Duty to Produce Electronic Materials (Continued)
In re Honeywell Int'l, Inc. Securities Litigation, 2003 U.S. Dist. LEXIS 20602 (S.D.N.Y. Nov. 18, 2003).
A third party was ordered to re-produce relevant documents in electronic form after they had already provided them in hard copy form as it was determined that the documents were stored in electronic form through the normal course of business. The court denied a request for email and other electronic documents based on the fact that the request was overly broad.
Zubulake v. UBS Warburg LLC, "Zubulake IV", 2003 U.S. Dist. LEXIS 18771 (S.D.N.Y., Oct. 22, 2003).
In this fourth opinion of a series regarding discovery disputes, the court reviewed the scope of a party's duty to preserve electronic documents, specifically backup tapes, and the consequences for failing to preserved documents that fall within the scope.
Renda Marine v. United States, 2003 U.S. Claims LEXIS 260 (Fed. Cir. Aug. 29, 2003).
After being notified of a pending litigation, the government did not preserve electronic evidence; therefore, the court ordered the government to produce backup tapes and permitted plaintiff to access the key witness' hard drive.
Zubulake v. UBS Warburg LLC1, 2003 U.S. Dist. LEXIS 12643 (S.D.N.Y. July 24, 2003).
Following the order set forth on May 13, 2003, at a cost of $19,000, defendant restored and analyzed information taken from five backup tapes chosen by plaintiff, resulting in 600 responsive email messages. Defendant approximated that to produce email messages from all 77 backup tapes the cost would be $165,954.67 with another $107,694.72 required for analysis. Based on the seven "Zubulake factors", the court determined that defendant should bear 75% of the cost for restoring the email messages and that the requesting party should pay all costs associated with analysis.
Armstrong v. Armsted Indus., Inc.(In re Amsted Indus., Inc., 2002 U.S. Dist. LEXIS 24332, 29 Employee Benefits Cas. (BNA) 2319 (N.D. Ill. Dec. 17, 2002), Motions Ruled Upon, 2003 U.S. Dist. LEXIS 11477 (N.D. Ill. July 1, 2003).
The court granted a motion that compelled a search of backup tapes to identify email messages and found that the request was not burdensome enough to limit the scope of discovery.
Zubulake v. UBS Warburg LLC, 2003 U.S. Dist. LEXIS 7939, 91 Fair Empl. Prac. Cas. (BNA) 1574 (S.D.N.Y. May 13, 2003).
After presenting substantial evidence that additional responsive email messages existed, likely on backup tapes and optical storage media, plaintiff requested supplementary email messages to the 100 pages previously produced by defendant. Defendant estimated that producing these email messages would cost $175,000, without attorney review time and objected to this discovery. The court found plaintiff's claims relevant and both parties asked the court to apply the Rowe factors to determine who should pay the discovery costs, with the court maintaining that the usual rules of discovery apply for information that is retained in an accessible format. When electronic information is stored in an inaccessible manner, such as on backup tapes, cost-shifting should be considered and, in addition, compelling the responding party to restore and produce responsive documents from only a minimal sample of the requested backup tapes is, in general, sensible. The court rejected the Rowe factors for this case and instead utilized the following seven "Zubulake factors" to determine cost shifting:
- The extent to which the request is tailored to discover relevant data.
- The availability of that data from other sources.
- The total cost of production, relative to the amount in controversy.
- The total cost of production, relative to the resources available to each party.
- The relative ability and incentive for each party to control its own costs.
- The importance of the issues at stake in the litigation.
- The relative benefits to the parties in obtaining that data.
Based on these factors, the court ordered defendant to, at its own expense, produce responsive email messages from any five backup tapes chosen by plaintiff and to prepare an affidavit detailing the results of the searches, as well as time and money spent. Based on this affidavit, the court would then conduct the appropriate cost-shifting analysis.
In re Bristol-Myers Squibb Securities Litigation, 2002 U.S. Dist. LEXIS 13808 (D.N.J.).
After initially entering an agreement regarding shared copying costs, plaintiff disputed how much was owed to defendant. Plaintiff argued that defendant had produced a large amount of paper documents and charged plaintiff for excessive copying costs. It was found that defendant had printed electronic documents rather than providing plaintiff with these documents in their native electronic form. Based on Rule 26(f), the court found that plaintiff was not required to pay for the excessive printing charges and was only required to pay for the nominal cost of copying CD-ROMs.
In re Livent, Inc. Noteholders Sec. Litig., 2002 U.S. Dist. LEXIS 26446 (S.D.N.Y. Dec. 31, 2002).
Defendant produced 25 pages of email messages from one employee and 14 email messages from other employees, however, plaintiff believed the production of email messages to be incomplete and requested that defendant parse all computer systems, servers, backup tapes, and other storage devices for additional email messages. The court did not find it necessary for the defendant to do so and instead ordered defendant to provide a written explanation of the steps they had taken to uncover email messages during the discovery process.
Southern Diagnostic Assocs. v. Bencosme, 833 So. 2d 801, 2002 Fla. App. LEXIS 15684, 27 Fla. L. Weekly D 2344 (Fla. Dist. Ct. App. 3d Dist. Oct. 30, 2002).
Defendant requested records of payments to two physicians made by plaintiff. Plaintiff countered that their computer system could not be searched by physician name, prompting defendant to request that plaintiff's computer system be inspected. The trial court granted defendant's request and plaintiff petitioned the appeals court. The appellate court quashed the order against plaintiff as the trial court had not directed any limitations on the inspection of plaintiff's computer system, ignoring plaintiff's concerns that such an inspection would result in breach of confidentiality and expose privileged information stored in the computer system. The appellate court directed the trial court to narrow its original order to satisfy both the discovery request and the need for confidentiality.
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 2002 U.S. App. LEXIS 20422, 53 Fed. R. Serv. 3d (Callaghan) 1105 (2d Cir. Conn. Sept. 26, 2002).
Plaintiff failed to produce specific email messages until after the start of the trial and subsequently prevailed over defendant. In their appeal, defendant stated the trial court's denial of their request for sanctions, specifically in the form of an adverse jury instruction. The Second Circuit agreed that the trial court had broad discretion when applying sanctions in that they may be imposed when a party has acted grossly negligent or in bad faith. However, the Second Circuit also found that the trial court had applied the wrong legal standard as sanctions may also be imposed for ordinary negligence and thus called for a renewed hearing on discovery sanctions.
Braxton v. Farmer's Ins. Group, 209 F.R.D. 651, 2002 U.S. Dist. LEXIS 18085, 54 Fed. R. Serv. 3d (Callaghan) 28 (N.D. Ala. Sept. 12, 2002).
Plaintiffs sought email messages from defendant's third-party individual insurance agents in this class action suit under the Fair Credit Reporting Act. Defendant countered that such a subpoena would unduly burden the insurance agents, as the email messages were written by defendant and could be extracted from defendant's own email files. The court found that, unless it could be proven that defendant could not accurately produce these email messages, the third-party insurance agents would not be required to identify and extract the email messages in question.
In re Pac. Gateway Exch., Inc. Sec. Litig., 2001 U.S. Dist. LEXIS 18433 (N.D. Cal. Oct. 15, 2001).
Plaintiff requested the stay of discovery be lifted as, after reviewing the mirror image they had taken of the defendant's computer server, plaintiff discovered that many employees' computer systems had been reformatted, overwriting potentially vital information. Defendant was in bankruptcy proceedings and many employees were no longer with the company and it was unclear among the employees that remained who would be able to preserve or produce documents necessary to the litigation. The court found that "there is a significant risk that relevant documents, both paper and electronic, could be irretrievably lost, which could result in prejudice to plaintiffs" and hence lifted the stay of discovery.
Kleiner v. Burns, 2000 U.S. Dist. LEXIS 21850, 48 Fed. R. Serv. 3d (Callaghan) 644 (D. Kan. Dec. 22, 2000).
Plaintiff requested defendant disclose all relevant electronic data in defendant's possession, custody, or control, including email messages, websites, web pages, voice mails, and any other form of electronic data in this copyright infringement action. Plaintiff had, on her own, recovered two pieces of electronic data that defendant had not initially disclosed, although relevant to disputed facts. The court granted the plaintiff's motion and ordered the parties to safeguard all computer data, data compilations, and other electronically recorded information, as well as any other evidence pertinent to a continuing litigation.
GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 U.S. Dist. LEXIS 16244 (S.D.N.Y. Nov. 8, 2000).
Plaintiff requested sanctions against defendant due to unnecessary legal fees expended as a result of defendant inaccurately disclosing their computer capabilities. The court ruled in favor of these sanctions and ordered defendant to allow plaintiff to perform an inspection of defendant's computer facilities and records at defendant's cost. The court ruled that these expenses were "reasonable in view of the prior repeated misinformation provided by Wal-Mart concerning the availability of information…"
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