Electronic Discovery and Evidence

"Fox Gaurding the Hen House" - Key Employee Failed to Search For Relevant and Critical ESI - Court Orders Civil Contempt Sanctions and Disclosure in Other Lawsuits or Face $500,000 Sanction

In this product liability case, it was discovered after trial that the defendant withheld critical, relevant ESI. In defense, the defendant's employee (a key witness) in charge of collecting the ESI claimed "computer illiteracy" for the reason for nondisclosure of the ESI. The defendant failed to institute a litigation hold and, in fact, requested employees to delete e-mails on several occasions. In addition, the defendant failed to conduct a search of e-mails for keywords such as "flame arrester" which would have retrieved the documents in question. The Court chose not to grant plaintiffs a new trial but ordered the defendant "to pay $250,000.00 in civil contempt sanctions to the plaintiff in this case. The Court additionally orders that Blitz has thirty (30) days from the date of this Memorandum Opinion & Order to furnish a copy of this Memorandum Opinion & Order to every Plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years. The Court issues an additional $500,000.00 sanction that will be tolled for thirty (30) days from the date of this Memorandum Opinion & Order. At the end of that time period, if Blitz has certified with this Court that it has complied with the Court's order, the $500,000.00 sanction will be extinguished. Finally, for the next five years, Blitz is ordered that in every new lawsuit it participates in as a party, whether plaintiff, defendant, or in another official capacity, it must file a copy of this Memorandum Opinion and Order with its first pleading or filing in that particular court. This Court expresses no opinion as to the manner in which a particular court may use or not use such copy." Green v. Blitz U.S.A., Inc, 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011).

California Court Labels Producing Party's eDiscovery Actions a "Charade"

Moreno v. Ostly. In this appellate review, the producing party strenuously contested production of the plaintiff's cell phone and computer even though evidence was established showing at least the cell phone had relevant text messages on the device. After finally disclosing the devices, which were not the ones in use during the relevant period of time, plaintiff's counsel admitted that the relevant devices with the relevant ESI had been discarded and not available. (read more).