Category: Case Summaries

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Defendant Required to Produce Email at Its Own Expense
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Preservation of Email Required under Federal Records Act
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Defendant Required to Produce Materials in Electronic Form
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Court Denies Motion Requiring Plaintiff to Pay for Electronic Production by Defendant
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Plaintiff Ordered to Produce Computer-readable Tape Previously Produced in Hard Copy Form
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Federal Court Issues Opinion On E-Discovery Sanctions and Evidence Preservation

Defendant Required to Produce Email at Its Own Expense

In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 360526 (N.D. Ill. June 15, 1995)

Plaintiffs moved to compel production of email stored on defendant’s backup tapes. Claiming to have 30 million pages of email data stored on the subject tapes, the defendant resisted the motion on burdensomeness and other grounds. Defendant estimated that it would cost $50,000 to $70,000 to compile, format, search and retrieve responsive email. 1995 WL 360526, at *1. Read More

Preservation of Email Required under Federal Records Act

Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993)

Researchers and nonprofit organizations challenged the proposed destruction of federal records (email communications). The court held that substantive email communications constituted “records” under the Federal Records Act, and that, “since there are often fundamental and meaningful differences in content between the paper and electronic versions of these documents,” the electronic versions do not lose their status as records when printed out in hard copy. 1 F.3d at 1287. As such, they must be managed and preserved in accordance with the Act. Read More

Defendant Required to Produce Materials in Electronic Form

In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 634 (E.D. Mich. 1989)

Defendant aircraft manufacturer produced flight simulator material in hard copy form, and defendant Northwest Airlines moved to compel production of the program and data on computer-readable nine-track magnetic tape. Northwest argued that, without a tape, its expert would be forced to load the material manually onto a nine-track tape, check the input for accuracy, and spend substantial time debugging the program. Read More

Court Denies Motion Requiring Plaintiff to Pay for Electronic Production by Defendant

Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985)

In age discrimination suit, plaintiffs sought production of documents containing detailed information about numerous employees. In order to supply the data to plaintiffs in usable form, defendant offered to supply either a computer tape or printout of the data at plaintiffs’ choice, but only on the condition that plaintiffs would pay the cost to generate the information. Defendant produced the material in hard copy, as requested by plaintiffs, and sought an order requiring plaintiffs to remit $5,411.25. 108 F.R.D. at 460. Read More

Plaintiff Ordered to Produce Computer-readable Tape Previously Produced in Hard Copy Form

Nat’l Union Elec. Corp. v. Matsushita Elec. Ind. Co., 494 F.Supp. 1257 (E.D. Pa. 1980)

Defendant moved to require plaintiff’s computer experts to create a computer-readable computer tape containing sales data that had been produced in answers to interrogatories. Although the defendant could themselves create the tape, it would require two months and “many thousands of dollars.” 494 F.Supp. at 1258. Read More

Federal Court Issues Opinion On E-Discovery Sanctions and Evidence Preservation

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

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