Plaintiff Corporation and Counsel Sanctioned for Discovery Misconduct
Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011). In this intellectual property litigation, the defendants sought discovery sanctions in response to the plaintiff’s motion for voluntary dismissal, alleging a persistent pattern of discovery-related misconduct. In response to the defendants’ production requests, the plaintiff initially pointed the defendants to 360 boxes of unsorted records. Even though the plaintiff certified that its production was complete, the plaintiff’s counsel e-mailed multiple addendums to discovery, many times requiring the defendants to scramble to meet court deadlines or necessitating extensions. Although the plaintiff certified that none of its records existed in electronic form, it eventually turned over some of the demanded ESI, claiming the accessibility of the database was unknown because “no one bothered to ask” the company’s IT consultant (plaintiff’s counsel also put the CFO and CEO in charge of discovery responsibilities). Citing this litany of discovery mishaps, the court found sanctions appropriate and awarded the plaintiff over $137,000. Further, because the plaintiff’s counsel did not abide by Fed.R.Civ.P. 26(g)(1), which requires lawyers to make a “reasonably inquiry” before certifying discovery responses, the court ordered him to share the burden of the sanctions.
This case should teach any potential litigant the importance of being proactive in discovery and forthright with the other party and the court. The plaintiff’s problems stemmed from a failure to think ahead. The plaintiff – and the plaintiff’s counsel – should have conducted a thorough effort to determine what records it had, where it kept them and what its retention policy was. Instead, the plaintiff reactively produced documents whenever the defendant found out that the prior production was insufficient.
Further, the court was notably frustrated with the fact that the plaintiff repeatedly submitted false certifications regarding the completeness of the discovery and the existence of ESI. The court concentrated on the fact that the defendants relied on these certifications to their detriment when responding to the plaintiff’s motions, thus providing the basis for many of the sanctions. Simply put, counsel must actually take steps to ensure that discovery is complete or ESI does not exist. The plaintiff’s counsel failed to be an active player in the process and he felt the court’s wrath in the form of sanctions along with his client.
Bottom line: Understand where your client’s data lives and what the applicable retention policies are. Simply relying on the client to do the discovery work for you will more often than not lead to negative consequences for you both personally and professionally.
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