On November 21, 2001, five days before trial was scheduled to start, defendant produced the 1998 e-mails as obtained from the personal computer of Gregory Silvestri, defendant's former Vice–President of Coated Abrasives–North America.
Saint–Gobain contends that the 1998 e-mails were discovered in the course of preparing Silvestri for trial. Pottle Aff., at Ex. 14. According to defendant, these e-mails were not produced previously because – as noted hereinabove – it had changed e-mail systems in late 1998, rendering all previous e-mails (including the 1998 e-mails) irretrievable.
Silvestri was deposed November 26, 2001.
At his deposition, Silvestri testified that, in response to Lapoff's inquiry for documents related to the 1998 reorganization, he had informed her that he had copied his computer hard-drive onto a CD–ROM for Saint–Gobain. Silvestri Dep., at 4–33. Consequently, he did not send her the 1998 e-mails because he assumed that all the information on his computer was also in the possession of Saint–Gobain. Ibid.
The CD–ROM, however, does not contain the 1998 e-mails and thus Saint–Gobain did not “possess” the 1998 e-mails until it had received them from Silvestri in November 2001. Lapoff Aff., dated Mar. 1, 2002, at 33, 39.
Saint–Gobain had not produced any documents from the CD–ROM because, after reviewing such, it determined that its contents were not responsive. Id.
at 28. Saint–Gobain's counsel currently has the CD–ROM. Ibid.