Helios Software, LLC, et al. v. Spectorsoft Corporation, C.A. No. 12-81 – LPS, June 5, 2015

Stark, C. J. Plaintiffs’ motion for sanctions for discovery misconduct, spoliation, and violation of the court’s September 18 order is granted in part and denied in part. Oral argument took place on July 22, 2014. 

Plaintiff’s motion was granted to the extent that plaintiffs would be permitted to serve a supplemental report, but otherwise denied pending this decision.  The court finds that although discovery of defendant’s testing material has not been ideal, defendant has not committed discovery misconduct.  It did not knowingly withhold information, as it was not until a 7/22 hearing that defendant learned that court was adopting a broad interpretation of Rule 26(a)(2)(B)(ii) that would encompass certain files (albeit after the deadline the court had imposed). Nor have plaintiffs proven spoliation. The court finds no deliberate violation of the September 18 order.  The failure to timely produce certain screenshots was not deliberate and did not result in substantial prejudice to plaintiffs.  Defendant’s counsel did breach a duty of candor when he made two statements that turned out to be untrue.  Counsel should have been prepared to provide fully correct responses or, if uncertain, to have stated so and request an opportunity to provide the correct answer. To cure the prejudice, plaintiffs may provide a supplemental expert report and defendant may not depose him or move to preclude it.