Erdman v. Victor

Background

Earlier orders required Adam Victor to produce responsive documents within his possession, custody, or control, including documents on office computers and systems, the “P Drive,” office email accounts, devices that underwent forensic analysis, and his cell phone. The court later required Victor to perform additional discovery tasks and file a sworn statement describing his efforts to locate and produce responsive documents. Victor filed the affidavit, and the parties submitted further written arguments about discovery and possible sanctions.

Discovery ruling

The court found that Victor’s affidavit did not adequately explain whether several required sources had been searched. Victor said the “P Drive” had never been reconnected to his network and that he had tried to retrieve copies, but he did not say whether he could access the original drive. He also said that the only documents on his cell phone were in Adobe and Dropbox applications, and indicated that he had reviewed Adobe and sent Dropbox passwords to a document servicer. The court found that this did not show a search for responsive text messages or voicemails.

The court ordered Victor to search every cell phone in his possession, custody, or control for text messages, voicemails, and other responsive documents. It also ordered him to file a new affidavit by December 22, 2022. The affidavit had to report on searches that were still incomplete, explain whether Victor had obtained copies of the “P Drive,” state whether he could access the original drive and, if not, when and how access was lost, list all cell phones he used during the relevant period, and describe the searches conducted on those devices. If Erdman continued to have discovery concerns, the court allowed him to make a new application after a full discussion with defense counsel; any briefing would be limited to five pages per party.

Sanctions ruling

Federal Rule of Civil Procedure 37(b)(2) allows a court to impose orders or sanctions when a party fails to obey a discovery order. The court stated that Victor had failed to comply with the July 26, 2022 order, but that the record did not then establish that his failure was deliberate or in bad faith. The court therefore did not impose sanctions at that time and kept the possibility of sanctions open pending completion of discovery.

Other deadlines and disposition

The discovery deadline was extended to February 16, 2023. A required letter to Judge Schofield was due February 23, 2023. The order addressed discovery and potential sanctions; it did not decide the underlying claims in the case.