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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 Orders Production of All Materials Made Available to Experts

Posted in CASE SUMMARIES

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… Continue Reading

Government Sanctioned for Spoliation of Electronic Documents

Posted in CASE SUMMARIES

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… Continue Reading

Court to Decide Whether to Compel Restoration of Backup Tapes via Marginal Utility Analysis Following a Test Run

Posted in CASE SUMMARIES

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:

Sanctions Ordered when Attorney Misrepresents Computer’s Ability to Cull Data

Posted in CASE SUMMARIES

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… Continue Reading

Court Fines CEO and Chastises Corporate Counsel for Failure to Preserve Documents

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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.

Plaintiff May Attempt Recovery of Deleted Files at Its Own Cost

Posted in CASE SUMMARIES

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… Continue Reading

Court Denies Motion to Compel Production from Backup Tapes

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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.

Plaintiff Allowed to Pursue Recovery of Deleted Email at Its Own 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… Continue Reading

Court Denies Ex Parte Order to Preserve Electronic Evidence

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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… Continue Reading

Sanctions Denied when Data Destroyed Absent Bad Faith or Showing of Prejudice

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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… Continue Reading

Court Allows Examination of Hard Drive and Servers

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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… Continue Reading

Court Denies Motion for Adverse Inference and Spoliation Instructions; Motion for Restoration from Backup Tapes Denied

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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… Continue Reading

Court Imposes Sanctions for Failure to Review Email and Preserve Data

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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… Continue Reading

Court Denies Motion to Compel Discovery in order to Establish Backdating of Document

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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… Continue Reading

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

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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… Continue Reading

Defendant Required to Produce Email at Its Own Expense

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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… Continue Reading

Preservation of Email Required under Federal Records Act

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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… Continue Reading

Defendant Required to Produce Materials in Electronic Form

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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… Continue Reading

Court Denies Motion Requiring Plaintiff to Pay for Electronic Production by Defendant

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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… Continue Reading