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Electronic Discovery Law Blog Legal issues, news, and best practices relating to the discovery of electronically stored information.

Monthly Archives: December 2004

Court Abused Discretion by Allowing Direct Access to Databases Sans Evidence of Improper Conduct

Posted in CASE SUMMARIES

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… Continue Reading

Court Orders Production of Backup Tapes and Provides for Hard Drive Access Based on Failure to Preserve Evidence

Posted in CASE SUMMARIES

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… Continue Reading

Court Finds Preservation Efforts Deficient

Posted in CASE SUMMARIES

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.

Zubulake III: Applying Seven-factor Test, Court Orders Plaintiff to Pay 25 Percent of Costs for Restoration of Backup Tapes

Posted in CASE SUMMARIES

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… Continue Reading

Magistrate Recommends Dismissal with Prejudice when Plaintiff Erases Hard Drive

Posted in CASE SUMMARIES

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.

Zubulake I: Court Orders Production of Deleted Email from Backup Tapes and Articulates Cost-shifting Analysis

Posted in CASE SUMMARIES

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… Continue Reading

Court Applies Rowe Entertainment Balancing Test and Provides Plan for Electronic Discovery

Posted in CASE SUMMARIES

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… Continue Reading

Case Dismissed as Sanction for Electronic Discovery Abuses

Posted in CASE SUMMARIES

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… Continue Reading

Court Upholds Preliminary Injunction to Preserve Data for Recovery

Posted in CASE SUMMARIES

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.

Court Orders Severe Sanctions for Egregious Discovery Abuses

Posted in CASE SUMMARIES

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.

Court to Order Sanctions if Plaintiff Fails to Correct or Clarify Discovery Record

Posted in CASE SUMMARIES

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… Continue Reading

Court has Broad Discretion to Fashion Sanctions for Breach of Discovery Obligations

Posted in CASE SUMMARIES

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… Continue Reading

Plaintiffs Allowed Discovery of Archived Email Only if Willing to Share Expense

Posted in CASE SUMMARIES

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… Continue Reading

Court Denies Motion to Compel Production of Electronic Databases

Posted in CASE SUMMARIES

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… Continue Reading

Court Orders Production to Plaintiff”s Expert for Keyword Search

Posted in CASE SUMMARIES

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… Continue Reading

Plaintiff Wins Early Order for Preservation, Expedited Discovery, and Forensic Examination

Posted in CASE SUMMARIES

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… Continue Reading

Court Denies Discovery of Email System Based on Mere Speculation of Email Alterations

Posted in CASE SUMMARIES

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.

Special Master to Review Forensic Computer Specialist’s Report on Destroyed Data

Posted in CASE SUMMARIES

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… Continue Reading

Court Orders Plaintiff to Pay $6.2 Million for Production from Defendant’s Backup Tapes

Posted in CASE SUMMARIES

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… Continue Reading

Plaintiffs Need Not Pay for Hard Copies Since Defendants Failed to Disclose Existence of Electronic Version

Posted in CASE SUMMARIES

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… Continue Reading

Court Affirms Sanctions and Orders $100,000 Recompilation of Computerized Data from Hard Copy

Posted in CASE SUMMARIES

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… Continue Reading

Court Uses Balancing Test to Determine Production Cost-shifting and Establishes Protocol for Production

Posted in CASE SUMMARIES

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… Continue Reading