Archive - December 15, 2004

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 – at its own expense – the task of recovering deleted computer files from computers used by four key players, whether at home or at work. Id. Read More

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. Read More

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 deleting emails shortly after she sent or received them, regardless of their content. Plaintiff sought access to defendant’s hard drive for the purpose of recovering emails that may be relevant to the litigation. Read More

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 the defendant could easily remove evidence of infringement by deleting software from its computers. Read More

Linnen v. A.H. Robbins Co., 1999 WL 462015 (Mass. Super. June 16, 1999)

Plaintiffs moved to compel the production of email restored from defendant’s backup tapes. The estimated cost of restoration of the tapes and retrieval of responsive email ranged between $300,000 to over $1.4 million. Read More

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 personal computers, were deleted. Read More

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 an upper-level government employee completely deletes his hard drive when this hard drive may have information relevant to an on-going criminal investigation, let alone the instant case.” 186 F.R.D. at 96. Read More

Alexander v. FBI, 188 F.R.D. 111 (D.D.C. 1998)

Plaintiffs sued for Privacy Act violations in connection with the FBI’s release of certain files to individuals in the White House. Plaintiffs sought restoration and production of email and deleted files from backup tapes and hard drives. Read More

Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998)

Defendant produced email on four-inch magnetic tapes which plaintiff, lacking the necessary equipment and software, was unable to read. Plaintiff moved to compel the production of the email in hard copy form (some 210,000 pages). Read More

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 instruction based on defendant’s alleged destruction of email. Read More