December 2004 – Page 8 – Electronic Discovery Law

Defendant Required to Produce Materials in Electronic Form

Dec 15 2004

In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 634 (E.D. Mich. 1989)

Defendant aircraft manufacturer produced flight simulator material in hard copy form, and defendant Northwest Airlines moved to compel production of the program and data on computer-readable nine-track magnetic tape. Northwest argued that, without a tape, its expert would be forced to load the material manually onto a nine-track tape, check the input for accuracy, and spend substantial time debugging the program. Read More

Court Denies Motion Requiring Plaintiff to Pay for Electronic Production by Defendant

Dec 15 2004

Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985)

In age discrimination suit, plaintiffs sought production of documents containing detailed information about numerous employees. In order to supply the data to plaintiffs in usable form, defendant offered to supply either a computer tape or printout of the data at plaintiffs’ choice, but only on the condition that plaintiffs would pay the cost to generate the information. Defendant produced the material in hard copy, as requested by plaintiffs, and sought an order requiring plaintiffs to remit $5,411.25. 108 F.R.D. at 460. Read More

Plaintiff Ordered to Produce Computer-readable Tape Previously Produced in Hard Copy Form

Dec 15 2004

Nat’l Union Elec. Corp. v. Matsushita Elec. Ind. Co., 494 F.Supp. 1257 (E.D. Pa. 1980)

Defendant moved to require plaintiff’s computer experts to create a computer-readable computer tape containing sales data that had been produced in answers to interrogatories. Although the defendant could themselves create the tape, it would require two months and “many thousands of dollars.” 494 F.Supp. at 1258. Read More

Demanding Party May be Liable for Data Translation Costs

Dec 07 2004

The Recorder
December 6, 2004

Litigants who demand expensive electronic data discovery have to pay for it, the Sixth District Court of Appeal ruled Friday. Noting that the issue is “bound to arise with increasing frequency,” the appellate court reversed a trial court decision that had compelled Toshiba America Electronic Components Inc. to produce data at an estimated cost of $1.5 million to $1.9 million. Click here to continue reading [subscription required.]

Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982)

Dec 01 2004

Key Insight: Court did not abuse discretion in denying request for computer tapes where requesting party already possessed all information from tapes on wage cards and were not deprived of any data

Electronic Data Involved: Computer tapes containing wage information

Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2358106 (E.D. La. Oct. 13, 2004)

Dec 01 2004

Key Insight: Court ruled that plaintiff should determine, either informally or during a corporate deposition of defendant, what information responsive to interrogatory could be retrieved from defendant?s computer system and what could only be retrieved manually; to the extent the information could only be retrieved manually, parties were ordered to attempt to agree on a sampling process

Electronic Data Involved: Computer databases

Network Computing Servs. Corp. v. Cisco Systems, Inc., 223 F.R.D. 392 (D.S.C. 2004)

Dec 01 2004

Key Insight: Concluding that plaintiff’s discovery abuse warranted sanctions, district court ruled that appropriate sanction would be to inform the jury about plaintiff’s misconduct, since monetary sanctions previously imposed had not deterred further misconduct and extreme sanction of dismissal was not warranted by the facts

Electronic Data Involved: Breach of distributorship agreement, fraud, unfair trade practices and related torts

McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

Dec 01 2004

Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice

Electronic Data Involved: Email and hard copy documents

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

Dec 01 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

United States v. First Data, 287 F. Supp. 2d 69 (D.D.C. 2003)

Dec 01 2004

Key Insight: Scheduling and case management order provides, inter alia, that document requests shall be responded to and documents produced within ten days after service, and that parties will produce documents in either hard copy form, or, in the case of electronic documents, in the native electronic format (or a mutually agreeable format)

Archive - December 2004