Backup Tapes – Page 12 – Electronic Discovery Law

In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006)

Dec 01 2006

Key Insight: In stipulated order, parties agreed that plaintiffs would preserve hard drives used by plaintiffs and plaintiffs? decedents and that such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol; that responsive ESI would be collected by defendants from defendants’ active IT environment and not from backup tapes absent exceptional circumstances, and that plaintiffs would defer to defendants as to the format of production

Nature of Case: Personal injury product liability

Electronic Data Involved: Hard drives, ESI

Bedford, LLC v. Safeco Ins. Co., 2006 WL 3616434 (Wash. App. Dec. 11, 2006) (Unpublished)

Dec 01 2006

Key Insight: Trial court did not err in denying motion for curative jury instructions, a sanction of default, and, after the verdict, a new trial, based upon defendant’s failure to produce a draft expert report; finding no misconduct, trial court had observed: “While I agree that . . . hard copies of draft [expert] reports are discoverable, I am aware of no legal principle that would require a testifying expert witness to separately retain all electronic drafts, including those that were overridden or subsumed during the drafting process.”

Nature of Case: Insurance coverage

Electronic Data Involved: Draft expert report

Inventory Locator Serv., LLC v. PartsBase, Inc., 2005 WL 6062855 (W.D. Tenn. Oct. 19, 2005)

Dec 01 2005

Key Insight: Where there was no evidence that server logs were erased in bad faith and facts suggested that defendant was, at most, merely negligent, since it took reasonable steps to preserve relevant data — it retained and consulted with technical expert; on advice of its expert, it made a copy of the relevant server logs on CDs that could not be overwritten; it stored copies of the data on its server; and it made the data on the server available for inspection by plaintiff prior to the time it was overwritten — and where plaintiff was unable to demonstrate any real prejudice from the loss of some metadata in server logs, magistrate judge found no basis for spoliation sanctions of any kind and recommended denial of plaintiff’s sanctions motion

Nature of Case: Parties asserted claims under Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, each arguing that the other had obtained unlawful access to databases

Electronic Data Involved: Metadata; server logs

McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)

Dec 01 2005

Key Insight: Where plaintiff?s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants? backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants? efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval

Nature of Case: Disability discrimination

Electronic Data Involved: Emails, hard drives

Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)

Dec 01 2004

Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it

Nature of Case: Drug products liability

Electronic Data Involved: Discoverable information in paper or electronic format

Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F. Supp. 2d 561 (N.D. Tex. 2003)

Dec 01 2004

Key Insight: Court entered preservation order requiring preservation of all extant backups or images of all servers or personal computers containing disputed software or email; court denied motion to compel imaging of all media potentially containing software or electronic evidence relevant to the claims in the suit, and all images of defendants’ computer storage facilities, drives and servers taken to date, as substantially overbroad

Nature of Case: Copyright infringement

Electronic Data Involved: Backups and images of servers, software and email

Premier Homes & Land Corp. v. Cheswell, Inc., 240 F. Supp. 2d 97 (D. Mass. 2002)

Dec 01 2004

Key Insight: In related action, court granted defendant’s ex parte application to allow its consultants to create mirror images of plaintiff’s computer hard drives, backup tapes and other storage media, in light of allegation that critical document and email were fabricated; after granting unopposed motion to dismiss, court awarded defendant $24,845.99 in fees and costs, including computer consultant fees of $5,650

Nature of Case: Alleged breach of lease agreement

Electronic Data Involved: Hard drives and other storage devices

Rowe Entm?t, Inc. v. William Morris Agency, Inc., 2002 WL 975713 (S.D.N.Y. May 9, 2002)

Dec 01 2004

Key Insight: District judge upheld magistrate’s decision

Nature of Case: Concert promoters sued booking agencies and other promoters for discriminatory and anti-competitive practices

Electronic Data Involved: Email stored on backup tapes and hard drives

In re St. Jude Med., Inc., Silzone Heart Valves Prod. Liab. Litig., 2002 WL 341019 (D. Minn. Mar. 1, 2002)

Dec 01 2004

Key Insight: Court entered supplementary pretrial preservation order to address “newly created documents” and backups of electronic data; regarding the latter, the order prohibits “the routine erasure of computerized information potentially relevant to the subject matter of this litigation,” but states that “The full and complete back-up of any server or other computer on a periodic basis (e.g. monthly) shall relieve the party of any obligation to maintain any interim backups of the same server or other computer.”

Nature of Case: Product liability

Electronic Data Involved: Electronic data and email, and backups of electronic data

Sempra Energy Trading Corp. v. Brown, 2004 WL 2714404 (N.D. Cal. Nov. 30, 2004)

Dec 01 2004

Key Insight: Claiming that it had already spent approximately $1.4 million to restore, review and produce email, and may have to expend as much as $3 million more in order to complete the document review and production, nonparty unsuccessfully attempted to avoid compliance with discovery orders in state proceeding by seeking injunctive and declaratory relief in federal court

Nature of Case: Action for declaratory and injunctive relief

Electronic Data Involved: Email stored on backup tapes

Tag:Backup Tapes