Backup Tapes – Page 5 – Electronic Discovery Law

Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)

Dec 01 2012

Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion

Electronic Data Involved: 40-year old magnetic tapes

Margolis v. Dial Corp., No. 12-CV-0288-JLS (WVG), 2012 WL 2588704 (S.D. Cal. July 3, 2012)

Dec 01 2012

Key Insight: Court denied Plaintiffs? request for a preservation order as to voicemail and instant messages where defendants had already sent litigation hold notices requiring preservation such that Plaintiffs? request was moot; Court further declined to enter preservation order as to backup tapes where defendants established that their preservation would impose a significant burden and that the contents were likely duplicative and where the court found that the backup tapes did not fall within the exception identified in Zubulake v UBS Warburg, 220 FRD 212 (S.D.N.Y. 2003).

Electronic Data Involved: Voicemail, instant messages, backup tapes

Navajo Nation v. United States, —Fed. Cl.—, 2012 WL 5398792 (Fed. Cl. Nov. 6, 2012)

Dec 01 2012

Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others

Electronic Data Involved: ESI

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

Escamilla v. SMS Holdings Corp., No. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21, 2011)

Dec 01 2011

Key Insight: Court affirmed Magistrate Judge?s order requiring defendant to submit his computers for forensic examination, at his own expense, where defendant reinstalled an operating system less than two weeks after plaintiff filed a motion to compel and where, because of the loss of data, plaintiff was therefore prejudiced to an unknown extent?bad faith was not required for such an order; court affirmed order requiring corporate defendant to search hard drives of key employees, the image of a file and print server, and backup tapes dating back five years where the search was not overly broad and where defendant did not establish undue burden?despite its exorbitant estimate regarding backup tapes?in light of the large disparity between estimates from both parties, and where the court noted that much of the costs could have been avoided had SMS fulfilled its preservation duties and not converted to a less accessible format

Nature of Case: Employment litigation – sexual harassment

Electronic Data Involved: ESI

B&B Hardware, Inc. v. Fastenal Co., No. 4:10CV00317 BRW/JTR, 2011 WL 2115546 (E.D. Ark. May 25, 2011)

Dec 01 2011

Key Insight: Addressing discovery issues ?looming on the horizon? court indicated that there appeared to be no basis to require defendant to forensically image at-issue hard drives and, addressing whether defendant would be required to restore and review backup tapes which it claimed could cost $84,854,704. 90 (a number the court called ?absurdly high? on its face), found that it would be difficult for plaintiff to meet the seven factor test for good cause and that defendant had sufficiently objected to plaintiff?s request such that arguments that the backup tapes were not reasonably accessible had not been waived

Electronic Data Involved: Forensic image of hard drives, backup tapes

In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299 (N.D. Ga. 2011)

Dec 01 2011

Key Insight: Providing significant analysis of the issue of spoliation, court denied plaintiff?s motion for sanctions for defendant?s alleged failure to adequately preserve evidence where government?s investigation did not trigger a duty to preserve evidence as to the class action plaintiffs in this case and thus, no duty to preserve existed for purposes of the spoliation analysis; court also found that even where duty to preserve existed, plaintiffs also failed to establish prejudice resulting from the alleged failure to preserve and that defendant acted in bad faith by failing to prevent the loss of ESI pursuant to defendant?s usual document retention policies and the automatic functions of its server

Nature of Case: Class action related to alleged collusion in implementation baggage fees

Electronic Data Involved: Emails, ESI

Brokaw v. Davol, Inc., Nos. PC 07-5058, PC 07-4048, PC 07-1706, 2011 WL 579039 (R.I. Super. Ct. Feb. 15, 2011)

Dec 01 2011

Key Insight: Court found backup tapes not reasonably accessible in light of the cost of restoration, review and production but granted plaintiff?s motion to compel where plaintiff?s showed ?good cause for some discovery? and held the motion in abeyance until further argument on cost-shifting

Nature of Case: Products liability

Electronic Data Involved: Backup tapes

Madere v. Compass Bank, No. A-10-CV-812 LY, 2011 WL 5155643 (W.D. Tex. Oct. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel production of email requiring restoration of backup tapes where defendant?s expert averred that it would cost over $270,000 and require hundreds of hours to accomplish, where plaintiff?s expert could not ?ascertain an estimate for the actual cost,? and where ?even if the actual cost of restoring the backup tapes was only a fraction? of the estimated amount, it ?would still outweigh the amount [Plaintiff] seeks to recover?

Nature of Case: Violation of FMLA

Electronic Data Involved: Emails on backup tapes

Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D. Pa. Mar. 31, 2010)

Dec 01 2010

Key Insight: Where third-party (and former defendant) signed stipulation to preserve and produce ESI as if still a party to the litigation and later sought reimbursement for the review and production of data in a particular database, court ordered a database be created comprised of the four custodians at issue, that plaintiff pay $4085 to the vendor as a ?start-up fee? (pursuant to their agreement to do so), and that plaintiff and third-party split the remaining costs of creating the database, but ordered third-party to bear the costs of its own review prior to production

Nature of Case: Antitrist litigation

Electronic Data Involved: Database

Tag:Backup Tapes