Peskoff v. Faber
In Peskoff v. Faber, 2007 2416119 (D.D.C. August 27, 2007), U.S. Magistrate Judge John M. Facciola attempts to resolve ongoing discovery issues in Plaintiff Peskoff’s suit to recover damages for financial injury resulting from Defendant Faber's operation of a venture capital fund, NextPoint GP, LLC ("NextPoint").
As indicated in earlier opinions, the main point of dispute was the sufficiency of the search done by Faber for documents in response to Peskoff’s discovery requests. Specifically, Peskoff sought emails from his tenure with NextPoint that "are highly likely to contain information relating to the ownership issues in this case, the suspect transactions identified in the Complaint and other relevant matters." Faber had produced computer disks containing electronic documents, obtained from Peskoff's computer, but these disks did not include any of Peskoff’s emails between mid-2001 and mid-2003, and Faber had no explanation why the emails were not produced. He also had no explanation regarding the current location(s) of email from that time period or what was done to locate them. Faber insisted that all of Peskoff's emails from his computer had been produced and that they no longer existed on the system. Judge Facciola ruled that Faber’s search for responsive emails had been inadequate, ordered him to do a more thorough search, and to describe his efforts in a sworn statement and testimony at a subsequent evidentiary hearing.
In this opinion, Judge Facciola considered whether a forensic examination should be done to look for additional material, and if so, who should pay for such an examination. He determined that the importance of this type of discovery in resolving the issues in the litigation was challenging because "the importance of the results of the forensic examination to be had can only be accurately assessed after it is done." However, he concluded that the information produced thus far seemed to indicate the possible existence of additional similar information.
The parties were directed to collaborate on an RFP process to seek bids from forensic computer technicians to determine the likely cost of searching for, restoring, and converting email from the computers in question. Judge Facciola also addressed the arguments presented by Faber’s attorney who was also representing NextPoint. He argued that since Peskoff had only sued Faber and not NextPoint, then NextPoint was simply a third party to the suit and not under any obligation to preserve documents. This argument was ruled to be untimely and was therefore waived.
Finally, Judge Facciola expressed concern over apparent inaccuracies or inconsistencies in the testimony provided by both Peskoff’s and Faber’s counsel, ordering both to submit written explanations to the court for previous erroneous and/or contradictory statements they made regarding discovery issues in the case.
