Yesterday, Magistrate Judge Fallon granted a motion for sanctions against One World Technologies, Inc., a defendant in a patent action, for failing to produce the bulk of its e-mail until 13 months after the plaintiff's initial request.
Defendant One World initially produced only 13 e-mails in response to plaintiff's requests, served back in April 2020. According to a later declaration of counsel, One World's attorneys had received multiple gigabyte's worth of .pst files containing e-mail from the agreed-upon custodians. But they found those files to be corrupted, and they relied on their clients' determination that all but 134 of the e-mails were unrecoverable.
They applied their searches to those 134 e-mails, and apparently came up with just 13 results, which they produced. Then, during a discovery dispute teleconference in January, the plaintiff challenged the completeness of that production; One World "dismissed [plaintiff's] concerns as speculation," but did not mention the corrupt multi-gigabyte files. The Court nonetheless ordered One World to comply with their continuing obligation to supplement their production.
When counsel returned to their e-mail production efforts in February 2021, they discovered that—oops!—the multiple gigabytes worth of e-mails in the .pst files were recoverable. Defendants ultimately produced 60,000 pages of e-mails and attachments in May 2021.
According to Judge Fallon, counsel initially represented to the Court that the new e-mails resulted from the plaintiff's change in search terms, but later explained that the change came from these technical issues. Judge Fallon noted the shifting positions, and granted a motion for sanctions:
[Plaintiff] Chervon's motion for sanctions is GRANTED . . . Although One World's counsel performed its own search revealing more emails in February 2021 . . . , One World did not acknowledge the technical difficulties it encountered in performing the previous searches until May 2021 . . . . The Cunningham Declaration offers no explanation for this delay, nor does it explain why, in March 2021, One World attributed the larger production to the change in search terms instead of the technical difficulty. . . . At the next discovery hearing in May 2021, One World continued to narrowly focus the Court on alleged defects in Chervon's proposed search terms to explain the basis for belatedly producing 60,000 pages of responsive emails, without expressly acknowledging the technical issues with inaccessible and unsearchable files. . . . As stated in the May 2021 teleconference regarding this issue, "[t]he Court does not subscribe to the view that as long as the requesting party eventually gets the discovery requested, the conduct of the producing party which precedes it is irrelevant. [S]ee Adams v. Trustees of N.J. Brewery Employees Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (Prejudice also includes deprivation of information through non-cooperation with discovery, and costs expended obtaining court orders to force compliance with discovery.). Here, it took thirteen months for One World to produce the ESI after the requests were served, and it took two court hearings to obtain an accurate representation of the technical difficulties encountered by One World in making the production. On this record, One World has not demonstrated a substantial justification for its conduct . . .
It's unclear if the counsel for the defendant affirmatively represented that no more e-mails exist. It sounds like they didn't go that far, but may have implied that the e-mails did not exist (by dismissing plaintiff's concerns as speculation).
Usually, representing—or at least implying—that the requested materials do not exist is a great way to shut down a discovery dispute. But outcomes like this are a reminder of how important it is make absolutely sure that that's actually true.
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