In Techsavies, LLC v. WDFA Marketing, Inc., the United States District Court for the District of Northern California sanctioned the defendant for repeated failures to produce responsive documents stemming from a failure to identify relevant data sources in preparing its initial disclosures.  2011 WL 723983 (N.D.Cal. 2011). 

WDFA Marketing made an initial production of roughly 32,000 documents.  Techsavies, LLC almost immediately raised concerns of an incomplete production based on missing emails and WDFA's apparent reliance on unproduced documents.  Following a second incomplete production, WDFA conducted a further investigation and discovered that several data backup files were never provided to the e-discovery vendor and also found a 4-6 inch stack of relevant documents in the basement of a former office building that were, according to WDFA, simply forgotten.  A full production was made approximately ten days after the close of discovery. 

The Court noted that discovery was first disrupted by WDFA when preparing its initial disclosures by failing to inspect and identify data backup files as a source of electronically stored information.  The Court additionally indicated that it was unclear whether the fault lied with counsel or WDFA, citing the Sedona Conference's ® Best Practices, Recommendations and Principles for Addressing Electronic Document Production.  Finding that WDFA was placed on notice several time prior to close of discovery that documents were missing, the Court found it was not harmless or justified to produce only 75% of the relevant documents. Noting that a late discovery necessarily requires the Court to adjust the schedule, and that the burden of requesting and adjusting the schedule should not fall on the non-producing party, the Court barred WDFA from relying on any document produced late and further barred WDFA's experts from reviewing those documents in formulating their opinion. 

For a full copy of the opinion, click here.