E-Discovery Duties and the Range of Sanctions for Failures to
Comply with Them
By Nick Brestoff, M.S., J.D.
Why is it that every litigator must become conversant with
the language and intricacies of electronically stored
information (ESI)? And why is it that they should feel highly
motivated to do so in a non-negligent manner? This article
addresses these questions.
Attorneys know, of course, that the discovery of
potentially relevant evidence is a standard part of every
lawsuit. But what is new is that, within the last five years,
it has been recognized that ESI comprises most of all
potentially relevant evidence. It has been noted that even the
smallest fender-benders can involve ESI; for example, if the
driver was texting just before the crash. In such a case, the
amount of ESI might be relatively small, but then again, the
existence and timing of the texting might be critical. In antitrust, securities, fraud, mass tort or employment class actions,
and in trade secret and patent cases, the amount of ESI is
different and can, in fact, be prodigious.
Indeed, the hallmark of ESI is its immense volume. The
larger cases can involve terabytes of ESI. For context, a
megabyte is about 75 pages; a gigabyte is about 75,000 pages, if
printed.1 A terabyte is a thousand times more than a gigabyte,
which means 75 million pages, which is 25,000 boxes, and that’s
the equivalent of about 50,000 trees.
Why is there so much of it? The answer is simple. In 2003,
researchers at UC Berkeley published an update to their study,
How Much Information? They explained that, in 2002, each of us
produced almost 800 megabytes of recorded information each year.2
There is no doubt that each of us produces even more ESI today.
Because the cost of storing information electronically is cheap,
ESI now goes by many names: (1) voice-mail messages and files,
(2) e-mail messages and attachments, (3) deleted files, programs,
or e-mails, (4) data files, (5) program files, (6) backup and
archival tapes, (7) temporary files, (8) system-history files,
(9) website information stored in textual, graphical, or audio
format, (10) website log files, (11) cache files, and (12)
cookies.
1
While we used to create paper one page at a time on a
typewriter, ESI multiplies like rabbits. There are copies
stored electronically each time we change a document, each time
we send it to someone else, and each time they send it back.
ESI is everywhere these days. It can be stored in a wide
variety of devices, e.g., desktop computers (office, home),
laptops (office, home), cell phones, network servers, disk
drives, thumb/flash drives, photocopy machines with digital
memory, and backup tapes. And, still more devices continually
come into the marketplace. ESI can reside in all of these
devices, and when it comes to preserving ESI for possible future
production, we have to gather up all of these devices in order
to gather up all of the ESI they contain.
Thus, we can define electronic discovery (e-Discovery) as
encompassing the duties and processes of collecting, preparing,
reviewing and producing discoverable information that is stored
electronically.
So the answer to the first question—why must attorneys know
about ESI—has two parts: (1) ESI is the likely source of the
evidence attorneys will present at trial, and (2) we now have
rules governing e-Discovery. While the rules for discovery in
general are well-established, the rules for e-Discovery are
relatively new, if not brand new:

Effective December 1, 2006, the Federal Rules of Civil
Procedure (FRCP) were amended to cover ESI. In the FRCP,
ESI is broadly intended to cover all current and future
media for storing information electronically.3

Effective June 29, 2009, California’s Electronic
Discovery Act amended §2031.010 et. seq. and other
provisions of the Code of Civil Procedure to provide
rules for the discovery of ESI. The California rules
generally follow the FRCP.

Effective August 14, 2009, Rule 3.724 of the California
Rules of Court was amended to add subdivision (8), which
requires attorneys on both sides of every lawsuit to
discuss “any issues relating to the discovery of” ESI in a
“meet and confer” preceding the Case Management Conference.
2
Although the rules are less than five years old, eDiscovery has quickly become a multi-billion dollar industry,
and there has been sufficient time for “best practices”
guidelines to be established. Best practices, recommendations
and principles have been promulgated by The Sedona Conference.4
Courts often cite the Sedona Principles as a leading “industry”
authority on e-Discovery.5
The Duty to Preserve ESI
Is there a rule requiring attorneys to preserve ESI?
Specifically, no. Neither the Federal Rules of Civil Procedure
nor California Code of Civil Procedure impose on attorneys a
duty to preserve ESI, but the duty is there, no doubt because
ESI is just one form of potentially relevant evidence. The duty
to preserve all potentially relevant evidence is an affirmative
obligation imposed on attorneys by the courts,6 and it is imposed
not only on outside counsel, but on in-house attorneys and, take
note, on certain high level executives as well.7
But there are several other, expressly stated sources of
the duty to preserve ESI:

Agreement or court order (or both);8

Statutes and Regulations;9

Last but not least, a reasonable and good faith effort
to preserve ESI is required by Principle 5 of the Sedona
Principles.10
When does the duty to preserve ESI arise? The duty to
preserve potentially relevant evidence arises at the time when a
party or one of its key employees can reasonably anticipate
litigation, e.g., based on the circumstances or upon receipt of
a letter requesting preservation of evidence. In certain
circumstances, the duty to preserve evidence arises before a
lawsuit is filed.
For example, in Doe v. Norwalk Cmty. Coll.,11 (Doe), a sex
discrimination case, the duty to preserve was found to have
arisen even before the employer received the intent-to-sue
letter. Thus, almost any contentious job action will likely
trigger the preservation duty. Depending on the circumstances,
3
waiting for the lawsuit to be filed is simply waiting too long.
When litigation can be reasonably anticipated, “[the party] must
suspend its routine document retention/destruction policy and
put in place a ‘litigation hold’ to ensure the preservation of
relevant documents.”12
It is vital to understand what a “hold” means. It means
that attorneys are supposed to find out about his or her clients’
routine document-retention-and-destruction policies and, for the
key personnel, act to have those policies suspended. In Doe,
the defendant employer argued that they had no option but to
continue deleting information from their systems because the
plaintiff was only identified as Jane Doe. That argument proved
unsuccessful and sanctions were imposed.13
The scope of the duty to preserve evidence is limited to
all evidence that is reasonably likely (or anticipated) to be
the subject of a future discovery request, not all potential
evidence.14
For how long must ESI be preserved? The answer is that the
duration of the preservation duty is continuing, and it extends
into the indefinite future. It requires not only monitoring but
follow-up to identify still other “custodians” of ESI, should
they appear.15
Thus, counsel are now required to
become fully familiar with her client’s document
retention policies, as well as the client’s data
retention architecture. This will invariably involve
speaking with information technology personnel, who
can explain system-wide backup procedures and the
actual (as opposed to theoretical) implementation of
the firm’s recycling policy. It will also involve
communicating with “key players” in the litigation, in
order to understand how they stored information.16
So, even seasoned attorneys must learn to speak “tech.”
Because of their experience, they may have spotted the issues.
They may understand how to deploy Requests for Admission,
Interrogatories, and Requests for Production of Documents. But
ESI now pervades the factual universe and so now dominates the
discovery proceedings in litigation and even arbitration
4
proceedings,17 and will do so into the indefinite future. We
cannot un-ring this bell. It is fast becoming standard practice
for an attorney’s first deposition in a case to be the
deposition of the manager of other side’s IT department.
Sanctions
If attorneys fail to put (and keep) ESI and e-Discovery at
the top of their minds, they may face a variety of serious
sanctions. In the early days of e-Discovery, courts were
perhaps more lenient than they are today. Those days are gone.
Now the range of sanctions is worrisome indeed to litigants and
their counsel. A wide range and severity of sanctions can be
imposed for negligently or intentionally failing to preserve
potentially relevant evidence.
Sanctions can take many forms. The most frequently imposed
sanction is monetary.18 The most serious sanctions are
terminating sanctions, burden-shifting orders, and adverse
inference instructions.19
When a motion to compel further production of documents and
for sanctions is granted, the likely penalty will be monetary,
usually in the form of an award of attorney fees to the party
who did not receive the documents it requested and had to go to
the expense of making the successful motion. Monetary sanctions
can be significant, and can range from tens of thousands of
dollars to millions.20
The case of Qualcomm v. Broadcom is famous in part because
it involved a sanction of $8.5 million. A sanction that high is
worth some discussion. Qualcomm was a patent lawsuit where
critical to the claim was whether Qualcomm participated in the
Joint Video Team (JVT), an industry standard-setting body, in
2002 and early 2003. Qualcomm asserted that it had only begun
to participate in the fall of 2003, after the standard had been
set, and only with respect to professional extensions (or
additions to) the standard. At trial, a key witness testified
that she had not read e-mails indicating that she had
participated in the JVT in late 2002. But Broadcom’s counsel
asked the right question on cross: had she received e-mails
when the JVT was meeting? The answer was yes. This revelation
prompted Broadcom to ask for the e-mails and, during the lunch
break, Qualcomm’s attorneys produced 21 of them. Qualcomm and
its counsel argued that they were not responsive to Broadcom’s
5
discovery requests and did not believe that these newly
discovered e-mails called their earlier search procedures into
question.
Initially, the court believed that the attorneys knew
better. As a result, the court levied an $8.5 million monetary
sanction against Qualcomm, and imposed a court-monitored Case
Review and Enforcement of Discovery Obligations (CREDO) program.
As a result of the CREDO program, it was discovered that, while
more than a million pages of only marginally relevant documents
had been produced, 46,000 relevant documents (totaling more than
300,000 pages) had not been produced. Needless to say, the
court was not pleased and, in addition to the monetary sanction,
the court referred the offending attorneys to the State Bar for
discipline.21
But on April 2, 2010, after substantial discovery
proceedings on remand and a three-day hearing, Magistrate Judge
Barbara Taylor issued an order which lifted the sanctions
against the individual attorneys and relieved Qualcomm of its
obligations under the CREDO program. Noting, however, that the
$8.5 million sanction had not been appealed, Judge Taylor
concluded:
It is undisputed that Qualcomm improperly withheld
from Broadcom tens of thousand of documents that
contradicted one of its key legal arguments.
However, . . . there is insufficient evidence to prove
that any of the Responding Attorneys engaged in the
requisite “bad faith” or that (attorney) Leung failed
to make a reasonable inquiry before certifying
Qualcomm’s discovery responses.22
As the Qualcomm case indicates, monetary sanctions are
often coupled with other penalties. Besides awarding monetary
sanctions and reporting offending attorneys for discipline, a
court might also order additional searches, e.g., of servers and
a CEO’s personal laptop, at the non-moving party’s expense.23
Or, as is sometimes the case when parties are having
discovery disputes, a court might appoint a “special master.”
Terminating Sanctions
6
The courts have hit both sides of a lawsuit with
terminating sanctions because of willful failures to comply with
ESI preservation and discovery obligations. When such caseending sanctions are ordered, two key factors are present: (1)
evidence has been destroyed intentionally and cannot be
recovered and (2) without that evidence, the other side is so
prejudiced that a terminating sanction is the only fair remedy.24
When a defendant is found to have engaged in such misconduct,
the remedy is a default judgment.
For example, in Magana v. Hyundai Motor Am.,25 Hyundai’s inhouse counsel, in response to discovery requests, searched for
responsive documents but only in its own legal department. As a
result, the trial court found that (1) the parties did not agree
to limit discovery, (2) the defendant falsely responded to
plaintiff’s requests for production and interrogatories, (3) the
plaintiff was substantially prejudiced in preparing for trial,
and (4) the potentially relevant evidence was lost forever. The
trial court considered lesser sanctions, but concluded that the
only just remedy was the entry of a default judgment – for $8
million. Now that is a terminating sanction with real bite.
The appellate court reversed, but the Washington State Supreme
Court reinstated the trial court’s ruling and awarded attorney
fees pertaining to the trial and appellate proceedings.
E-Discovery mishaps can impale either side of a case, and
Plaintiffs and their counsel can also suffer “terminating
sanctions” nightmares. In another e-Discovery case, a magistrate
judge recommended dismissal of plaintiff’s claims because of
willful statutory violations and disobedience of court orders to
produce documents. Although the district court concluded that
total dismissal of all claims would be excessive, plaintiff’s
claims for damages arising from an alleged interruption of
business were dismissed. In addition, plaintiff was ordered to
pay $75,000 to defendant for its costs in bringing the sanctions
motion.26
Shifting the Burden of Proof
Short of a default, could a court impose a sanction on a
defendant that comes perilously close to terminating sanctions?
Yes. In the Genger case,27 the court found that defendant Genger
had knowingly destroyed potentially relevant evidence (emails).
The court considered but declined to enter a default judgment.
7
But the sanctions it imposed were nevertheless severe, if
not worse than a default. First, Genger was ordered to pay
attorney fees estimated at $750,000 for having made and
prevailed on a complicated but successful motion. In addition,
Genger was ordered to produce privileged documents. But that
was hardly the end of it. The court also ruled that, to prevail
on any affirmative defense or counterclaim, Genger could not
prevail by producing a preponderance of evidence, but would have
to provide evidence sufficient to meet the “clear and convincing”
threshold. And, Genger could not prevail on any material
factual issue if the only evidence in support of his position
was his own.
Imagine having to go to trial with those burdens. If
Genger were a multi-armed God of some sort, all of his arms
would be tied behind his back.
The “Adverse Inference” Instruction
Courts are understandably reluctant to impose “terminating”
sanctions or their like on either side. However, when courts
conclude that the e-Discovery duties have been willfully
violated, and that evidence has been destroyed as a result, they
have yet another fearsome weapon: the “adverse inference”
instruction. An adverse inference instruction tells the jury
that they may conclude that the reason some evidence was lost or
destroyed is because it was arguably unfavorable to the party
who lost or destroyed it. In a recent decision involving a
finding by the court that e-Discovery misconduct had been
intentional, the court wrote this:
The jury will receive an instruction that in and after
November 2006, the defendants had a duty to preserve
emails and other information they knew to be relevant
to anticipated and pending litigation. If the jury
finds that the defendants deleted emails to prevent
their use in litigation with [plaintiff], the jury
will be instructed that it may, but is not required to,
infer that the content of the deleted lost emails
would have been unfavorable to the defendants. In
making this determination, the jury is to consider the
evidence about the conduct of the defendants in
deleting emails after the duty to preserve had arisen
8
and the evidence about the content of the deleted
emails that cannot be recovered.28
Courts may also give adverse inference instructions in
other contexts, e.g., in cases where e-Discovery duties have
been shirked due to negligence and/or gross negligence,29 as in
or where lost or destroyed evidence makes it difficult to
calculate damages.30
Adverse inference instructions can have a devastating
impact on a jury. In Zubulake v. UBS Warburg, the plaintiff was
an individual who brought a case against her former employer for
sex discrimination. UBS Warburg had a duty to preserve
potentially relevant evidence after Laura Zubulake complained
about how she had been treated by her supervisor and others, and
the company recognized that litigation was likely. This was
several months before Zubulake filed a complaint with the EEOC
and then filed her lawsuit. After determining that UBS had
willfully destroyed potentially relevant emails after the duty
to preserve them had arisen, the court decided to give an
adverse inference instruction. At trial, the jury awarded $9
million in compensatory damages and $20 million in punitive
damages, for a total of $29 million.
Zubulake was the “poster child” for Big Damages in a case
where an e-Discovery failing was critical; that is, until
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc.31
Here’s what happened in Morgan Stanley: Sunbeam Corporation
retained Morgan Stanley to advise it on the merger with Coleman.
After the deal closed, Sunbeam declared bankruptcy. Coleman’s
parent holding company sued Morgan Stanley alleging that it had
intentionally misrepresented Sunbeam’s true financial condition,
so that the deal would close and Morgan Stanley could collect
its commission. During the lawsuit, Coleman sought documents
that Morgan Stanley was required to keep under the federal
securities laws. But Morgan Stanley, the court found, not only
did not produce a large amount of relevant records or search the
attachments of many emails it did in fact produce, Morgan
Stanley continued the practice of overwriting email messages for
more than 12 months after it had instructed its own employees to
preserve paper documents. Worse still, perhaps, was this:
Morgan Stanley’s litigation counsel certified that the company
had complied with the court’s discovery orders even though it was
9
later discovered that the company still had not searched nearly
2,000 backup tapes that had, in fact, been located.
As a result, the court entered a partial default judgment,
decided to give an adverse inference instruction, and shifted
the burden of proof to Morgan Stanley. Coleman did not have to
show the first few elements of fraud and needed to prove only
its reliance on what happened and damages. To win, Morgan
Stanley had the burden of proving that it had not defrauded
Coleman, and it is notoriously difficult to prove a negative.
For Morgan Stanley, the outcome was predictably and
enormously adverse. The jury awarded $600 million in
compensatory damages and $850 million in punitive damages, for a
total of $1.45 billion.
Avoiding Sanctions
Sanctions will not always be the order of the day. A
motion for sanctions will be denied, for example, if a
requesting party has been dilatory either in seeking information
or in making a motion to compel and/or for sanctions. In these
circumstances, a motion to compel further ESI will likely be
denied and, in that circumstance, a request for sanctions will
also be denied.32 In this connection, it should be remembered
(when practicing in federal court) that it is the District Court
who sets the discovery cut-off date. Magistrate Judges, who
usually hear and decide discovery motions, will be forced to
deny relief if it means changing a cut-off date they have no
authority to alter.
To avoid sanctions on the merits, counsel should comply
with the eight factors set forth in Zubulak V, which, along with
the Sedona Principles, should be considered as basic guidelines.
While law firms may engage consultants to assist them, it must
be said, however, that neither counsel nor their clients can
shirk their duties by engaging either consultants or e-Discovery
vendors, and remain ultimately responsible for preserving and
producing ESI.33
Conclusion
ESI is a daily tsunami of information, and many attorneys
are playing “ostrich” at their peril. The rules are new, but
they have been in place long enough for the courts to believe
10
that attorneys should have received the message by now. The
intelligent use of e-Discovery can help an attorney win his or
her case, or mount a successful defense to a claim without merit,
but e-Discovery can also be used as a trap for the unwary: to
create failures that make attorneys look negligent at best.
If you haven’t faced up to e-Discovery, get over it; it is
here to stay.
# # #
After graduating with a B.S. in engineering systems from
the University of California at Los Angeles (U.C.L.A.), Nick
Brestoff earned an M.S. in environmental engineering science
from the California Institute of Technology (Caltech) and
graduated from the Gould School of Law at the University of
Southern California (U.S.C.) in 1975. For the next 35 years, Mr.
Brestoff litigated business, employment, environmental and other
civil disputes in state and federal court. He is currently a
consultant to attorneys as a Principal with Stonefield Josephson,
Inc., a California accounting and business advisory firm,
www.sjaccounting.com, where he focuses on matters pertaining to
economic damages, ESI and e-Discovery.
# # #
Peter Lyman and Hal Varian, How Much Information? (2003)
http://www.sims.berkeely.edu/how-much-info-2003 (reviewed on
April 15, 2010).
1
2
Ibid.
See Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443,
447(C.D.Cal. 2007).
3
Sedona Principles: Best Practices, Recommendations &
Principles for Addressing Electronic Document Production, Second
Edition (Sedona Conference Working Group Series, 2007) (Sedona
Principles). See www.thesedonaconference.org.
4
See Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418,
424 (D.N.J. 2009).
5
11
In Green v. MClendon, 262 F.R.D. 284 (S.D.N.Y. 2009), the
court held that the obligation to preserve potentially relevant
evidence runs first to counsel, who then has a duty to advise
the client of the type of information to be preserved and of the
need to prevent its destruction.
6
7
See John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008).
See FRCP 16(b)(3)(B)(iii); Treppel v. Biovail Corp., 233 F.R.D.
363, 368 (S.D.N.Y. 2006) (reviewing standards for issuance of
preservation orders, and applying a three-prong balancing test).
8
For example: 17 C.F.R. §240.17a-4(f) (by certain exchange
members, brokers, and dealers); 29 C.F.R. §1602.14 (by
employers).
9
See Martin v. Northwestern Mutual Life Ins. Co., 2006 WL
148991 (M.D.Fla. Jan. 19, 2006) (Magistrate judge rejected
attorney’s excuse of “computer illiteracy” as “frankly
ludicrous.”).
10
11
248 F.R.D. 372, 377 (D.Conn. 2007).
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216-18 (S.D.N.Y.
2003) (Zubulake IV); see Covad Comms. v. Revonet, Inc., 258
F.R.D. 5, 14-15 (D.D.C. 2009) (after defendant was on notice of
litigation, an e-mail server crashed and yet defendant did not
try to recover lost e-mails; court ordered defendant to pay for
imaging and a search of all of defendant’s servers).
12
13
See Doe, 248 F.R.D. at 378 & fn. 9.
14
See Zubulake IV at 218.
See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)
(Zubulake V).
15
16
Zubulake V at 431.
Richard Chernick, E-Discovery Threatens to Litigize
Arbitration, Law Technology News, (Apr. 16, 2010). See
www.law.com. (Reviewed on 4/19/2010).
17
If a party does not ask for metadata or otherwise specify the
form of production in its first request for production, it may
be ordered to bear the costs of re-producing Word and PowerPoint
18
12
files a second time if metadata is desired. See Aguilar v.
Immigration and Customs Enforcement Division of the U.S. Dept.
of Homeland Security, 225 F.R.D. 350 (S.D.N.Y. 2008).
See FRCP 37(e). Other sanctions include issue and evidentiary
preclusion orders, contempt proceedings, attorney discipline,
and criminal penalties. They are beyond the scope of this
article.
19
Monetary sanctions can range from tens of thousands of dollars,
e.g., Phoenix Four, Inc. v. Strategic Resources Corp., No. 05CIV-4837, 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006) (defendant and
its law firm were sanctioned $45,161.82 for overlooking hidden
server partitions containing discoverable ESI), to hundreds of
thousands, e.g., See TR Investors LLC v. Genger, 2009 WL 4696062
(Del. Ch. Dec. 9, 2009) ($750,000) (Genger), and even millions
of dollars, e.g., Keithley v. HomeStore.com, Inc., No. C-0304447 SI (N.D.Cal 2008) (no pub.;8-12-08) ($1 million, because
defendants did not “even come close to making reasonable efforts”
to meet preservation and discovery requirements) and Qualcomm
Inc. v. Broadcom Corp., No. 05 Civ. 1958-B, 2008 U.S. Dist.
(S.D.Cal. Jan. 7, 2008) ($8.5 million) (Qualcomm).
20
Qualcomm, Order Granting In Part and Denying in Part
Defendant’s Motion for Sanctions, Etc. (Jan. 7, 2008).
21
Qualcomm, Order Declining to Impose Sanctions, Etc. (Document
998; filed Apr. 2, 2010).
22
See Treppel v. BioVail Corp., 2008 U.S. Dist. LEXIS 25867
(S.D.N.Y. Apr. 2, 2008) (to recover e-mails that may have been
deleted). In Cenveo Corp. v. S. Graphic Systs., No. 08-5521
JRT/AJB (D.Minn. Nov.18, 2009), the plaintiff was ordered to reproduce documents in native format after producing documents in
only .pdf format, despite requesting documents in their native
format, meaning that the documents had to be produced with all
of the content and functionality they had originally.
23
In OZ Optics Limited v. Hakimoglu, 2009 Cal. App. Upub. LEXIS
2952, an executive ran a “scrubbing” program on a company laptop
prior to handing it over, and a $90,000 sanction was ordered.
The court refused to give a terminating sanction because there
was no evidence that a claim or defense had been lost as a
result.
24
13
25
2009 WL 4070952 (Wash. Nov. 25, 2009).
See Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2009 WL
5218035 (M.D. Fla Aug. 3, 2009); 2010 WL 55595 (M.D. Fla. Jan. 5,
2010).
26
27
See citation in footnote xv.
Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist.
LEXIS 14573 (S.D.TEX Feb. 19, 2010).
28
See Pension Comm. of the Univ. of Montreal Pension Plan v.
Banc of Am. Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)
(negligence and gross negligence) (decided by the same court who
ruled in the Zubulake cases).
29
See Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1572
(Fed. Cir. 1996) (“When the calculation of damages is impeded by
incomplete records of the infringer, adverse inferences are
appropriately drawn”), citing Lam, Inc. v. Johns-Manville Corp.,
718 F.2d 1056, 1065 (Fed.Cir. 1983) (any adverse consequences
rest upon the infringer when the inability to ascertain lost
profits is due to the infringer’s failure to keep accurate or
complete records).
30
31
2005 WL 679071 (Fla.Cir.Ct. Mar. 1 2005).
See Oracle USA, Inc. v. SAP AG, 2009 U.S. Dist. LEXIS 91432
(N.D.Cal. Sept. 17, 2009) (court denied additional discovery re
new theories of damages where new theories were listed two years
after the initial Rule 26 disclosures had been made) and
Bellinger v. Astrue, 2009 WL 2496476 (E.D.N.Y. Aug. 14, 2009)
(court denied a motion to compel production of documents in
electronic format because hard copies existed, had already been
produced, and were reasonably usable).
32
See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d
99, 113 (2d Cir. 2002) (party can be sanctioned when its vendor
adds to “purposeful sluggishness” during discovery).
33
14