Training & Education | Computer Forensics

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.

Arista Records, Inc. v. Sakfield Holding Co., 2004 WL 881851 (D.D.C. April 22, 2004).

This case arose from a copyright infringement suit brought by the record company against a website owner for maintaining a website from which subscribers could download copyrighted music. The question initially was a question of jurisdiction. However, when the plaintiffs' expert in conjunction with the jurisdictional discovery attempted to examine servers, he found that the defendants had run a data wiping program 50 times from a remote location. Defendants argued that they destroyed the crucial evidence to prevent further transfer of music files. The court held that was a ludicrous argument and that defendants could simply have disconnected the website from the internet in any number of ways without destroying any files. The court did not impose any particular sanctions as a result of the action but instead granted plaintiffs the right to file appropriate motions for sanctions in the future. The court also held that plaintiffs' expert expressed extrapolations from fragmentary data insufficient to give jurisdiction to the court and that defendants were in a poor position to attack plaintiffs' evidence since defendants had destroyed crucial evidence that might have shown where jurisdiction was more proper.

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.

Capricorn Power Co. v. Siemens Westinghouse Power Corp., 221 F.R.D. 429 (W.D. Pa. 2004).

This case arose from the failure of electric generator equipment. Both parties filed motions for data preservation orders. The court first examined the four-part test for injunctive relief and found that test inappropriate in considering data preservation orders in the electronic realm. The court announced a new three-part test for data preservation orders:

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.

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.

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.

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.

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.

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^thCir.).

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.

Computer Assocs. Int'l Inc. v. Quest Software, Inc., 2003 U.S. Dist. LEXIS 9198 (N.D. Ill. June 3, 2003).

The Plaintiffs asked for images of hard drives of named defendants' computers and other computers that might contain discoverable information. Prior to providing those images, the defendants, believing that privileged information might exist on those computers, hired a discovery expert to review the material for privilege. Defendants then asked that the cost of the expert be shifted to plaintiff. The court, using Rowe Entertainment's analysis, determined that the first place to start was that the cost of discovery is to be born by the person providing the information. The court determined that the discovery requests were as narrow as possible and that the burden upon the defendants was no greater than had defendants been going through paper files to pull privileged documents. Therefore, no cost shifting would occur.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.).

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.

Kucala Enter. Ltd. v. Auto Wax Co., 2003 U.S. Dist. LEXIS 8833 (N.D. Ill. May 23, 2003); adopted in part and overruled in part, 2003 U.S. Dist. LEXIS 19103 (October 27, 2003); reconsidered at 2004 U.S. Dist. LEXIS 5723 (April 6, 2004).

In this case the plaintiffs disobeyed several court orders and installed software that would wipe deleted files. In addition, they disposed of one old computer that might contain discoverable information. The defendants asked for costs and fees as well as to have the complaint dismissed. Originally, the magistrate judge recommended all relief sought by defendants. The district judge adopted the sanctions as to costs, but denied the sanction of dismissing the litigation. Subsequently, on reconsideration, the court agreed to reconsider the sanctions because it had not given the plaintiff an opportunity to respond. The overall difficulty encountered by the court in this case was fashioning a remedy when it is impossible to determine the difference in cost if there had been no misconduct as opposed to when there is, in fact, misconduct.

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.

In re Pharmatrak, Inc. Privacy Litigation, 292 F. Supp. 2d 263 (D. Mass. 2003).

Pharmatrak was hired by a variety of pharmaceutical companies to monitor access to the pharmaceutical companies' websites by consumers. Pharmatrak, through its monitoring, placed cookies on consumers' computers to allow the consumer easier access to information. The court held that the inadvertent collection of personal information by Pharmatrak was insufficient to create a violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2511(2)(d), because the communication was not intercepted intentionally.

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.

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

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.

Wiginton v. CB Richard Ellis, 2003 U.S. Dist. LEXIS 19128 (N.D. Ill. October 27, 2003).

Even though the court found that the defendant was on notice that its electronic information was relevant and even though the defendant failed to suspend document destruction policies knowing that relevant documents would be destroyed, the court denied without prejudice Plaintiff's motion for sanctions because plaintiff had the opportunity to attempt to recover the information from backup tapes. The court held that should plaintiff''s expert be able to discover relevant documents on the backup tapes, plaintiff would be allowed to renew its motion for appropriate sanctions. However, plaintiff needs to bear the cost of that expert and of the document recovery from the backup tapes. There is no evidence on the record that plaintiff provided evidence to the court concerning the cost of such recovery.

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 overwrote 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.

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).

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.

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.).

Computer Assocs. Int'l Inc. v. Quest Software, Inc., 2003 U.S. Dist. LEXIS 9198 (N.D. Ill. June 3, 2003).

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.

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.

Wiginton v. CB Richard Ellis, 2003 U.S. Dist. LEXIS 19128 (N.D. Ill. October 27, 2003).

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.

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, 217 F.R.D. 309, 312 (S.D.N.Y. 2003). (“Zubulake I”)

Judge Scheindlin analyzes when it is appropriate to require the requesting party to pay for some or all of the cost of production. The need to produce electronic documents does not change the standard that the responding party bears the cost of production. In Rowe Entertainment v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002), the Court identified eight factors it deemed relevant in evaluating whether cost shifting measures were appropriate. Judge Scheindlin rejected two of those factors – the purpose for which the responding party kept the information and the likelihood of discovering critical information. If the information was available, it should be produced regardless of why it was kept. The court also determined that not all of the criteria should be treated equally and weighted the remaining six Rowe factors, in addition to adding a new one – the importance of the issues at stake in the litigation.

UBS was ordered to restore a sampling of backup tapes, in addition to other data it had available, and submit an affidavit regarding the cost. The Court would analyze whether cost shifting was appropriate after reviewing the information provided by UBS.

Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. July 24, 2003). (“Zubulake III”)

This is the follow-up to Zubulake I where UBS was ordered to restore the five sample backup tapes and submit an affidavit of the cost. UBS spent slightly over $19,000.00 and 600 hundred additional email messages were deemed responsive to Zubulake’s discovery requests. UBS had previously produced only 100 emails. Defendants estimated that the cost of production of the entire 77-tape collection would be $165,000.00 for restoration and $110,000.00 for attorney review. After analyzing each of the seven factors in Zubulake I, the court held that UBS should bear 75 percent of the cost of restoring the backup tapes and the entire cost of attorney review.

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.

Arista Records, Inc. v. Sakfield Holding Co., 2004 WL 881851 (D.D.C. April 22, 2004).

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.

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.).

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.

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 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.

Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees and Restaurant Employees Int'l Union, 212 F.R.D. 178 (S.D.N.Y. 2003).

The defendant union in this case committed so many discovery abuses and violations that the court determined that the ultimate sanction of granting judgment as to liability against defendants and for the additional sanctions of attorneys' fees was justifiable. With respect to electronic discovery, the defendants failed to search for responsive emails, stated that they believed that all emails were maintained on servers, and falsely stated that they had asked all internet service providers for backup material on the ISP's servers. The court ordered the ultimate sanction for spoliation of evidence.

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.

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.

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

Wiginton v. CB Richard Ellis, 2003 U.S. Dist. LEXIS 19128 (N.D. Ill. October 27, 2003).

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.

Zubulake v.UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). (“Zubulake IV”)

During the process of restoring the backup tapes, UBS found that some tapes were missing. Zubulake moved for sanctions including a spoliation inference jury instruction. The court found that a duty to preserve the missing tapes existed, that UBS was negligent and possibly reckless in failing to preserve the tapes, but that Zubulake failed to demonstrate a reasonable likelihood that the missing tapes contained evidence that would have been relevant to the lawsuit. For spoliation sanctions, she needed to show that UBS had acted with malicious intent or that the missing tapes actually held evidence that would have been damaging. The appropriate sanction, therefore, was limited to awarding the costs of additional depositions taken to complete discovery.

The contents of the backup tapes restored by UBS demonstrated that certain UBS employees had deleted email after being advised of their duty to preserve the evidence. Since Zubulake could now show that the destruction was willful and it was likely the destroyed emails would have been beneficial to her case, the Court granted an adverse inference jury instruction.

Additionally, since it took UBS almost two years to produce the relevant and requested emails from the backup tapes, it was ordered to pay Zubulake’s costs related to re-deposing any relevant witnesses. Even though the Court acknowledged that UBS’s attorneys generally fulfilled their duty to communicate with their client on its duty to preserve and produce data, it noted certain key shortcomings - one of which was the attorneys’ failure to communicate with the client’s information technology personnel.

In a postscript to this July 2004 opinion, Judge Scheindlin discusses how rapidly the body of case law on discovery of electronic information has evolved in the little over two years that this case has been pending. “All parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information.”

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.

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).

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.

United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003).

In this criminal case the government issued grand jury subpoenas to Adelphia Communications Corp. Adelphia provided electronic information to the United States Attorney's Office. Defense counsel was then allowed to access the information. In the process, the U.S. Attorney's Office created two virtual drives on their hard drive, one virtual drive containing unannotated information from Adelphia and the other containing information annotated by one of the Assistant U.S. Attorney's paralegals. The U.S. Attorney's Office provided an image copy of the hard drive to defendants which, unbeknownst to it, contained both virtual drives. The defendants realized they had attorney work product and notified the U.S. Attorney's Office. Prior to reading the material the court applied a four-factor test to determine whether the inadvertently provided material should be returned:

Based upon these four factors the court determined that the material should be returned to the U.S. Attorney's Office.

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.

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.

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.

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

TPS, Inc. trades in information about government contracts. Previously, when acquiring information under the Freedom of Information Act from the government, the information was unusable by the company. Therefore, it requested information in a particular zipped format. The government responded that the information was not kept in that format and, therefore, it did not need to provide the information. The trial court agreed with the government. The Ninth Circuit reversed holding that such a narrow reading of "business as usual" was not acceptable. That court held that the government needed to provide the information in the requested format so long as it could be provided without additional expense. This case has ramifications for discovery among private parties in civil litigation. The requesting party may be allowed to ask for information in particular format just so long as it does not create an additional burden.

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