Tag: Backup Tapes

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The Physicians Alliance Corporation v. Wellcare Health Insurance of Arizona, Inc, Et Al. (Middle District of Louisana, 2018)
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Yoe v. Crescent Sock (E.D. Tenn. , 2017)
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Wal-Mart Stores, Inc. v. Cuker Interactive, LLC (W.D. Ark., 2017)
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Solo v United Parcel Serv., Co., No. 14-12719, 2017 WL 85832 (E.D. Mich. Jan. 10, 2017)
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Archer Daniels Midland Co. v. Chemoil Corp., 15-2199, 2016 WL 9051173 (C.D. Ill. Oct. 19, 2016)
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Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)
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Navajo Nation v. Urban Outfitters, No. 12cv0195, 2015 WL 11089521(D.N.M. June 10, 2016)
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Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)
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In re Delta/AirTran Baggage Fee Antitrust Litig., No. 1:09-md-2089-TCB, 2015 WL 4635729 (N.D. Ga. Aug. 3, 2015)

Key Insight: ability to obtain documents, company control

Electronic Data Involved: general ledgers, banking documents, backup tapes

Keywords: sanctions, failure to produce, adverse inference, attorneys’ fees, willful violation, inherent powers, failure to preserve

The Physicians Alliance Corporation v. Wellcare Health Insurance of Arizona, Inc, Et Al. (Middle District of Louisana, 2018)

Key Insight: Discovery costs must be proportional to the amount in controversy ($20 million in dispute allows for at least $13,000 in discovery costs)

Nature of Case: Contract breach

Electronic Data Involved: Electronic documents/communications

Keywords: Backup tapes, proportionality, catastrophic failure

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Yoe v. Crescent Sock (E.D. Tenn. , 2017)

Key Insight: was there a duty to preserve, were reasonable steps taken to avoid loss of data, can lost data be restored or replaced, was other party prejudiced by loss

Nature of Case: employment law, intellectual property

Electronic Data Involved: unknown

Keywords: spoliation, intent to deprive, relevance of data, measures no greater than necessary to cure the prejudice

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Wal-Mart Stores, Inc. v. Cuker Interactive, LLC (W.D. Ark., 2017)

Key Insight: failure to review backup tapes, attorney’s fees

Nature of Case: contract dispute

Electronic Data Involved: email, backup tapes

Keywords: destruction of laptop, key employee, prejudice, duty to preserve, adverse inference, retention policy

View Case Opinion

Solo v United Parcel Serv., Co., No. 14-12719, 2017 WL 85832 (E.D. Mich. Jan. 10, 2017)

Key Insight: proportionality

Nature of Case: class action

Electronic Data Involved: backup tapes

Keywords: undue burden, statistical sampling, restoration, reasonably accessible, cooperation, interrogatory, relevance

View Case Opinion

Archer Daniels Midland Co. v. Chemoil Corp., 15-2199, 2016 WL 9051173 (C.D. Ill. Oct. 19, 2016)

Key Insight: Court denied Defendant?s motion to compel production of emails from Plaintiff?s former employee where Plaintiff?s initial production included some communications from the at-issue employee, where Plaintiff had already conducted a second search that did not yield additional documents, where the emails of the former employee had been moved off of active servers thus requiring the initiation of disaster recovery protocols to conduct an additional search, and where the emails of other parties to the potentially relevant communications remained on the active servers and had also been searched; court also noted that Defendant had deposed the former employee for 6 hours

Electronic Data Involved: Email of former employee

Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)

Key Insight: Addressing motion for sanctions for the loss of emails in third party custody (GoDaddy), Iron Mountain back ups, and miscellaneous computer files, the Magistrate Judge concluded: 1)that Exeter had a duty preserve reasoning that since 2009 it had been involved in other litigation involving the disclosure of its books, records and financial documents, and that Exeter therefore knew or should have known that the documents ?could be relevant to future litigation? and also found that even if the filing of the 2009 lawsuit (involving different parties) did not trigger the preservation obligation, receipt of a 2009 subpoena should have and that in any event, the duty to preserve arose no later than Exeter?s 2011 bankruptcy filing; 2)that Exeter?s loss of ESI was ?intentional and done in bad faith? absent evidence of any effort to ensure preservation or to contact the third-party providers to inform them of the duty; and 3) that as a result of the intentional loss, a presumption of relevance was warranted and therefore recommended a sanction of an permissive adverse inference at trial; upon Exeter?s objection, District Court adopted the sanctions recommendation entirely and indicated that ?[W]hen there has been intentional destruction of evidence by an officer of a closely held corporation, other officers of the closely held entity may be subject to sanctions, even if they did not have direct control of the evidence at issue.?

Nature of Case: Plaintiff claims that Defendants defrauded Exeter?s creditors by transferring funds from Exeter to themselves, certain trusts, and other entities.

Electronic Data Involved: Email in third-party custody, Iron Mountain backups, miscelaneous ESI

Navajo Nation v. Urban Outfitters, No. 12cv0195, 2015 WL 11089521(D.N.M. June 10, 2016)

Key Insight: Court compelled limited production from backup tapes and declined to shift costs despite Defendant?s production of archived emails where Defendant failed to turn off its auto-purge and the purged emails would not, therefore, be located in the archive and where Defendant failed to specify the alleged burden and expense and Plaintiff agreed to limit their request; Defendant was required to search its SharePoint site where it utilized the site to communicate with employees, where many documents referred to the SharePoint, and where Defendant did not claim that the information was not reasonably accessible

Nature of Case: Trademark

Electronic Data Involved: Backup tapes, SharePoint

Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)

Key Insight: Court found privilege had been waived where at-issue documents were intermingled with non-privileged documents and produced in a consecutively numbered batch, where the government provided no information regarding how the documents were reviewed, where there was an almost 2 year delay until the production of the privilege log, where the documents were not marked as privileged, where approximately 10% (58/570) of the documents produced were privileged, where at least one privileged document was used as an exhibit in deposition without objection and where the government did not discover the allegedly inadvertent disclosure for nearly two years; where defendant provided evidence of the cost and burden of restoring backup tapes (14 weeks of work at a cost of approximately $85,400) court concluded that at-issue emails were not reasonably accessible and declined to compel production where plaintiff failed to establish that the emails may contain significant information

Electronic Data Involved: ESI, emails

In re Delta/AirTran Baggage Fee Antitrust Litig., No. 1:09-md-2089-TCB, 2015 WL 4635729 (N.D. Ga. Aug. 3, 2015)

Key Insight: Where Special Master declined to recommend spoliation sanctions but recommended $1,855,255.09 in monetary sanctions ?to compensate Plaintiffs for the additional time and expenses that they have incurred as a result of Delta?s failure to comply with discovery obligations,? including Defendant?s delayed identification and production of relevant evidence (including backup tapes and other ESI), the District Court agreed that monetary sanctions were appropriate but found that a higher amount was warranted and thus increased the monetary sanctions to $2,718,795.05

Nature of Case: Antitrust (Bag fees)

Electronic Data Involved: ESI, backup tapes

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