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Sent to you by pakurilecz via Google Reader: Defendant to Make "All
Possible Efforts" to Produce Email from Personal Yahoo! Account;
Failure to Timely Identify Account Warrants Sanctions via Electronic
Discovery Law by [log in to unmask] (K&L Gates) on 9/10/08
Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla.
Aug. 29, 2008)

In this breach of employment agreement and misappropriation of trade
secrets case, plaintiff moved to compel production of emails from
defendant’s personal Yahoo! account. Plaintiff contended that it only
recently learned of the account, and that defendant should have
disclosed the account in response to an earlier discovery request.
Plaintiff argued that emails from the account contained highly relevant
information crucial to the issues in the case.

Although defendant claimed he could not produce the emails because they
had been destroyed by Yahoo!, he offered only a copy of a generic
response from Yahoo! about deactivating accounts. The court observed
that Yahoo! may have a process for obtaining emails from deactivated
accounts, and declined to accept defendant’s explanation that
production was “impossible,” particularly given the important
evidentiary value of the emails and the “feeble offering” by defendant
in support of the contention.

The court ordered defendant to immediately make all possible efforts to
obtain the emails in his personal Yahoo! account, and to produce all
documents in the account without further objection or delay. The court
further ordered defendant to file a Notice of Compliance with the
court, detailing the efforts taken. The court continued:
The Court will not accept Defendant's position that he cannot produce
these emails until assurance is given from an executive at Yahoo!
responsible for such tasks that this request is indeed impossible. If a
subpoena or other court assistance is necessary to achieve this end,
then the parties shall take such necessary action, but the burden shall
initially be upon Defendant to retrieve these documents and produce
them as soon as possible.

In addition, the court found that defendant's representation that he
was being “completely truthful” when he did not identify the account
because he knew it would be impossible to ultimately produce these
emails, to be sanctionable. “It will figure largely into the sanctions
ultimately awarded in this matter if it is learned that Defendant's
failure to identify this account earlier is the cause of the alleged
impossibility.” The court stated the particular sanctions awarded would
depend on the outcome of defendant's efforts to obtain the documents,
and what was revealed by these efforts as to defendant's actions, if
any, that resulted in spoilation of evidence or other more serious
discovery violations.

A copy of the full decision is available here.


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