e-Discovery Docket Sheet

In an employment-discrimination suit, the defendant sought a court order requiring the plaintiff to bear a portion of the costs for restoring and searching backup tapes. The defendant hired Kroll Ontrack to restore and search data from the following locations: 171 backup tapes; Kroll Ontrack's archives from a previous matter; and backup tapes containing e-mail for employees who worked outside the United States. The plaintiff argued that the costs should not be shifted, because the defendant had a duty to preserve the requested e-mail in an accessible format. The defendant argued that its only duty was to preserve the evidence, that it had no duty to preserve the data in a particular format and that a restoration of so many documents should fall on the plaintiff. The court agreed, in part, holding that the producing party does not have an explicit duty to preserve evidence in an accessible format. However, the producing party will bear the cost of producing any evidence preserved in an inaccessible format after litigation is reasonably anticipated. The court stated that this would '[P]revent parties from taking unfair advantage of a self-inflicted burden by shifting part of the costs of undoing the burden to an adversary.' But, it if was not reasonably foreseeable that the evidence at issue would have to be produced, the responding party who converts the evidence into an inaccessible format after the duty to preserve evidence arose, could still seek to shift the costs associated with restoring and searching that evidence. For a small portion of the defendant's inaccessible data that the defendant could not have reasonably anticipated producing, the court relied on the Zubulake seven-factor cost-shifting test and ruled that the plaintiff should share 30% of the production costs. Quinby v. WestLB, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006).

In a securities litigation, the plaintiff claimed that the defendant failed to follow a judge's order compelling the defendant to produce documents found on various backup tapes and employee hard drives. The plaintiff claimed that the defendants' non-compliance came from their failure to produce documents determined to be invalid through a deduplication software filter. The defendant claimed that approximately 423,000 documents were discovered during their initial search. Upon using various search terms and a deduplication process, the number of documents was reduced to 125,000, of which 4000 were relevant. The plaintiff motioned the court to discover all 423,000 documents before the filter process was applied. The court held that the search terms chosen by the defendant were proper and that the deduplication process was an acceptable method for narrowing the document set. However, the defendant agreed to provide additional cataloging information to the plaintiff for the non-produced documents and relieved the court of deciding on this issue. In re CV Therapeutics, Inc., 2006 WL 2458720 (N.D. Cal. Aug. 22, 2006).

In a patent-infringement case, the defendant filed a motion to compel the production of electronic documents. The defendant claimed that the plaintiff produced a disk of information containing 29,000 pages of material that were not in a proper electronic format and were not searchable. The court noted that the defendant's motion was ironic, because earlier in the litigation, the defendant produced a similar disk of information to the plaintiff that contained the same unsearchable electronic formatting. The plaintiff claimed that it bore the cost of converting the files into a searchable database because the defendant refused to produce the information in a searchable format. The court stated that the defendant's own prior refusal to convert its documents should not be rewarded in this situation by forcing the plaintiff to again expend costs to convert electronic documents. The court denied the defendant's motion. OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006).

In a patent-infringement case, the district court upheld the magistrate's decision to award sanctions based on the defendant's discovery insufficiencies. In this case, the defendant repeatedly gave false testimony regarding the existence and content of relevant e-mails of employees within his company. In addition, the defendant failed to inquire into whether other employees had potentially relevant material, but merely looked at his own e-mail and files. The court found that the defendant 'should have conducted a reasonable inquiry into whether employees ' had documents or information responsive to 3M's request' and that he 'should have instigated a litigation hold after being notified of this litigation.' The court held that such deliberate failure to comply with any rules of discovery warranted sanctions that included adverse jury instructions, negative inferences to the jury and monetary sanctions to cover the costs of the plaintiff in bringing the motions related to the discovery and any future depositions needed to correct the defendant's withholdings. 3M v. Tomar Elec., 2006 WL 2670038 (D. Minn. Sept. 18, 2006).