Liebholz v. Hariri, Case No. 05-5148 (D.N.J. June 30, 2008)

In this case, the plaintiff sued the defendant over his refusal to sell the plaintiff stock in defendant’s company, as he had promised both orally and in writing, in return for certain services rendered by plaintiff. The case revolves around a September 29, 2000 letter making the offer and a letter supposedly sent by defendant in October 2, 2000, retracting his offer to sell the stock. Plaintiff says he never received the second letter. The company that subsequently purchased defendant’s company has no copies of either letter, and of course the computer on which the letters were written have been wiped clean. Plaintiff subpoenaed that company, seeking a 30(b)(6) deposition of the computer administrator responsible for maintaining electronic copies of files. Magistrate Judge Michael A. Shipp was sympathetic.

The court noted that the two letters relate to the heart of the case. Therefore, the discovery “is of large importance to the issues at stake in the action because the discovery sought could potentially resolve the issue of the October 2, 2000 letter’s authenticity.” Accordingly, the court ordered

Celgene to produce a 30(b)(6) witness who can testify regarding the maintenance of electronic copies of files, including electronic copies of the purported September 29, 2000 and October 2, 2000 letters. The 30(b)(6) witness should also be prepared to testify regarding the backup procedures utilized, and the document and electronic record retention policies. Pursuant to 26(b)(2)(c) considerations, the Court will limit the period of discovery to January 1, 2000 through December 30, 2002.