Key Insight: Court denied successful defendant’s petition for costs associated with its outside vendor’s compilation, search and production of 50,000 emails on grounds that such costs were not listed as recoverable costs in 28 USC ? 1920
Nature of Case: Petition for attorneys’ fees and non-taxable costs under fee-shifting provision of ERISA
Electronic Data Involved: Emails
Key Insight: Requiring insurer to create programs to retrieve and put in usable form information from its databases at its own expense, court stated: “[A] party cannot avoid discovery when its own recordkeeping system makes discovery burdensome. If a party chooses to store information in a manner that tends to conceal rather than reveal, that party bears the burden of putting the information in a format useable by others.” However, court did order that request for computer-generated reports be narrowed.
Nature of Case: Minority homeowners brought civil rights action alleging that insurer engaged in redlining to avoid minority neighborhoods
Electronic Data Involved: Insurer’s databases and computer-generated reports
The federal district court for the Southern District of New York has issued another ruling (available here) relating to electronic discovery in the ongoing matter of Zubulake v. UBS Warburg.
The court’s most recent decision, issued October 22, 2003, addresses Zubulake’s motion for sanctions against UBS for its failure to preserve missing backup tapes and deleted emails. See Zubulake v. UBS Warburg, LLC, 2003 WL 22410619 (S.D.N.Y.). Although the court established no definitive guidelines regarding when backup tapes must be preserved, the decision discusses this issue at length, describing both situations where the tapes should be preserved, and situations where they need not be preserved.
After considering UBS’s failure to preserve the missing backup tapes and deleted emails, the court declined to grant an adverse inference instruction against UBS, or to impose on UBS the full cost of restoring certain backup tapes, but did order UBS to bear the plaintiff’s costs of re-deposing certain individuals concerning issues raised either by the destruction of evidence or by any newly-produced emails. Read More
Key Insight: Reconsideration of ruling that plaintiffs lacked standing. Expert affidavit shows substantial risk of identity theft and sale of PII and PHI on the dark web, establishing injury-in-fact.
Nature of Case: Class action arising out of a data breach and alleging identity theft.
Electronic Data Involved: Dark web evidence
Keywords: PII and PHI, dark web, identity theft, Joe Church, Digital Shield, X1 Social Discovery
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