Discovery Resources

By Sheetal Patel

Square D. Co. v. Scott Electric Co., No. 06-00459, 2008 WL 2779067 (W.D.Pa. July 15, 2008)

Employee Implicated:  Counsel

eLesson Learned:  Causing constant and unreasonable delays in effectuating a court-ordered forensic inspection not only hinders the effective adjudication of a case but also makes judges extremely angry.  While counsel could make relevant and timely objections, counsel should refrain from obstinate behavior in the discovery process because it may ruin your rapport with the judge and ultimately harm your client’s interests.  Further, if a party wishes to limit the scope of a forensic inspection, it should request the court to do so prior to the inspection as opposed to imposing limitations on the day of the inspection.  Moreover, continual obstruction of the e-discovery process, sarcasm in the courtroom and lack of candor to the court is inappropriate, unprofessional, damaging to your client’s interests and can result in sanctions. Don’t do it.

The dispute in Square D. Co. v. Scott Electric Co. arose out of the execution of a forensic inspection of defendant Globe Electric Supply Co., Inc.’s computer systems, which the Court originally ordered more than one year ago.  Thereafter, after finding Globe in contempt of the court, the court again ordered Globe to submit to an inspection by the plaintiff and its attorneys at Globe’s expense.  Subsequently, the court addressed the issue of the forensic inspection again after Globe filed a motion seeking to limit the scope of the inspection and to impose costs upon the plaintiff.  The court rejected Globe’s baseless contentions and expressed its frustration with the continual problems surrounding discovery.

Thereafter, the parties finally scheduled the inspection but Globe again objected to a portion of the inspection, and the plaintiff had to return to Globe’s facility in order to complete the inspection. After facing further objections from Globe on the return visit, plaintiff Square D filed the instant action seeking to compel Globe to submit to a forensic inspection of its remaining computer systems, and mandating that Globe allow any imaged and copied ESI data to be removed from Globe Electric’s premises by the plaintiff’s forensic consultant for further investigation.

The court first addressed the issue of the scope of the forensic inspection.  Defendant Globe argued that the original court-order required Globe to submit to “a forensic inspection of its computer systems which records its purchases and sales of Square D products and its inventory of such products,” and that there was only one server and two work stations that had any connection with Square D product. The court refused to take Globe’s “word for it” considering “Globe’s long history of obstinate behavior in the discovery process and seeming lack of candor” on prior occasions.  Additionally, the court noted that the timing of Globe’s revelation – on the day of the inspection casts some doubt on its veracity.  Thus the court emphasized that if Globe wanted to limit the forensic inspection, it should have requested the court to do so prior to the inspection as opposed to objecting on the day of the inspection. Accordingly, the court ordered Globe to give plaintiff Square D access to all thirteen workstations for its forensic inspection.

The court next addressed the issue of whether the plaintiff may remove the imaged ESI from Globe’s facilities for further investigation.  The court concluded that the original order never imposed any parameter requiring Square D to review all imaged and copied ESI at Globe’s facility, thus rejecting Globe’s objections.  The court again noted that Globe’s such objections on the day of the inspection are “late” and further expressed its concern that Globe’s use of sarcasm in the courtroom was inappropriate and unprofessional.

Although the court expressed concern regarding Globe’s failure to comply with the court’s orders and overall lack of respect and deference to the Court’s authority, it did not impose the default judgment sanction as requested by the plaintiff.  Specifically, the court noted that such conduct fell just shy of conduct befitting a default judgment sanction, i.e., “flagrant bad faith” and “callous disregard.”  However, the court concluded that Globe and its counsel bore the responsibility for the unreasonable delays in effectuating the court-ordered forensic inspection and for the other delays in the discovery process. Thus, the court sternly reminded Globe and its counsel that “any further restrictions unilaterally imposed by it or its counsel on the forensic inspection (in any regard) as well as any other baseless barriers impeding the completion of discovery will be met with sanctions.”

Ultimately, this case highlights that counsel should refrain from persistent obstruction of the e-discovery process, sarcasm in the courtroom and lack of candor to the court because (1) it is inappropriate; (2) it annoys the judge; (3) it is damaging to your client’s interests, and (4) it can result in sanctions.

Sheetal Patel is a chemical engineer and currently a third year student at Seton Hall Law School. 

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