Inadequate Preservation Efforts Necessitate Restoration and Production of Email from Backup Tapes, and Forensic Search of CEO’s Laptop
Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008)
In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a "smear campaign" that destroyed plaintiff’s career as a securities analyst. He asserted claims of defamation, tortious interference with prospective economic advantage and civil conspiracy. In February 2006, as previously summarized here, Magistrate Judge James C. Francis, IV declined to enter a preservation order and ordered defendants to answer a “document retention questionnaire” and produce documents in native format. In response that order, Biovail proceeded with the search protocol it had previously proposed, using the search terms (i) Treppel, (ii) Jerry, (iii) Bank of America, (iv) Banc of America, (v) BAS, and (vi) BofA. Biovail searched the individual emails and files of certain key players, as well as the shared file drives of relevant departments. It conducted the search by accessing certain backup tapes it had preserved, and images of the custodians’ hard drives.
Subsequently, plaintiff requested that Biovail expand its search for electronic documents by adding some 30 search terms and numerous individual custodians to the original search. Biovail declined on the grounds that plaintiff’s request came too late and was overbroad. Biovail produced the results of its search in May 2006. After some additional discovery relating to Biovail’s preservation of electronic data, discovery closed in December 2007.
Plaintiff then moved for an order compelling Biovail to search for additional ESI and imposing sanctions, alleging that the defendants did not adequately preserve evidence. Defendants opposed both applications, contending that their production was complete and that their steps to preserve evidence were sufficient.