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Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: eDiscovery Case Law

In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Case No. 3:13cv1332 (RNC) (D. Conn. May 19, 2015), Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff ‘s responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

Case Background

In this trademark infringement case between competitors who sell replacement lamps for rear projection televisions and front projectors via online marketplaces, the defendants filed a motion to compel the plaintiff ‘s responses to discovery and argued that the plaintiff failed to issue a timely litigation hold and that the plaintiff’s production of ESI was “careless and indifferent.”  Specifically, the defendant stated that the plaintiff anticipated filing a lawsuit against the defendant in 2011, but that the plaintiff’s attorney admittedly did not counsel his client regarding its duty to retain relevant information until 2013 when the lawsuit was filed.

Additionally, in March 2015, the plaintiff’s company president testified in his deposition that he routinely deletes emails based on their age when his mailbox becomes full, that he deletes emails about once a month, that he continued to delete emails during this litigation and, on the day before his deposition, he deleted approximately 1000 emails.  Other records also were admittedly destroyed by the plaintiff company, which responded to the defendant’s request for plaintiff’s lamp sales that “[a]s part of its routine business practices, Electrified discards its records of lamps sales after approximately one year following payment.”

Judge’s Ruling

With regard to the defendant’s criticism of plaintiff’s failure to institute a timely litigation hold and its careless and indifferent production efforts after the duty to preserve arose, Judge Martinez stated “After reviewing the deposition testimony of Electrified’s witnesses, the court agrees that the defendant’s concern is well-founded.”  Those depositions included one plaintiff employee, who testified that his company uses a Quickbooks program, which contains detailed inventory and sales records dating back to 2006 as well as the company president, who also acknowledged that the Quickbook database contains inventory and sales information.

Citing Pension Committee and Zubulake, Judge Martinez stated that “The duty to preserve evidence is ‘well established.’”  With regard to the plaintiff’s admitted preservation failures, she stated “This cannot continue. Pending the final disposition of all claims in this action, plaintiff Electrified is ordered to preserve all documents, electronically-stored information, and/or tangible things that might be relevant to this subject matter or reasonably calculated to lead to the discovery of admissible evidence in this action.”  In an attempt to limit further spoliation of data, Judge Martinez stated that the plaintiff “shall image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files.”

With regard to the twenty discovery requests in dispute, Judge Martinez granted the defendant’s motion to compel for each one, ordering the plaintiff to search and produce responsive ESI within 14 days of the order.  She also ordered the plaintiff “to show cause by June 2, 2015 why the court should not award defendant [requested] attorney’s fees incurred in the making of the motion to compel pursuant to Rule 37(a)(5).”

So, what do you think?  Are sanctions the next step in this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

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