Data Preservation – Page 101 – Electronic Discovery Law

GE Harris Ry. Elecs., LLC v. Westinghouse Air Brake Co., 2004 WL 5702740 (D. Del. Mar. 29, 2004)

Dec 01 2004

Key Insight: Court declined to impose terminating sanctions and instead ordered an adverse inference sanction against defendant for employee?s intentional spoliation of electronic evidence where the destruction was motivated by an intent to eliminate incriminating evidence but where the prejudice was minimal in light of plaintiff?s ability to obtain copies of the deleted evidence by other means

Nature of Case: Patent infringement and misappropriation of trade secrets

Electronic Data Involved: ESI, emails

McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

Dec 01 2004

Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice

Electronic Data Involved: Email and hard copy documents

Carlton Group, Ltd. v. Tobin, 2003 WL 21782650, fn. 8 (S.D.N.Y. July 31, 2003)

Dec 01 2004

Key Insight: Court granted ex parte application for TRO and related relief in order to locate and recover stolen information, and ordered return of laptops and “bit stream copying” of defendants’ computers to preserve deleted data

Nature of Case: Financial services company sued former employees for conspiring to steal confidential and proprietary information and unfair competition

Electronic Data Involved: Client databases and other proprietary information

Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)

Dec 01 2004

Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”

Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)

Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data

Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D. Utah 1998)

Dec 01 2004

Key Insight: Plaintiff sanctioned $10,000 for failing to preserve or search email of certain persons; key word search to be narrowed

Nature of Case: Business sued competitors for defamation and unfair competition

Electronic Data Involved: Email, databases (scope of key word search)

Symantec Corp. v. McAfee Assoc., Inc., 1998 WL 740798 (N.D. Cal. June 9, 1998)

Dec 01 2004

Key Insight: Where defendants admitted to removing customer sales information from sales representatives’ computers by means of “delete and scrub” utilities in response to plaintiff’s claim that such material constituted trade secrets, and retained copies of deleted information, court granted unopposed motion for preliminary injunction enjoining defendant from distributing customer sales information and recalling and impounding customer sales information database

Nature of Case: Copyright infringement; plaintiff also alleged that defendant obtained private customer sales information from plaintiff’s former sales representative

Electronic Data Involved: Database containing customer sales information

Century ML-Cable Corp. v. Carrillo, 43 F. Supp. 2d 176 (D.P.R. 1998)

Dec 01 2004

Key Insight: Default judgment entered against defendant and attorneys’ fees awarded to plaintiff, pursuant to Fed. R. Civ. P. 37, for defendant’s willful and intentional destruction of laptop presumably containing crucial evidence of defendant’s decoder key modification programs, sale records and customer lists

Nature of Case: Cable TV provider sued businessman for cable TV theft

Electronic Data Involved: Laptop

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

3M v. Pribyl, 259 F.3d 587, 606 n.5 (7th Cir. 2001)

Dec 01 2004

Key Insight: Negative inference instruction warranted where six gigabytes of music were downloaded onto hard drive the night before the computer was to be turned over for inspection

Nature of Case: Manufacturer sued former employees and their new competing company for misappropriation of trade secrets

Electronic Data Involved: Hard drive

In re CI Host, Inc., 92 S.W.3d 514 (Tex. 2002)

Dec 01 2004

Key Insight: Texas Supreme Court denied defendant’s request for mandamus relief, finding that trial court did not abuse discretion in ordering production of backup tapes since defendant failed to support its objections as required by Tex. R. Civ. P. 193.4(a)

Nature of Case: Class action against web host alleging contract breach, negligence and violation of Deceptive Trade Practices Act

Electronic Data Involved: Backup tapes

Tag:Data Preservation