Tag: Backup Tapes

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Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)
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Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)
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Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)
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Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003)
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Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)
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Long Island Diagnostic Imaging, P.C. v. Stony Brook Diagnostic Assoc., 728 N.Y.S.2d 781 (N.Y. App. Div. 2001)
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In the Matter of Certain Network Interface Cards, 2001 WL 1217233 (U.S.I.T.C. Oct. 12, 2001)
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Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)
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In re Amsted Ind., Inc. ERISA Litig., 2002 WL 31844956 (N.D. Ill. Dec. 18, 2002)
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Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F. Supp. 2d 561 (N.D. Tex. 2003)

Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)

Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”

Nature of Case: Valuation dispute arising as result of two merger agreements

Electronic Data Involved: Email stored on monthly backup tapes

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Key Insight: Court created its own eight-factor test by adding one more factor to the Zubulake seven-factor test, and determined that cost-shifting was appropriate (responding party 25% and requesting party 75%)

Nature of Case: Sexual harassment

Electronic Data Involved: Email stored on backup tapes

Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)

Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”

Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)

Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data

Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003)

Key Insight: EPA violated preliminary injunction that prohibited destruction of potentially responsive documents by reformatting hard drives and erasing or overwriting backup tapes containing potentially responsive email; EPA held in civil contempt and ordered to pay plaintiff’s reasonable attorneys’ fees incurred as a result of EPA’s contumacious conduct

Nature of Case: FOIA action

Electronic Data Involved: Hard drives and email stored on backup tapes

Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)

Key Insight: Adopting Zubulake and McPeek approaches, court ordered defendant to restore a sampling of five backup tapes selected by the plaintiff; parties would thereafter be required to make additional submissions addressing whether the burden or expense of satisfying the entire request was proportionate to the likely benefit

Electronic Data Involved: Email stored on backup tapes

Long Island Diagnostic Imaging, P.C. v. Stony Brook Diagnostic Assoc., 728 N.Y.S.2d 781 (N.Y. App. Div. 2001)

Key Insight: Trial court erred in not dismissing defendants’ counterclaim and third party complaint as sanction for spoliation of evidence — contrary to court’s orders, defendants purged databases and produced backup tapes that were compromised and unusable

Nature of Case: Plaintiff sought declaratory judgment that it was not in default of license agreement

Electronic Data Involved: Computer databases and backup tapes

In the Matter of Certain Network Interface Cards, 2001 WL 1217233 (U.S.I.T.C. Oct. 12, 2001)

Key Insight: Where there were gaps in plaintiff’s production of email, administrative law judge granted motion to compel production of email from plaintiff’s backup tapes but ordered parties to share the costs of such production

Nature of Case: Case before the U.S. International Trade Commission

Electronic Data Involved: Email

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

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

In re Amsted Ind., Inc. ERISA Litig., 2002 WL 31844956 (N.D. Ill. Dec. 18, 2002)

Key Insight: Plaintiffs’ motion to retrieve email granted; defendants required to re-search backup tapes using broader subject matter and time period, and to search email folders of any relevant individual in same manner

Nature of Case: ESOP plan participants sued employer and ESOP for breach of fiduciary duty and other wrongs

Electronic Data Involved: Email and other computerized data

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

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

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