Abbott Laboratories, et al. v. Adelphia Supply USA (E.D.N.Y. May 2, 2019) re-enforces that every once in a while there is a case that showcases exactly what not to do in e-discovery. This is that case, and it led to a recommendation for one of the harshest penalties possible: a default judgement.
In this case centering around the illegal selling of the plaintiffs’ products, the plaintiff motioned for a default judgment against the defendants for egregious e-discovery misconduct.
Within e-discovery, the Magistrate Judge concluded that the defendants did the following:
- Produced information in a single PDF document, 1,941 pages in length
- When searching for relevant documents, plaintiffs used keywords that they knew were insufficient to identify relevant documents
- Intentionally removed relevant prejudicial documents from production
- The plaintiffs’ key custodian’s deposition was “evasive and self-serving at best”
Based on these actions, plaintiffs’ moved for a default judgement.
Report & Recommendation:
- Default Judgment Recommended. Based on the defendants’ conduct of actively withholding discovery from the plaintiffs, the Magistrate Judge recommended the “the harshest sanction”: a default judgment for committing fraud on the court.
- Repeated Discovery Misconduct. The defendants committed a “calculated pattern of pervasive misconduct that started early on and continued even after defendants were caught red handed.”
- Cooperated Only After Caught. The Magistrate Judge noted that defendants did not become cooperative until they were left with no other option. “Their email server had been seized. There was no longer an escape from responsibility for their bad faith conduct.
Expert Opinion from David Cohen, Esq., Chair – E-Discovery Group, Reed Smith LLP
If legal and ethical requirements are not sufficient to motivate litigants and their custodians to comply with their discovery obligations, this case can help you enlighten them: If they intentionally withhold or destroy relevant evidence they are likely to be caught and to suffer significant unwanted consequences.
Case Law Tip:
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