As I am digging out from a trial (which explains my recent absence from the blogosphere) and digging out from the icepocolypse here in Indianapolis, I wanted to take a break and share some insight regarding document collection issues. 

As is often the case in most lawsuits, parties are requested to search for and collect documents relevant or related to the issues in the lawsuit.  Such requests are often called requests for production, document requests, or subpoenas (if you are not a party to the lawsuit). 

Under Indiana law, a party has a responsibility to perform a reasonably diligent search to locate the requested documents.  Now, what constitutes a reasonably diligent search is a very fact intensive inquiry depending on the specific situation, such as whether the documents are maintained in electronic or hard copy form, whether there is a document retention policy, and whether litigation is anticipated, to name a few.

Nowadays, with the emergence of smartphones, tablet PCs, on site wi-fi, etc., all of which are creating a paperless process for most contractors, the paper chase that has long been synonymous with construction is steadily decreasing.  Thus, performing a reasonably diligent search for electronically stored information has becoming an even more challenging process. 

While I strongly recommend consulting with a qualified attorney regarding the specifics of any document collection you may be facing, I wanted to share a few of the sanctions that can be imposed if a party fails to meet its diligence requirements.  These aren’t meant to scare anyone, but rather to provide the possible sanctions, depending on the degree of disobedience.  While these generally apply when a party refuses to produce requested documents pursuant to a court order, they can also apply when a party represents that they cannot locate documents, the documents were destroyed, or the documents do not exist, when, in actuality, the party failed to search for them. 

Under Indiana law, if a party fails to make or cooperate in discovery it can be subject to the following sanctions:

  • Certain designated facts can be taken as established without evidence;
  • Refusing to allow the disobedient party to support or oppose designated claims or defenses;
  • Prohibiting a party from introducing designated matters in evidence;
  • Striking out pleadings or parts thereof;
  • Staying further proceedings until the documents are produced;
  • Dismissing the action or proceeding or any part thereof;
  • Rendering a judgment by default against the disobedient party;
  • Contempt of court;
  • Requiring the disobedient party or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure.

On an additional note, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

Hopefully this post will help you avoid such perils.  Now if only I can avoid the perils of my outdoor ice rink, a/k/a my driveway…