Category: Case Summaries

1
Court Orders Production of All Materials Made Available to Experts
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Court Denies Motion to Compel Production of Electronic Versions of Previously Produced Hard Copy
3
Government Sanctioned for Spoliation of Electronic Documents
4
Court to Decide Whether to Compel Restoration of Backup Tapes via Marginal Utility Analysis Following a Test Run
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Sanctions Ordered when Attorney Misrepresents Computer’s Ability to Cull Data
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Court Fines CEO and Chastises Corporate Counsel for Failure to Preserve Documents
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Plaintiff May Attempt Recovery of Deleted Files at Its Own Cost
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Court Denies Motion to Compel Production from Backup Tapes
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Plaintiff Allowed to Pursue Recovery of Deleted Email at Its Own Expense
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Court Denies Ex Parte Order to Preserve Electronic Evidence

Court Orders Production of All Materials Made Available to Experts

United States Fid. & Guar. Co. v. Braspetro Oil Serv. Co., 2002 WL 15652, 53 Fed.R.Serv.3d 60 (S.D.N.Y. 2002)

Plaintiffs sought production of privileged documents, on the grounds that defendants had made all of the documents on their privilege log available to their experts, thereby waiving all privilege with respect to those documents, as well as subjecting the documents to the requirements of expert discovery under Fed. R. Civ. P. 26(a)(s). Read More

Court Denies Motion to Compel Production of Electronic Versions of Previously Produced Hard Copy

McNally Tunneling Corp. v. City of Evanston, 2001 WL 1568879 (N.D. Ill. Dec.10, 2001)

In litigation arising from delays in a municipal sewer project, defendant sought electronic production of email, computerized schedules and cost summaries which had already been produced in hard copy form. Read More

Government Sanctioned for Spoliation of Electronic Documents

Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001)

In taxpayer suit, government retained a litigation consultant (“AGE”) and a number of testifying experts. (One testifying expert was an owner of AGE; and all of the testifying experts coordinated their work through AGE.) During discovery proceedings on the defendant’s Daubert motion, it became apparent that a substantial amount of potential evidence had been destroyed. Many of the draft reports and communications among the testifying experts and AGE had been deleted as a result of AGE’s document retention policy and the individual practices of the testifying experts. Read More

Court to Decide Whether to Compel Restoration of Backup Tapes via Marginal Utility Analysis Following a Test Run

McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001)

In employment discrimination suit, plaintiff requested that the Department of Justice search its computer backup system for evidence of retaliation. The court stated that there was no controlling authority for the proposition that restoring all backup tapes is necessary in every case. It observed: Read More

Sanctions Ordered when Attorney Misrepresents Computer’s Ability to Cull Data

GTFM, Inc. v. Wal-Mart Stores, 2000 WL 1693615 (S.D.N.Y. Nov. 9, 2000)

At a conference with the court, defense counsel made inaccurate representations about defendant’s computer system capabilities, stating there was no way to cull certain data. About a year later, plaintiffs deposed a vice-president in the defendant’s MIS department and discovered that the defendant’s computers were, in fact, capable of providing the information sought by plaintiffs. Read More

Court Fines CEO and Chastises Corporate Counsel for Failure to Preserve Documents

Danis v. USN Communications, Inc., 2000 WL 1694325, 53 Fed.R.Serv.3d 828 (N.D. Ill. 2000)

After a protracted discovery dispute in which the parties collectively spent over $1.5 million litigating the issue of sanctions, the court determined that the defendants had failed to take adequate steps to preserve potentially relevant documents. Read More

Plaintiff May Attempt Recovery of Deleted Files at Its Own Cost

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

Plaintiff Allowed to Pursue Recovery of Deleted Email at Its Own Expense

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

Court Denies Ex Parte Order to Preserve Electronic Evidence

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

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