Backup Tapes – Page 12 – Electronic Discovery Law

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

McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)

Dec 01 2005

Key Insight: Where plaintiff?s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants? backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants? efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval

Nature of Case: Disability discrimination

Electronic Data Involved: Emails, hard drives

Inventory Locator Serv., LLC v. PartsBase, Inc., 2005 WL 6062855 (W.D. Tenn. Oct. 19, 2005)

Dec 01 2005

Key Insight: Where there was no evidence that server logs were erased in bad faith and facts suggested that defendant was, at most, merely negligent, since it took reasonable steps to preserve relevant data — it retained and consulted with technical expert; on advice of its expert, it made a copy of the relevant server logs on CDs that could not be overwritten; it stored copies of the data on its server; and it made the data on the server available for inspection by plaintiff prior to the time it was overwritten — and where plaintiff was unable to demonstrate any real prejudice from the loss of some metadata in server logs, magistrate judge found no basis for spoliation sanctions of any kind and recommended denial of plaintiff’s sanctions motion

Nature of Case: Parties asserted claims under Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, each arguing that the other had obtained unlawful access to databases

Electronic Data Involved: Metadata; server logs

In re St. Jude Med., Inc., Silzone Heart Valves Prod. Liab. Litig., 2002 WL 341019 (D. Minn. Mar. 1, 2002)

Dec 01 2004

Key Insight: Court entered supplementary pretrial preservation order to address “newly created documents” and backups of electronic data; regarding the latter, the order prohibits “the routine erasure of computerized information potentially relevant to the subject matter of this litigation,” but states that “The full and complete back-up of any server or other computer on a periodic basis (e.g. monthly) shall relieve the party of any obligation to maintain any interim backups of the same server or other computer.”

Nature of Case: Product liability

Electronic Data Involved: Electronic data and email, and backups of electronic data

Sempra Energy Trading Corp. v. Brown, 2004 WL 2714404 (N.D. Cal. Nov. 30, 2004)

Dec 01 2004

Key Insight: Claiming that it had already spent approximately $1.4 million to restore, review and produce email, and may have to expend as much as $3 million more in order to complete the document review and production, nonparty unsuccessfully attempted to avoid compliance with discovery orders in state proceeding by seeking injunctive and declaratory relief in federal court

Nature of Case: Action for declaratory and injunctive relief

Electronic Data Involved: Email stored on backup tapes

In the Matter of Certain Network Interface Cards, 2001 WL 1217233 (U.S.I.T.C. Oct. 12, 2001)

Dec 01 2004

Key Insight: Where there were gaps in plaintiff’s production of email, administrative law judge granted motion to compel production of email from plaintiff’s backup tapes but ordered parties to share the costs of such production

Nature of Case: Case before the U.S. International Trade Commission

Electronic Data Involved: Email

In re Amsted Ind., Inc. ERISA Litig., 2002 WL 31844956 (N.D. Ill. Dec. 18, 2002)

Dec 01 2004

Key Insight: Plaintiffs’ motion to retrieve email granted; defendants required to re-search backup tapes using broader subject matter and time period, and to search email folders of any relevant individual in same manner

Nature of Case: ESOP plan participants sued employer and ESOP for breach of fiduciary duty and other wrongs

Electronic Data Involved: Email and other computerized data

Stallings v. Daniels, 583 S.E.2d 428 (Table, Text in WESTLAW), 2003 WL 21791751 (N.C. App. Aug. 5, 2003) (Unpublished)

Dec 01 2004

Key Insight: Appellate court reversed trial court’s dismissal of suit; backup tape of plaintiff’s earlier court proceeding was public record under state statute and defendants were required to permit plaintiff to examine and inspect the backup tape

Nature of Case: Suit to compel disclosure of public records

Electronic Data Involved: Backup tape containing sound recording of a hearing in a separate lawsuit

In re CI Host, Inc., 92 S.W.3d 514 (Tex. 2002)

Dec 01 2004

Key Insight: Texas Supreme Court denied defendant’s request for mandamus relief, finding that trial court did not abuse discretion in ordering production of backup tapes since defendant failed to support its objections as required by Tex. R. Civ. P. 193.4(a)

Nature of Case: Class action against web host alleging contract breach, negligence and violation of Deceptive Trade Practices Act

Electronic Data Involved: Backup tapes

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