Archive: September 2015

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Upcoming Events! – Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?
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Court Compels Restoration and Production of Emails from Backup Tapes
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“A proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel.”

Upcoming Events! – Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?

Learn Strategies for Litigating in the Expected New Framework 

Join Us for a Complimentary 90 Minute CLE at one of several locations

  • Boston, October 20, 2015, 8:30-10AM
  • Chicago, October 22, 2015, 8:30-10AM
  • Dallas, November 5, 2015, 8:30-10AM

AND COMING SOON — Additional information about CLE programs in Seattle and Pittsburgh the first week of December

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Court Compels Restoration and Production of Emails from Backup Tapes

United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, 2015 WL 5056726 (D. Nev. Aug. 25, 2015)

In this case, the court addressed Defendants’ claim that emails stored on backup tapes were not reasonably accessible because of undue burden and cost.  Reasoning that “[a]t bottom there will be a burden or a cost, but not both,” the court found that Defendants failed to show undue burden because of their stated intention to rely on a third party vendor, thus reducing the burden of in-house production by adding some cost and that, after disallowing consideration of the cost of document review and storage, the estimated $136,000 for restoration was not sufficient to render the emails inaccessible.  In so finding, the court reasoned that Defendants must bear some responsibility for the consequences of the decision to use an “archival/backup solution that did not maintain ESI in an indexed or otherwise searchable manner.”  The court also found good cause to compel production and that cost shifting was not warranted.

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“A proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel.”

New Orleans Reg’l Physician Hosp. Org., Inc. v. United States, —Fed. Cl.—, 2015 WL 5000512 (Fed. Cl. Aug. 21, 2015)

In this breach of contract case, Plaintiff sought an order requiring Defendant to “redo its searches for responsive documents according to parameters to be agreed upon by the parties” after it began to suspect that Defendant’s search for responsive materials was insufficient.  The court found that Defendant “did not put into place a systematic, reliable plan to find and produce all relevant documents in this case” and indicated that the record did not “allow the court to conclude that a thorough and reliable search was conducted.”  Accordingly, the court ordered the parties to work together to identify a list of custodians, search protocols and search terms to be utilized by the defendant and required the defendant to maintain a careful record of its search efforts and to produce any responsive documents.

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