Data Preservation – Page 105 – Electronic Discovery Law

Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004)

Dec 01 2004

Key Insight: Court rejected plaintiff’s request for direct access to Compaq’s hard drives, servers, and databases since plaintiff had failed to show widespread destruction or withholding of relevant information by Compaq; court further rejected plaintiff’s request for sanctions for failure to preserve certain evidence

Nature of Case: Patent infringement

Electronic Data Involved: Hard drives, servers, databases, email and electronic data

Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y. 2000), vacated, 167 F. Supp. 2d 606 (S.D.N.Y. 2001)

Dec 01 2004

Key Insight: Plaintiff’s failure to preserve computer printouts and telephone lists loaded onto Palm Pilot did not warrant an adverse inference instruction, but did warrant monetary sanctions of $28,271.75 to be paid by party (not his attorney) to compensate the victim for attorneys’ fees and expenses arising both from additional discovery required to locate equivalent information by alternative means and from the motion practice necessitated by the spoliation

Nature of Case: Action seeking monetary damages and specific performance of stock option agreement

Electronic Data Involved: Hard copy material loaded onto Palm Pilot

Rambus, Inc. v. Infineon Tech. AG, 222 F.R.D. 280 (E.D. Va. 2004)

Dec 01 2004

Key Insight: Based on in camera review, court granted defendant’s motion to compel based on the crime/fraud exception to the attorney-client privilege, ordered production of other documents on same subject matter and further ruled that discovery would be allowed regarding documents produced and on the issue of sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Email, backup tapes

United States v. Koch Ind., Inc., 197 F.R.D. 463 (N.D. Okl. 1998)

Dec 01 2004

Key Insight: Defendant was negligent in failing to determine which computer tapes in tape library contained information relevant to imminent and ongoing litigation and in failing to communicate clear guidelines regarding preservation of information to data processing personnel and tape librarian; no adverse inference, but plaintiff could inform jury about destruction of tapes and impact on plaintiff’s proof

Nature of Case: Action under False Claims Act

Electronic Data Involved: Computer tapes

Walker v. Cash Flow Consultants, Inc., 200 F.R.D. 613 (N.D. Ill. 2001)

Dec 01 2004

Key Insight: While granting without prejudice defendant’s motion to dismiss and denying without prejudice plaintiff’s motion to certify class, court found that plaintiff’s request for entry of a document preservation order was overbroad but not entirely unnecessary, and entered a more narrow document preservation order

Nature of Case: Class action alleging violations of Fair Debt Collection Practices Act

Electronic Data Involved: Computer information relating to defendant’s debt collection policies

First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993)

Dec 01 2004

Key Insight: Ex parte order permitting plaintiff and its counsel, with U.S. Marshal, to enter defendants’ business premises and inventory and impound computer records and copy and inventory business records was abuse of discretion

Nature of Case: Crash test dummy manufacturer sued competitor for unfair competition, copyright infringement, misappropriation of trade secrets and related torts

Electronic Data Involved: Computer programs and printouts

In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 2004 WL 305601 (S.D.N.Y Feb. 18, 2004)

Dec 01 2004

Key Insight: Where defendants avowed that they were aware of their obligations and have taken and are continuing to take all necessary steps to preserve all potentially relevant electronic evidence, court determined there was no “imminent risk” that any deleted data would be overwritten and rendered irretrievable, and denied plaintiffs’ motion for order lifting automatic stay on discovery for purpose of preserving and restoring deleted email

Nature of Case: Securities class action

Electronic Data Involved: Email allegedly deleted by individual defendant and his subordinates

Ranta v. Ranta, 2004 WL 504588 (Conn. Super. Ct. Feb. 25, 2004)

Dec 01 2004

Key Insight: Plaintiff wife ordered to stop using the couple’s laptop computer and deposit it with the clerk of court, so that it may be marked as evidence and stored in court’s vault; order extended to all floppy disks, CDs, etc; neither party to be allowed to access the laptop, rather, it may only be accessed by a recognized computer expert under oath testifying from the witness stand in open court

Nature of Case: Divorce proceeding

Electronic Data Involved: Laptop

United States v. Philip Morris USA Inc., 327 F. Supp. 2d 21 (D.D.C. 2004)

Dec 01 2004

Key Insight: Finding it “astounding” that defendant’s employees failed to follow court’s preservation order and defendant’s own document retention policies, court rejected plaintiff’s request for adverse inference but imposed monetary sanction of $2,750,000 and barred testimony from at least 11 witnesses who failed to comply with defendant’s own internal document retention program

Nature of Case: Tobacco litigation

Electronic Data Involved: Email

Gorgen Co. v. Brecht, 2002 WL 977467 (Minn. Ct. App. May 14, 2002) (Unpublished)

Dec 01 2004

Key Insight: Order granting ex parte TRO before complaint was filed, and which prohibited defendants from destroying or altering electronic documents pertaining to complaint, was abuse of discretion

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Electronic documents

Tag:Data Preservation