Deleted Data – Page 11 – Electronic Discovery Law

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged

Nature of Case: Misappropriation of funds

Electronic Data Involved: Accounting files on hard drive

Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (N.Y. Sup. Ct. 2006)

Dec 01 2006

Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted

Nature of Case: Fraud and breach of contract claims

Electronic Data Involved: Email and non-email electronic documents restored from backup tapes

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2005 WL 4954351 (N.D. Ill. Feb. 11, 2005)

Dec 01 2005

Key Insight: Denying defendant’s motion for a new trial, court concluded that adverse inference jury instruction based upon defendant’s mistaken failure to suspend document retention policy that deleted email every 30 days was not misleading or unduly prejudicial

Nature of Case: Patent infringement

Electronic Data Involved: Email

Frye v. St. Thomas Health Servs., Inc., 2005 WL 5417506 (Tenn. Cir. Ct. Mar. 30, 2005)

Dec 01 2005

Key Insight: Court denied motion to compel production of defendant’s hard drives so that plaintiff’s computer forensics expert could search them for deleted emails since there was no evidence that defendant had consciously or purposely deleted emails and plaintiff had only “suspicions and allegations” which did not justify the costly and burdensome search requested

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

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

Jackson v. Microsoft Corp., 211 F.R.D. 423 (W.D. Wash. 2002)

Dec 01 2004

Key Insight: Plaintiff’s misconduct and discovery abuse (including obtaining email and proprietary information of employer, paying for such material, copying and using material to prepare case, and engaging in elaborate series of lies during depositions and evidentiary hearings re same) warranted dismissal with prejudice

Nature of Case: Employment discrimination

Electronic Data Involved: CDs and laptop computer hard drive

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

Lexis-Nexis v. Beer, 41 F. Supp. 2d 950 (D. Minn. 1999)

Dec 01 2004

Key Insight: Court granted motion for monetary sanctions against defendant for violating TRO by failing to return proprietary information and data to plaintiff, but reserved judgment on amount of award pending further proceedings

Nature of Case: Employer sued former employee for misappropriation of trade secrets and related torts

Electronic Data Involved: Database containing sales and customer information, email, laptop, zip disk

Medtronic Sofamor Danek, Inc. v. Michelson, 2004 WL 2905399 (W.D. Tenn. May 3, 2004)

Dec 01 2004

Key Insight: Declining to determine whether its May 13, 2003 order contemplated the production of deleted files, court overruled defendant’s objections to special master’s order denying request for production of deleted files, finding that defendant’s request was untimely and that “the process of recovering deleted files at this late stage of litigation would be an undue burden on Medtronic and is based, the court’s opinion, on mere speculation that relevant deleted files could be recovered”

Nature of Case: Intellectual property litigation

Electronic Data Involved: Deleted files

Tag:Deleted Data