e-Discovery Docket Sheet

In the seventh decision issued in the Zubulake employment discrimination lawsuit, which has addressed numerous electronic-discovery topics, the defendants moved to preclude various pieces of information from evidence at trial, including the court's first five opinions relating to deficient discovery. The defendants argued that the earlier decisions ' which included the court's award of e-discovery spoliation sanctions against the defendants ' were irrelevant and unfairly prejudicial. The court agreed, noting “jurors will be told all they need to know through the evidence admitted at trial and my charge.” The defendants also re-quested preclusion of discovery correspondence among defense counsel and evidence relating to its failure to preserve monthly backup tapes. The court determined that the plaintiff would be allowed to introduce this evidence only if the defendants opened the door by offering evidence regarding the reasonableness of their actions. Finally, the plaintiff indicated that she intended to elicit testimony from defendants' counsel relating to its client's e-mail and backup-tape preservation practices. The defendants sought preclusion of defense counsel testimony and argued the testimony would be cumulative because the defendants had already produced information relating to their document-retention policy. The court granted the motion, stating it did “not see any legitimate need plaintiff may have for calling opposing counsel given the extensive discovery on the issue of e-mail and back-up tape preservation and retention.” Zubulake v. UBS Warburg LLC, 2005 WL 627638 (S.D.N.Y. Mar. 16, 2005).

In a case involving discrimination allegations against the U.S. Navy, the court granted a new trial to allow the plaintiff to present its case using new evidence that the defendant initially claimed it no longer had and did not produce during discovery. At trial, after the defendant produced this information ' 1400 pages of reports generated from a database ' for the first time, the court granted the plaintiff's motion for a new trial and for additional limited discovery. After the court granted the motion, the plaintiff filed a series of related post-trial discovery motions. The plaintiff requested, inter alia, compliance with an earlier order to provide access to the defendant's database for review by either the plaintiff's counsel or a computer-technology consultant, to determine whether information could be retrieved from the database. The defendant argued that it had given the plaintiff access to the database during a specified time, but the plaintiff failed to accept the offer. The court declined to analyze whether the plaintiff forfeited its database inspection opportunity because new deposition testimony of one of the defendant's employees indicated that the information could be retrieved by specific data queries. Based on this testimony, the court ordered the defendant to query the database, retrieve the relevant information and to produce it to the plaintiff within 60 days of the order. Jinks-Umstead v. England, 2005 WL 775780 (D.D.C. Apr. 7, 2005).

In a class action disability insurance coverage lawsuit in New York state court, the plaintiff sought a stipulation to a state court preservation order based on e-mail destruction in a related federal class action lawsuit by one of the defendants. See, Keir v. UnumProvident, 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003). Stating the order would be redundant because of the existing federal preservation orders, the defendants declined to stipulate to the order in state court but acknowledged their ongoing preservation duties. The defendants also asserted that preserving the computer information at issue would cost a considerable amount of money. In addressing the motion, the court noted it was almost a “word-for-word” duplicate of the orders previously issued in the earlier lawsuits and the defendant's destruction in the current lawsuit was inadvertent. Despite this, the court granted the motion, finding the federal preservation orders may not be “sufficient protection for [the] plaintiff in this state action.” Addressing the defendant's cost concerns, the court indicated that it would entertain cost-shifting but “not constrain the production of possibly relevant evidence on account of the later need to allocate cost.” Weiller v. New York Life Ins. Co., 2004 WL 3245345 (N.Y. Sup. Ct. Mar. 16, 2005).

Court Addresses Defendant's
Request to Preclude Evidence

In the seventh decision issued in the Zubulake employment discrimination lawsuit, which has addressed numerous electronic-discovery topics, the defendants moved to preclude various pieces of information from evidence at trial, including the court's first five opinions relating to deficient discovery. The defendants argued that the earlier decisions ' which included the court's award of e-discovery spoliation sanctions against the defendants ' were irrelevant and unfairly prejudicial. The court agreed, noting “jurors will be told all they need to know through the evidence admitted at trial and my charge.” The defendants also re-quested preclusion of discovery correspondence among defense counsel and evidence relating to its failure to preserve monthly backup tapes. The court determined that the plaintiff would be allowed to introduce this evidence only if the defendants opened the door by offering evidence regarding the reasonableness of their actions. Finally, the plaintiff indicated that she intended to elicit testimony from defendants' counsel relating to its client's e-mail and backup-tape preservation practices. The defendants sought preclusion of defense counsel testimony and argued the testimony would be cumulative because the defendants had already produced information relating to their document-retention policy. The court granted the motion, stating it did “not see any legitimate need plaintiff may have for calling opposing counsel given the extensive discovery on the issue of e-mail and back-up tape preservation and retention.” Zubulake v. UBS Warburg LLC, 2005 WL 627638 (S.D.N.Y. Mar. 16, 2005).

In a case involving discrimination allegations against the U.S. Navy, the court granted a new trial to allow the plaintiff to present its case using new evidence that the defendant initially claimed it no longer had and did not produce during discovery. At trial, after the defendant produced this information ' 1400 pages of reports generated from a database ' for the first time, the court granted the plaintiff's motion for a new trial and for additional limited discovery. After the court granted the motion, the plaintiff filed a series of related post-trial discovery motions. The plaintiff requested, inter alia, compliance with an earlier order to provide access to the defendant's database for review by either the plaintiff's counsel or a computer-technology consultant, to determine whether information could be retrieved from the database. The defendant argued that it had given the plaintiff access to the database during a specified time, but the plaintiff failed to accept the offer. The court declined to analyze whether the plaintiff forfeited its database inspection opportunity because new deposition testimony of one of the defendant's employees indicated that the information could be retrieved by specific data queries. Based on this testimony, the court ordered the defendant to query the database, retrieve the relevant information and to produce it to the plaintiff within 60 days of the order. Jinks-Umstead v. England, 2005 WL 775780 (D.D.C. Apr. 7, 2005).

In a class action disability insurance coverage lawsuit in New York state court, the plaintiff sought a stipulation to a state court preservation order based on e-mail destruction in a related federal class action lawsuit by one of the defendants. See, Keir v. UnumProvident, 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003). Stating the order would be redundant because of the existing federal preservation orders, the defendants declined to stipulate to the order in state court but acknowledged their ongoing preservation duties. The defendants also asserted that preserving the computer information at issue would cost a considerable amount of money. In addressing the motion, the court noted it was almost a “word-for-word” duplicate of the orders previously issued in the earlier lawsuits and the defendant's destruction in the current lawsuit was inadvertent. Despite this, the court granted the motion, finding the federal preservation orders may not be “sufficient protection for [the] plaintiff in this state action.” Addressing the defendant's cost concerns, the court indicated that it would entertain cost-shifting but “not constrain the production of possibly relevant evidence on account of the later need to allocate cost.” Weiller v. New York Life Ins. Co., 2004 WL 3245345 (N.Y. Sup. Ct. Mar. 16, 2005).