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Can You Amend a Pleading to Allege eDiscovery Abuses?

Posted on September 29th, 2014

In Amusement Industry, Inc. v. Moses Stern No. 07 Civ. 11586 (LAK)(GWG)(S.D.N.Y. Sept. 10, 2014), Plaintiff motioned after the close of discovery to amend its pleading to add a state law claim of “deceit.” The motion alleged Defendant wrongfully omitted key emails from the defense production and improperly and misleadingly listed the email communications on the privilege log. Further, Plaintiff alleged Defendant refused to provide metadata or native files, which was the explanation for why it took so long to file the motion to amend.

Under Fed.R.Civ.Pro. 15(a)(2), federal courts freely allow pleadings to be amended when justice so requires. A party is free to move to amend at any point in the litigation, and the non-moving party bears the burden of showing prejudice, bad faith and futility of the amendment. An amendment can prejudice the non-moving party when it would result in expenditure of significant resources for discovery and delay of the resolution of the dispute.

While a simple delay is not sufficient grounds to deny leave to amend, the court had discretion to deny leave to amend after an inordinate delay with no satisfactory explanation.

How Long Did the Party Wait to File Leave to Amend?

The court held that the delay in filing the motion was unjustified. The moving party knew about the email misconduct in May 2012, and the moving party had the essential elements of the claim in November 2012. Discovery was closed as of November 2013. Yet no effort was made to pursue this claim to amend the pleading until May 2014.

The court did not give weight to the assertion that Defendants refused to produce metadata or native files, because the moving party failed to show why such lack of information prevented it from “understanding the scope of the conduct at issue.” Therefore, even if true, lack of native files or metadata did not excuse the delay.

Due to the inordinate delay, the court did not consider the burden placed upon the non-moving party to conduct discovery and denied the Motion to Amend.

ILS – Plaintiff Electronic Discovery Experts

Did you know? Harvard Magazine claimed the data in the last two years – a zettabyte – dwarfs the prior record of human civilization.

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