In Design Basics, LLC. v. Carhart Lumber Co., Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff's motion to compel “full disk imaging of Defendant's hard drives, including Defendant's POS server, secretaries' computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).
Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.
When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6). This rule enables a party to serve a deposition notice on the entity involved in the litigation rather than an individual. The notice identifies the topics to be covered in the deposition, and the entity being deposed must designate one or more people qualified to answer questions on the identified topics. Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.
Today’s thought leader is John Simek. John is the Vice President of Sensei Enterprises, a computer forensics firm in Fairfax, Va, where he has worked since 1997. He is an EnCase Certified Examiner and is a nationally known testifying expert in computer forensic issues. Together with his wife, Sharon Nelson, John has become a frequent speaker on eDiscovery topics and digital forensic issues. We have also interviewed Sharon, who serves as Sensei’s President, for this series, and her interview will appear this coming Wednesday.
Yesterday, we reported on a case with no sanctions; today, we report on a case with a different outcome. Both the plaintiff and plaintiff's counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.
In United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), the defendant in a criminal case appealed his conviction and raised the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.
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