Tag: Backup Tapes

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Columbus McKinnon Corp. v. HealthNow New York, Inc., 2006 WL 2827675 (W.D.N.Y. Sept. 29, 2006)
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In re Atlantic Int’l Mortgage Co., 2006 WL 2848575 (Bankr. M.D. Fla. Aug. 2, 2006)
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McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)
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Inventory Locator Serv., LLC v. PartsBase, Inc., 2005 WL 6062855 (W.D. Tenn. Oct. 19, 2005)
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Cobell v. Norton, 206 F.R.D. 324 (D.D.C. 2002)
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Rowe Entm?t, Inc. v. William Morris Agency, Inc., 2002 WL 975713 (S.D.N.Y. May 9, 2002)
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Columbia Valley Reg’l Med. Ctr. v. Bannert, 112 S.W. 3d 193 (Tex. App. 2003)
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In re St. Jude Med., Inc., Silzone Heart Valves Prod. Liab. Litig., 2002 WL 341019 (D. Minn. Mar. 1, 2002)
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Hester v. Bayer Corp., 206 F.R.D. 683 (M.D. Ala. 2001)
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Sempra Energy Trading Corp. v. Brown, 2004 WL 2714404 (N.D. Cal. Nov. 30, 2004)

Columbus McKinnon Corp. v. HealthNow New York, Inc., 2006 WL 2827675 (W.D.N.Y. Sept. 29, 2006)

Key Insight: Court rejected defendant’s excuses for extended delay in producing itemization of withdrawals in a format usable by plaintiff, and ordered defendant to reimburse plaintiff for the reasonable cost of attorneys’ fees incurred in moving for contempt of court’s prior order

Nature of Case: Breach of contract

Electronic Data Involved: Billing records, backup tapes, DVDs

In re Atlantic Int’l Mortgage Co., 2006 WL 2848575 (Bankr. M.D. Fla. Aug. 2, 2006)

Key Insight: Court rejected trustee’s request for entry of default judgment based upon based on law firm’s failure to retain and timely produce relevant documents and electronically-stored information, but found that monetary sanctions were appropriate; trustee awarded his reasonable attorneys’ fees and costs incurred in pursuing all discovery in the adversary proceeding

Nature of Case: Adversary proceeding in bankruptcy court

Electronic Data Involved: Backup tapes

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

Cobell v. Norton, 206 F.R.D. 324 (D.D.C. 2002)

Key Insight: Government’s motion for “protective order clarifying that it may produce email in response to discovery requests by producing from paper records of email messages rather than from backup tapes and may overwrite backup tapes in accordance with Departmental directives” denied as inappropriate given history of dispute; plaintiffs awarded attorneys’ fees and costs associated with motion

Nature of Case: Suit against the government alleging mismanagement of Indian trust funds

Electronic Data Involved: Email stored on backup tapes

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

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)

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

Hester v. Bayer Corp., 206 F.R.D. 683 (M.D. Ala. 2001)

Key Insight: After case was removed to federal court, defendant obtained order vacating state court’s entry of ex parte preservation order requiring defendant to “suspend all routine destruction of documents, including but not limited to, recycling back-up tapes, automated deletion of e-mail, and reformatting hard drives,” compliance with which defendant estimated to cost $50,000/month

Nature of Case: Product liability

Electronic Data Involved: Documents and information in paper or electronic format

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

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