Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007)
In this patent and licensing litigation, the court had previously ordered plaintiff to produce “development documents” related to the project at issue in the litigation. According to defendant, plaintiff produced 1,737 pages of documents by the order’s deadline in February 2006, but then later produced more than 11,000 pages of new responsive documents in the final days of discovery in the fall of 2007. Defendant argued that these late-produced documents fell squarely within the ambit of the court’s order and should have been produced 18 months earlier. Defendant also argued that plaintiff had failed to meet its preservation obligations.
At his deposition, one of the key players employed by plaintiff testified that he was not specifically directed by plaintiff’s counsel to search for electronically stored documents; he was asked to produce “all documents” related to his research, and he produced only hard copy documents without examining his electronic files. In addition, the witness stated that during 2005 the University changed the storage system for the archiving of electronically produced information, from a University-wide archiving system to a more localized, “individual computer” storage system. As part of that process the witness reviewed his computer-stored information and preserved what he deemed was important. Conversely, of course, and without guidance, he deleted what he viewed as unimportant. He testified that, in that process, neither the University nor counsel directed that electronically stored information pertaining to the relevant project be preserved in any form. Further, the University’s computer system was such that some emails would be automatically deleted “at some point” if not preserved.