Infinite Energy, Inc. v. Thai Heng Chang, Case No. 07-23 (N. D. Fla. August 29, 2008)

In response to a request for emails from a Yahoo! account, defendant provided plaintiff and the court with a “generic response from Yahoo! regarding deactivating accounts,” while asserting that the emails had been deleted by Yahoo!. Magistrate Judge Allan Kornblum was not persuaded.

The court found nothing in the letter indicating that Yahoo! would have a problem complying with a subpoena for the emails in the account. The court was particularly put off by Defendant's representation that he was being "completely truthful" when he failed to identify the account because he knew it would be impossible to ultimately produce the emails. The court indicated that it found this behavior sanctionable, but would wait to determine the nature of the sanctions until it learned what if any effect the defendant’s behavior had on the continued existence of the emails.

The court also found absurd defendant’s conclusory assertion that he would be unduly burdened by a document-by-document privilege log, because it would call for hundreds if not thousands of emails. It ordered defendant to serve a privilege log conforming to Rule 26(b)(5)(A)’s requirement that the log describe the nature of the document in sufficient manner so that other parties may assess the claim.

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