Moreno v. Ostly, No. A127780, 2011 WL 598931 (Cal. Ct. App. Feb. 22, 2011)

After initially resisting discovery, plaintiff produced a laptop and cellular phone for examination.  Upon inspection, it was discovered that neither device was in use during the relevant time period.  Moreover, the relevant devices were no longer in plaintiff’s possession.  When challenged as to why this was not disclosed initially, counsel explained that he was torn between his “competing duties” of protecting his client and candor to the court.  Rejecting plaintiff’s and her counsel’s explanations, the court entered monetary sanctions against them.  On appeal, the sanctions were affirmed.

In this case in which plaintiff alleged sexual harassment, retaliation, and failure to pay back wages, defendants sought to discover relevant emails and text messages sent between plaintiff and her alleged harasser and specifically requested production of plaintiff’s computer and cell phone for examination.  Plaintiff objected, arguing that the discovery was overly broad.  Following a court order to produce plaintiff’s personal computer and cell phone, however, plaintiff’s counsel agreed to deliver them to defendants.  Upon inspection of the devices produced, defendants discovered that neither was from the relevant time period and that, in fact, the cellular phone had not even been manufactured until after the relevant period had ended.  When challenged, plaintiff’s counsel indicated that “he always understood” the request to be for the devices currently in plaintiff’s possession.  When pressed to identify how many computers and cell phones had been used during the relevant period, when plaintiff used them, and what happened to them, plaintiff’s counsel took the position that defendants would have to conduct further discovery.  Thereafter, defendants filed a motion for sanctions.

It was eventually revealed that plaintiff used two different cell phones during the relevant period but that neither remained available for inspection.  Plaintiff admitted that one had been discarded but, as the court noted in its analysis, it remained “unclear” what had happened to the other.  For his part, counsel stated that he had not revealed what he had learned from his client about her cell phone because of attorney-client privilege.  Expanding upon that explanation at a hearing on the issue, counsel explained that “he felt he had a ‘competing set of duties’”, namely his obligation to protect his client, who could be accused of spoliation, and his duty of candor to the court and opposing counsel and that he “felt like he was walking a tightrope” trying to advocate for his client “while at the same time be[ing] candid.”

via Court Sanctions Plaintiff and Counsel for Misuse of Discovery Process, Including Failing to Reveal That Relevant Cell Phones were Discarded : Electronic Discovery Law.