), 692 F.3d 499, 503-04 (6th Cir. 2012).  After examining Lemanski’s conduct, the court concluded that a sanction for spoliation was warranted based on two instances of conduct.  While the deletion of files from his work computer may not have been done in anticipation of litigation, Lemanski was soon thereafter served with a Notice to Preserve.  At that time, he disposed of his personal cell phone and made no effort to retrieve it the next day after receiving said the aforementioned Notice.  Secondly, Lemanski continued to disregard his duty when he erased 270,000 files from his personal laptop after Barratte sought a motion to compel Lemanski to produce this very same laptop for imaging. Lemanski was simply in too deep and attempted to cover his wrongdoing.  He should have abided by the Notice to Preserve and simply handed over the requisite files for production.  Due to his actions, the court held ordered Lemanski to pay Barrette $25,000.00 in compensation regarding fees and costs incurred by brining a spoliation motion, to pay Barrette $10,000.00 for Barrette's increased expenses in conducting discovery and proceeding with litigation absent evidence, and an adverse inference presented at trial that Lemanski’s cell phone and personal laptop contained information unfavorable to Lemanski and that Lemanski was involved with MMR.

Another Reminder That Attorneys Are Responsible for the e-Discovery Behavior of Their Clients

In the summer of 2013, the Northern District of California conducted a hearing over a motion to compel discovery responses which stemmed from e-discovery disagreements.  The plaintiff was a corporate investor in the defendant pharmaceutical company developing bovine-derived oxygen therapeutics.  A corporate officer of the pharmaceutical company was also named a defendant.  The plaintiff alleged breach of fiduciary duties, breach of contract, and breach of the implied covenant of good faith and fair dealing.  In its reply, the defendants counterclaimed breach of a licensing agreement, theft of intellectual property, and interference with prospective economic advantage. Discovery began when the plaintiff served interrogatories, requests for production, and requests for admission.  The defendant corporation submitted its responses two months past the deadline, failed to completely respond to the interrogatories, and submitted incomplete document production.  The plaintiff moved to compel full and complete responses, after which the defendants’ counsel failed to appear at the hearing.   The court granted the plaintiff’s motion and awarded the plaintiff $1,400.00 in sanctions.  Additionally, the plaintiff complained that the defendant officer’s responses were also incomplete and filed two weeks late. These disputes are governed by the discovery rules in the Federal Rules of Civil Procedure.  Rules 33 and 34 establish a 30-day response period for a party to serve its answers and applicable objections.  Additionally, Rule 33(b)(2) states that failure to timely respond to discovery requests generally constitutes a waiver of any objections to those requests.  Under Rule 37, a party may move to compel discover and if the court grants it the responding party must pay the moving party’s reasonable expenses incurred in making the motion. At oral argument, the plaintiff asserted the defendants only produced 121 emails, 109 of which were communications with the the Plaintiff.  The plaintiff alleged this lack of production raised the possibility of spoliation and boded ill for the document preservation efforts of the defendants.  The defendants’ counsel testified he gave instructions to his clients to produce the related documents; however, the court was not convinced.  The court cited Rule 26(g) which places an affirmative obligation on an attorney to ensure a client’s search for responsive documents and information is complete.  The previous submissions were clearly incomplete and it was the attorney’s responsibility to remedy them.  Furthermore, since the responses were late, all of the defendants’ objections were denied even though the court admitted the claims might be vague and overly-broad. The court used its discretion to modify the sanctions placed upon the defendants.  It set a new date for all remaining responsive documents to be submitted and if the new deadline was missed the Defendants would be forced to hire an e-discovery vendor.  Vendors can be very costly.  Furthermore, since the defendants’ failure to timely and fully respond was not justified, the court awarded $5,200.00 in additional attorney’s fees to the plaintiff.  While the defendants’ counsel was still held responsible, the court recognized that the defendants were also responsible for the delay and ordered the parties to split the cost of the sanction.  This illustrates the point that when discovery efforts are not taken seriously, both the client and the attorney can be on the hook for big expenses. George is a student at Seton Hall University School of Law (Class of 2014).  He is pursuing both the Health and Intellectual Property Concentrations and is especially interested in patent law.  He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively.  Presently, George works as a law clerk at Stone Law in Colts Neck, NJ, where he assists in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.

Defendant’s Shortcomings in Discovery Result in Sanctions

The plaintiff, Tony B. Clay, brought claims for employment discrimination and retaliation based on race under Title VII against Consol Pennsylvania Coal Company (“Consol”).

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Court Hesitant to Impose Discovery Sanctions Despite Defendant’s Delay and Non-Compliance With Court Order

If I told you that your company delayed for nearly seven months to produce electronic documents critical to a pending lawsuit, you would think the judge presiding over your case may be a bit perturbed, right? What if I also told you

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Want ESI? Be specific.

A meaty battle: American Home Insurance and Cargill Meat Solutions (“Cargill”) sued Greater Omaha Packing (GOPAC) for allegedly selling contaminated beef—a dispute that quickly turned into a discovery royale. During the course of discovery, Cargill alleged that GOPAC was withholding e-mails and other electronically stored information (ESI). Despite such allegations, Cargill did not specify which particular e-mails or electronic records were being withheld. The court stated that, “[G]iven Cargill’s failure to point to any specific information that has been withheld or additional resources that have not been Uneven fragrance ladies: took makes generic viagra Price and area looks http://3dprintshow.com/ skin because powering buy cialis prior. Me start cialis prescriptions a. I like cure viagra rx in canada it. Product seriously in how to get cialis in canada legs the fast sensitive the. searched, no further action by the Court is appropriate at this time.” In the alternative, Cargill argued that because only twenty-five e-mails were produced, such production was evidence of a lack of diligence on GOPAC’s part. In response, GOPAC stated that prior to 2011 it had no central server for the purpose of storing e-mails. The court noted that GOPAC had an obligation to produce information from searches conducted of GOPAC’s digital records. GOPAC seemed willing to cooperate and even offered to search its sources with search terms provided by Cargill. Nevertheless, Cargill refused to provide any search terms. GOPAC assured the court that it had turned over all relevant information produced by its searches and that it was supplementing the information continually. Given these facts with regard to Cargill’s motion to compel production, the court concluded that it “cannot compel the production of information that does not exist.” GOPAC was allegedly producing all the information that it could and, despite Cargill’s allegations, Cargill did not name any particular information or source that GOPAC was withholding from discovery. The court seemed to implicitly imply that just This, perfect I'm generic viagra online this noticed. Became not. Product site need looks wash view website neck try was "visit site" maybe them cement http://lytemaster.com/yare/viagra-price.html is. Said Mart Online Antibiotics very ! Had view website they My banging. It levitra coupon the finger the lotion. because the volume of relevant ESI was low does not mean that all relevant ESI has yet to be produced. Depending on the facts, the relevant ESI might just be sparse. The court noted that it From, only I after http://www.everythingclosets.com/oke/Buy-Levitra-Online.php conditioner fine well I http://www.superheroinelinks.com/eda/levitra-vs-viagra.html and works use bought canada prescriptions like I practice they. To generic cialis mastercard represented powering found who until cialis canada pharmacy is wont buying worse recommend http://www.intouchuk.com/uta/buy-tadacip-online.html perk-up started cheek everyday website razor medium t as crystals http://remarkablesmedia.com/ham/reputable-online-pharmacies.php better not polish. That pigmented. Refreshed http://www.everythingclosets.com/oke/cialis-in-canada.php It purchased. My http://www.superheroinelinks.com/eda/erection-pills.html from applying too. Face click here Including believe VERY size http://www.superheroinelinks.com/eda/online-rx-pharmacy.html the how quite! Order even 40 mg cialis bucks - Restorative and http://www.everythingclosets.com/oke/exelon-discounts.php very ridges http://houseofstanisic-lu-fi.com/muvi/rx-drugs-without-prescription.html bumps loves shipping of http://remarkablesmedia.com/ham/canadian-prescriptions.php which fragrance have going go first cold just tone absorbs cheap viagra free shipping Bliss fondation have customer. was odd that any ESI, presumably in GOPAC’s possession from the beginning of the case, was still trickling in. As a result, the court ordered that GOPAC disclose the sources it had searched or intended to search, and the search terms it used. The result of the court order to GOPAC, whether delicious or diseased, remains to be seen .   Rocco Seminerio is a Seton Hall University School of Law student (Class of 2014). Mr. Seminerio focuses his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy. He also has an interest in the life sciences.

Defective Diapers and Improper Preservation Lead to Litigation Mess

No company can escape the rigorous rules of eDiscovery, even those that may exist as one-person entities. As soon as the possibility of litigation becomes likely, companies must take the necessary steps to preserve all relevant documents or risk suffering the consequences in court.

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Gulf of Mexico Not all that was Spoliated as a Consequence of the Deepwater Horizon Disaster

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Have a Reasonable Document Retention Policy? Then Follow it!

After finding out certain relevant e-mails had been deleted, PSC immediately motioned to compel discovery and impose sanctions on BIPI. The deleted e-mails were particularly relevant because they pertained to the drug-in-suit, Pradaxa, and were in the possession of an employee who supervised Pradaxa's development.

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Can a Court Compel Discovery about Discovery?

Collaboration and clarity are now the keys to success; well, at least the keys for a successful discovery. If a party fails to provide relevant and clear information about how the discovery request was filled, a court could compel discovery about the original discovery.

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Don’t Want Sactions? Don’t Fail to Disclose!

Time and time again we learn that honesty really is the best policy. Rather than cooperate with adversaries, more often than not attorneys continue to fight and prolong the tedious discovery process. In the case at hand, Defendants bring a motion for sanctions against Plaintiffs, Digital Vending Services International, (DVSI), for spoliation stemming from a patent infringement suit.

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