In the class action case Mirkarimi v. Nevada Property 1 LLC, Case No. 12cv-2160-BTM (DHB) (S.D.Cal. November 18, 2014), the court granted a number of extensions for class certification discovery between March and September of 2014. Defendant repeatedly indicated to Plaintiff and the court that it was diligently retrieving audio recordings and system metadata, although it noted it had run into some “technical issues.”
In October 2014, after Defendant had still failed to produce any documents, the court ordered that Defendant produce discovery to Plaintiff, including audio recordings and metadata for the one year class period. Again, Defendant claimed that “technical issues” had delayed the production, but stated it was working to gather and produce the electronically stored information.
On November 3, 2014, Defendant tendered 82 audio recordings and 2 months of system metadata, far less than Plaintiff expected. Plaintiff filed an Ex Parte Motion to take additional depositions and interrogatories based on the assertion that Defendant may have intentionally or negligently deleted the audio and metadata.
The court was troubled by the Defendant’s “lack of candor” regarding the audio and metadata; Defendant neither mentioned that data might be missing nor that they had undertaken a forensic recovery effort. The court found Defendant’s representations to be purposefully vague and granted Plaintiff’s motion, ordering that Plaintiff be permitted to take an additional five depositions and propound an additional fifteen interrogatories, all on an expedited basis. The court reserved its ruling on Plaintiff’s spoliation charges until after Plaintiff had an opportunity to conduct the additional discovery.