Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

 

1
Special Master to Review Forensic Computer Specialist’s Report on Destroyed Data
2
Court Orders Plaintiff to Pay $6.2 Million for Production from Defendant’s Backup Tapes
3
Plaintiffs Need Not Pay for Hard Copies Since Defendants Failed to Disclose Existence of Electronic Version
4
Court Affirms Sanctions and Orders $100,000 Recompilation of Computerized Data from Hard Copy
5
Court Uses Balancing Test to Determine Production Cost-shifting and Establishes Protocol for Production
6
Court Orders Production of All Materials Made Available to Experts
7
Court Denies Motion to Compel Production of Electronic Versions of Previously Produced Hard Copy
8
Government Sanctioned for Spoliation of Electronic Documents
9
Court to Decide Whether to Compel Restoration of Backup Tapes via Marginal Utility Analysis Following a Test Run
10
Sanctions Ordered when Attorney Misrepresents Computer’s Ability to Cull Data

Special Master to Review Forensic Computer Specialist’s Report on Destroyed Data

In re Triton Energy Ltd. Sec. Litig., 2002 WL 32114464 (E.D. Tex. Mar. 7, 2002)

Plaintiffs complained that hundreds if not thousands of documents were produced after key depositions were taken, or on the eve of the depositions. Plaintiffs requested (1) that defendant be required to provide a log of all documents withheld from plaintiffs on any grounds; (2) that defendant produce a written certification to the court describing the efforts, if any, it has undertaken to comply with the court’s previous orders regarding the preservation and production of evidence and their obligations under the Private Securities Litigation Reform Act; and (3) that plaintiffs be given access to defendant’s computer storage systems (including servers and hard drives) and those of all present and former members of the board of directors, and allow non-destructive testing of these systems to determine what documents and emails, if any, have been deleted and what, if any, of this information bears significantly on the subject matter of the lawsuit. Read More

Court Orders Plaintiff to Pay $6.2 Million for Production from Defendant’s Backup Tapes

Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439, 52 Fed.R.Serv.3d 168 (E.D. La. 2002)

Plaintiff sought the production of email from 93 backup tapes. Defendant offered expert testimony that the process would cost over $6.2 million and take over six months to retrieve the material, not including the time required to review the material for responsiveness and privilege. 2002 WL 246439, at *2. Read More

Plaintiffs Need Not Pay for Hard Copies Since Defendants Failed to Disclose Existence of Electronic Version

In re Bristol-Meyers Squibb Sec. Litig., 205 F.R.D. 437 (D.N.J. 2002)

“The issues presented here raise the increasingly common problem of fair allocation of costs associated with discovery in the age of electronic information.” 205 F.R.D. at 439. Plaintiffs had agreed to pay $.10 per page for copying documents which defendants estimated to number around 500,000 pages. Defendants subsequently produced over thee million pages of documents, for which they sought over $300,000 in copying charges. Read More

Court Affirms Sanctions and Orders $100,000 Recompilation of Computerized Data from Hard Copy

Lombardo v. Broadway Stores, Inc., 2002 WL 86810 (Cal. Ct. App. Jan.22, 2002)

During the course of discovery, defendant repeatedly failed to provide substantive responses to interrogatories or produce certain categories of documents. Finally, more than a year after defendant had agreed to produce computerized payroll data, it revealed that certain computerized records had been “lost, misplaced or destroyed.” 2002 WL 81810, at *2. Read More

Court Uses Balancing Test to Determine Production Cost-shifting and Establishes Protocol for Production

Rowe Entm’t, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002)

Plaintiffs sought the production of email from backup tapes and hard drives, and defendants moved for a protective order. The court denied defendant’s motion, but shifted the cost of the production to the plaintiffs. In doing so, the court utilized a balancing test that considered eight different factors: Read More

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

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