We've heard the horror stories of e-discovery. We've read about default judgments, adverse jury instructions, monetary penalties and orders to pay the other side's attorney fees. But we've never heard about jail time.
Until now.
Addressing "the single most egregious" case of discovery misconduct that he has ever seen in his "nearly fourteen years on the bench," Chief U.S. Magistrate Judge Paul W. Grimm not only recommended that the plaintiff win the case, but also found that the defendants' intentional destruction of relevant electronic data rose to the level of civil contempt.
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Moreover, he found the misconduct to be worthy of a two-year prison term if the defendant did not pay the attorney's fees and costs to which the plaintiff would be entitled as a prevailing party. Victor Stanley, Inc. v. Creative Pipe, Inc. (D. Md. Sept. 9, 2010). That's interesting reading, even for non-lawyers.
The Victor Stanley defendants displayed appalling chutzpah, destroying e-mails and running programs like "Disk Cleanup," "Easy Cleaner" and "CCleaner" to get rid of damning information.
But their dishonesty was the least of it: The Victor Stanley ruling also includes a recounting of the defendants' ludicrous inability to delete the information they were trying to delete (prompting such references as the "gang that couldn't spoliate straight"). As for confidentiality, here they demonstrated really breathtaking ineptitude, returning drives chock-full of relevant information to Office Max.
These aren't the only reasons you should read the Victor Stanley opinion. You should also read it because it contains a thoughtful and well-written discussion of the disorganized state of the law that relates to a litigant's duty to preserve electronically stored information and the types of conduct that warrant discovery sanctions.
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Source: law.com
By: Geoffrey Vance
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