Backup Tapes – Page 8 – Electronic Discovery Law

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

Omnicare, Inc. v. Mariner Health Mgmt. Co., 2009 WL 1515609 (Del. Ch. May 29, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where plaintiff sought to compel defendants to restore backup tapes containing emails that were automatically deleted but where defendants objected to restoration and production due to cost, court denied plaintiff?s motion and ordered defendants to produce relevant data from their ?active stores? first in order to assess the likelihood of finding relevant, discoverable data on the backup tapes; if active stores showed a likelihood of recovery of discoverable data on the backup tapes, court stated that processing at defendants? expense would be appropriate

Nature of Case: Dispute arising between pharamaceutcal suppliers and nursing home operator related to contractual obligations and billing

Electronic Data Involved: Backup tapes

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Maggette v. BL Dev. Corp., 2009 WL 4346062 (N.D. Miss. Nov. 24, 2009)

Dec 01 2009

Key Insight: Where defendants attested to the adequacy of their search for discovery but could not describe their search efforts in detail, court noted its inability to ?say with certainty? whether defendants had fulfilled their discovery obligations and declined to rule on plaintiff?s third motion for sanctions ?until it [was] satisfied that the standards for preservation of electronic evidence?have been met or not met?; court ordered an investigation by a third party expert into ?whether defendants have met the standard for preservation of electronic evidence and disclosed all relevant evidence? with the cost to be borne by defendants

In re Intel Microprocessor Antitrust Litig., 2009 WL 2030967 (D. Del. July 7, 2009)

Dec 01 2009

Key Insight: Court adopted Special Master?s Report and Recommendation requiring plaintiffs to respond to questions regarding the scope of their efforts with regard to the restoration of backup tapes upon finding that such information was not protected by the attorney-client privilege

Nature of Case: Antitrust litigation

Electronic Data Involved: Backup tapes, ESI

Patterson v. Goodyear Tire & Rubber Co., 2009 WL 1107740 (D. Kan. Apr. 23, 2009)

Dec 01 2009

Key Insight: Court indicated reluctance to intervene in discovery dispute regarding contents of back up tapes where parties failed to properly confer regarding electronic discovery but, where defendants offered to search back up tapes for relevant emails from two custodians on three specific dates, court ordered the search and prescribed search terms to employ; where the estimated labor to conduct the limited search of the back up tapes would not be excessive or unduly burdensome, court ordered defendant to bear cost

Electronic Data Involved: Back up tapes

Commerce Benefits Group, Inc. v. McKesson Corp., 2008 WL 657838 (N.D. Ohio Mar. 6, 2008)

Dec 01 2008

Key Insight: Where plaintiff did not demonstrate that focus of the defendants’ search was not reasonably directed toward finding responsive documents, and failed to establish that relevance and necessity of any further discovery into email backup tapes outweighed burden and expense that would ensue, not to mention further delay which would certainly follow, court denied motion to compel

Nature of Case: Breach of contract

Electronic Data Involved: ESI stored on backup tapes

Tag:Backup Tapes