Electronic Discovery Law

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

 

1
Court Denies Motion for Adverse Inference and Spoliation Instructions; Motion for Restoration from Backup Tapes Denied
2
Court Imposes Sanctions for Failure to Review Email and Preserve Data
3
Court Grants Motion to Compel Production of Information on Computer Disks
4
Court Denies Motion to Compel Discovery in order to Establish Backdating of Document
5
Court Allows Expedited Discovery, Issues Site Inspection Order, and Sanctions Defendant for Deletion of Files
6
Defendant Required to Produce Email at Its Own Expense
7
Preservation of Email Required under Federal Records Act
8
Defendant Required to Produce Materials in Electronic Form
9
Court Denies Motion Requiring Plaintiff to Pay for Electronic Production by Defendant
10
Plaintiff Ordered to Produce Computer-readable Tape Previously Produced in Hard Copy Form

Court Denies Motion for Adverse Inference and Spoliation Instructions; Motion for Restoration from Backup Tapes Denied

Concord Boat Corp. v. Brunswick Corp., 1997 WL 33352759 (E.D. Ark. Aug. 29, 1997)

For approximately a year, the parties attempted to resolve issues concerning defendant’s electronic information. The court instituted a “spot-checking” procedure to help determine the adequacy of all parties’ production. Based on results of that procedure, plaintiff moved for an adverse inference/spoliation instruction based on defendant’s alleged destruction of email. Read More

Court Imposes Sanctions for Failure to Review Email and Preserve Data

In re Cheyenne Software, Inc., 1997 WL 714891 (E.D.N.Y. Aug. 18, 1997)

Plaintiff moved for various discovery sanctions, demonstrating, among other things, that defendants had failed to review potentially responsive email that had been previously provided to the SEC. The court ruled that defendants would be required to bear the cost of downloading and printing up to 10,000 additional pages of email responsive to key word searches requested by plaintiff. 1997 WL 714891, at *1. Read More

Court Grants Motion to Compel Production of Information on Computer Disks

Storch v. Ipco Safety Prod. Co. of Pa., 1997 WL 401589 (E.D. Pa. July 16, 1997)

Plaintiff sought production of a disk containing sales data that had been produced in hard copy form, arguing that the electronic version was needed in order to run an analysis of the information. Otherwise, she stated, she would incur between $10,000 and $20,000 in data encoding fees to properly format the information. The defendant merely argued that it was still investigating its ability to provide the information in computerized form. Read More

Court Denies Motion to Compel Discovery in order to Establish Backdating of Document

Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996)

In wrongful termination suit, defendant moved for summary judgment after the close of discovery. Plaintiff sought to continue the motion under Fed. R. Civ. P. 56(f) and requested additional discovery. At issue was a critical document exonerating defendant, which plaintiff claimed had been fabricated or backdated. Read More

Court Allows Expedited Discovery, Issues Site Inspection Order, and Sanctions Defendant for Deletion of Files

Gates Rubber Co. v. Bando Chem. Ind., Ltd., 167 F.R.D. 90 (D. Colo. 1996)

Based on evidence obtained during discovery that defendant had destroyed computer files, plaintiff was granted expedited discovery and a site inspection order for the purpose of locating and copying materials, including all computer records, that it wished to preserve. However, plaintiff’s computer technicians lost or failed to recapture important information because of an inadequate effort. Read More

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

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