Appellate court affirmed trial
court’s decision not to impose the severe sanction of default for destruction
of source codes and the plaintiff expert’s data. Plaintiff brought copyright infringement,
trade misappropriation, breach of contract, and unfair competition claims
against defendant. Defendant failed to
comply with discovery by untimely producing source code and related documents, and
destroying earlier versions of source code that may have contained valuable
evidence. Additionally, defendant
produced a software program to the plaintiff that operated in such way as to
destroy plaintiff expert’s data. As a
result of the defendant’s untimely production of the source code and related
documents, the defendant was required to pay the cost of attorney’s fees.
However, the trial court found that the defendant did not intentionally destroy the earlier versions of source code or intentionally cause the program to destroy the plaintiff expert’s data. Because of this lack of bad faith, the appellate court held that the trial court did not abuse its discretion by declining to impose terminating sanctions. The appellate court noted that the sanction of termination is not favored and should only be granted in extreme circumstances.
v.
ADOBE SYSTEMS, INC., Defendant–Appellee
Counsel
Charles J. Ferrera, Esquire, Attorney at Law, Honolulu, HI, for Plaintiff–Appellant.Christopher T. Holland, Esquire, Kenneth Edward Keller, Esquire, Michael David Lisi, Krieg Keller Sloan Reilley & Roman, LLP, San Francisco, CA, for Defendant–Appellee.