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E-⁠Discovery Case Law Library
A collection of simple, easy to understand analyses and resources on e-⁠discovery case law.
Case shelved under Reasonableness

Cautionary Tale of How Not to Conduct Discovery

Abbott Laboratories et al. v. Adelphia Supply USA et al.
E.D.N.Y. May 2, 2019
Why This Case Is Important

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.

  • 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.”
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Legal Analysis
On Abbott Laboratories et al. v. Adelphia Supply USA et al.
Hon. Andrew Peck (Ret.), Sr. Counsel, DLA Piper
Hon. Andrew Peck (Ret.), Sr. Counsel, DLA Piper

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.

Judge Peck's Bio
relevant resource
When it comes to preserving electronic information, just remember to be reasonable. See what reasonable means by reading this:
FRCP & E-DISCOVERY: The Layman's Guide PDF
FRCP & E-DISCOVERY: The Layman's Guide PDF
download now
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