Data Preservation

Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002).

Antioch brought an action for copyright infringement concerning decorative stickers. Antioch moved for an order for preservation of records to compel discovery, to expedite discovery, and to appoint a neutral computer forensics expert all based upon the belief that defendants have or would destroy relevant documents and materials. Defendants did not oppose the order for preservation of documents claiming they had no intention of destroying any relevant materials. Antioch provided a computer expert who testified through affidavit that data deleted from computers is retained on the hard drive but is constantly being overwritten by new data through normal use of the computer. The court reviewed the processes described in Playboy Enter. v. Welles and Simon Property Group v. mySimon and designed a process by which a computer forensics expert would create a mirror image and work with the parties to provide the relevant information.

Bartley v. Isuzu Motors Ltd., 151 F.R.D. 659 (D. Colo. 1993).

In this products liability case, the injured plaintiff hired an expert to conduct computer simulations of the Isuzu vehicle. Isuzu wanted access to all of the simulations. Plaintiff objected stating that after each simulation the data is changed.  The court ordered the plaintiffs to retain all data showing all simulations as well as the premises upon which all simulations were made.

Danis v. USN Communications, Inc., 2000 U.S. Dist. LEXIS 16900, 2000 WL 1694325 (N.D. Ill.).

Plaintiff class filed a series of motions for discovery sanctions against defendant over a two-year period. The parties battled over discovery abuses. The court held that the CEO of defendant took no steps to safeguard documents but rather attempted to delegate the responsibility to a new in-house attorney with no litigation experience. The court held that he turned a blind eye to the destruction of documents but did not award sanctions, rather fined the CEO of defendant $10,000 to be paid to the court.

Strasser v. Yalamanchi, 783 So. 2d 1087 (Fla. Dist. Ct. App. 2001).

This is the second Strasser case. The court found that the fears raised by Yalamanchi that Strasser would destroy evidence, see Strasser 1, were well-founded and that Strasser had indeed destroyed evidence. The trial court gave an instruction based on negligent destruction of evidence and provides a detailed analysis of that claim.

Scope of Discovery

Adobe Systems, Inc. v. South Sun Products, 187 F.R.D. 636 (S.D. Cal 1999).

Several manufacturers of software filed suit against a wholesale jeweler contending that the jeweler was using copies of the software for which it had not purchased licenses. The manufacturers sought an ex parte order to prevent defendant from destroying evidence of its piracy of software.  The court held that the jewelry wholesaler was not a sophisticated computer company and, therefore, that even if it attempted to delete all of these complex applications, telltale traces of the previous installations would remain.

Anti-Monopoly, Inc. v. Hasbro, Inc.,1995 U.S. Dist. LEXIS, 1995 WL 649934 (S.D.N.Y.).

Anti-Monopoly moved for an order compelling production of data in electronic format. The court held that "data in computerized form is discoverable even if paper 'hard copies' of the information have been produced."  It continued to state that the responding party was responsible to design whatever programs were necessary to acquire the information electronically but that it would consider allocation of costs. The court does not provide any guidance at this point as to the allocation of costs.

Bartley v. Isuzu Motors Ltd., 151 F.R.D. 659 (D. Colo. 1993).

(See Data Preservation)

Bloss v. Ford Motor Co., 510 N.Y.S. 2d 304 (App. Div. 1987).

Plaintiff's counsel traveled to a warehouse maintained by defendant, Ford Motor Co., in this rollover case.  On arrival, he was presented with 76 boxes of documents relating to the design and development of the vehicle and told he had only two days to review them. He learned that Ford had made an index of the documents but Ford would not provide that index claiming privileged attorney work product for material prepared for litigation. The court held that the preparation of the indexes did not require any special legal skill nor were they a communication between attorney and client; therefore, plaintiff had the right to see the indexes. This paper case is applicable to electronic information, especially with respect to electronic litigation support.

Braxton v. Farmer's Insurance Group, 209 F.R.D. 651 (N.D. Ala. 2002).

The plaintiff in this class action sought emails and other information from a non-party. The defendant, Farmer's Insurance, objected. The court held that the information was potentially relevant and, therefore, that the subpoena would not be quashed.

Byers v. Illinois State Police, 2002 U.S. Dist. LEXIS 9861, 2002 WL 1264004 (N.D. Ill.).

Byers sued the Illinois State Police for discrimination. As part of discovery she sought an order compelling the police to produce archive emails authored by one of the individual defendants that related to her or her co-plaintiff. Defendants argued that it would be unduly burdensome to search backup tapes for archived email. The court noted that email has replaced informal chat around water coolers and in break rooms. It also noted, however, that email is difficult to search. Defendants estimated that the total cost of responding would be between $20,000 and $30,000. Due to the cost, the court looked at the utility of the proposed project. Plaintiffs argued there was a high probability they would find relevant data because they had been told of the existence of one inflammatory email. All of the individuals allegedly involved denied it and, through other sources, plaintiffs had not proved that this email existed.  Therefore, the plaintiffs would be required to pay the cost of recovery of emails if they decided those emails were important enough.

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

Plaintiffs sought production of computer backup tapes from CI Host. The parties agreed that the tapes contained some information protected from disclosure under the Electronic Communications Privacy Act.  The Supreme Court of Texas denied the request for writ of mandamus and remanded the case to the trial court to modify its protective order forbidding disclosure of any trade secrets so that it included a protection of the privacy interests of third parties.

Columbia Communications Corp. v. Echostar Satellite Corp., 2001 U.S. App. LEXIS 1033 (4^th Cir.).

Echostar asked the court to hold that Columbia had committed discovery misconduct and, therefore, Echostar should receive a new trial. The issue at trial was whether Columbia was ready, willing, and able to perform its part of a contract with Echostar. During discovery, Echostar had requested relevant databases essentially to show whether or not Columbia was ready, willing, and able. Columbia produced one database but shortly before trial "found" additional databases.  Even though the trial court had found that the databases fell within Echostar's discovery requests, it found that there was no evidence Columbia had intentionally failed to comply and that the additional documents would only have been cumulative. It, therefore, refused to order a new trial. Fourth Circuit affirmed this as well as a variety of other matters raised on appeal.

Deloach v. Philip Morris Companies, Inc., 206 F.R.D. 568 (M.D.N.C. 2002).

Plaintiffs moved to strike portions of defendants' rebuttal expert report because it relied on computerized transaction data deliberately withheld from plaintiffs during discovery. Defendants claimed that they had not provided the information because plaintiffs' request was overbroad. The court looked through this argument and found that the information defendant provided to its own expert was not made available to plaintiff until after plaintiffs' expert could no longer use it, and that defendants' expert used the withheld information to rebut plaintiffs' expert report. The court held that the withholding of the data resulted in unfairness to the plaintiffs. As a sanction, the court ordered that the plaintiffs could respond to defendants' rebuttal expert report as to certain paragraphs and that defendants would not be allowed the opportunity to reply to plaintiffs' response.

Duff v. Marathon Petroleum Co., 1993 WL 388380 (N.D. Ill.).

In a two-paragraph memorandum order, the court simply holds that electronic information is discoverable.

Fennell v. First Step Designs, Ltd., 83 F. 3d 526 (1^st Cir. 1996).

Following a motion for summary judgment, Fennell sought additional discovery under Federal Rule Civil Procedure 56(f) claiming that it had information that a certain memo was created after the fact to justify First Step's behavior. The trial court did not grant additional time for discovery and Fennell appealed. Fennell provided "five suspicious facts" that did not convince either the district court or the court of appeals to allow further discovery. Additionally, the court of appeals noted that it would reverse the district court's discovery ruling for an abuse of discretion. This case should be used cautiously because it is a court of appeals case (abuse of discretion standard) and also because Rule 56(f) has different requirements than Rule 37.

Koen Book Distributors v. Powell, 212 F.R.D. 283 (E.D. Pa. 2002).

A client notified its attorneys that it had a potential malpractice action against the attorneys. While the attorneys attempted to find alternate representation for the client, that firm continued to represent the client. Subsequently, the client sought documents including emails that, among other things, concerned if and how to continue to represent the client and how to respond to the client's communications in light of a possible malpractice action. The attorneys claimed that attorney-client privilege and work product doctrine prevented the client from acquiring these documents. The court disagreed and ordered the production in unredacted form of all of the documents identified in the privilege log.

In re Lees, 727 N.Y.S. 2d 254 (Sup. Ct. N.Y. 2001).

A criminal defendant charged with rape and sodomy made an application to the trial court for an order directing the alleged victim and a third party to produce their computers so that he could search for emails between the two concerning false reports of rape for the purposes of impeachment at trial. The court outlined the procedures in New York State for such an order and granted the defendant a period of time in which to make a proper application.

McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001).

Plaintiff claimed that as a result of a complaint he filed in the work place, he received retaliation and was humiliated. Defendants searched for electronic and paper documents. Plaintiff asked that the backup system be searched. The court analyzed the difficulties of searching backup tapes, the question of cost, and ordered that defendants search a sampling of the backup tapes.  After the defendant reports to the court with the results as well as the costs, the court will have another hearing at which the plaintiff can argue why the search should continue and who should bear the cost.

Northrop v. Inventive Communications, L.L.C., 199 F.R.D. 334 (D. Neb. 2000).

Plaintiff claimed that defendant had used plaintiff's software without a proper license. Defendant claimed it was a different software program. Plaintiff sought to compel discovery of the source code.  Defendant filed for a protective order.  The court ordered the defendant to provide the source code but only under the condition that plaintiff agree not to compete during the pendency of the lawsuit and for one year afterward, keep the source code confidential and post a performance bond.

Ohio v. Cook, 777 N.E. 2d 882 (Ohio App. 2002).

Defendant was convicted of child pornography and raised questions concerning probable cause for a search and authentication of a mirror image of the hard drive from his computer. The court found that the search warrant was issued as a result of a tip from the defendant's brother-in-law and was sufficiently justified. The mirror image of his hard drive had been examined by EnCase software and a report generated for trial. The defendant objected because he claimed that the state did not establish the reliability of the mirror image. The appeals court held that while some conflicts existed in the testimony, they relate to the weight of the evidence, not admissibility, and that the evidence was properly authenticated.

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

The court held that Proctor & Gamble was allowed to specify search terms for the defendant to use in searching its databases to find if its supervisors were involved in fostering claims that Proctor & Gamble was involved in Satanism. The court set a procedure for defining the queries, having them run, and providing the information to the requesting party.

Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000).

The courts sets forth a process for discovery by which an expert from Computer Forensics, Inc.™ was chosen to inspect computers. The expert was designated as an officer of the court and asked to search the data on the computers and provide a report to the court. The court, in turn, provided the report to the responding party to identify responsive and non-privileged documents and to create a privilege log and produce that material to the requesting party. The expert was asked to destroy any materials held in evidence at the conclusion of the case.

Southern Diagnostic Associates v. Luz Bencosme, 830 So. 2d 801 (Fla. Ct. App. 2002).

In an effort to get around the duty to preserve records and the duty to provide those in discovery, an insurer determined not to keep records but to delegate that responsibility to a non-party. The court did not find this to be an acceptable method of document retention and ordered the trial court to tailor an order to remedy the wrong.

Stallings-Daniel v. The Northern Trust Co., 2002 U.S. Dist. LEXIS 4024, 2002 WL 385566 (N.D. Ill.).

Plaintiff in an employment discrimination case wanted to do extensive electronic discovery. The court held that plaintiff's requests for electronic discovery were largely speculative because she had very scant evidence that she would find anything and, consequently, the court denied her motion initially and subsequently denied her motion for reconsideration.

Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. Dist. Ct. App. 1996).

Frequently responding parties cite to this Strasser case for the proposition that alleged misconduct of a responding party does not necessarily invite intrusive discovery abuse. One should be careful in citing to this case because, based upon Strasser II (see Data Preservation), the responding was indeed involved in destruction of evidence while claiming not to be.

Times Publishing Co. v. City of Clearwater, 830 So. 2d 844 (Fla. App. 2002).

The newspaper brought an action against the City of Clearwater to require them to release all emails sent from or received by two city employees using government-owned computers. The City of Clearwater had provided what it considered to be public email but the Times wanted all the email. The city had a computer resources use policy that stated that no employees would have an expectation of privacy in their email.  The question for the court became whether all email stored on public computers is public record. The court decided that it was a matter for the legislature to determine.

Tulip Computers International B.V. v. Dell Computer Corp., 2002 U.S. Dist. LEXIS 7792 (D. Del.).

In this patent infringement case, Tulip sought email evidence from Dell Computer and provided a procedure whereby emails would be given to a computer forensics firm to search, based upon Tulip's search terms.  The emails would be given to Dell who would produce the email subject to review for privilege and confidentiality.

U.S. v. Tucker, 150 F. Supp. 2d 1263 (D. Utah 2001).

The court analyzes the elements of knowing possession of child pornography over the Internet and determined that viewing the images on a computer constitutes control over the images. The court used as some evidence the fact that defendant had taken the time to delete image links from his computer cache file showing that he had knowledge that the links were there and what they were and that he, therefore, had control over them. The evidence also showed that he had willingly acquired the images and that they were not there on his computer due to ignorance, mistake or accident in that he had paid a user fee and acquired a password to access the websites.

In re Verizon Internet Services, Inc. v. Verizon Internet Services, 240 F. Supp. 2d 24 (D.C. 2003).

Verizon sought to quash a subpoena for the identity of users of Verizon's services who allegedly downloaded music from the Internet. Verizon argued that the information was transmitted over their system and did not reside on it therefore it was outside the power of the subpoena. The court analyzed the Digital Millennium Copyright Act and its legislative history in detail, considered its constitutionality, and concluded that Verizon must comply with the subpoena.

Westrienen v. Americontinental Collection Corporation, 189 F.R.D. 440 (D. Or. 1999).

Plaintiffs wanted access to all of defendants' computers.  The court held that they were not entitled to unbridled access but must identify what it is they are seeking.

Records Management

In re Cheyenne Software, Inc., Securities Litigation, 1997 WL 714891 (E.D.N.Y.).

The court found that defendants had failed in their discovery obligations and ordered defendants to bear the cost of downloading and printing up to 10,000 pages of emails responsive to appropriate key word searches. The defendants were allowed to withhold documents identified by the searches based only on privilege. Specifically, the court stated defendants could not object on relevance.  In addition, the court held that defendant had erased electronic data but held that plaintiffs had not established prejudice. Irrespective, the court ordered defendants to pay $5,000 to the court and $10,000 to the plaintiffs.

Columbia Communications Corp. v. Echostar Satellite Corp., 2001 U.S. App. LEXIS 1033 (4^th Cir.).

(See Scope of Discovery)

Duff v. Marathon Petroleum Co., 1993 WL 388380 (N.D. Ill.).

(See Scope of Discovery)

Koen Book Distributors v. Powell, 212 F.R.D. 283 (E.D. Pa. 2002).

(See Scope of Discovery)

Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73 (D. Mass. 1976) (as amended Dec. 8, 1976).

This paper case has been used by many in both electronic and paper discovery to stand for the proposition that if a company creates a certain record-keeping procedure, that company must bear the cost of searching the records for responsive documents.  In Kozlowski, Sears, Roebuck & Co. organized complaints by name of claimant rather than by type of product. The court held that Sears created the record-keeping system and, therefore, Sears would need to look through all of the records to find those records that were relevant to this products liability case.

Lewy v. Remington Arms Co., 836 F. 2d 1104 (8^th Cir. 1988).

The court in this products liability case intimates that there are rules concerning records management and document retention, however, does not provide much guidance to corporations in what must be retained. It is clear, however, their blanket record destruction policy will likely be unacceptable. The policy must take into account different types of records. Once litigation is anticipated or begins, the parties have the responsibility to maintain electronic records that might be discoverable or to apply to the court if it finds the necessary procedure too burdensome.

New York State Nat'l Org. for Women v. Cuomo,1998 U.S. Dist. LEXIS 10520, 1998 WL 395320 (S.D.N.Y.).

The court instructed attorneys that they may not take the obligation to preserve records cavalierly but that they have a duty to advise their clients of pending litigation and of the requirements to preserve potentially relevant evidence, including electronic evidence. Clients cannot be expected to know all litigation that may be pending and, therefore, it devolves to the attorney to inform the client of the obligation once it arises.

Public Citizen v. Carlin, 2 F. Supp. 2d 1 (D.C. 1997).

This early case provides an excellent analysis of the differences between paper records and electronic versions of the records. It can be used to educate courts and other parties as to why it is important to have the electronic versions of documents as well as the paper versions. In conjunction with Premier Homes (see Reliability), Public Citizen can be particularly useful.

Southern Diagnostic Associates v. Luz Bencosme, 2002 Fla. App. LEXIS 15684.

(See Scope of Discovery)

Times Publishing Co. v. City of Clearwater, 830 So. 2d 844 (Fla. App. 2002).

(See Scope of Discovery)

White v. Office of the Public Defender for the State of Maryland, 170 F.R.D. 138 (D. Md. 1997).

An attorney formerly employed by the Maryland Public Defender sued for racial discrimination. The court found three bases for imposing sanctions on the plaintiff for destruction of a diary that she called a manuscript autobiography. It considered Rule 3.4(a) of the Rules of Professional Conduct, Rule 37 of the Rules of Civil Procedure and the court's inherent authority. The court went through a two-step process. First, it considered five elements: the act of destruction; the discoverability of the destroyed evidence; the intent to destroy; the timing (that is, if the destruction occurred after litigation began or was contemplated); and the prejudice to the other party. The court held that based upon all of these factors, sanctions were appropriate against the plaintiff, the destroying party.

Use of Experts

Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002).

(See Data Preservation)

Gates Rubber Co. v. Bando Chemical Indus.,167 F.R.D. 90 (D. Colo. 1996).

Gates acquired an order allowing it to access Bando's Denver computer to seek deleted files. The "expert" Gates hired purchased a copy of an un-erased program, loaded it onto Bando's computer and attempted to locate deleted files. In the process of unloading the new program onto the computer, the expert overrode at random 7 to 8 percent of the data on the Bando computer.  The court analyzes its ability to impose sanctions for destruction of evidence based upon Rules of Procedure 37 and also the inherent powers of the court. The lengthy case provides an excellent understanding of use of experts, destruction of evidence, and sanctions.

Playboy Enter. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999).

The court first noted that by requesting "documents" under the Rules of Civil Procedure the requestor automatically requests electronic evidence. Based upon testimony that emails had been created that might be relevant, the court determined that the burden upon Welles was outweighed by the need for the requested information and, therefore, that the requesting party would be allowed to find an expert to image the hard drive. The court would provide a protective order for the expert to sign and the information would only be provided to the producing party. The producing party would then review the material and produce anything responsive and non-privileged for the requesting party.

Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000).

(See Scope of Discovery)

Costs & Allocation

In re Air Crash Disaster at Detroit Metropolitan Airport,130 F.R.D. 634 (E.D. Mich. 1989).

Northwest Airlines sought computer data from flight simulation runs from McDonnell Douglas Corporation. McDonnell Douglas provided the material as hardcopy. Northwest again asked for the computer tape because its expert would need to load manually about 95 pages of single-spaced printout in order to perform his tasks. McDonnell Douglas claimed it did not any longer have the material in the format requested by Northwest. The court ordered McDonnell Douglas to prepare a computer tape in the format requested by Northwest but directed that Northwest would bear the cost since the tape did not currently exist.

In re Brand Name Prescription Drugs Antitrust Litigation, 1995 U.S. Dist. LEXIS 8281, 1995 WL 360526 (N.D. Ill.).

Class plaintiffs sought email from drug manufacturer.  The drug manufacturer did not dispute having discoverable email but claimed that class plaintiffs should bear the cost of retrieving it. The court looked at limited factors and concluded that since the drug manufacturer chose an electronic storage method, the necessity for a retrieval program or method is an ordinary and foreseeable risk, therefore, the responding party would be required to bear the cost of retrieving the emails.  In the event class members wanted paper copies of any emails, they would be required to pay the costs.

In re Bristol-Myers Squibb, 205 F.R.D. 437 (D.N.J. 2002).

The court emphasizes the importance of the Federal Rules Civil Procedure 26 meeting and the Rule 16 conference to anticipate and to prevent problems related to electronic discovery. The court learned that class plaintiffs agreed to pay for paper copies of documents that, unbeknownst, the plaintiffs had stored electronically and could have been produced inexpensively in electronic format. The responding party entered many documents into a litigation software program and then printed hard copies for plaintiffs in an attempt to get plaintiffs to pay the bill.

Byers v. Illinois State Police, 2002 U.S. Dist. LEXIS 9861, 2002 WL 1264004 (N.D. Ill.).

(See Scope of Discovery)

Fennell v. First Step Designs, Ltd., 83 F. 3d 526 (1^st Cir. 1996).

(See Scope of Discovery)

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).

The United States Supreme Court took certiorari in this case to resolve a dispute among the circuits as to whether the discovery rules apply to authorize a district court to order a defendant to help identify the members of a plaintiff class so that individual notice can be sent or if the rule of class actions, Fed. R. Civ. Proc. 23(d), applies.  The United States Supreme Court held that, even though the request resembles discovery, the class action rule applies. The question then became, who should bear the cost of compiling a list?  The U.S. Supreme Court held that in this case the class members (respondents) should bear the cost of hiring the outside party to locate the information.

Rowe Entertainment, Inc. v. Wm. Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002).

The Southern District of New York defined eight factors to consider when allocating costs of electronic discovery. Those factors are: specificity of the discovery requests; likelihood of discovering critical information; availability of such information from other sources; purposes for which the responding party maintains the requested data; relative benefit of the information to the requesting party; total cost associated with production; relative ability of each party to control cost; and, resources available to each party.

Sattar v. Motorola, Inc., 138 F.3d 1164 (7^th Cir. 1998).

The court required Motorola to loan proprietary software to the requesting party or to allow that party access to Motorola's computer system to view the data. In an effort to encourage the parties to work out any problems, the court ordered them to share the costs of printing 210,000 pages unless they could create a better solution.

Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. Dist. Ct. App.1996).

(See Scope of Discovery)

Williams v. E.I. du Pont de Nemours & Co., 119 F.R.D. 648 (W.D. Ky. 1987).

This early case stands for the proposition that materials produced by litigation support are not covered by the attorney work product or attorney-client privilege and must be provided to the requesting party because they do not evidence any legal analysis but rather are more a ministerial and administrative function.

Williams v. Saint-Gobain Corp., 2002 U.S. Dist. LEXIS 12798 (W.D.N.Y.).

Defendant produced certain emails on the eve of trial and plaintiff moved for sanctions. Plaintiff cited federal regulations requiring defendant to maintain documents including emails concerning reorganization and claimed that this showed that defendant had the documents and in bad faith refused to produce them. The court refused to find a bad faith element but ordered that discovery would continue and that the parties would both provide responsive information to the other.

Zubulake v. UBS Warburg LLC, 02 Civ. 1243 S.D.N.Y. (May 13, 2003).

The court provides a detailed analysis of the different types of data available for discovery and determines that the proper question is the accessibility of data rather than the media it may be stored on or the reason for its creation. The court rejects two of the Rowe Entertainment factors and creates seven factors to determine whether cost shifting should occur. First, it determines that the default answer is that there should be no cost shifting. Second, if the question is data in an accessible place, there should be no cost shifting. If the data is difficult to access, the new seven factors should be applied although not weighed equally.  However, prior to the analysis, the court wants the responding party to restore and produce responsive documents from a small sample to assist in the fact intensive analysis.

Spoliation & Sanctions

Applied Telematics, Inc. v. Sprint Communications Co., 1996 U.S. Dist. LEXIS 14053 (E.D. Pa.).

Applied Telematics asked the court to enter a default judgment as a sanction against Sprint because it contends its expert was not able to analyze all of the data due to defendants destroying routing plans. Sprint claimed that when it received Applied's discovery requests, it notified Applied that the system was not used for record-keeping but was used to route calls and that, due to its normal document retention policy, each weekly backup destroyed the data from the previous week.  The court held that after receiving the complaint and request for document production, Sprint had a duty to preserve information. This duty did not arise instantly but arose at a reasonable time after Sprint understood the complaint and document request. The court analyzed the degree of fault of the defendant, degree of prejudice suffered by the plaintiff and reviewed a variety of sanctions available. The court ordered an adverse inference and attorneys' fees against Sprint.

Computer Associates International, Inc. v. American Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990).

Computer Associates moved for a default judgment as a sanction based upon American Fundware's destruction of evidence. The court held that American Fundware must have been aware that certain source code would be the subject of a discovery request long before it stopped destroying older versions. The court further found that American Fundware was subject to a duty to preserve the source code. It failed to preserve the source code intentionally destroying portions of it. Based upon findings that American Fundware acted willfully or in bad faith, that Computer Associates was seriously prejudiced by the actions, and that alternative sanctions would not adequately punish American Fundware and deter future discovery violations, it imposed the most severe sanction available, that is, striking the defendant's answer with respect to liability, entering default on the issue of liability against all defendants, ordering the parties to attempt to settle the remaining issues, and, if settlement did not occur, notifying the court so the court could proceed.

Crown Life Ins. Co. v. Craig, 995 F.2d 1376 (7^th Cir. 1993).

The Seventh Circuit Court of Appeals reviewed a district court order sanctioning Crown Life for discovery abuse by entering a default judgment. The court of appeals used an abuse of discretion standard and found that the sanction was proportionate to the discovery failure based upon Crown Life's willful failure to comply with discovery orders.

Danis v. USN Communications, Inc., 2000 U.S. Dist. LEXIS 16900, 2000 WL 1694325 (N.D. Ill.).

(See Data Preservation)

GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 U.S. Dist. LEXIS 16244, 2000 WL 335558 (S.D.N.Y.).

GTFM sought transactional documents from Wal-Mart in this trademark infringement case. Wal-Mart's counsel responded that it did not have the centralized computer capabilities to track the purchase and sale of goods for a particular period of time.  Plaintiffs then attempted to discover the information through other sources. Approximately one year later, GTFM deposed a Wal-Mart vice president who revealed that Wal-Mart's computers did in fact have the capability to track the purchase and sale of goods. The court held that counsel for Wal-Mart had a duty to find the person within the organization who had knowledge of the computer capabilities and held that Wal-Mart had misrepresented its computer capacity. The court ordered defendant to pay all of plaintiffs' attorneys' fees and costs unnecessarily expended due to the failure to disclose accurate information.

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

In this employment case, the corporate employer sought sanctions against its employee for providing information to his new employer. Through computer forensics, the corporate plaintiff was able to determine that the employee had a variety of files on his laptop computer that he claimed he never had.

Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super. Ct. 1999).

Linnen is one of the first pharmaceutical products liability cases. In Linnen, the plaintiffs went to the court ex parte and acquired a document preservation order. After it was served on the defendants, the defendants waited for some period of time prior to stopping the recycling of their backup tapes. During discovery, defendants balked at the request to restore many of the backup tapes to search for responsive information.  The court ordered the defendants to restore the backup tapes and search. Further, it ordered that a "spoliation inference" would be given, that is, that the jury be instructed that an adverse inference may be drawn from the fact the documents were destroyed by the defendants.

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

(See Scope of Discovery)

Residential Funding Corp. v. DeGeorge Financial Corp., 306 F. 3d 99 (2^nd Cir. 2002).

The trial court held that the delay in providing electronic records by Residential Funding was not done in bad faith or with gross negligence and, therefore, that an adverse inference instruction would not be given. The Second Circuit vacated and remanded because it found that the wrong standard had been used. The Second Circuit instructed the trial courts that an adverse inference instruction could be imposed when discovery was delayed by ordinary negligence and that a finding of gross negligence or bad faith was not necessary.

Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 644 (S.D. Ind. 2000).

The court held that inadvertent disclosure of privileged documents does not waive the privilege.

Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. Dist. Ct. App. 2001).

(See Data Preservation)

Trigon Insurance Co. v. U.S., 204 F.R.D. 277 (E.D. Va. 2001).

Plaintiff Trigon Insurance discovered that certain documents had been destroyed by the government. The court held that the federal government has an obligation to maintain records that begins when a party has noticed that the evidence is relevant to litigation and that the destruction of those documents can lead to sanctions.

Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443 (C.D. Cal. 1985).

The court analyzes discovery sanctions under both Rule 37(b) and under the inherent power to sanction litigants for abusive litigation practices and affirms a special master's decision.

White v. Office of the Public Defender for the State of Maryland, 170 F.R.D. 138 (D. Md. 1997).

(See Records Management)

Inadvertent Disclosure

In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, Master File No. IP 00-9373-C-B/S, MDL No. 1373 (S.D. Ind. 2001).

In this order the judge considers the second inadvertent disclosure of the same document in which Ford claims a privilege. In the case management order there was a claw back provision. The court held that producing the document once was inadvertence, producing it again while at the same time vigorously asserting in court the importance of its confidentiality was inexcusable and constituted a waiver of any privilege.

In re Dow Corning Corp., 261 F.3d 280, (2^nd Cir. 2001).

The court considered corporate minutes redacted to remove attorney-client privileged material. This case of paper discovery may have significant impact on the ability to redact electronic information.

Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 644 (S.D. Ind. 2000).

(See Scope of Discovery)

U.S. v. Keystone Sanitation Co., Inc., 885 F. Supp. 672 (M.D. Pa. 1994).

The court held that the inadvertent disclosure of email messages from one attorney to another when those messages were relevant to show an attempt to transfer assets to avoid environmental liability waived the attorney-client privilege. The court identifies five considerations to be balanced in determining whether waiver occurred.

Method

Adobe Systems, Inc. v. South Sun Products, 187 F.R.D. 636 (S.D. Cal 1999).

(See Scope of Discovery)

America Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E. 2d 377 (Va. 2001).

A publicly traded company filed litigation anonymously against what it believed were former employees who it alleged were making defamatory material representations about the company. It issued a subpoena duces tecum against America Online, Inc. for the identity of people making comments on an Internet chat room. AOL moved to quash; the trial court refused to quash the subpoena; AOL appealed. Virginia Supreme Court reversed and remanded because it found that Virginia law would not allow an anonymous litigant under these circumstances.

Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002).

(See Data Preservation)

In re Bristol-Myers Squibb, 205 F.R.D. 437 (D.N.J. 2002).

(See Costs & Allocation)

Dodge, Warren & Peters Ins. Servs., Inc. v. Riley, 130 Cal. Rptr. 2d 385 (Cal. App 2003).

Plaintiffs acquired an injunction requiring defendants to maintain electronic evidence pending discovery.  Defendants claimed that the injunction should not have been issued because the rules of civil procedure cover the same field and require the preservation of documents; therefore, a protective order or injunction is not necessary or authorized.  The court held that post-destruction remedies are not adequate at law and that the injunction was improper.

In re Lees, 727 N.Y.S. 2d 254 (Sup. Ct. 2001)

The criminal defendant asked for computer information from the alleged victim and a witness that he claimed would show that the alleged victim had manufactured the story of the alleged crime. The court analyzes orders for production of evidence and explains to the pro se defendant what process he will need to follow to acquire the information.

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

(See Scope of Discovery)

Rowe Entertainment, Inc. v. Wm. Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002).

(See Costs & Allocation)

Sattar v. Motorola, Inc., 138 F.3d 1164 (7^th Cir. 1998).

(See Costs & Allocation)

Tulip Computers International B.V. v. Dell Computer Corp., 2002 U.S. Dist. LEXIS 7792 (D. Del.).

(See Scope of Discovery)

Williams v. E.I. du Pont de Nemours & Co., 119 F.R.D. 648 (W.D. Ky. 1987).

(See Costs & Allocation)

Williams v. Saint-Gobain Corp., 2002 U.S. Dist. LEXIS 12798 (W.D.N.Y.).

(See Costs & Allocation)

Criminal

New Jersey v. Evers, 815 A. 2d 432 (N.J. 2003).

Criminal defendant challenged the validity of a search warrant because the affidavit in support of the search warrant violated his reasonable expectation of privacy as well as California and Virginia law and that the warrant did not meet the probable cause standard of New Jersey law. The New Jersey court provided a detailed analysis of the exclusionary rule as well as the federal constitutional standard and concluded that the search warrant was valid and the conviction could stand.

Ohio v. Cook, 777 N.E. 2d 882 (Ohio App. 2002).

(See Scope of Discovery)

South Dakota v. Guthrie, 654 N.W. 2d 201 (S.D. 2002).

The defendant claimed to have an electronic suicide note from his wife whom he was accused of murdering.  Defendant waited until after the prosecution had rested its case in chief to produce the suicide note. The prosecution recalled one of their experts to refute the evidence and ask that the defendant be required to pay the cost. The court found that the amount of cost was excessive based upon the ability of the defendant and his attorney to pay the cost but ordered that the defendant's attorney pay a portion of the cost.

Thompson v. Thompson, 2002 U.S. Dist. LEXIS 9940 (D.N.H.).

This federal litigation arose in the context of a divorce proceeding. The plaintiff husband brought a claim in federal court arising under the Electronic Communications Privacy Act and the Wiretap Act against the defendant for copying his stored email.  The court held that copying stored email did not constitute interception of electronic communications and, therefore, the case was dismissed.

Trigon Insurance Co. v. U.S., 204 F.R.D. 277 (E.D. Va. 2001).

(See Spoliation & Sanctions)

Reliability

Premier Homes and Land Corp. v. Cheswell, Inc., 240 F. Supp. 2d 97 (D. Mass. 2002).

After defendants' consultants began mirror imaging electronic evidence, plaintiff's counsel disclosed that one of its employees had manufactured evidence which likely would have become apparent through the metadata. The court provides an analysis of how electronic documents can be fabricated and how that can be determined.

St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999).

In an entertaining opinion written by Judge Samuel B. Kent (whose opinions are always entertaining) the court notes the difficulties in authenticating information from the Internet.

E-Sign Statute and Cases

In re RealNetworks, Inc., Privacy Litigation, 2000 U.S. Dist. LEXIS 6584, 2000 WL 631341 (N.D. Ill.).

Class members objected to arbitrating their dispute because they claimed that the arbitration agreement contained in the electronic license agreement was not written. The court held that the Federal Arbitration Act and the Washington Arbitration Act requirement of a writing could be satisfied by an electronic communication. The court holds that it is a writing because it could be printed and stored.

Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9^th Cir. 2002).

Plaintiff attempted to serve process on defendant, a Costa Rican company, by attempting to serve process on its international courier and its attorney, both of whom refused to accept service. Plaintiff, a Nevada corporation, then went to the court and asked that it be allowed to serve process through email. The trial court agreed and the Ninth Circuit affirmed, based upon the extraordinary circumstances.

Sea-Land Service, Inc. v. Lozen International, LLC, 285 F. 3d 808 (9^th Cir. 2002).

The court uses a variety of evidentiary material including emails, faxes, and oral testimony to confirm that defendant had read and understood the terms of a contract. The case also considers the admissibility of an email and questions of foundation.

Specht v. Netscape Communications Corp., 306 F. 3d 17 (2^nd Cir. 2002).

This case concerns an arbitration clause that appeared on a computer screen imbedded in a user agreement.  The Second Circuit held that the arbitration clause did not bind the parties for a variety of reasons. Primarily it found the user was not on inquiry notice because license terms submerged in another screen did not put consumers on constructive notice of the terms, and the language was not conspicuously displayed anywhere else.

U.S. v. Miller, 70 F. 3d 1353 (D.C. Cir. 1995).

The court held that the use of an automatic teller machine card and entry of a personal four-digit code could amount to bank fraud. The defendant claimed that it was more akin to check kiting.  However, the court held that the entry of the electronic information amounted to a false misrepresentation.

Privacy

Braxton v. Farmer's Insurance Group, 209 F.R.D. 651 (N.D. Ala. 2002).

(See Scope of Discovery)

Chance v. Avenue A., Inc., 165 F. Supp. 2d 1153 (W.D. Wash. 2001).

Plaintiffs filed a class action against Avenue A. for placing "cookies" on their computers after class members visited certain Internet sites. Class members claimed that this violated their privacy right by allowing Avenue A. to monitor their electronic communications without their knowledge, authorization, or consent. The court provides a thorough analysis of "cookies" and action tags but determined that, based upon the current state of the law, Avenue A did not violate the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; the Stored Communications Act, 18 U.S.C. § 2701; the Wiretap Act, 18 U.S.C. § 2510, but did not reach the Washington state law claims because it chose not to exercise supplemental jurisdiction.

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

(See Scope of Discovery)

In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497, (S.D.N.Y. 2001).

Plaintiff class members brought this case against DoubleClick, the largest provider of Internet advertising products, based on DoubleClicks' targeting Internet users for banner advertisements. Based upon personal information it gathered without the knowledge of the Internet users, class members brought this action under Electronic Communications Privacy Act, 18 U.S.C. § 2701; the Federal Wiretap Act, 18 U.S.C. § 2510; and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. The court held that class members did not have a cause of action under any of these federal acts. Furthermore, it declined to exercise supplemental jurisdiction over the state claims.

New Jersey v. Evers, 815 A. 2d 432 (N.J. 2003).

(See Criminal)

Pharmatrak, Inc. Privacy Litigation, 220 F. Supp. 2d 4 (D. Mass. 2002).

This case is another in the series of cases with Chance v. Avenue A. and In re DoubleClick Inc. Privacy Litigation.

U.S. v. Bach, 310 F. 3d 1063 (8^th Cir. 2002).

The expectation of privacy created by Congress in 18 U.S.C. § 3105 is greater than the expectation of privacy created by the Fourth Amendment to the United States Constitution and, therefore, a violation of the statute is not necessarily a violation of the Constitution for purposes of suppression of evidence in a criminal case.

In re Verizon Internet Services, Inc. v. Verizon Internet Services, 240 F. Supp. 2d 24 (D.C. 2003).

(See Scope of Discovery)