Backup Tapes – Page 13 – Electronic Discovery Law

Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003)

Dec 01 2004

Key Insight: EPA violated preliminary injunction that prohibited destruction of potentially responsive documents by reformatting hard drives and erasing or overwriting backup tapes containing potentially responsive email; EPA held in civil contempt and ordered to pay plaintiff’s reasonable attorneys’ fees incurred as a result of EPA’s contumacious conduct

Nature of Case: FOIA action

Electronic Data Involved: Hard drives and email stored on backup tapes

Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)

Dec 01 2004

Key Insight: Adopting Zubulake and McPeek approaches, court ordered defendant to restore a sampling of five backup tapes selected by the plaintiff; parties would thereafter be required to make additional submissions addressing whether the burden or expense of satisfying the entire request was proportionate to the likely benefit

Electronic Data Involved: Email stored on backup tapes

Long Island Diagnostic Imaging, P.C. v. Stony Brook Diagnostic Assoc., 728 N.Y.S.2d 781 (N.Y. App. Div. 2001)

Dec 01 2004

Key Insight: Trial court erred in not dismissing defendants’ counterclaim and third party complaint as sanction for spoliation of evidence — contrary to court’s orders, defendants purged databases and produced backup tapes that were compromised and unusable

Nature of Case: Plaintiff sought declaratory judgment that it was not in default of license agreement

Electronic Data Involved: Computer databases and backup tapes

Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)

Dec 01 2004

Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it

Nature of Case: Drug products liability

Electronic Data Involved: Discoverable information in paper or electronic format

Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F. Supp. 2d 561 (N.D. Tex. 2003)

Dec 01 2004

Key Insight: Court entered preservation order requiring preservation of all extant backups or images of all servers or personal computers containing disputed software or email; court denied motion to compel imaging of all media potentially containing software or electronic evidence relevant to the claims in the suit, and all images of defendants’ computer storage facilities, drives and servers taken to date, as substantially overbroad

Nature of Case: Copyright infringement

Electronic Data Involved: Backups and images of servers, software and email

Premier Homes & Land Corp. v. Cheswell, Inc., 240 F. Supp. 2d 97 (D. Mass. 2002)

Dec 01 2004

Key Insight: In related action, court granted defendant’s ex parte application to allow its consultants to create mirror images of plaintiff’s computer hard drives, backup tapes and other storage media, in light of allegation that critical document and email were fabricated; after granting unopposed motion to dismiss, court awarded defendant $24,845.99 in fees and costs, including computer consultant fees of $5,650

Nature of Case: Alleged breach of lease agreement

Electronic Data Involved: Hard drives and other storage devices

Rowe Entm?t, Inc. v. William Morris Agency, Inc., 2002 WL 975713 (S.D.N.Y. May 9, 2002)

Dec 01 2004

Key Insight: District judge upheld magistrate’s decision

Nature of Case: Concert promoters sued booking agencies and other promoters for discriminatory and anti-competitive practices

Electronic Data Involved: Email stored on backup tapes and hard drives

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

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