In Visbal Salgado v. Mobile Services International, LLC, C.A. No. 5268-VCN (Del. Ch. Nov. 30, 2011), the Court of Chancery examined whether to impose fees and sanctions upon a plaintiff who had consistently failed to provide certain documents to the defendants, specifically electronic mail.
Plaintiff initially provided resistance to defendants’ discovery requests concerning certain emails in his possession. Subsequently, plaintiff was subpoenaed to appear for a deposition, and to produce his laptop, which would have provided access to the emails requested by defendants through discovery. After the deposition, however, plaintiff inexplicable left the country with his laptop, and claims that he was mugged and his laptop stolen.
With a skeptical eye towards plaintiff’s failure to provide his laptop, defendants moved for sanctions, along with entry of default judgment with respect to their counterclaim against the plaintiff. The Court held that “[r]esolving discovery disputes requires a balancing effort. For now, the appropriate remedy is to require the Plaintiff to pay the expenses reasonably incurred by Defendants as they pursue their discovery options to obtain the emails”.
The Court also ruled that sanctions and fees are appropriate, given that the plaintiff provided no reasonable explanation for his failures to produce discovery, and that his conduct has been “inconsistent with the Rules, process, and orders of this Court.” Further, the Court determined that it could not rule on the scope of relief pertaining to the alleged loss of the laptop until further and appropriate fact finding had been made.