Electronic Discovery Law

Posted at 4:10 AM on December 15, 2004 by K&L Gates

Court Allows Expedited Discovery, Issues Site Inspection Order, and Sanctions Defendant for Deletion of Files

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.

Among other things, one technician unnecessarily copied Norton's Unerase program to the hard drive, thereby overwriting 7 to 8 percent of the hard drive before commencing his efforts to copy the contents. 167 F.R.D. at 112. The defendant pointed out that plaintiff's technician should have done an image backup of the hard drive, which would have collected every piece of information on the hard drive, and noted that the technology was available although rarely used. The court agreed with the proposition that, because the plaintiff was collecting evidence for judicial purposes, it "had a duty to utilize the method which would yield the most complete and accurate results." Id. Plaintiff's failure to obtain an image backup of the computer, combined with other factors, justified awarding sanctions against plaintiff in the amount of ten percent of the total amount of fees and costs incurred by defendant in the sanctions proceedings.

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