Backup Tapes – Page 8 – Electronic Discovery Law

Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009)

Dec 01 2009

Key Insight: Court found emails ?not reasonably accessible? in light of representations of undue burden, including the need for vendor assistance to accomplish the necessary searching, and, upon shifting the burden to defendant to show ?good cause? for the additional emails sought, ordered some specific searching using specific terms and for the parties to confer to identify additional custodians

Nature of Case: Copyright infringement

Electronic Data Involved: Emails, ESI

Wells Fargo Bank, N.A. v. LaSalle Bank Nat?l Ass?n, 2009 WL 2243854 (S.D. Ohio July 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff filed a motion to compel (or for sanctions) following its discovery that defendant failed to search a number of backup tapes and failed to maintain all tapes which may have contained responsive ESI, court denied the motion upon finding that burden of restoration of the tapes was ?disproportionate to the likely utility of doing so? and because LaSalle had a practice of printing and filing important emails; court also noted the parties? failure to adequately confer regarding the discovery of ESI

Electronic Data Involved: Backup tapes

Lawson v. Plantation Gen. Hosp., L.P., 2009 WL 2868891 (S.D. Fla. Aug. 27, 2009)

Dec 01 2009

Key Insight: Despite the ?clearly burdensome? process required to restore, review and produce the requested ESI, court ordered production of a specific category of ESI, where ?fairness demand[ed]? plaintiff have an opportunity to review? it, but ordered that if plaintiff continued to desire production of the remaining categories ?for which plaintiff ha[d] a lesser need, in light of all of the other discovery in this matter,? plaintiff must pay half the cost

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.

Nature of Case: Failure to accomodate

Electronic Data Involved: Email

Whitlow v. Martin, 2009 WL 3381013 (C.D. Ill. Oct. 15, 2009)

Dec 01 2009

Key Insight: Where third-party presented evidence that responding to subpoena would require searching hundreds of locations, would require the restoration of back up tapes, and would take ?over two years to accomplish and cost hundreds of thousands of dollars,? court modified subpoena to narrow scope of the request, but ordered production of relevant documents, ?even if they [were] not reasonably accessible?

Nature of Case: Allegations of wrongful termination in furtherance of political scheme

Electronic Data Involved: ESI

Major Tours, Inc. v. Colorel, 2009 WL 3446761 (D.N.J. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court granted protective order precluding obligation to search archived emails or emails stored on backup tapes where such emails were ?not reasonably accessible? in light of the estimated $1.5 million retrieval costs and because backup tapes are generally considered inaccessible, and where plaintiffs failed to establish good cause for such production; where defendant offered a ?scaled back alternative,? court ordered parties to split the cost of retrieving emails from a particular subset of backup tapes and provided plaintiffs the opportunity to compel searches of an additional subset of tapes – at their expense – including the cost of review

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Backup tapes, email

MRT, Inc. v. Vounckx, 299 S.W.3d 500 (Tex. Ct. App. 2009)

Dec 01 2009

Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve

Nature of Case: Misrepresentations and fraudulent inducement

Electronic Data Involved: Backup tapes

Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)

Dec 01 2009

Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, database information, back up tapes

Infor Global Solutions, Inc. v. St. Paul Fire and Marine Ins. Co., 2009 WL 1421576 (N.D. Cal. May 15, 2009)

Dec 01 2009

Key Insight: Where plaintiff claimed electronic documents could not be located due to changes in the computer system upon merging and because of a lack of back up tapes for the relevant time period, court found that plaintiff failed to provide an adequate explanation for its inability to produce, including explaining what happened to the files that previously existed, stated that plaintiff ?needs to show it has conducted a diligent search for responsive documents? and ordered plaintiffs to conduct further searches for responsive documents

Nature of Case: Recovery of legal expenses

Electronic Data Involved: Emails

Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008)

Dec 01 2008

Key Insight: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email and other ESI

Tag:Backup Tapes