Archive: December 15, 2004

1
Zubulake V: Court Grants Adverse Inference Instruction and Outlines Counsel’s Role in Locating, Preserving and Producing Relevant Evidence
2
Plaintiff Potentially Liable in Tort for Electronic Collection Sanctioned by Court
3
Demanding Party to Pay for Recovery from Backup Tapes in “Proper Case”
4
Magistrate Orders Witnesses to Authorize Retrieval of Email from Service Providers
5
Electronic Data Discoverable Despite Production of Hard Copy and Necessity for Extraction Software
6
Court Refines Balancing Test for Evaluating Motions for Preservation Orders
7
Court Directs Production of Electronic Material in Native Format
8
Court Denies Motion to Compel Review of CD-ROMs for Responsive Documents
9
Court Awards $93,125.74 in Sanctions to Defendant in Kucala Enter. Case
10
Court Orders Production of Documents Related to Retention Policy in light of “Shred Day”

Zubulake V: Court Grants Adverse Inference Instruction and Outlines Counsel’s Role in Locating, Preserving and Producing Relevant Evidence

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. Read More

Plaintiff Potentially Liable in Tort for Electronic Collection Sanctioned by Court

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. Read More

Demanding Party to Pay for Recovery from Backup Tapes in “Proper Case”

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. Read More

Magistrate Orders Witnesses to Authorize Retrieval of Email from Service Providers

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. Read More

Electronic Data Discoverable Despite Production of Hard Copy and Necessity for Extraction Software

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. Read More

Court Refines Balancing Test for Evaluating Motions for Preservation Orders

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. Read More

Court Denies Motion to Compel Review of CD-ROMs for Responsive Documents

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. Read More

Court Orders Production of Documents Related to Retention Policy in light of “Shred Day”

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. Read More

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