Data Preservation – Page 99 – Electronic Discovery Law

Frye v. St. Thomas Health Servs., 2005 WL 5417507 (Tenn. Cir. Ct. May 31, 2005)

Dec 01 2005

Key Insight: Court denied plaintiff’s motion to revise earlier court order denying production of computer hard drives for review by forensics expert, declining to adopt the law of Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) and finding that defendant had violated no duty to preserve since emails were deleted according to routine policy and at the time she filed the complaint, plaintiff made no request that emails be preserved

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)

Dec 01 2005

Key Insight: Where plaintiff?s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants? backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants? efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval

Nature of Case: Disability discrimination

Electronic Data Involved: Emails, hard drives

Haynes v. Office of Attorney Gen., 298 F. Supp. 2d 1154 (D. Kan. 2003)

Dec 01 2004

Key Insight: Terminated employee obtained preliminary injunction preventing his former employer from accessing “private” files stored on his work computer or discussing “private” files that were accessed; employer further ordered to provide employee access to his private files to determine which ones he wanted copied; employee prohibited from deleting any information from work computer

Nature of Case: Former assistant attorney general sought damages and injunctive relief

Electronic Data Involved: Employee’s “private” information contained on work computer

MPCT Solutions Corp. v. Methe, 1999 WL 495115 (N.D. Ill. July 2, 1999)

Dec 01 2004

Key Insight: Sanctions in form of preliminary injunction preventing defendant from contacting MPCT clients granted, after defendant violated preservation order by deleting documents from laptop and defragmenting hard drive, thus preventing the recovery of deleted data

Nature of Case: Enforcement of non-competition agreement

Electronic Data Involved: Electronic documents stored on laptop

In re St. Jude Med., Inc., Silzone Heart Valves Prod. Liab. Litig., 2002 WL 341019 (D. Minn. Mar. 1, 2002)

Dec 01 2004

Key Insight: Court entered supplementary pretrial preservation order to address “newly created documents” and backups of electronic data; regarding the latter, the order prohibits “the routine erasure of computerized information potentially relevant to the subject matter of this litigation,” but states that “The full and complete back-up of any server or other computer on a periodic basis (e.g. monthly) shall relieve the party of any obligation to maintain any interim backups of the same server or other computer.”

Nature of Case: Product liability

Electronic Data Involved: Electronic data and email, and backups of electronic data

Zhou v. Pittsburgh State Univ., 2003 WL 1905988 (D. Kan. Feb. 5, 2003)

Dec 01 2004

Key Insight: Motion to compel production of computer-generated salary data granted; court further ordered parties to preserve all relevant evidence including all data compilations, computerized data and other electronically-recorded information

Nature of Case: Employment discrimination

Electronic Data Involved: Computerized payroll records

Hester v. Bayer Corp., 206 F.R.D. 683 (M.D. Ala. 2001)

Dec 01 2004

Key Insight: After case was removed to federal court, defendant obtained order vacating state court’s entry of ex parte preservation order requiring defendant to “suspend all routine destruction of documents, including but not limited to, recycling back-up tapes, automated deletion of e-mail, and reformatting hard drives,” compliance with which defendant estimated to cost $50,000/month

Nature of Case: Product liability

Electronic Data Involved: Documents and information in paper or electronic format

Nat’l Assoc. of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987)

Dec 01 2004

Key Insight: Failure to produce computer data and other discovery abuses warranted imposition of monetary sanctions against defendant ($105,000 paid to plaintiffs and $15,000 paid to clerk of court “for the unnecessary consumption of the court’s time and resources”) and appointment of special master at defendant’s expense for purpose of monitoring its compliance with all further discovery

Nature of Case: Class action brought by veterans for alleged exposure to radiation during service with armed forces

Electronic Data Involved: Two V.A. computer systems (databases)

Sch. of Visual Arts v. Kuprewicz, 771 N.Y.S.2d 804 (N.Y. App. Div. 2003)

Dec 01 2004

Key Insight: Brief reference in footnote 9 to court’s previous oral ruling enjoining defendant from destroying or erasing any files from her home computer and directing defendant to give the computer to her lawyer so as to preserve potential evidence

Nature of Case: Employer sued former employee alleging she posted false job postings on web site and caused unsolicited job applications and pornographic email to be sent to employer

Electronic Data Involved: Home computer

In re Nat’l Century Fin. Enters., Inc. Fin. Inv. Litig., 347 F. Supp. 2d 538 (S.D. Ohio 2004)

Dec 01 2004

Key Insight: Court granted plaintiffs’ motion for leave to issue document preservation subpoena to Chapter 11 debtor, finding it was necessary to preserve the documents held by debtor since debtor would likely be dissolved and its documents would be destroyed, and such destruction would cause actual prejudice to plaintiffs in prosecuting their class action

Nature of Case: Securities class action by investors claiming that defendants had looted assets of Chapter 11 debtor

Electronic Data Involved: Information held in electronic form

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