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Selected decisions concerning electronic discovery, searchable by any combination of the following criteria:

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Wiginton, et al. v. CB Richard Ellis, Inc.

2003 WL 22439865 (N.D. Ill.)

In a putative class action alleging sexual harassment, plaintiff counsel sent a detailed, four-page letter to the defendant?s general counsel, requesting the defendant to halt all destruction of potential paper and electronic evidence. Several months later the parties agreed to a joint data preservation order which was endorsed by the court. However, prior to the entry of the order, the defendant followed its routine document management program, which resulted in the destruction of some email backup tapes and employee hard drives, including that of the plaintiff?s former supervisor. The plaintiff filed a motion for a sanctions for spoliation and a blanket data preservation order going forward. The magistrate judge held that the plaintiff?s initial letter did not, in itself, trigger any duty to preserve evidence or even a duty to respond, but served to inform the defendant of the possible scope of preservation necessary, which was beyond the action taken by the general counsel at the time. The judge heard evidence on the nature and extent of the defendant?s IT system and the cost of routine backups, and took note of the fact that backups were designed for disaster recovery purposes only. However, the judge held that simple assertions of burden and cost do not excuse ?complete failure to perform any search? and constitute ?willful blindness.? Therefore, the judge found that the defendant ?wilfully and intentionally? violated the duty to preserve evidence. Turning to sanctions, the judge did not find the requisite degree of bad faith or fault to support a sanction of default. On the lesser possible sanction of a spoliation inference, the recommended that the motion be denied without prejudice, pending further investigation of the extent and nature of the data loss.

Keir v. UnumProvident

2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003)

In an ERISA class action suit, the parties agreed to a data preservation order after several conferences. The order was very narrowly drawn and concentrated on preserving six days of email records which were contained on the defendant's backup tapes and hard drives. However, the defendant's upper management did not communicate the order to its IT staff for nearly two weeks and most of its data management functions had been outsourced to IBM, which failed to implement the required preservation. While the court found that the defendant's failure to preserve was unintentional, it criticized the defendant's poor compliance with the preservation order. The court recommended that further action be taken to determine the feasibility of retrieving the lost data and the extent of prejudice to the plaintiffs in order for the court to fashion a remedy.

Landmark Legal Foundation v. Environmental Protection Agency

2003 WL 21715678 (D. D.C.) (?Landmark II,? Memorandum Opinion and Order dated July 24, 2003)

In a civil suit stemming from a FOIA request, the court issued a preliminary injunction ordering that the EPA refrain from ?transporting, removing, or in any way tampering with information responsive? to the Plaintiff?s FOIA request. Subsequently, the hard drives of several EPA officials were reformatted, backup tapes were erased and reused, and individual emails were deleted. The Plaintiff filed a motion for contempt. The court held that under the strict standards of Rule 65, the order was clear and the data destroyed went ?to the heart? of the plaintiff?s claims. The EPA was found in contempt and ordered to pay attorney?s fees and costs, but the court declined to hold several individuals and the United States Attorney?s Office in contempt as well. Cf., Landmark I, under ?Records Management.?

Medical Billing Consultants, Inc. v. Intelligent Medical Objects, Inc.

2003 WL 1809465 (N. D. Ill.) (Memorandum Opinion and Order dated April 4, 2003)

In a copyright and trade secret appropriation case, the defendants moved to allow onsite inspection of the plaintiff?s computers. The court held that absent any showing that the plaintiff?s disclosures and responses to prior requests were inadequate or that more evidence is likely to be discovered, the request would be denied as unduly burdensome.

Heveafil Sdn. Bhd. v. United States

2003 WL 1466193 (Fed. Cir. 2003) (slip opinion not to be cited as authority)

The Federal Circuit affirmed the judgment of the U.S. Court of International Trade in refusing to admit into evidence computerized business records which, in the trial court?s view, were ?at best, an unauthenticated duplicate of a database which may have been generated in the ordinary course of business.? The Circuit explained that the manufacturer ?did not produce evidence explaining how the copy was made, such as an affidavit by an employee with pertinent knowledge verifying the accuracy of the database,? and that key source documentation was not retained.

Wright v. AmSouth Bancorporation

320 F. 3d. 1198 (11th Cir. 2003)

In a very brief opinion, the 11th Circuit held that the trial court did not abuse its discretion when it held that the plaintiff?s request for discovery of ?computer diskette or tape copy of all word processing files created, modified and/or accessed by, or on behalf? of five employees of the defendant over a two and one-half year period was not reasonably related to the plaintiff?s age discrimination claims, overly broad, and unduly burdensome.

Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees and Restaurant Employees International Union, et. al.

212 F.R.D. 178 (S.D. N.Y. 2003)

Contrary to counsel?s representations, the defendant had failed to conduct a reasonable investigation to response to discovery requests, failed to prevent the destruction of documents, failed to adequately instruct the person in charge of document collection, and shortly before a scheduled on-site inspection, had allowed computers subject to discovery to be replaced with new computers. The court found that the defendant?s behavior constituted a ?combination of outrages? and ordered judgment against the defendant with attorneys? fees.

McPeek v. Ashcroft

212 F.R.D. 33 (D. D.C. 2003) (?McPeek II?)

Following up on a previous ruling in the same case, Magistrate Judge Facciola held that after ordering ?sampling? of a large collection of backup tapes, the resulting data did not support further discovery of any but one of the tapes. The opinion includes a detailed description of the sampling methods used to reach the conclusion.

Residential Funding Corp. v. DeGeorge Financial Corp.

306 F. 3d 99 (2d Cir. 2002)

Remanding the trial court?s denial of a spoliation inference, the Second Circuit holds that the trial judge has the discretion to consider ?purposeful sluggishness,? resulting in denial of access to email that may include discoverable data, as equivalent to spoliation for Rule 37 purposes. Conduct need not be willful and need not result in the physical destruction of the evidence to be sanctionable.

Byers, et al. v. Illinois State Police, et al.

53 Fed. R. Serv. 3d 740 (N.D. Ill. 2002)

Plaintiffs in a sex discrimination case requested discovery of email backup tapes going back eight years. Citing Rowe Entertainment and McPeek, among other cases, the court narrowed the request and ordered the plaintiff to assume the cost of restoring the data, including obtaining the necessary software license.

Stallings-Daniel v. Northern Trust Company

52 Fed. R. Serv. 3d 1406 (N.D. Ill. 2002)

In line with Fennell v. First Step Designs, the court denied the plaintiff?s motion for wide-ranging discovery of the defendant?s email system, based solely on the allegation that the defendant had mishandled email production in a previous, unrelated case.

Trigon Insurance v. United States

204 F.R.D. 277 (E.D. Va. 2001)

In a corporate taxpayer suit against the United States, the United States hired a litigation support firm, which in turn hired experts to act as consultants and testifying experts. The litigation support firm had a policy under which all email communications with experts and draft reports were destroyed. The court held that under the facts of this case, those communications and drafts would have been discoverable, and the United States was responsible for its litigation support firm?s intentional spoliation. Adverse inferences regarding the content of the destroyed electronic documents were appropriate.

McPeek v. Ashcroft

202 F.R.D. 31 (D. D.C., 2001)

Retrieval of specific recordsfrom computer backup tapes is not within the ordinary and foreseeable course of business, but the restoration of a small sample of the backup tapes will be ordered to determine whether the backup tapes contain relevant discoverable information not available from any other source.

Strasser v. Yalamanchi

783 So.2d 1087 (Fla Ct. App. 2001) (?Strasser II?)

While delaying discovery to obtain a protective order, the respondent claimed the hard drive was damaged and had to be disposed of, circumstances which the court found suspicious enough to allow a spoliation question to go to the jury. Cf., Strasser I, under ?Scope of Electronic Discovery.?

GTFM v. Wal-Mart Stores

49 Fed. Rules Serv. 3d 219 (S.D. N.Y. 2000)

Defendant counsel provided inaccurate information to the plaintiffs about computer records early in discovery, and discoverable computer records were later destroyed. The court ordered defendant to pay attorney?s fees and costs expended to litigate the sanction motion and recover the data.

Linnen v. A.H. Robins

10 Mass L. Rptr. 189 (Mass. Sup. Ct. 1999)

Counsel failed to adequately investigate their client's computer records and holdings, and thereby failed to preserve relevant computer records. In the face of repeated representations before the court that no relevant records existed, a spoliation inference would be a reasonable sanction.

New York National Organization for Women v. Cuomo

1998 WL 395320 (S.D. N.Y. 1998)

Counsel have a duty to advise their client to take reasonable steps to preserve records subject to discovery.

In re Cheyenne Software Securities Litigation

1997 WL 714891 (E.D. N.Y. 1997)

Routine recycling of computer storage media must be halted during discovery, when that is the most reasonable means of preserving data available.

McGuire v. Acufex Microsurgical

175 F.R.D. 149 (D. Mass. 1997)

In an employment case, the human resources director edited a word-processed report of an internal investigation after a state administrative complaint was filed but before suit was filed in federal court. While this action could be considered destruction or alteration of discoverable evidence, it was within the director?s authority to do so and not misconduct, and no harm occurred, given that an unedited version of the document was produced from another computer source. However, the facts surrounding the editing would be admissible.

In Re Prudential Insurance Company of America Sales Practice Litigation

169 F.R.D. 598 (D. N.J. 1997)

In a major class action suit alleging deceptive sales practices by insurance agents, the defendant agreed to suspend its usual records retention schedule for sales literature nationwide. Each field office had a detailed records management handbook which was updated often in the usual course of business, but the order to suspend destruction of sales literature was communicated by bulk email, routinely ignored by the field agents. This and the defendant's pattern of failure to prevent unauthorized document destruction warranted $1 million fine and court-ordered measures to enforce the document preservation order.

Fennell v. First Step Designs

83 F. 2d 526 (1st Cir. 1996)

Discovery of computer hard drive not justified by mere supposition that relevant evidence might be found.

Strasser v. Yalamanchi

669 So.2d 1142 (Fla Ct. App. 1996) (?Strasser I?)

Access to a computer hard drive for the purposes of discovery will be denied when the requesting party cannot demonstrate the likelihood of retrieving purged information and cannot show that access is the least intrusive manner to acquire information. Cf., Strasser II, under ?Data Preservation and Spoliation.?

Anti-Monopoly v. Hasbro

1995 U.S. Dist. LEXIS 16355, 1995 WL 649934 (S.D. N.Y.)

"It is black letter law that computerized data is discoverable."

Lewy v. Remington Arms

836 F. 2d 1104 (8th Cir. 1988)

In a product liability suit alleging defective design of rifles, documents concerning past consumer complaints relevant to the suit were destroyed. The trial court issued an instruction that the jury could infer that the destroyed documents would have provided evidence against Remington (a "spoliation instruction"). Remington appealed, claiming that the document destruction was routine, pursuant to the company's three-year records retention schedule. The appeals court remanded the case back to the trial court for a determination of whether a three-year records retention schedule was reasonable, and whether suspension of the schedule when the lawsuit was filed should have been required, whether or not the schedule was reasonable in the ordinary course of business.

William T. Thompson Company v. General Nutrition

593 F. Supp. 1443 (C. D. Cal. 1984)

The court entered default against the defendant for destroying computer records subject to discovery.

Kozlowski v. Sears, Roebuck

73 F.R.D. 73 (D. Mass. 1976)

In the days before computers, Sears, Roebuck recorded all customer complaints about products on index cards, which were organized by the name of the complainant with no crossindexing, making it almost impossible to search across the vast collection for complaints about the same or similar products. When Sears was sued for selling children's pajamas made from highly flammable fabric, it argued that discovery of all complaints about flammable pajamas would be unduly burdensome, and therefore should not be allowed. The court held that Sears' was under an obligation to answer the discovery request, stating that "to allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules."

OpenTV v. Liberate Technologies

N.D. Cal. No. C 02-0655 (Order Re Discovery dated November 18, 2003)

In an intellectual property infringement suit, the magistrate judge ruled that a portion of the costs of producing relevant computer source code should be shifted from the responding party to the requesting party. The plaintiff had requested production of some 100 additional versions of source code for software products being developed by the defendant. The defendant objected, stating that locating and duplicating the requested source code would be unduly burdensome and would yield only marginally relevant results. Instead, the defendant offered to make its complete source code database available at its facilities, along with a complete index to the database and a software engineer to provide technical assistance. The plaintiff rejected the offer, arguing that it essentially shifted production costs to plaintiff, the requesting party. Because extracting the source code would take the defendant between 125 and 150 hours of work, the court found that the requested electronic data was inaccessible for purposes of discovery and that cost-shifting would be appropriate. Applying the Zubulake factors, the court determined that the costs for extraction should be split evenly and the cost of duplication should be borne by the defendant.

Zubulake v. UBS Warburg LLC, et al. (Zubulake IV)

Oct. 22, 2003, S.D.N.Y.

Zubulake v. UBS Warburg LLC, et al. (Zubulake III)

July 24, 2003, S.D.N.Y.

Zubulake v. UBS Warburg LLC, et al. (Zubulake I)

May 13, 2003, S.D.N.Y.

Mathias v. Jacobs

197 F.R.D. 29 (S.D. N.Y. 2000)

Northwest Airlines, Inc. v. Local 2000, International Brotherhood of Teamsters, AFL-CIO, et al.

Civil No. 00-08 (DWF/AJB) (Feb. 2, 2000, D. Minn.)

Lexis-Nexis v. Beer

41 F. Supp. 2d 950 (D. Minn. 1999)

Gates Rubber Co. v. Bando Chemical Industries, et al.

167 F.R.D. 90 (D. Colo. 1996)

In Re Brand Name Prescription Drugs Litigation

Nos. 94 C 897, MDL 997 (N.D. Ill 1995)