Laethem Equipment Company v. Deere & Company involved voluminous motion practice beginning in 2005. At one of the early document inspection meetings, two disks of electronically stored information (“Mark’s” and “Mikes” documents/records) were produced. Fearing that some of the ESI or metadata on the disks might be lost later, the IT person for Deere downloaded some of the information onto a laptop, but because of the size, could not download it all.

Of course, the “Mike” disk became lost and the “Mark” disk wasn’t produced during discovery. The Plaintiffs claimed privilege, but only on 143 items out of tens of thousands of items on the two disks. Defendants claimed mis-conduct. Plaintiffs claimed mis-conduct also because of the download copy of part of the disks that exists on the IT person’s computer. Professional responsibility allegations then begin to fly. The Defendants requested a Special Master be appointed at the expense of the Plaintiffs. The defense believed that the “whole case must be done over.” Slip copy, p. 29.

From this myriad of flying allegations, Magistrate Judge Komives recommended the court deny the motion to dismiss the plaintiff’s complaint for discovery misconduct and Judge Lawson agreed. The court also agreed that the prejudice of having to redo discovery could be rectified by the assessment of expenses.

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