:: Discovery Abuses Pose Risks To Counsel As Well As Litigants

K & L Gates Electronic Discovery Law Blog notes Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008), an ERISA case, concerning penalties imposed for omissions in Rule 26(a)(1) initial disclosures. In that case, Hartford failed to disclose video footage taken of the plaintiff in her kitchen.

Plaintiff sought $58,000 in sanctions, alleging that Hartford failed to disclose the kitchen video in violation of Rule 26(a); that Hartford’s attorney certified Hartford’s initial and incomplete disclosure in violation of Rule 26(g); and that Hartford failed to produce the kitchen video in response to a particular request for production.

The court declined the request to impose the full sanctions urged by the plaintiff, but noting that some of the enumerated costs and fees would not have been necessary if the plaintiff had earlier access to the kitchen video, the court sanctioned Hartford in the amount of $9,000.

In excusing the outside attorneys from sanctions, the court stated that:

. . . since Hartford’s attorneys relied, however erroneously, on Hartford’s defective search methods, the Court finds they were negligent but did not act in bad faith in certifying Hartford’s discovery. In light of the fact that plaintiff did not serve a clear and concise request for the tape from the attorneys before embarking on reconstructing it, the court declines to sanction Hartford’s attorneys in this instance for their negligence.

The decision is available on the K&L Gates website.

See, Attorneys Who Erroneously Relied on Client’s Defective Search Methods Were Merely Negligent and Not Acting in Bad Faith; Monetary Sanctions Imposed Against Client Only

Note: K & L Gates has done something really useful for litigators working in the new world of e-discovery. They have an online database that is searchable and free to use.

On a more general issue of discovery abuse, see Brian King’s note on Bad Client, and Lawyer, Behavior.