Backup Tapes – Page 11 – Electronic Discovery Law

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

Columbus McKinnon Corp. v. HealthNow New York, Inc., 2006 WL 2827675 (W.D.N.Y. Sept. 29, 2006)

Dec 01 2006

Key Insight: Court rejected defendant’s excuses for extended delay in producing itemization of withdrawals in a format usable by plaintiff, and ordered defendant to reimburse plaintiff for the reasonable cost of attorneys’ fees incurred in moving for contempt of court’s prior order

Nature of Case: Breach of contract

Electronic Data Involved: Billing records, backup tapes, DVDs

In re Atlantic Int’l Mortgage Co., 2006 WL 2848575 (Bankr. M.D. Fla. Aug. 2, 2006)

Dec 01 2006

Key Insight: Court rejected trustee’s request for entry of default judgment based upon based on law firm’s failure to retain and timely produce relevant documents and electronically-stored information, but found that monetary sanctions were appropriate; trustee awarded his reasonable attorneys’ fees and costs incurred in pursuing all discovery in the adversary proceeding

Nature of Case: Adversary proceeding in bankruptcy court

Electronic Data Involved: Backup tapes

In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006)

Dec 01 2006

Key Insight: In stipulated order, parties agreed that plaintiffs would preserve hard drives used by plaintiffs and plaintiffs? decedents and that such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol; that responsive ESI would be collected by defendants from defendants’ active IT environment and not from backup tapes absent exceptional circumstances, and that plaintiffs would defer to defendants as to the format of production

Nature of Case: Personal injury product liability

Electronic Data Involved: Hard drives, ESI

Bedford, LLC v. Safeco Ins. Co., 2006 WL 3616434 (Wash. App. Dec. 11, 2006) (Unpublished)

Dec 01 2006

Key Insight: Trial court did not err in denying motion for curative jury instructions, a sanction of default, and, after the verdict, a new trial, based upon defendant’s failure to produce a draft expert report; finding no misconduct, trial court had observed: “While I agree that . . . hard copies of draft [expert] reports are discoverable, I am aware of no legal principle that would require a testifying expert witness to separately retain all electronic drafts, including those that were overridden or subsumed during the drafting process.”

Nature of Case: Insurance coverage

Electronic Data Involved: Draft expert report

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

Kimbrough v. City of Cocoa, 2006 WL 3500873 (M.D. Fla. Dec. 4, 2006)

Dec 01 2006

Key Insight: Court denied plaintiffs’ motion for spoliation sanctions based upon defendant’s failure to produce complete copy of particular monthly medical report where plaintiffs failed to show that duty to preserve attached to the report, or that report was crucial to their claims, and there was no evidence of bad faith, especially since defendant had gone to “extraordinary lengths” to attempt to retrieve a copy of the complete report

Nature of Case: Civil rights, excessive force

Electronic Data Involved: Monthly medical report

Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Preservation order not warranted under three-part balancing test, but defendants would be required to treat Document Retention Questionnaire and supplemental letter inquiries regarding electronic document maintenance and retention as interrogatories and provide substantive responses since plaintiff provided ample basis and deposition was no substitute; magistrate also ordered production of electronic records in native file format since defendant had not provided any substantive basis for objection

Nature of Case: Defamation, tortious interference with prospective economic advantage and civil conspiracy

Electronic Data Involved: Email and other electronic records

Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (N.Y. Sup. Ct. 2006)

Dec 01 2006

Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted

Nature of Case: Fraud and breach of contract claims

Electronic Data Involved: Email and non-email electronic documents restored from backup tapes

Tag:Backup Tapes