Backup Tapes – Page 6 – Electronic Discovery Law

Melendres v. Arpaio, 2010 WL 582189 (D. Ariz. Feb. 12, 2010) (Unpublished)

Dec 01 2010

Key Insight: Where defendant?s failure to communicate plaintiff?s preservation request and failure to implement a litigation hold resulted in the destruction of data, court ordered adverse inference related to the destruction of a particular category of evidence but delayed the imposition of sanctions for the destruction of email where efforts to retrieve those emails from backup systems were ongoing and ordered defendant to submit an explanation of their retrieval efforts with specific topics to be addressed

Nature of Case: Class action

Electronic Data Involved: Emails, hardcopy evidence

In re Subpoenas, 692 F.Supp.2d 602 (W.D.Va. 2010)

Dec 01 2010

Key Insight: Where recipient of government subpoenas refused to comply on grounds of unreasonableness and burden, court approved government?s offer to reduce number of custodians from 13 to 3 (out of a workforce of approximately 72,000) and ordered recipient to produce live emails and snapshot of emails from backup tapes for each of the years between 2002 and 2008 which, the court noted, had been preserved for other litigation

Nature of Case: Government investigation

Electronic Data Involved: Email, snapshot of email from 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

United States v. Renzi, 2010 WL 1417475 (E.D. Mich. Apr. 7, 2010)

Dec 01 2010

Key Insight: Where defendants accused the government of spoliation of all disks (originals and copies) containing relevant data from a particular computer system and requested dismissal of the indictment against them as a result, court denied the motion for dismissal upon determining that defendants failed to establish the materiality of the data such that its destruction (intentional or otherwise) was a constitutional violation and where a complete copy of the data existed on a backup tape seized later in the investigation

Nature of Case: Criminal – Mail fraud

Electronic Data Involved: Data stored on JENKON system

MLM Props., LLC v. Country Cas. Ins. Co., 2010 WL 1948609 (D. Or. May 7, 2010)

Dec 01 2010

Key Insight: Where the court ordered plaintiffs to pay defendant?s expenses and fees related to a motion for sanctions arising from plaintiff?s delayed production of documents previously characterized as unrecoverable due to a damaged backup tape, court denied motion for additional sanctions where plaintiffs argued no prejudice resulted from the delay and where the court found no evidence to justify sanctions beyond those already imposed

Nature of Case: Breach of insurance contract and intentional inter-ference with economic relationships

Electronic Data Involved: ESI

Martinez-Hernandez v. Butterball LLC, 2010 2089251 (E.D.N.C. May 21, 2010)

Dec 01 2010

Key Insight: Where plaintiff?s search requests were unreasonable and unduly burdensome and where defendant?s proposed ESI search could ?be reasonably expanded to search for relevant information without becoming unduly burdensome?, court ordered the parties to continue negotiating to identify 25 agreed upon search terms to search relevant custodians? reasonably accessible data; court found backup tapes ?not readily accessible because of undue burden or cost? and ordered defendant to run the agreed upon search terms ?only on reasonably accessible sources, such as active and archived data of network computers?

Nature of Case: Class action

Electronic Data Involved: ESI

Makrakis v. Demelis, 2010 WL 3004337 (Mass. Sup. Ct. July 13, 2010)

Dec 01 2010

Key Insight: Court found plaintiffs? request for production of emails stored on backup tapes would impose an unreasonable burden and expense where defendant provided evidence of the high cost of restoring the tapes and where plaintiff failed to adequately narrow the request or explain why other sources of discovery were insufficient, but, recognizing that the tapes could contain relevant information, ordered that plaintiff be allowed, at their own expense, ?to obtain a sampling? of the emails stored on the backup tapes and that if the circumstances warranted it, that plaintiff be allowed to move for further discovery

Nature of Case: Claims for injuries resulting from improper administration of medication

Electronic Data Involved: Emails stored on backup tapes

Pitney Bowes Gov. Solutions, Inc. v. United States, 94 Fed. Cl. 1 (Fed. Cl. 2010)

Dec 01 2010

Key Insight: Where, despite the destruction of relevant ESI, defendant was able to restore the relevant documents from backup tapes and produce them, but where the metadata was different such that the author of the documents was listed as one person rather than the many who had actually authored them, the court accepted the explanation that the author reflected in restored documents had received each document as an email attachment and saved those documents to her hard drive, thus changing the metadata, and further found that plaintiff made no showing that the documents were otherwise modified and denied the motion for sanctions

Nature of Case: Bid Protest

Electronic Data Involved: ESI

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

Dec 01 2010

Key Insight: For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was ?at a minimum? negligent and indicated that an adverse inference would be crafted after all the evidence had been received. For ?prolonged delay? in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000

Nature of Case: Breach of contract, breach of implied covenant of good faith and fair dealing

Electronic Data Involved: Data on laptops, emails

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Tag:Backup Tapes