Case Got Your Tongue? Corrections, Cavalier Attitudes & Black Holes

J0309277 Our 'privacy' theme continues on…

Like it or not, you don't enjoy the level of privacy you think you do, and copping an attitude about it only makes things worse.  For example, I regularly caution my clients about their third-party agreements.  I don't care that your contract says the third-party is required to cooperate.  When litigation arises, many of those same third-parties will ignore the agreement and circle the wagons.

Take a look at Dawe v. Corrections USA, 2009 U.S. Dist. LEXIS 96461 (E.D. Cal. Oct. 1, 2009).  The third-party defendant refused to comply with plaintiff's request to inspect defendant's personal computer.  I'll make this short and sweet; defendant lost the argument.

Third-parties aside, how about non-parties?  In Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS 84176 (N.D. Ill. Sept. 11, 2009):

"A non-party email service provider that displayed a "cavalier attitude"
toward defendant's subpoena seeking email deleted by plaintiff prompted
the court to order the provider to show cause why it should not be held
in contempt and to pay defendant's reasonable fees and costs in
obtaining discovery about the provider's ability to recover plaintiff's
email."

I'm including Laethem Equip. Co. v. Deere & Co., 2009 U.S. Dist. LEXIS 86109 (E.D. Mich. Aug. 31, 2009) simply for the eloquence of the judge in explaining where e-discovery has brought us:

The defendant's motion for sanctions is "a further example of how discovery has become a veritable 'black hole'
having the potential to draw in and annihilate the case itself,".

In a perfect world, cases are decided on the merits.  Instead, parties are increasingly using procedural moves as battering rams, and I think this does a disservice to us all.

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