Backup Tapes – Page 10 – Electronic Discovery Law

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Puckett v. Tandem Staffing Solutions, Inc., 2007 WL 7122747 (N.D. Ill. Jun. 27, 2007)

Dec 01 2007

Key Insight: Court denied motion for sanctions but, despite prior production of the information in hard copy, ordered defendant to restore and re-produce information from backup tapes where the information was ?reasonably calculated to lead to the discovery of admissible evidence? and where defendant asserted that it?s ?documentation? was maintained in electronic form in the usual course of business, and ordered the parties to split the costs; court declined to compel defendant?s search of computers which ?may or may not have been utilized by plaintiff and his comparators? where requiring a search of an unknown number of computers in various offices with the possibility that no relevant individuals utilized them was unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: Backup tapes, computers

Nat?l Union Fire Ins. Co. of Pittsburgh v. Clearwater Ins. Co., 2007 WL 2106098 (S.D.N.Y. July 21. 2007)

Dec 01 2007

Key Insight: Court denied motion to compel production of email from 113 backup tapes, estimated to cost between $45,200 and $79,100, plus attorney’s time in reviewing documents, since defendant had not sufficiently demonstrated that responsive emails relating to settlement negotiations existed on the backup tapes, which covered time periods that were months after the settlement was reached; court noted that if moving party wished to pay to restore the backup tapes, it may do so

Nature of Case: Insurance coverage

Electronic Data Involved: Email stored on backup tapes

In re Hawaiian Airlines, Inc., 2007 WL 3172642 (Bankr. D. Haw. Oct. 30, 2007)

Dec 01 2007

Key Insight: Finding that Mesa?s CFO deleted files that Mesa had duty to preserve, used special software to wipe hard drives and changed computer’s clock in an attempt to conceal what he had done, and that Mesa could have taken reasonable, inexpensive and non-burdensome steps that would have prevented or mitigated the consequences of CFO’s destruction of evidence, court concluded that adverse inference was appropriate and made certain findings of fact which were binding and conclusive for all purposes in the case

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007)

Dec 01 2007

Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order

Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession

Electronic Data Involved: Email and other ESI

Rouse v. II-VI, Inc., 2007 WL 2907935 (W.D. Pa. Oct. 1, 2007)

Dec 01 2007

Key Insight: Among other findings on plaintiff’s motion to compel, court concluded that keyword search performed by defendant was adequate given the circumstances of the case

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Reino de Espana v. Am. Bureau of Shipping, 2007 WL 210018 (S.D.N.Y. Jan. 25, 2007)

Dec 01 2007

Key Insight: Court denied Spain’s motion to reconsider November 3, 2006 Opinion and Order rejecting the various reasons offered as support

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

Floeter v. City of Orlando, 2007 WL 486633 (M.D. Fla. Feb. 9, 2007)

Dec 01 2007

Key Insight: Court denied motion for spoliation sanctions based on city’s overwriting of backup tapes and failure to preserve computer’s hard drive, where subject computer had been reassigned and its hard drive re-imaged before discovery requests were served, missing evidence was not crucial to plaintiff’s claims, and destruction of the material was not done in bad faith

Nature of Case: Employment discrimination

Electronic Data Involved: Computer hard drive and backup tapes

In re Maura, 842 N.Y.S.2d 851 (N.Y. Sur. Ct. 2007)

Dec 01 2007

Key Insight: Court ordered that non-party law firm’s hard drive be imaged, and that law firm (not plaintiff) would be entitled to select computer forensic expert to conduct cloning process; court further ordered parties to confer on details and set basic timeframe for cloning and review of material, and ruled that plaintiff would be responsible for costs associated with search and production

Nature of Case: Proceeding to determine the validity of a right of election

Electronic Data Involved: Law firm computer

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Tag:Backup Tapes