Archive: December 2004

1
Court Directs Production in Native Electronic Form Notwithstanding Prior Hard Copy Production
2
Court Denies Sanctions for Destruction of Certain Electronic Evidence
3
Court Adopts Most of Magistrate’s Recommendations in Kucala Enter. Case
4
Zubulake IV: Court Denies Motion for Adverse Inference Instruction but Defendant to Pay for Re-deposing Witnesses
5
Court Abused Discretion by Allowing Direct Access to Databases Sans Evidence of Improper Conduct
6
Court Orders Production of Backup Tapes and Provides for Hard Drive Access Based on Failure to Preserve Evidence
7
Court Finds Preservation Efforts Deficient
8
Zubulake III: Applying Seven-factor Test, Court Orders Plaintiff to Pay 25 Percent of Costs for Restoration of Backup Tapes
9
Magistrate Recommends Dismissal with Prejudice when Plaintiff Erases Hard Drive
10
Zubulake I: Court Orders Production of Deleted Email from Backup Tapes and Articulates Cost-shifting Analysis

Court Directs Production in Native Electronic Form Notwithstanding Prior Hard Copy Production

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. Read More

Court Denies Sanctions for Destruction of Certain Electronic Evidence

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. Read More

Court Adopts Most of Magistrate’s Recommendations in Kucala Enter. Case

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.

Zubulake IV: Court Denies Motion for Adverse Inference Instruction but Defendant to Pay for Re-deposing Witnesses

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. Read More

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

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. Read More

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

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. Read More

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

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. Read More

Magistrate Recommends Dismissal with Prejudice when Plaintiff Erases Hard Drive

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. Read More

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

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. Read More

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