The Indiana Southern District recently heard arguments that could lead to a rare imposition of sanctions on attorneys with the Indiana Attorney General’s Office and several Department of Corrections employees. The case centered on a claim of excessive force being used against an inmate, who brought his claim pro se. As one might imagine, pro se prisoner litigants rarely win when it is their word vs. that of prison officials. But this particular inmate aggressively pursued discovery of electronically stored information, which resulted in the production of emails and video that called in question several affidavits filed by defendants. Counsel for defendants claim that the inconsistent statements arose from “honest mistakes” and that they did not intend to mislead the court.
Of particular note to attorneys dealing with e-discovery, a critical factor here was not reviewing the ESI available. “[T]he state attorney [Fiorini] claimed she was unaware of the email exchange involving Littlejohn at the time his sworn declaration was submitted” and also incorrectly represented to the Magistrate that a video of the incident was not available. According to the Indiana Lawyer, Fiorini’s supervisor in the AG’s DOC section admitted that sanctions were warranted for her alleged misconduct.
The Indiana Lawyer description notes that Magnus-Stinson “noted that had Littler been less persistent in seeking discovery, the email and videos at issue would likely not have come to light and the defendants would have been awarded summary judgment.”
The key takeaways from this:
- The Court concluded that Counsel for the AG’s office failed to make reasonable inquiry into the electronically stored information available, and is considering appropriate sanctions for allegedly misleading statements to the Court. Know your ESI.
- Obtaining ESI can be a valuable tool for ensuring that facts become part of the record. Know the opposing party’s ESI.