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.
Download the PDF version of Pental v. Shephard case law alert here.
The non-party made a specific showing, based on prior experience and a sampling exercise, as to the cost of complying with the request, the difficulty even beyond cost, and that even if the data were produced, it would not answer the requesting party’s issue as to whether access had been for a permissible or impermissible purpose. That type of information, as opposed to generalized claims of “burden,” is crucial to present to the court. The court also relied on Rule 45’s requirement to avoid imposing an undue burden on a non-party.