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

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.

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

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

Kucala Enterprises, Ltd. v. Auto Wax Co., Inc., 2003 WL 21230605 (N.D.Ill.), May 27, 2003

A recently reported case, Kucala Enterprises, Ltd. v. Auto Wax Co., Inc., 2003 WL 21230605 (N.D.Ill.), May 27, 2003, highlights the disastrous results that can befall a litigant that uses a wiping program such as Evidence Eliminator. In this patent infringement case in federal court in Illinois, the district court, in response to a discovery request by the defendant, had ordered the inspection of a computer used by the plaintiff. The defendant then hired an experienced forensic investigator to use EnCase to create a forensic image and analyze the plaintiff's computer. On February 28th the investigator imaged the subject computer. His analysis revealed that the plaintiff had employed Evidence Eliminator on his computer between midnight and 4 a.m. on February 28th to delete and overwrite over 12,000 files, and that an additional 3,000 files had been deleted and overwritten three days earlier. In addressing the proprietary of the plaintiff's use of Evidence Eliminator, the Court stated "Any reasonable person can deduce, if not from the name of the product itself, then by reading the website, that Evidence Eliminator is a product used to circumvent discovery. Especially telling is that the product claims to be able to defeat EnCase ..." (emphasis added). The Court described the plaintiff's actions as "egregious conduct" that was wholly unreasonable, and found the plaintiff at fault for not preserving evidence that it had a duty to maintain. As a result, the Magistrate Judge recommended to the district court that the plaintiff's case be dismissed with prejudice, and that the plaintiff be ordered to pay the defendant's attorney fees and costs incurred with respect to the issue of sanctions.

(Case summary courtesy of Guidance Software, Inc.)

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.

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

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

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.

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

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

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.

1. Reasonableness of precautions taken;
2. Amount of material in comparison to total material provided;
3. Length of time to demand return; and
4. Fairness (essentially who had read the material and how much it had been disseminated).

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.

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.

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.

Zubulake V, (July 20, 2004)

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.”