Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

BusinessWeek Online, December 20, 2004

Tort reform is a hot topic again. Taking advantage of the most favorable political climate in years, business lobbyists are pushing for new federal laws that would mop up the asbestos mess, cap medical malpractice damages, and help companies steer class actions out of hostile state courts.

But there's another legal reform campaign that has attracted much less attention -- yet could be more significant than any of these measures. It is Corporate America's effort to get the Judicial Conference of the U.S. (JCU), the obscure group that makes the rules governing lawsuits, to enact special new procedures for electronic evidence. This broad category of digital information includes spreadsheets, databases, memos, letters, PowerPoint presentations -- and most important, the e-mail messages that have recently plagued so many companies in court. Read the entire article at BusinessWeek Online.

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By Tricia Bishop, The Baltimore Sun
December 27, 2004

Brian L. Moffet said he saw the writing on the wall about three years ago. The attorney was arguing a national class- action suit with 50,000 pieces of paper entered into evidence when the judge asked, "Where are the e-mails?"

That sent Moffet into scramble mode.

"It was the first time I realized it was something that was going to have to be addressed," recalled the lawyer with Gordon, Feinblatt, Rothman, Hoffberger & Hollander of Baltimore.

Read the entire article posted on latimes.com. [Subscription required.]

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Legal Tech New York is the world's largest technology tradeshow and conference in the legal industry [7,500+ attendees.] January 31 - February 2, 2005. Hilton New York, New York City.

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E-discovery gurus George Socha and Dennis Kennedy discuss their simplified 8-step approach to effective discovery of electronic information [assessment, project management, forensics, conversion and storage, records management, search, integrating discovery into daily operations and trial prep] in this November 2004 Discovery Resources post.

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Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) ("Zubulake V")

In this fifth written opinion in this employment litigation, the court concluded that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for sanctions. Specifically, the court ruled that the jury would be given an adverse inference instruction with respect to deleted emails, that UBS pay the costs of any depositions or re-depositions required by its late production of email, and that UBS reimburse plaintiff for the costs of the motion.

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Harrison v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 2004 WL 2984815 (E.D.La. Dec. 9, 2004)

In this case, a company (NovelAire) filed a complaint against its former employees (Harrison and Bucklin) for breach of agreement and breach of fiduciary duties, intentional interference with a contract, and violations of Lousiana's unfair trade practices act. The same day it filed its complaint, NovelAire applied ex parte for the issuance of a pre-trial discovery order, entitled "Order for Expedited Discovery to Preserve Evidence." The request was based, in part, on an email written by Bucklin that allegedly evidenced the employees' intent to destroy discoverable evidence pertinent to NovelAire's state court case. After reviewing the request, the judge ordered the sheriff to serve the discovery order on Harrison and Bucklin and remain on the premises until the order had been carried out.

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Toshiba American Elec. Components, Inc. v. Superior Court, 2004 WL 2757873 (Cal.App. Dec. 3, 2004)

In this discovery dispute, the parties disagreed about whether the demanding party or the responding party should pay the cost (estimated to be as much as $1.9 million) for recovering email from computer backup tapes. The court concluded that in a proper case, California Code of Civil Procedure, Section 2031 (g)(1) requires the demanding party to pay that expense. Declining to resolve the immediate dispute, the court ruled that the determination of a "proper case" is a factual matter best left to the discretion of the trial court.

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Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004)

Defendant sought sanctions when evidence showed that two key witnesses (principals of plaintiff, Maass and Chutijian) systematically deleted potentially relevant emails before and during litigation. Specifically, defendant sought an order (1) precluding plaintiff from presenting certain evidence and calling certain witnesses at trial and (2) requiring the two witnesses to execute consents authorizing Yahoo, Inc. and Microsoft Corporation to release to defendant all e-mails sent from or to Maass or Chutjian since June 30, 2000; all e-mails sent between Maass and Chutjian at any time (including as "cc's"); and all e-mails between Maass or Chutjian any of eight specified e-mail addresses.

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Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.Pa. 2004)

After the court declared a mistrial based on plaintiff's mid-trial production of an expert report, the parties cross-moved for preservation orders. The court began its analysis by observing that the four-prong test typically applied to matters concerning injunctive relief was not a completely appropriate test to utilize when examining the need for a preservation order, particularly since proof of a probability of success in the litigation is not an appropriate consideration in determining whether to order preservation of documents.

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Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y., Nov. 3, 1995)

Defendants resisted a motion to compel production of computerized data on grounds that they would have to "create" the information in electronic format. They stated that certain reports would be produced in hard copy form only, since they were no longer available in electronic form.

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Jicarilla Apache Nation v. United States, 60 Fed.Cl. 413 (2004)

In a case involving claims by a Native American Indian tribe against the United States based upon the government's mismanagement of trust funds, the court entered a confidentiality agreement and protective order which provided, among other things:

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Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL 764895 (S.D.N.Y. Apr. 9, 2004)

Plaintiff requested an order compelling defendant to review for responsive documents two compact discs containing some 204,000 emails. Defendant had conducted a review of the emails for privileged documents, but did not conduct a review for responsiveness to plaintiff's specific document requests. Instead, the emails were provided to plaintiff in a text-searchable format. "In other words, plaintiff may search either disc for single words or phrases, or combinations of words or phrases." 2004 WL 764895, at *1.

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Kucala Enter., Ltd. v. Auto Wax Co., Inc., 2004 WL 742252 (N.D.Ill. Apr. 6, 2004)

Here, the court ruled on the defendant's request for fees and costs stemming from the plaintiff's discovery abuses, and other discovery matters.

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Rambus, Inc. v. Infineon Tech. AG, 220 F.R.D. 264 (E.D. Va. 2004)

Plaintiff had brought parallel patent infringement suits against a number of defendants in several forums. After it was discovered that the plaintiff had committed various acts of litigation misconduct, including the intentional destruction of relevant documents, the defendant moved to compel discovery into the plaintiff's document retention, destruction, collection, and production.

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Northern Crossarm Co., Inc. v. Chem. Specialties, Inc., 2004 WL 635606 (W.D. Wis. Mar. 3, 2004)

Defendant produced its email in hardcopy form, amounting to about 65,000 pages, and plaintiff moved to compel defendant to produce the email in electronic form. The court denied the motion, stating:

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Super Film of America, Inc. v. UCB Films, Inc., 219 F.R.D. 649 (D.Kan. 2004)

Defendant sought discovery of electronic versions of e-mail, documents, databases and spreadsheets falling within the scope of Fed.R.Civ.P. 26 or defendant's document requests. Plaintiff had made available to SFA non-archived electronic versions of e-mail, documents and spreadsheets, and stated that it had attempted to provide electronic copies of the documents requested within its "knowledge or expertise" of how to retrieve such documents from the company's two computers. It argued that it did not have the expertise to recover any further electronic documents, and the court's order requiring such production would be unduly burdensome.

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In re Lorazepam & Chlorazepate Antitrust Litig., 300 F.Supp.2d 43 (D.D.C. 2004)

Plaintiffs are Blue Cross Blue Shield of Minnesota and of Massachusetts, the Federated Mutual Insurance Company, and the Health Care Service Corporation ("the Blues"). They opted out of a settlement premised on antitrust violations by the defendant, Mylan Laboratories ("Mylan").

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In re LTV Steel Co., Inc., 307 B.R. 37 (N.D. Ohio 2004)

In bankruptcy proceeding, a creditor ("C&K") submitted a claim for $1.9 million against the estate, a portion of which the debtor agreed was due. When the debtor sought discovery from the creditor relating to the disputed portion of the claim, C&K objected, offering new and different grounds as the debtor attempted to respond to the stated objections.

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Thompson v. United States Dep't of Hous. & Urban Dev., 219 F.R.D. 93 (D.Md. 2003)

Plaintiff filed a motion in limine to bar the defendant from calling certain witnesses based upon the defendant's failure to produce 80,000 responsive email records until long after the discovery cut-off deadline. After making its initial rulings, and having observed that the issues presented had not yet been addressed in a published opinion in the District of Maryland, the court issued this opinion in order to provide a fuller explanation for its rulings.

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Bethea v. Comcast, 218 F.R.D. 328 (D.D.C. 2003)

Plaintiff in an employment discrimination suit moved for an order compelling defendants to allow her to enter upon their premises, inspect their computer systems and related programs, and copy any information relevant to her claims. Plaintiff was dissatisfied with the results of the discovery process and suspected that defendants possessed more information than they had produced.

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In re Honeywell Int'l, Inc. Sec. Litig., 230 F.R.D. 293 (S.D.N.Y. 2003)

Class plaintiffs served a third party subpoena on defendant's accountant, PriceWaterhouseCoopers ("PWC"), and PWC produced approximately 63,500 pages of documents. Plaintiffs moved to compel production of certain categories of documents withheld by PWC from that production, while PWC cross- moves to quash the subpoena.

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Wiginton v. Ellis, 2003 WL 22439865 (N.D. Ill. Oct. 27, 2003)

Plaintiff sued for sexual harassment as a putative class representative. During the course of discovery, the parties agreed on a preservation order; however, prior to that time, the defendant had continued its normal document retention and destruction policies, had not informed its director of network services that any material should be retained, and never informed its employees about the need to retain documents relevant to the lawsuit (although it had issued a notice to employees to save documents specifically related to the plaintiff, which the court found too narrow in scope). Backup tapes were recycled and former employees' hard drives were not saved, including that of the plaintiff's former supervisor.

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Kucala Enter., Ltd. V. Auto Wax Co., Inc., 2003 WL 21230605 (N.D. Ill. Oct. 27, 2003)

Ruling on plaintiff's objections to the report and recommendations of the magistrate, the court declined to enter the ultimate sanction of default. The court adopted the factual findings of the magistrate, and adopted his recommendations with the one exception that the court would allow the plaintiff to proceed on its claim of non-infringement and to defend the infringement counterclaim, "on the condition that all discovery be made forthwith." 2003 WL 22433095, at *7.

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Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) ("Zubulake IV")

During the restoration effort described in the court's prior opinions, the parties discovered that certain backup tapes were missing. It also became clear that certain isolated, relevant emails created after Zubulake's initial EEOC charge had been deleted from UBS's system, and existed only on backup tapes.

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In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003)

Personal injury plaintiff alleged that seatbelt buckle was defectively designed because it "inertially unlatched" during an accident, causing her injuries. Plaintiff filed a motion to compel seeking direct access to two Ford databases for the purpose of conducting searches for related claims; one database contained records of all customer contacts with Ford, and the other contained records of contacts by dealers, personnel and other sources.

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Renda Marine, Inc. v. United States, 58 Fed.Cl. 57 (2003)

Plaintiff moved to compel defendant to produce e-mail and related documents, asserting that, based on defendant's own admission, defendant did not search any hard drives or back-up tapes in preparing its response to plaintiff's document production requests. The requests specifically asked for back-up tapes. In addition, plaintiff sought access to the hard drive of a key player, based upon his admission that it is his practice to delete emails after sending or responding to them. 2003 WL 22427413, at *2.

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Keir v. Unumprovident Corp., 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003)

In ERISA action, parties engaged in two months of discovery, an evidentiary hearing, briefing and oral argument to address defendant's failure to preserve backup tapes containing email from six particular days.

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Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) ("Zubulake III")

After reviewing the results of the sample restoration, plaintiff moved for an order compelling defendant to produce all remaining backup emails at its expense. The sample restoration netted approximately 600 responsive emails, costing defendant $19,003 for restoration, attorney review and paralegal work associated with the production. The defendant asked that the cost of any further production - estimated to be $273,649 (including $165,955 to restore and search the tapes and $107,695 in attorney and paralegal review costs) - be shifted to plaintiff.

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Kucala Enter., Ltd. V. Auto Wax Co., Inc., 2003 WL 21230605 (N.D. Ill. May 28, 2003)

Competitor sought declaratory judgment that defendant's patent for a particular type of automobile detailing clay was invalid. Defendant sought discovery relating to plaintiff's manufacturing process, and the court ordered the production to be via computer files or hard copy.

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Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) ("Zubulake I")

Plaintiff in employment discrimination suit contended that key evidence was located in various emails exchanged among defendant's employees that existed only on backup tapes and perhaps other archived media. According to defendant, restoration of the emails would cost approximately $175,000, exclusive of attorney review time. Plaintiff moved for an order compelling the defendant to produce the email at its own expense.

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Medtronic Sofamor Danek, Inc. v. Michelson, 56 Fed.R.Serv.3d 1159, 2003 WL 21468573 (W.D. Tenn. May 13, 2003)

In case involving trade secrets, patents and trade information in the field of spinal fusion medical technology, defendant moved for production of 996 network backup tapes containing, among other things, electronic mail, plus an estimated 300 gigabytes of other electronic data not in a backed-up format.

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Nartron Corp. v. Gen. Motors Corp., 2003 WL 1985261 (Mich. Ct. App. Apr. 29, 2003)

In contract breach action, plaintiff claimed that GMC prematurely discontinued use of component part, which plaintiff had developed based on GMC's projections of large volume purchases over an extended period of time. Plaintiff sought damages for research and development costs associated with the component part; consequently, evidence of plaintiff's R & D payroll was a primary focus of discovery.

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Dodge, Warren & Peters Ins. Services, Inc. v. Riley, 130 Cal.Rptr.2d 385 (Cal. Ct. App. 2003)

Insurance brokerage firm sued former employees who, before forming their own firm, copied and removed documents maintained in files and computer storage media for their own future use.

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Metropolitan Opera Association, Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003)

Similar to Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000), this case chronicles the myriad failings and misrepresentations of defense counsel regarding discovery obligations.

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McPeek v. Ashcroft, 212 F.R.D. 33 (D.D.C. 2003)
After initial search of certain backup tapes was conducted, the parties offered the court differing views of the success of the search and the need for additional searches.

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Liafail, Inc. v. Learning 2000, Inc., 2002 WL 31954396 (D. Del. Dec. 23, 2002)

In action for contract breach and trademark infringement, and pursuant to Fed. R. Civ. P. 26(a)(1), Liafail identified its national sales manager as likely to have discoverable information; the sales manager was a former sales manager of defendant ("L2K"). In response to L2K's discovery requests, the sales manager gave Liafail the L2K-issued laptop that he had used while gaining knowledge of the day-to-day operations of L2K.

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Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002)

The litigation involved cross claims for, among other things, breach of contract stemming from events occurring in late 1998. At a discovery planning conference, the parties agreed that discovery would be completed by August 1, 2001, and the case would be ready for trial by September 1, 2001. Defendant's discovery requests sought the production of email; plaintiff raised no objection to the requests and agreed to "work diligently" to produce the responsive email. 306 F.3d at 102.

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Cognex Corp. v. Electro Scientific Ind., Inc., 2002 WL 32309413 (D. Mass. July 2, 2002)

In this patent infringement case, plaintiff moved to compel a search of defendant's backup tapes for documents responsive to its document request, offering to share the cost of the search, or even pay the entire cost. At issue were 820 backup tapes covering 1992 through 2001, which defendant said contained approximately four terabytes of information. It was estimated that, if printed, the tapes would yield almost three billion pages.

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Byers v. Ill. State Police, 2002 WL 1264004, 53 Fed.R.Serv.3d 740 (N.D. Ill. 2002)

Plaintiffs in sex discrimination suit moved to compel defendants to produce email stored on backup tapes created daily over an eight-year period. Based on the cost of the proposed search and plaintiffs' failure to establish that the search would likely uncover relevant information, the court concluded that plaintiffs were entitled to the archived emails only if they were willing to pay for part of the cost of production. 2002 WL 1264004, at *12.

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Jones v. Goord, 2002 WL 1007614 (S.D.N.Y. May 16, 2002)

Prisoners brought class action suit challenging state's program of housing two prisoners in a cell originally designed for one prisoner, arguing that the practice increased disease transmission and violence among the prisoners. After more than three years of discovery, plaintiffs sought the production of six different electronic databases.

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Tulip Computers Int'l B.V. v. Dell Computer Corp., 2002 WL 818061, 52 Fed.R.Serv.3d 1420 (D.Del. 2002)

Plaintiff brought a motion to compel and a motion for sanctions based on numerous discovery disputes relating to hard copy and electronic material. Plaintiff complained that, among other things, defendant had failed to produce any email or electronic documents for any senior employees. Defendant argued that it had circulated plaintiff's document requests to over 300 employees, and all responsive documents had been produced. 2002 WL 818061, at *4.

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Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002)

Plaintiff sued former consultant and competing company for copyright infringement and unfair competition. Prior to any pretrial conference or entry of a scheduling order, and before any formal discovery had commenced, plaintiff moved for the entry of a preservation order, expedited discovery, and the appointment of a neutral computer forensics expert for the purposes of copying defendants' hard drives.

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Stallings-Daniel v. N. Trust Co., 2002 WL 385566, 52 Fed.R.Serv.3d 1406 (N.D. Ill. 2002)

Employment discrimination plaintiff sought reconsideration of court's order denying her use of an expert "to conduct so-called 'electronic discovery' of [defendant's] e-mail system." 2002 WL 385566, at *1. Materials had been produced by the defendant in hard copy form.

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In re Triton Energy Ltd. Sec. Litig., 2002 WL 32114464 (E.D. Tex. Mar. 7, 2002)

Plaintiffs complained that hundreds if not thousands of documents were produced after key depositions were taken, or on the eve of the depositions. Plaintiffs requested (1) that defendant be required to provide a log of all documents withheld from plaintiffs on any grounds; (2) that defendant produce a written certification to the court describing the efforts, if any, it has undertaken to comply with the court's previous orders regarding the preservation and production of evidence and their obligations under the Private Securities Litigation Reform Act; and (3) that plaintiffs be given access to defendant's computer storage systems (including servers and hard drives) and those of all present and former members of the board of directors, and allow non-destructive testing of these systems to determine what documents and emails, if any, have been deleted and what, if any, of this information bears significantly on the subject matter of the lawsuit.

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Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439, 52 Fed.R.Serv.3d 168 (E.D. La. 2002)

Plaintiff sought the production of email from 93 backup tapes. Defendant offered expert testimony that the process would cost over $6.2 million and take over six months to retrieve the material, not including the time required to review the material for responsiveness and privilege. 2002 WL 246439, at *2.

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In re Bristol-Meyers Squibb Sec. Litig., 205 F.R.D. 437 (D.N.J. 2002)

"The issues presented here raise the increasingly common problem of fair allocation of costs associated with discovery in the age of electronic information." 205 F.R.D. at 439. Plaintiffs had agreed to pay $.10 per page for copying documents which defendants estimated to number around 500,000 pages. Defendants subsequently produced over thee million pages of documents, for which they sought over $300,000 in copying charges.

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Lombardo v. Broadway Stores, Inc., 2002 WL 86810 (Cal. Ct. App. Jan.22, 2002)

During the course of discovery, defendant repeatedly failed to provide substantive responses to interrogatories or produce certain categories of documents. Finally, more than a year after defendant had agreed to produce computerized payroll data, it revealed that certain computerized records had been "lost, misplaced or destroyed." 2002 WL 81810, at *2.

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Rowe Entm't, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002)

Plaintiffs sought the production of email from backup tapes and hard drives, and defendants moved for a protective order. The court denied defendant's motion, but shifted the cost of the production to the plaintiffs. In doing so, the court utilized a balancing test that considered eight different factors:

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United States Fid. & Guar. Co. v. Braspetro Oil Serv. Co., 2002 WL 15652, 53 Fed.R.Serv.3d 60 (S.D.N.Y. 2002)

Plaintiffs sought production of privileged documents, on the grounds that defendants had made all of the documents on their privilege log available to their experts, thereby waiving all privilege with respect to those documents, as well as subjecting the documents to the requirements of expert discovery under Fed. R. Civ. P. 26(a)(s).

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McNally Tunneling Corp. v. City of Evanston, 2001 WL 1568879 (N.D. Ill. Dec.10, 2001)

In litigation arising from delays in a municipal sewer project, defendant sought electronic production of email, computerized schedules and cost summaries which had already been produced in hard copy form.

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Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001)

In taxpayer suit, government retained a litigation consultant ("AGE") and a number of testifying experts. (One testifying expert was an owner of AGE; and all of the testifying experts coordinated their work through AGE.) During discovery proceedings on the defendant's Daubert motion, it became apparent that a substantial amount of potential evidence had been destroyed. Many of the draft reports and communications among the testifying experts and AGE had been deleted as a result of AGE's document retention policy and the individual practices of the testifying experts.

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McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001)

In employment discrimination suit, plaintiff requested that the Department of Justice search its computer backup system for evidence of retaliation. The court stated that there was no controlling authority for the proposition that restoring all backup tapes is necessary in every case. It observed:

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GTFM, Inc. v. Wal-Mart Stores, 2000 WL 1693615 (S.D.N.Y. Nov. 9, 2000)

At a conference with the court, defense counsel made inaccurate representations about defendant's computer system capabilities, stating there was no way to cull certain data. About a year later, plaintiffs deposed a vice-president in the defendant's MIS department and discovered that the defendant's computers were, in fact, capable of providing the information sought by plaintiffs.

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Danis v. USN Communications, Inc., 2000 WL 1694325, 53 Fed.R.Serv.3d 828 (N.D. Ill. 2000)

After a protracted discovery dispute in which the parties collectively spent over $1.5 million litigating the issue of sanctions, the court determined that the defendants had failed to take adequate steps to preserve potentially relevant documents.

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Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000)

Although the factual record on plaintiff's motion to compel was "extremely sparse," the court found that plaintiff had shown "some troubling discrepancies with respect to defendant's document production." 194 F.R.D. at 641. The court ruled that the plaintiff was entitled to attempt - at its own expense - the task of recovering deleted computer files from computers used by four key players, whether at home or at work. Id.

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In re Gen. Instrument Corp. Sec. Litig., 1999 WL 1072507 (N.D.Ill. Nov. 18, 1999)

Court denied plaintiffs' motion to compel production of email from backup tapes, despite also finding that restoration of tapes could be done without undue expense.

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Playboy Ent., Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999)

After a third party produced email communications between itself and defendant, plaintiff followed up with defense counsel to inquire why the emails had not been produced by defendant. During the meet and confer discussions, plaintiff learned that defendant had a custom and practice of deleting emails shortly after she sent or received them, regardless of their content. Plaintiff sought access to defendant's hard drive for the purpose of recovering emails that may be relevant to the litigation.

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Adobe Sys., Inc. v. South Sun Prods., Inc., 187 F.R.D. 636 (S.D. Cal. 1999)

Software makers sued for copyright infringement, alleging that the defendant had purchased single copies of certain software packages and installed software on multiple computers. On the same day the complaint was filed, plaintiffs sought an ex parte preservation order, arguing that the defendant could easily remove evidence of infringement by deleting software from its computers.

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Linnen v. A.H. Robbins Co., 1999 WL 462015 (Mass. Super. June 16, 1999)

Plaintiffs moved to compel the production of email restored from defendant's backup tapes. The estimated cost of restoration of the tapes and retrieval of responsive email ranged between $300,000 to over $1.4 million.

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N.Y. Nat'l Org. for Women v. Cuomo, 1998 WL 395320 (S.D.N.Y. July 14, 1998)

Potentially relevant material was lost when, at the end of the Cuomo administration, computer databases containing letters and reports sent to the governor, outgoing letters, internal memoranda, monthly summary reports and electronic mail, along with information saved by individual employees on personal computers, were deleted.

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Alexander v. FBI., 186 F.R.D. 78 (D.D.C. 1998)

Former government official involved in the "Filegate" investigation testified in deposition that he deleted material from his computer when he changed positions within his department. The court noted that, despite official's claims that he printed out relevant material before deleting it, "cause for concern should exist when an upper-level government employee completely deletes his hard drive when this hard drive may have information relevant to an on-going criminal investigation, let alone the instant case." 186 F.R.D. at 96.

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Alexander v. FBI, 188 F.R.D. 111 (D.D.C. 1998)

Plaintiffs sued for Privacy Act violations in connection with the FBI's release of certain files to individuals in the White House. Plaintiffs sought restoration and production of email and deleted files from backup tapes and hard drives.

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Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998)

Defendant produced email on four-inch magnetic tapes which plaintiff, lacking the necessary equipment and software, was unable to read. Plaintiff moved to compel the production of the email in hard copy form (some 210,000 pages).

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Concord Boat Corp. v. Brunswick Corp., 1997 WL 33352759 (E.D. Ark. Aug. 29, 1997)

For approximately a year, the parties attempted to resolve issues concerning defendant's electronic information. The court instituted a "spot-checking" procedure to help determine the adequacy of all parties' production. Based on results of that procedure, plaintiff moved for an adverse inference/spoliation instruction based on defendant's alleged destruction of email.

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In re Cheyenne Software, Inc., 1997 WL 714891 (E.D.N.Y. Aug. 18, 1997)

Plaintiff moved for various discovery sanctions, demonstrating, among other things, that defendants had failed to review potentially responsive email that had been previously provided to the SEC. The court ruled that defendants would be required to bear the cost of downloading and printing up to 10,000 additional pages of email responsive to key word searches requested by plaintiff. 1997 WL 714891, at *1.

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Storch v. Ipco Safety Prod. Co. of Pa., 1997 WL 401589 (E.D. Pa. July 16, 1997)

Plaintiff sought production of a disk containing sales data that had been produced in hard copy form, arguing that the electronic version was needed in order to run an analysis of the information. Otherwise, she stated, she would incur between $10,000 and $20,000 in data encoding fees to properly format the information. The defendant merely argued that it was still investigating its ability to provide the information in computerized form.

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Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996)

In wrongful termination suit, defendant moved for summary judgment after the close of discovery. Plaintiff sought to continue the motion under Fed. R. Civ. P. 56(f) and requested additional discovery. At issue was a critical document exonerating defendant, which plaintiff claimed had been fabricated or backdated.

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Gates Rubber Co. v. Bando Chem. Ind., Ltd., 167 F.R.D. 90 (D. Colo. 1996)

Based on evidence obtained during discovery that defendant had destroyed computer files, plaintiff was granted expedited discovery and a site inspection order for the purpose of locating and copying materials, including all computer records, that it wished to preserve. However, plaintiff's computer technicians lost or failed to recapture important information because of an inadequate effort.

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In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 360526 (N.D. Ill. June 15, 1995)

Plaintiffs moved to compel production of email stored on defendant's backup tapes. Claiming to have 30 million pages of email data stored on the subject tapes, the defendant resisted the motion on burdensomeness and other grounds. Defendant estimated that it would cost $50,000 to $70,000 to compile, format, search and retrieve responsive email. 1995 WL 360526, at *1.

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Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993)

Researchers and nonprofit organizations challenged the proposed destruction of federal records (email communications). The court held that substantive email communications constituted "records" under the Federal Records Act, and that, "since there are often fundamental and meaningful differences in content between the paper and electronic versions of these documents," the electronic versions do not lose their status as records when printed out in hard copy. 1 F.3d at 1287. As such, they must be managed and preserved in accordance with the Act.

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In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 634 (E.D. Mich. 1989)

Defendant aircraft manufacturer produced flight simulator material in hard copy form, and defendant Northwest Airlines moved to compel production of the program and data on computer-readable nine-track magnetic tape. Northwest argued that, without a tape, its expert would be forced to load the material manually onto a nine-track tape, check the input for accuracy, and spend substantial time debugging the program.

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Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985)

In age discrimination suit, plaintiffs sought production of documents containing detailed information about numerous employees. In order to supply the data to plaintiffs in usable form, defendant offered to supply either a computer tape or printout of the data at plaintiffs' choice, but only on the condition that plaintiffs would pay the cost to generate the information. Defendant produced the material in hard copy, as requested by plaintiffs, and sought an order requiring plaintiffs to remit $5,411.25. 108 F.R.D. at 460.

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Nat'l Union Elec. Corp. v. Matsushita Elec. Ind. Co., 494 F.Supp. 1257 (E.D. Pa. 1980)

Defendant moved to require plaintiff's computer experts to create a computer-readable computer tape containing sales data that had been produced in answers to interrogatories. Although the defendant could themselves create the tape, it would require two months and "many thousands of dollars." 494 F.Supp. at 1258.

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The Recorder
December 6, 2004

Litigants who demand expensive electronic data discovery have to pay for it, the Sixth District Court of Appeal ruled Friday. Noting that the issue is "bound to arise with increasing frequency," the appellate court reversed a trial court decision that had compelled Toshiba America Electronic Components Inc. to produce data at an estimated cost of $1.5 million to $1.9 million. Click here to continue reading [subscription required.]

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