Archive - April 2007

Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007)

In this employment litigation, defendant had asserted as an affirmative defense plaintiff’s failure to mitigate her damages.  During discovery, it was revealed that plaintiff owned a home computer from December 1995 until August 2004, which plaintiff had used to conduct her entire on-line job search after leaving defendant’s employ, including researching job opportunities on the Internet, submitting on-line employment applications, and exchanging emails with prospective employers.  Plaintiff also used the computer to send and receive emails regarding her termination and her claims of gender discrimination.  The computer was discarded approximately one year after plaintiff had retained regarding her prospective claims and after she filed her charge of discrimination with the EEOC. Plaintiff claimed that she discarded the computer because it "crashed.”  Plaintiff admitted that she never took the computer to any type of computer professional to see if it could be repaired.
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Univ. of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007)

In this case, the University of Pittsburgh alleged that defendants misappropriated the University’s rights and interests in valuable medical scanning technology that the University alleged was developed collaboratively at its campus over the course of several years.  In addition to Daubert motions, defendants moved the court for an excluding the testimony of plaintiff’s proposed experts based on spoliation of evidence.  Specifically, defendants alleged that the experts, along with plaintiff’s counsel, admittedly destroyed copies of emails and draft expert reports.  Defendants argued that, as a result of the spoliation, they were unfairly prejudiced and denied the opportunity to cross-examine the witnesses as to counsel’s contributions to their expert reports.
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In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. April 2, 2007)

In this securities class action, defendants resisted lead plaintiff’s motion to compel production of email and other non-privileged documents.  Defendants argued that restoring the backup tapes and searches involved would be extraordinarily burdensome and costly, and that such costs should be shifted to plaintiff.  The court observed that, “[s]urprisingly,” the parties had not entered into an agreed protocol for electronic discovery, nor had they discussed the issue of searching backup tapes.  It also found that, given the lack of discussion on the subject, it would be unreasonable for plaintiff to assume that backup tapes were being searched.
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Georgia Dept. of Agric. v. Griffin Ind., 2007 WL 805795 (Ga. Ct. App. Mar. 19, 2007)

In this case, Griffin Industries had sought records from the Georgia Department of Agriculture relating to its facilities’ emissions and odor issues, including relevant emails.  The Department produced documents, but advised that it did not “archive” its emails.  It stated that the only possible source of such information was a series of emergency computer backup tapes, which would be made available.  The parties then corresponded about taking the tapes out of daily backup circulation to avoid erasing data, and about who would pay for replacement tapes necessary to keep the Department’s backup procedures operational.
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