Key Insight: No abuse of discretion to deny plaintiff’s motion to compel discovery of “computer diskette or tape copy of all word processing files created, modified and/or access by, or on behalf” of five employees over 2-1/2 year period as overbroad and unduly burdensome
Nature of Case: Age discrimination
Electronic Data Involved: Word processing files
Key Insight: Court ordered defendant to produce to plaintiff information in the possession of a third party storage facility, with each side paying one-half of the charges billed by the third party for retrieving the information; court further ruled that the prevailing party would be entitled to recover from the losing party its share of the costs associated with retrieval of the information
Nature of Case: FLSA claim
Electronic Data Involved: Electronic documents
The federal district court for the Southern District of New York has issued another ruling (available here) relating to electronic discovery in the ongoing matter of Zubulake v. UBS Warburg.
The court’s most recent decision, issued October 22, 2003, addresses Zubulake’s motion for sanctions against UBS for its failure to preserve missing backup tapes and deleted emails. See Zubulake v. UBS Warburg, LLC, 2003 WL 22410619 (S.D.N.Y.). Although the court established no definitive guidelines regarding when backup tapes must be preserved, the decision discusses this issue at length, describing both situations where the tapes should be preserved, and situations where they need not be preserved.
After considering UBS’s failure to preserve the missing backup tapes and deleted emails, the court declined to grant an adverse inference instruction against UBS, or to impose on UBS the full cost of restoring certain backup tapes, but did order UBS to bear the plaintiff’s costs of re-deposing certain individuals concerning issues raised either by the destruction of evidence or by any newly-produced emails. Read More
Key Insight: Reconsideration of ruling that plaintiffs lacked standing. Expert affidavit shows substantial risk of identity theft and sale of PII and PHI on the dark web, establishing injury-in-fact.
Nature of Case: Class action arising out of a data breach and alleging identity theft.
Electronic Data Involved: Dark web evidence
Keywords: PII and PHI, dark web, identity theft, Joe Church, Digital Shield, X1 Social Discovery
Copyright © 2025, K&L Gates LLP. All Rights Reserved.