Discovery — Electronic Spoliation — Strategic Objections & Capitulation — Change of Witness Testimony at Deposition Break

A lot of discovery abuse was found by the Court in Wood Group Pressure Control, LP v. B&B Oilfield Servs., Inc., 2007 U.S. Dist. LEXIS 83708 (E.D. La. April 27, 2007). Useful points:

1. Degrading Data to Backup Tapes as Spoliation. Defense counsel never implemented a litigation hold. As a result, emails were deleted from active servers and remained available only on back up tapes that were not reasonably accessible. ‛A party's refusal to implement steps to preserve relevant information by allowing the downgrading of data to the less accessible format which by its nature systematically hinders future discovery making it more costly and burdensome can result in a violation of the preservation obligation.“

2. Mere Negligence No Defense. Some cases confuse the commingle the concept of spoliation with the remedy of an adverse inference, which, in some Circuits (and some states) requires proof of bad faith. Where, however, there is a preservation order in place and that is disregarded, Rule 37(b) is triggered. ‛The sanctions expressly permitted under Rule 37 include taking facts as established, striking answers or defenses, precluding the introduction of evidence, striking out pleadings, dismissal, judgment by default, holding a party in contempt, and assessing reasonable expenses, including attorney's fees. A district court is also permitted under Rule 37 to enter any order that is ‘just.’“

3. Improper Coaching During Deposition Break. The Court found that defendant hid certain engineering drawings from the plaintiff, but one was inadvertently produced. ‛[I]n an effort to conceal their existence, [defendant] secured a change in the testimony of [witness] Rhyne during a break in his deposition. The evidence shows that during the break he asked [one of the defendants] about the other engineering design standards, he was advised there were none and returned to testify that the only engineering design standard it had was the one it had inadvertently produced. The Court is of the opinion that the obvious attempts to conceal the truth and multiple breaches of the duty to preserve and produce warrant the imposition of sanctions.“

Adverse inference and attorneys' fees sanctions imposed.

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