Court Rejects Excuses for Poor Electronic Discovery Defense Production
Our last blog discussed the first part of the 2013 court opinion in Peerless Industries, Inc. v. Crimson AV, LLC, (2013 WL 85378 (N.D.Ill.), which compelled the deposition of a foreign managing agent to be conducted in the U.S. The second part of the order reviewed plaintiff’s renewed Motion for Sanctions. The plaintiff had previously alleged the defense production was inadequate, but renewed its motion after a deposition revealed a reasonable investigation into the defendant’s production and retention policy was never conducted.
In his deposition, the president of the defendant corporation was unable to answer questions about the computer systems, backup systems, what searches were performed, which employees had relevant information, whether a document hold was issued or whether the employees were even contacted regarding the plaintiff’s discovery requests. Basically, the defendant claimed to know nothing about his company’s electronic data discovery responses to the requests! Will that excuse the inadequate defense production?
“What is evident…is that defendants took a back seat approach [to discovery production] and instead let the process proceed through a vendor…[the defendant] had no part in the process of obtaining the requested discovery.” Id. at 3.
The court found the “hands-off” approach insufficient, and chastised the defendant for attempting to place the blame for the discovery evasion on its sister company and a third party vendor. The court ordered the defendants to demonstrate that adequate searches were performed in response to the electronic discovery requests and granted the plaintiff’s Motion for Sanctions to pay for the costs of litigating the issues.