Archive - December 2004

Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (“Zubulake V”)

In this fifth written opinion in this employment litigation, the court concluded that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff’s motion for sanctions. Specifically, the court ruled that the jury would be given an adverse inference instruction with respect to deleted emails, that UBS pay the costs of any depositions or re-depositions required by its late production of email, and that UBS reimburse plaintiff for the costs of the motion. Read More

Harrison v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 2004 WL 2984815 (E.D.La. Dec. 9, 2004)

In this case, a company (NovelAire) filed a complaint against its former employees (Harrison and Bucklin) for breach of agreement and breach of fiduciary duties, intentional interference with a contract, and violations of Lousiana’s unfair trade practices act. The same day it filed its complaint, NovelAire applied ex parte for the issuance of a pre-trial discovery order, entitled “Order for Expedited Discovery to Preserve Evidence.” The request was based, in part, on an email written by Bucklin that allegedly evidenced the employees’ intent to destroy discoverable evidence pertinent to NovelAire’s state court case. After reviewing the request, the judge ordered the sheriff to serve the discovery order on Harrison and Bucklin and remain on the premises until the order had been carried out. Read More

Toshiba American Elec. Components, Inc. v. Superior Court, 2004 WL 2757873 (Cal.App. Dec. 3, 2004)

In this discovery dispute, the parties disagreed about whether the demanding party or the responding party should pay the cost (estimated to be as much as $1.9 million) for recovering email from computer backup tapes. The court concluded that in a proper case, California Code of Civil Procedure, Section 2031 (g)(1) requires the demanding party to pay that expense. Declining to resolve the immediate dispute, the court ruled that the determination of a “proper case” is a factual matter best left to the discretion of the trial court. Read More

Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004)

Defendant sought sanctions when evidence showed that two key witnesses (principals of plaintiff, Maass and Chutijian) systematically deleted potentially relevant emails before and during litigation. Specifically, defendant sought an order (1) precluding plaintiff from presenting certain evidence and calling certain witnesses at trial and (2) requiring the two witnesses to execute consents authorizing Yahoo, Inc. and Microsoft Corporation to release to defendant all e-mails sent from or to Maass or Chutjian since June 30, 2000; all e-mails sent between Maass and Chutjian at any time (including as “cc’s”); and all e-mails between Maass or Chutjian any of eight specified e-mail addresses. Read More

Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y., Nov. 3, 1995)

Defendants resisted a motion to compel production of computerized data on grounds that they would have to “create” the information in electronic format. They stated that certain reports would be produced in hard copy form only, since they were no longer available in electronic form. Read More

Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.Pa. 2004)

After the court declared a mistrial based on plaintiff’s mid-trial production of an expert report, the parties cross-moved for preservation orders. The court began its analysis by observing that the four-prong test typically applied to matters concerning injunctive relief was not a completely appropriate test to utilize when examining the need for a preservation order, particularly since proof of a probability of success in the litigation is not an appropriate consideration in determining whether to order preservation of documents. Read More