e-Discovery Docket Sheet

In a patent-infringement suit, the plaintiffs argued that the defendant's claims should be dismissed based on the defendant's adoption of a document-retention policy that resulted in the destruction of potentially relevant electronic and paper documents. Prior to filing the litigation at issue, the defendant developed a document-retention policy requiring the destruction of e-mail contained on backup tapes after 3 months. In addition, the defendant held several 'Shred Days' during which employees were instructed to follow the retention-policy guidelines to determine what to keep and what to throw away. In assessing the plaintiffs' argument, the court noted that the evidence failed to show that the defendant targeted any specific document or category of relevant documents with the intent to prevent production in the upcoming lawsuit. The court further found that the defendant's adoption of the policy was not designed to prevent the plaintiffs from obtaining evidence that would be helpful to the plaintiffs' defense. For these reasons, the court declined to accept the plaintiffs' argument and declared, '[The defendant's] adoption and implementation of its content neutral Document Retention Policy in mid-1998 was a permissible business decision ' [and] did not constitute unlawful spoliation.' Hynix Semicon-ductor, Inc. v. Rambus, Inc. No. C-00-20905 RMW (N.D.Cal. Jan. 4, 2006).

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Magistrate Recommends Spoliation Sanctions For Failure To Stop Automated e-Mail Deletion

In a breach-of-contract claim relating to the defendant's NASCAR team, the plaintiff sought sanctions against the defendant for destroying relevant e-mails. In defending its actions, the defendant claimed that its computer system was set up to delete internal and external e-mails automatically, unless affirmative efforts were taken to preserve them. As a result of the automated deletion, internal e-mails from key custodians were 'irretrievably lost.' One key individual testified that he was never instructed to preserve relevant communications, even after the lawsuit commenced. In considering whether sanctions were justified, a magistrate judge declared '[s]uch normal procedures for destruction of documents must ' be suspended when a party is on notice that they may be relevant to litigation, and the failure to make an adequate search of such documents before their destruction may be evidence of bad faith.' Although ultimately finding that the defendant's actions amounted to negligent spoliation and did not show evidence of bad faith, the magistrate found that sanctions would be appropriate and recommended that the trial court issue an adverse-inference instruction and an order allowing the plaintiff to present evidence of the spoliation. DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22, 2005).

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Court Refuses To Issue Sanctions In
Backup Tape Discovery Dispute

Objecting to a request for the production of e-mails, the defendant claimed that the e-mails were stored on backup tapes and not readily available, making them too expensive to retrieve. In response, the court ordered the defendant to consider the guidelines set forth in Zubulake v. UBS Warburg LLC, to provide an affidavit addressing technical issues and a deposition witness who could discuss these issues, and to restore and put sample tapes into a searchable format. The defendant produced affidavits from its chief information officer and a Kroll Ontrack expert explaining that each tape would need to be 'uncompressed' before it could be put into a searchable format. Further, the affidavits set forth the cost and time considerations required to complete this work. The plaintiff argued that the affidavits were 'incomplete, misleading and contain 'outright false statements' because they improperly focused on back-up tapes and ' [failed to address] the costs of searching and contents of the Database and archives that Kroll [Ontrack] maintains containing WestLB e-mails' from past e-discovery projects. Rejecting this argument, the court declared that the defendant correctly focused on the backup tapes as 'they were the most complete source for the e-mails.' In refusing to award sanctions, the court stated, 'the fact that defendant is producing e-mails from the most complete, but most expensive, source is compelling evidence of defendant's honesty and good faith.' See also, Quinby v. WestLB AG, 2006 WL 59521 (S.D.N.Y. Jan. 11, 2006) (order granting motion to quash two subpoenas seeking 'all e-mails sent to or received by plaintiff's personal e-mail account during the period from October 2002 throughout July 2004, other than e-mails between plaintiff and her current and former counsel.') Quinby v. WestLB AG, 2005 WL 3453908 (S.D.N.Y. Dec. 15, 2005).

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Court Criticizes Plaintiff's Decision to
Convert e-Documents To Paper For Document Review

Following the settlement of a class-action shareholder lawsuit, the plaintiffs sought $1,450,000 in fees and more than $173,000 in costs. Although recognizing that the plaintiffs were entitled to some fees and expenses, the defendants objected to the amount requested, based on the plaintiffs' attorneys' inefficiency in managing the discovery process. In considering the award, the court noted that prior to settlement, the plaintiffs obtained several hundred thousand pages of discovery documents and devoted a substantial amount of time to document review. The court issued a total award of $450,000, stating that 'the obvious inefficiencies involved in this case, highlighted by the plaintiffs' decision to pay nearly $125,000 to convert documents produced in a digital format into a paper format. Rather than simply copying the electronic media to permit the plaintiffs' lawyers working on the case to search and review the document production on a computer screen, the plaintiffs spewed the digital production onto paper, and then copied the paper for review. This approach added unnecessary expense and greatly increased the number of hours required to search and review the document production. In fact, the time records submitted include a large number of hours, by multiple attorneys, spent reviewing the documents. Thus the court must disagree with the plaintiffs' counsel's assertion that 'this case was a paradigm of efficient litigation,' and give less weight than customary to the number of hours expended by plaintiffs' counsel.' In re Instinet Group, Inc. Shareholders Litig., 2005 WL 3501708 (Del. Ch. Dec. 14, 2005).

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e-Discovery Docket Sheet and Computer Forensics Docket Sheet were written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Charity Delich, a Kroll Ontrack law clerk. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics, and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at www.krollontrack.com. Lange is a member of e-Discovery Law & Strategy's Board of Editors and may be reached at [email protected].

Data Destruction Pursuant To Valid Document
Retention Policy Doesn't Warrant Spoliation Sanctions

In a patent-infringement suit, the plaintiffs argued that the defendant's claims should be dismissed based on the defendant's adoption of a document-retention policy that resulted in the destruction of potentially relevant electronic and paper documents. Prior to filing the litigation at issue, the defendant developed a document-retention policy requiring the destruction of e-mail contained on backup tapes after 3 months. In addition, the defendant held several 'Shred Days' during which employees were instructed to follow the retention-policy guidelines to determine what to keep and what to throw away. In assessing the plaintiffs' argument, the court noted that the evidence failed to show that the defendant targeted any specific document or category of relevant documents with the intent to prevent production in the upcoming lawsuit. The court further found that the defendant's adoption of the policy was not designed to prevent the plaintiffs from obtaining evidence that would be helpful to the plaintiffs' defense. For these reasons, the court declined to accept the plaintiffs' argument and declared, '[The defendant's] adoption and implementation of its content neutral Document Retention Policy in mid-1998 was a permissible business decision ' [and] did not constitute unlawful spoliation.' Hynix Semicon-ductor, Inc. v. Rambus, Inc. No. C-00-20905 RMW (N.D.Cal. Jan. 4, 2006).

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Magistrate Recommends Spoliation Sanctions For Failure To Stop Automated e-Mail Deletion

In a breach-of-contract claim relating to the defendant's NASCAR team, the plaintiff sought sanctions against the defendant for destroying relevant e-mails. In defending its actions, the defendant claimed that its computer system was set up to delete internal and external e-mails automatically, unless affirmative efforts were taken to preserve them. As a result of the automated deletion, internal e-mails from key custodians were 'irretrievably lost.' One key individual testified that he was never instructed to preserve relevant communications, even after the lawsuit commenced. In considering whether sanctions were justified, a magistrate judge declared '[s]uch normal procedures for destruction of documents must ' be suspended when a party is on notice that they may be relevant to litigation, and the failure to make an adequate search of such documents before their destruction may be evidence of bad faith.' Although ultimately finding that the defendant's actions amounted to negligent spoliation and did not show evidence of bad faith, the magistrate found that sanctions would be appropriate and recommended that the trial court issue an adverse-inference instruction and an order allowing the plaintiff to present evidence of the spoliation. DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22, 2005).

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Court Refuses To Issue Sanctions In
Backup Tape Discovery Dispute

Objecting to a request for the production of e-mails, the defendant claimed that the e-mails were stored on backup tapes and not readily available, making them too expensive to retrieve. In response, the court ordered the defendant to consider the guidelines set forth in Zubulake v. UBS Warburg LLC, to provide an affidavit addressing technical issues and a deposition witness who could discuss these issues, and to restore and put sample tapes into a searchable format. The defendant produced affidavits from its chief information officer and a Kroll Ontrack expert explaining that each tape would need to be 'uncompressed' before it could be put into a searchable format. Further, the affidavits set forth the cost and time considerations required to complete this work. The plaintiff argued that the affidavits were 'incomplete, misleading and contain 'outright false statements' because they improperly focused on back-up tapes and ' [failed to address] the costs of searching and contents of the Database and archives that Kroll [Ontrack] maintains containing WestLB e-mails' from past e-discovery projects. Rejecting this argument, the court declared that the defendant correctly focused on the backup tapes as 'they were the most complete source for the e-mails.' In refusing to award sanctions, the court stated, 'the fact that defendant is producing e-mails from the most complete, but most expensive, source is compelling evidence of defendant's honesty and good faith.' See also, Quinby v. WestLB AG, 2006 WL 59521 (S.D.N.Y. Jan. 11, 2006) (order granting motion to quash two subpoenas seeking 'all e-mails sent to or received by plaintiff's personal e-mail account during the period from October 2002 throughout July 2004, other than e-mails between plaintiff and her current and former counsel.') Quinby v. WestLB AG, 2005 WL 3453908 (S.D.N.Y. Dec. 15, 2005).

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Court Criticizes Plaintiff's Decision to
Convert e-Documents To Paper For Document Review

Following the settlement of a class-action shareholder lawsuit, the plaintiffs sought $1,450,000 in fees and more than $173,000 in costs. Although recognizing that the plaintiffs were entitled to some fees and expenses, the defendants objected to the amount requested, based on the plaintiffs' attorneys' inefficiency in managing the discovery process. In considering the award, the court noted that prior to settlement, the plaintiffs obtained several hundred thousand pages of discovery documents and devoted a substantial amount of time to document review. The court issued a total award of $450,000, stating that 'the obvious inefficiencies involved in this case, highlighted by the plaintiffs' decision to pay nearly $125,000 to convert documents produced in a digital format into a paper format. Rather than simply copying the electronic media to permit the plaintiffs' lawyers working on the case to search and review the document production on a computer screen, the plaintiffs spewed the digital production onto paper, and then copied the paper for review. This approach added unnecessary expense and greatly increased the number of hours required to search and review the document production. In fact, the time records submitted include a large number of hours, by multiple attorneys, spent reviewing the documents. Thus the court must disagree with the plaintiffs' counsel's assertion that 'this case was a paradigm of efficient litigation,' and give less weight than customary to the number of hours expended by plaintiffs' counsel.' In re Instinet Group, Inc. Shareholders Litig., 2005 WL 3501708 (Del. Ch. Dec. 14, 2005).

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e-Discovery Docket Sheet and Computer Forensics Docket Sheet were written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Charity Delich, a Kroll Ontrack law clerk. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics, and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at www.krollontrack.com. Lange is a member of e-Discovery Law & Strategy's Board of Editors and may be reached at [email protected].