Plaintiffs Claim Production by Remington Includes Thousands of Random Cartoons and More: eDiscovery Trends

When it comes to court proceedings, I normally only cover judge’s rulings.  However, in this motion to compel by the plaintiffs in a case involving nine Sandy Hook families suing bankrupted Remington for wrongful marketing, the claims of the number and types of irrelevant documents that were produced is certainly notable.

This article, published by the Connecticut Post, provides a summary of some of the plaintiff’s complaints identified in their filing, and here is a link to the actual filing, which is a very interesting read.  It begins accordingly:

“Now seven years into this litigation—a litigation that has twice been delayed by Remington’s bankruptcy filings—the plaintiffs are no closer to having their day in court. The reason is simple: Remington refuses to comply with their discovery obligations. Having represented to the plaintiffs and the Court on multiple occasions that their document productions were ‘substantially complete’ and represented that there was great ‘substance and breadth’ to those productions, the truth is there for all to see. So, if a picture really is worth a thousand words, here are some pictures to give the Court a sense of the ‘substance and breadth’ that can be found in Remington’s document productions:”

If more proof of the ‘substance and breadth’ of Remington’s document productions is needed, there is also this:

There are 18,459 more images such as these in Remington’s document production. But these cartoons are not all. There are also another 15,825 image files of people go-karting, riding dirt bikes, and socializing, another 1,521 video files of gender reveal parties and the ice bucket challenge, not to mention multiple duplicate copies of Remington catalogues.”

Continuing, the plaintiffs note in their motion:

“And, to make it worse, Remington has produced much of the 18,465 cartoons, 15,825 random pictures, 1,657 videos and GIFs (such as the ice bucket challenge) without complete metadata, in violation of the Case Management Order, DN 230.00, so that it is impossible for the plaintiffs to know the origin of much of Remington’s production or to assess whether these seemingly random images and videos are, in fact, relevant. Indeed, the custodian for some 17,000 files produced by Remington is, unhelpfully, ‘Remington.’

Even more important is what is not found in all of this—email communications. In total, Remington has taken the better part of seven years to produce 46,061 documents and in that set there are only 2,350 email communications, a number that reduces to 2,194 when duplicate emails are accounted for. That’s 2,194 unique emails spanning a seven year period (2006–2012) for a company that employed more than 30 marketing personnel in 2010 alone.”

And this:

“When the seemingly random cartoons, images, videos, duplicates, and other items noted are accounted for, Remington, it would seem, has spent the better part of seven years producing 6,606 potentially useful documents in response to the plaintiffs’ requests,” the plaintiffs’ filing reads.

The plaintiffs also accuse the defendants of “Delay Tactics, Misrepresentations, and Other Measures to Avoid Producing Documents”, including “Efforts to Prevent the Plaintiffs from Learning About Their Document Retention and Collection Protocols” and “Refus[ing] to Supplement or Discuss Production Deficiencies”.

Reached by the Connecticut Post for comment, Remington’s lead attorney James Vogts did not respond specifically to the cartoons, some of which the families submitted to the judge — including images of Santa, a farmer, a weightlifter, and a bowl of ice cream, but said this: “(Remington) will respond to this motion in the coming weeks, and point out what it believes are incorrect representations, numerous half-truths, and important omissions by (families’) counsel”.

Needless to say, I’ll be interested to see what the court has to say about this filing and the plaintiff’s claims.  Stay tuned.

So, what do you think?  If the court finds the plaintiffs’ allegations are true, what sanction is appropriate for the defendant?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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