Author - kgates

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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Padgett v. City of Monte Sereno, 2007 WL 878575 (N.D. Cal. Mar. 20, 2007)

Plaintiffs in this litigation sued the city of Monte Sereno and several city employees for civil rights violations and other torts.  Among other things, plaintiffs alleged that certain city employees had sent plaintiffs an anonymous, threatening letter that included a newspaper article downloaded from the Internet.  One city employee (Rice) subsequently admitted to authoring and sending the threatening letter from her workstation at City Hall.  Although Rice indicated that she wrote the letter at her own direction without telling anyone about it, plaintiffs contended that Rice wrote the letter at the direction of other city employees, including the city manager (Loventhal).  To explore this allegation, plaintiffs moved to compel inspection of the city’s computers, printers and backup tapes.
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Capitano v. Ford Motor Co., 831 N.Y.S.2d 687 (N.Y. Sup. Ct. 2007)

In this product liability case, plaintiffs sought production of defendant’s “suspension orders,” also known as "litigation hold notices."  Plaintiffs argued that the suspension orders should be produced in light of the fact that Ford was unable to produce certain documents.  Plaintiffs contended that, with access to the suspension orders, they would be able to determine if the documents in question were intentionally or negligently destroyed, or perhaps secure information which may lead to the discovery of the missing documents.
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Bolton v. Sprint/United Mgmt. Co., 2007 WL 756644 (D. Kan. Mar. 8, 2007)

This is an age discrimination case brought by thirteen individual plaintiffs, based upon a corporate reduction-in-force ("RIF") by defendants.  In this decision, the court ruled upon plaintiffs’ motion to compel defendants to produce certain documents, including databases and spreadsheets.  Among other objections, defendants argued that plaintiffs’ persistent demand for information in “native format” and metadata was troubling.  Defendants claimed that the phrase “native format,” as used by plaintiffs, was a misnomer, and in reality it simply meant that “if a document was created in an Excel software program, then it should be produced in Excel format.”  Defendants argued that this type of production implicated issues related to metadata, and that accessing electronic information to produce it in native format may actually destroy information that might otherwise be gleaned from metadata.  In addition, defendants argued that production of metadata would reveal privileged information, and would not be relevant to plaintiffs’ claims.  Finally, defendants argued that it would be difficult and time-consuming to devise a manner of production that would ensure that the information appeared in the same state it existed at the time the document was originally utilized, or to ensure active cells were not changed post-production.  They claimed the burden and risk associated with native production far surpassed the benefits, which were minimal, if any, and which were unarticulated by plaintiffs.
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