Electrolux Home Prod v. Whitesell Corp
Filing
691
ORDER denying 665 Motion Leave to Take Additional Rule 30(b)(6) Depositions of Defendants' Corporate Representatives; denying 667 Motion for Sanctions. Signed by Judge J. Randal Hall on 09/10/2015. (thb)
THE UNITED STATES DISTRICT COURT FOR
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
IN
WHITESELL CORPORATION,
Dliirr1-iff
cv l-03-050
ELECTROLUX HOME PRODUCTS,
ANd
r N C . , H U S Q V A R N A ,A . 8 . ,
PRODUCTS,
HUSQVARNA OUTDOOR
INC.,
Defendants.
ORDER
n+ c .u' v r r a r r r e !
v
! iJ n
/
in
Revised
Joint
2015.
The parties
Discovery,
taken.
in
which
are
(i)
('tWhitesel-l-" ) "Motion
Pursuant
to
for
Products,
currently
in
of
h\/
Discovery
Whitesel I
( " E H P ") .
30 (b) (5) ,,' and
Sanctions
.r.d
5,
of
wilf
be
on October 15, 2015.
AqainsE
relaLing
to
cornoraf ion's
for Leave to Take AdditionalP.
Thi
stage
witnesses
the Court are Lwo mo!ions
Pl-aintiff
t-ha
on February
t.he Third
fact
schedul-ed to close
Fed. R. civ.
Inc.
hv6^^hFl.r.r^rrarnp.l
depositions
pending before
denosifions.
id
Pl-an (",JDP" ) entered
Discovery
This stage is
Presently
Mot.ion
^.dd
fhi-
Depositions
(2) whit.esell,s
Efectrolux
Home
I.
In
its
Whitesell
and
document.s and
the
your
your
relevant
matter
of
every person
"Identify
document retention
efforts
informatsion
subject
58:
Defendants,
to
InEerrogatories
regarding
and
Doc. Nos. 624-2,
Defendan!
of
Int.errogatory
asks in
procedures
describe
set
Third
who has knowledge
BACKGROI'ND
his
to
preserve
to
policies
produce
and
fitigation,
lhis
or her knowledge."
and
(See
tl se and 625-II , fl 58.)
EHP responded
as f ol-lows:'
individual-s
have
knowledge
following
[T] he
policies:
regarding EHP's document retention
Don
Market:
i-F^rn.f
i^h
rFl-Fnf i on
^,^^1'^6
relevant
Mr.
raaarAina
Market
has
I'HD'c
general
.l^-lrmart-
nol icres
and EHP's
efforts
to
A^^1'm6hr- d
and
informaEion
to this
l-j-t j-gation.
sean Scarboro3 Mr. Scarboro has general
information
regarding
EHP's efforts
to
produce
documents
and
information
relevant to this litiqation.
,ta6on Edwards: Mr, Edwards has generalinformation
regarding
EHP's efforts
to
nrndrrce
relevant
(Doc. No. 625-rr,
d.\.r rmpn t-q
and
infOfmatiOn
to thr-s l-itiqation.
aE 74-75,
tl 58.)
1
Defendant
Husqvarna
Outdoor
ProducLs.
("Husqvarna") interposed an objection
fnterrog'atory
Eo
fha
crrnrrnd<
reasonabl-y
evidence.
of August
respond to
No. 683, at
t-h:l-
t-hF
.rrlFql-i.\n
.\lrar'l
v
hr/ii,.l
rnd
Inc.
58 on
h^t-
calcufated
to lead to the discovery
of admissibfe
(Doc. No. 624-2, aE 4!-42, !T 58.)
At the hearing
L4, 20L5, Husgvarna represent.ed
that
it
would
Interrogatory
58 (Hrg. Tr. of Aug. :-4, 2015, Doc,
L27) .
Through
r r y ! re rc F r r j q u
tah o sr iu -
twice.
The
wishes
idcnl-
in
-ef irra<
first
the
nrnaar{rrrac
i f icd
i 1 -c
af
q
f ^rl-
to the merits
/lah^ai
a
ruling
'i
with
m.r-
exten!
^F
^r\r
Fha
Frr.1.tal-
l-imited
..r'l
issues
Lo
policies
IF.f
qR
.)rl/
ayrd
and
nr6drrae
Issues
to the l-itigaEion.
on
f l.rrFF
a
filed
.q f eeS
rlannci
nr
l ina
e v e v ! r r e _ I
=nrl
fi
motions
consideration.
II.
lhis
l -. : L a
ac
motion
and
fnr
The motions
in the
for
will-
*^!.r ^r
Frr'l e
on
in
aSSoCiFl-
EHP
had
Dissatisfied
the
t-he
sanctions
subiect
dFn.\ci
ii.\n
aqainst
Fl-l wi j-h
f -ki
EHP,
n.r
f hc
inrr<:
briefed
and are
now be addressed
l(l
in
ripe
for
turn.
DEPOSITIONS
r . i L . rs ^ - ^ r .
t
2nfh)
Jason Edwards
No. 58.
ra\rar]pd
cOStS
q:nat-
of Mr.
WhiteselI
rFnreSentativeS
TO TAKE ADDITIONAL
!l^.r ^
r-^
trR
motion,
knowledqe
have been fuIIy
MOTION
rlr!!JuYlr
Edwards'
N^
af j-.\rna\/'
eei^n
rlrcqFr^lte
the deposition
Mr.
of
has
Both
Tnf
corporate
the case woufd be explored
of
6f
<1aF]'i n.r
nermi
l- .\
was issued
.\nF
Tht-arr^drl-
whitesel-1
ti
be
in response to Tnterrogatory
the
r-a7
(
)aj
identified
l. ^
would
relevant
and take
chose to notice
.Trrl\/
the
depose
resnr)nsF
additional
t-i^h
Before
^ra
take
Eo
document ret.ention
documenLs and j-nf ormation
da^^n/l
to
deposit.ion
corporation's
:nd
pertaining
l-eave
Whitesell
depositions,
regarding
for
motion
its
rlonnei
seeks
tinn
Ehe
nF
court,
^^?h^rrt.a
s
representatives
an
rho
tu- v rn i+nLrrr
Rules of Civil
party's
On the
.\f
committee's
advisory
." ) .
af
f i.\1'r
to pro\zide the court
intended
vvvyv
dcn^ci
t.hat paragraph
rain
discovery
v!
^no
P.25
Civ.
Amendments) (stating
fu v/ - \ J ! vai ra n
kv '
under Rule 26(b) (2) (A) to limit
broad discretj-on
its
exercise
are
being
is
the Court
adding
to
its
al-ready
expense by allowing
tremendous
discovery
about discovery.
dir.a.l-
written
F.
L a f s tf la i
y
or
Fi,
nal
a
.\r
exacting
mails
Court
to
same conclusion
Upon t.he foregoing,
document
af€^rfF
relevanc
.\r\r
idencify
t-^
nrae6rr'6
ir€ y
r h r r^e rm - l -
aE t.his
i^n
^r
wield
its
The two e-
iuncture.3
for
motion
l-eave to take
DENIED.
MOTION FOR SANCTIONS
qa
l\T.i
every
retention
- rr ,
a h ay
purpose do not lead Lhe
that
(doc. no. 665) is
III.
Thrarr^.raj-
J
i.p
del-iberatefy
and direction.
Whitesell's
additj-onal- depositions
EHP to
for
r.\r,
to
nr:-f
the courL will
force
championed by Whiteseff
the
dFql-
(\a
a
unspoken,
conducL
t.he Court detect
should
m:n''l^f
fitiqation,
to this
powers wilh
inrr
spoken or
.\l-rfr1q/-:f
document refevant
punitive
i rra
unwritten,
ann.-ar'l
Moreover,
to
Whiteself
urre
person
pol-icies
:nri
to the fitigation.
r
f rr^-harr
who has
and
nrnrirrr-c
i n.flti
rrt
knowledge
procedures
dn.rrmants
In identifying
of
and
and
T1-
(1)
(2)
.reL6.l
EHP's
EHP/s
infOfmatiOn
Mr. Jason Edwards,
' It shoul-d be noted that. Defendants conLend the e-mails
hawe l"reen oiwen strained
and false
interpretations
.
Afso,
production
Defendanls offer
two documents from whitlself's
which they argue demonstrate Whitesel-l-'s "intent
to restrict
written
about issues
communications
at t.he heart
of the
(Defs. ' Opp'n to Pl. 's Mot. for
current litigaEion
This Court wifl
Leave, Doc. No. 674, at 4.)
not impute
meaning to any of t.hese "smoking gun" documents without
evidence of conlext.
EHP explained
the
about
Trr
quest.ions
.
he was a person with
that
fatter
hi
c
category.
rlanaci
f
inn
pertaining
i q
E'.]h'rrA<
Do you know who at
^^m^=hr,,
<
on
Is
there
-^mh.
fTe
a writlen
tharal
nol
i an
na
rach^nai1-\'i
Electrofux
rar- ahii
several
asked
rai-ani-
the
How does EHP maintain
t-ha
first.
to EHP's document
Who was tasked
with
preserving
le-maifsl ?
l-ha
information"
"general
l i .i
I i far
anrj
= .r
* .n J r
document retention
poficy
're
f hal- vo
is
you
lnr
nVaA
yvrrLy
what
aware
h,a-it-
t-oh
l. i nd
whether
^7
-w:rc
.]f
as
a€
to
of
rrnh
i g
irri nc
there
^-
^f-t
F^
ls
1-^,,
a
,.^...-
.tr|.Jw y(Jut
11996l
from
re tent ion
1-*F^ao.}J
ueP
.i r -
r rn?
Do you know whether
^7
of
retained?
Do you know what backup systems at. any time
2008 to today were used by E1eclrol-ux?
i-1,
?
i-ts records?
nnl
i ar
E,-.--:)|
Are you aware of
by Electrolux?
h^l
of
nrr)r:edUl.eS
n\.'"
how and where data
Are
nf
has knowledge
i ci es
.
ac
hf5^Fi^a
^€
I .ht-^hd
E'16^f
there
,^llrv
l.,aF^*^
is
ie
t-horr
a procedure,
f^
rra
pol-icy
ata--i--.lata
re:cci
off
angfl
OI.
de s troyed ?
Do you know how EHP determined which individuaLs
it woul-d issue litigatj-on
holds to?
Do
.'^f
you
c.r.\ri
know
Fq
instructed
r\f
how
the
m:l-ari.r'l
company
determlned
c
a m.n l" .* a r r a , - S
*. .
-r a
t- h.'|-
the
Wef e
to preserve?
Who was t.he person at
who was in charge of
data was preserved?
Electrofux,
if you know,
ensuring
that. elecE.ronic
Do you know whether EHP has
image backups of the drives?
Are you aware of
performed
the number and type of
mirror
servers?
And I woul-d imagine that. you also are noL aware
of the schedu]e lhat
Efectrofux
uses to purqe
servers of information?
Do you know what. EHP'S practice
are for archivinq e -mails?
(Edwards Dep.,
nothing
Mr.
Doc. No. 672-6,
to offer
Edwards
questions,
by way of his
also
except.
answered
that
caken by fT and given
he
back,
and procedures
aE 2I-46.)
Mr.
Edwards had
responses to these quest.ions.
"no"
to
testj_fied
aII
of
that
the
his
following
compuEer was
but he did not know what fT did to
Can you teIl me what electronically
stored or ESf
searches
were run
for
the
documents to
be
produced in this case in response to Whit.esel-l,s
discovery
requesl?
Can you teLl- me what search
how they were sel ected?
CouLd you tell
document s ?
who the
terms
custodians
were used and
were
of
the
Can you tell- me what time periods were invo]ved
in
t.he
efforts
produce
to
documents
and
information
relative
to this l_itiqation?
Could you te1l as of what date EHp exercised its
efforts
to produce documents and information
refevant
to this l-itiqation?
Could you tell
identification
inf ormat ion ?
what testing
was done to ensure
of
respons j_ve document.s and
coul-d you tefl
f ,.\ hr6l.ant
Can you telf
were put
what safeguards
^1F-ra1-
i.rn
.\f
ynetada1-
an\r
me who the cusLodians
fn
5a!cauq!u-
in place
a"
were in charge
n!r a e a n f r u
v v cr
y
el rcr:t.i9n
Of
met.adata?
Do you know whether custodians
were interviewed
what
of
to
sources
electronicafly
determine
j-on mi-ght exist?
stored inf ormat
(Id.
at
47-48. )
lOlhl
l6)
wifness
cffnrj-c
ft
to
have
.tocuments
something
to
crf
r ^ r h F j -e r
h
locating
following
the
Mr.
Edwards'
folLowinq
March
denial-
these
to
the
igsues,
-re^
was t.hen tailored
t'o
had
anw
:n
e-maifs
of
20]-5 hearing.
f n r ' 1^o^. t s ^ r ^ - -o
lr L DLEP
r
urLa
trYl
production
Don Market
-r
/ |
di,.lfl
Then
or
t- :ka
what
i nwol wemenf
cert.ain
After
individuals
a few m.inutes
such production,
in
.rf har^
pfepare
lL r rra
-h
Iu
u4^c
uu
cl- Fn<
this
and
1it- i.rat- i.\n
didn't
:1.r\/
raarrdir.r
documents
I
yuu
r ocuments
i
Yaurrst
}ocating any deleted
to Don Market.?
does
inf.\rm^i-inn
A:
on some of
any invofvement
of
releVant
EHP'S
of
the
occurred:
v.
A:
offer
of
Edwards
Mr.
12,
information
Rule
a
in fhis
producing
and
expect
to
information
and
r ^ 7 hl i-a c F t ' l / c . ' r r a s r i o n i n o
i -rrrl i ri eq
far-fetched
r , r if h r r a n e r e r
idenfifiad
l-.\ nr.\drr.e
litigation
not
is
'- .\
mean,
I'IID,
information
f h.rn
that.
n
.
L
y !r A n r} / s r r a uls
10
what-
nr^,.lrr-A
<
af
"-rn9
f^11-
1 -a
f aef
have
'
general
have
<
rel-evant
rrnrr h:rre
You would
iI
r s ,
email-s from
- r- 'v t - h
-n,
you
that
for
nrazlrrna
to
.i
f ied
t.o ask
thls
tO?
che
Q:
A:
(Id.
what you have testified
to,
do you
than
Other
EHP's
further
regarding
any
information
have
produce
documents
and
information
to
efforLs
l-itigation?
relevant
E.o this
No.
at
]a'
62. )
\411E l, L-LUrrD
producing
your
Lrrrs
did you take any other
laptop,
l
- L l-F i L- rf 9^a . L
L- i F
58?"
--
{-LlF
,
rl s-.nr ^r rY - ^u6c r y
Lrr4L
Edwards responded:
Mr.
produced purchase history
followed
at
data,
different
65-66. )
Mr.
Excel
rnt- 677^^3t-^vr'
information
other
not
^r^
rrnqseqqFe
201-5,
by
EHP's
IT
relevant
to
i
r n tr -L rr r ^ v .yf q ru v r J
r a rl d ^ rt
(Id.
been
informaEion
on
Market
accessed
because
of the dozens of other
reviewed
Don
EHP's efforts
no
that
spreadsheets
have
regarding
ih
regarding
where f
Whitesell
producing
of
testified
testimony,
58
€^rl-h
issue
counsel.
Based upon chis
daF
besides
to which Mr. Edwards responded:
Edwards
Don Market or outside
should
id
On the
in
and Mr,
produced Microsoft
r-crf ein'rr
steps
dala out of our system. "
Edwards
occasions
information/
Edwards
"so
"[T] here were instances
up: "Anything else?",
(Id.
history
asked:
to produce documents and information
EHP's efforts
r!,i-
'
-..^^ts] ^--
rEw
purchase
five
had
to
ten
requested
t.he PMS system
which he sent either
and
to
aL 66-7I.)
Whitesell
argues
identified
he
in
n.)
had
t.hat Mr.
resDonse
narf
.icrr'l ari
to
zed
t.o produce documents "and
that
is
di fferenf
fhan
,"nv
EHP employees whose computer was
department
11
in
connection
with
lhis
'I r-i.r^l- .i
i
nn,,
,-
lpt
Doc. No. 668, at
EHPpoints
n r nvrvlsrv r n i - e + iv r n n
.
P!
Whi fFsFl
I
l r n n r ^ r ' le d . r c
l s
emails
expl-ains
the
role
that
of
in
672-9,
i n
assisting
raqn^naa
actorney
certifies
complete
and correct
Fed. R. Civ.
Ehe
t.opic
Ehat
of
wouJd have
[edJ in discussions
his
fearned
about the
wit.h providing
and damases-"
8.)
f
(See Edwards
EHP further
Don Market
t-.r
so that
Finaffy,
that
civil
working
with
outside
Mr. Edwards was necessariLy
Procedure
the discovery
t.o the best
and belief
in
in
i - _r ^ _ - '
_ 7 r-f a- r_ d r l_^"r * _ _ - y .
1-ha
Under Federal- Rul-e of
i-nf ormation
I,
as a person
contends
[and] assisted
time
2Q1-4 Mr. Edwards succeeded Sean Scarboro
counsel- in the litigation
i n., l rrda/i
Ex.
that.
document.
EHp
Whitesell
documents rel-ated to counterclains
Doc. No.
end
Of
the
about
explore
Mr. Edwards al-so "participat.
Decl-.,
therefore
amount
identified
mal. f ers.
t.horoughl-y
of post-2006
is
data in preparation
the
E.lw^rds
knowl-edge, otherwise
collection
wi 1h
he was not
f hc)sc
not
did
professed
nf
it
argues that
Sanctions,
out Mr. Edwards's testimony
Mr
since
for
Mot.
EHP.
mrarre
askino
policies
Wh-Lteseff
that
EHp
r
sncnf
retention
^€
pull-ing purchase history
with
he assisted
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