e-Discovery Docket Sheet

In a tort action, the plaintiffs filed several motions requesting the production of various electronic documents. After the defendant's initial production of documents, the plaintiffs filed motions to: compel mirror images of various databases; produce native file formats of e-mails; and create a more organized and understandable database of electronic documents already produced. The defendant argued that the cost of providing a mirror-image database to the plaintiff would exceed $10,000. The court found that the high cost of production did not outweigh the plaintiffs' interest in having the documents. The court noted, however, that the parties could negotiate production of the database without the court's assistance if the plaintiffs wanted to pay the costs associated with obtaining the data. In arguing for the native production of e-mails, the plaintiffs claimed that the defendant merely provided 'pictures' of the requested e-mails and did not provide them in an easily searchable format. The court found that the plaintiffs' discovery requests did not specifically ask for the e-mails in a particular format. The defendant provided documents as asked for in the discovery requests. Last, the plaintiffs argued that the production of e-mails and other documents were 'produced as single page documents with no consideration of the organization.' The plaintiffs requested that the electronic documents be provided in an 'un-shuffled' manner and produced in a more easily readable method. Refusing to place such a burden on the defendant, the court ruled the production followed accepted industry practices and the plaintiffs possessed the capabilities to organize the produced documents. The Ponca Tribe of Indians of Okla. v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11. 2006).

In a case involving exposure to harmful chemicals, the plaintiffs sought sanctions against the defendant for deleting e-mail before and during the litigation. Specifically, the defendant's e-mail protocol automatically deleted e-mails every 7 days. The defendant did not change the server's protocol until 6 months after litigation started, resulting in the deletion of many relevant e-mails. The defendant, however, purchased data-recovery software and recovered 91,000 deleted e-mails. The plaintiffs alleged that several relevant e-mails were destroyed that could never be recovered, and the missing e-mails severely prejudiced their case. The defendant argued that no relevant e-mails were destroyed, and it took substantial steps to recover any deleted e-mails. The plaintiffs urged the court to 'create a presumption in favor of spoliation whenever a moving party can prove that records that might have contained relevant evidence have been destroyed.' The court declined to create a legal presumption in favor of spoliation. Instead, it reopened discovery and allowed the plaintiffs to depose two people with knowledge of the e-mail system. It also allowed the plaintiffs to have a computer expert examine the defendant's e-mail system. The court found that because the plaintiffs were not prejudiced by loss of the alleged data, sanctions in the form of adverse inferences, and fees and costs would not be assessed on the defendant. The court stated that the defendant could file another motion if new evidence was discovered. Crandall v. The City and County of Denver, 2006 WL 2683754 (D.Colo. Sept. 19, 2006).

In a claim brought by a law student under a state Persons With Disability Act, the plaintiff sought to examine the defendant's computer system with her computer-forensics expert. The plaintiff claimed that her poor scores on final examinations were attributed to faulty software provided by the law school to assist the plaintiff with her vision disability while taking tests. The plaintiff originally sought the production of several work orders from the law school relating to the software, but the school changed computer systems, and during the switch some documents were deemed unrecoverable. The plaintiff argued that the defendant used the system changeover as an excuse not to produce relevant documents. The defendant argued that it had already produced every work order it was able to recover and that the other work orders could not be retrieved from the old computer system. The court found for the defendant, stating that '[t]his court is therefore loathe to sanction intrusive examination of an opponent's computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information.' Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006).

The plaintiff sought sanctions against the defendant for bad-faith destruction of relevant documents and e-mails. The defendant in this case was a competitor of the plaintiff in the sporting goods business. The defendant hired a former employee of the plaintiff after he voluntarily ended his employment with the plaintiff. When the employee left the company, he forwarded several confidential documents from the plaintiff's company e-mail account directly to his personal Yahoo account. A computer-forensics expert determined that the employee had opened the documents on his home computer, and several of the confidential documents were also found on a computer issued to the employee by his new employer. Upon the filing of the plaintiff's lawsuit, the employee cancelled his Yahoo e-mail account, which caused all e-mails stored in the account to be destroyed and become unrecoverable. The plaintiff motioned the court to issue sanctions in the form of dismissal for bad-faith destruction of key documents after litigation commenced. The defendant argued having had no knowledge of the stolen trade secrets from the plaintiff and alleged that the employee had transferred and deleted the files on his own. The court found that the employee had destroyed wrongfully obtained records when he cancelled his personal e-mail account with Yahoo. The court did not find enough evidence to prove that the defendant had willfully and in bad faith supervised or instructed the destruction of the trade secrets, but did find the defendant negligent in its failure to preserve relevant evidence from its employee. The defendant's negligence did not warrant a dismissal of the case as the plaintiff had urged, but the court ruled that a negative inference may be allowed at trial because it 'should have done more to detect and preserve relevant data under [the employee's] control.' Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. Sept. 28, 2006).

Court Evaluates Multiple Claims
Relating to Production of e-Data

In a tort action, the plaintiffs filed several motions requesting the production of various electronic documents. After the defendant's initial production of documents, the plaintiffs filed motions to: compel mirror images of various databases; produce native file formats of e-mails; and create a more organized and understandable database of electronic documents already produced. The defendant argued that the cost of providing a mirror-image database to the plaintiff would exceed $10,000. The court found that the high cost of production did not outweigh the plaintiffs' interest in having the documents. The court noted, however, that the parties could negotiate production of the database without the court's assistance if the plaintiffs wanted to pay the costs associated with obtaining the data. In arguing for the native production of e-mails, the plaintiffs claimed that the defendant merely provided 'pictures' of the requested e-mails and did not provide them in an easily searchable format. The court found that the plaintiffs' discovery requests did not specifically ask for the e-mails in a particular format. The defendant provided documents as asked for in the discovery requests. Last, the plaintiffs argued that the production of e-mails and other documents were 'produced as single page documents with no consideration of the organization.' The plaintiffs requested that the electronic documents be provided in an 'un-shuffled' manner and produced in a more easily readable method. Refusing to place such a burden on the defendant, the court ruled the production followed accepted industry practices and the plaintiffs possessed the capabilities to organize the produced documents. The Ponca Tribe of Indians of Okla. v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11. 2006).

In a case involving exposure to harmful chemicals, the plaintiffs sought sanctions against the defendant for deleting e-mail before and during the litigation. Specifically, the defendant's e-mail protocol automatically deleted e-mails every 7 days. The defendant did not change the server's protocol until 6 months after litigation started, resulting in the deletion of many relevant e-mails. The defendant, however, purchased data-recovery software and recovered 91,000 deleted e-mails. The plaintiffs alleged that several relevant e-mails were destroyed that could never be recovered, and the missing e-mails severely prejudiced their case. The defendant argued that no relevant e-mails were destroyed, and it took substantial steps to recover any deleted e-mails. The plaintiffs urged the court to 'create a presumption in favor of spoliation whenever a moving party can prove that records that might have contained relevant evidence have been destroyed.' The court declined to create a legal presumption in favor of spoliation. Instead, it reopened discovery and allowed the plaintiffs to depose two people with knowledge of the e-mail system. It also allowed the plaintiffs to have a computer expert examine the defendant's e-mail system. The court found that because the plaintiffs were not prejudiced by loss of the alleged data, sanctions in the form of adverse inferences, and fees and costs would not be assessed on the defendant. The court stated that the defendant could file another motion if new evidence was discovered. Crandall v. The City and County of Denver, 2006 WL 2683754 (D.Colo. Sept. 19, 2006).

In a claim brought by a law student under a state Persons With Disability Act, the plaintiff sought to examine the defendant's computer system with her computer-forensics expert. The plaintiff claimed that her poor scores on final examinations were attributed to faulty software provided by the law school to assist the plaintiff with her vision disability while taking tests. The plaintiff originally sought the production of several work orders from the law school relating to the software, but the school changed computer systems, and during the switch some documents were deemed unrecoverable. The plaintiff argued that the defendant used the system changeover as an excuse not to produce relevant documents. The defendant argued that it had already produced every work order it was able to recover and that the other work orders could not be retrieved from the old computer system. The court found for the defendant, stating that '[t]his court is therefore loathe to sanction intrusive examination of an opponent's computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information.' Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006).

The plaintiff sought sanctions against the defendant for bad-faith destruction of relevant documents and e-mails. The defendant in this case was a competitor of the plaintiff in the sporting goods business. The defendant hired a former employee of the plaintiff after he voluntarily ended his employment with the plaintiff. When the employee left the company, he forwarded several confidential documents from the plaintiff's company e-mail account directly to his personal Yahoo account. A computer-forensics expert determined that the employee had opened the documents on his home computer, and several of the confidential documents were also found on a computer issued to the employee by his new employer. Upon the filing of the plaintiff's lawsuit, the employee cancelled his Yahoo e-mail account, which caused all e-mails stored in the account to be destroyed and become unrecoverable. The plaintiff motioned the court to issue sanctions in the form of dismissal for bad-faith destruction of key documents after litigation commenced. The defendant argued having had no knowledge of the stolen trade secrets from the plaintiff and alleged that the employee had transferred and deleted the files on his own. The court found that the employee had destroyed wrongfully obtained records when he cancelled his personal e-mail account with Yahoo. The court did not find enough evidence to prove that the defendant had willfully and in bad faith supervised or instructed the destruction of the trade secrets, but did find the defendant negligent in its failure to preserve relevant evidence from its employee. The defendant's negligence did not warrant a dismissal of the case as the plaintiff had urged, but the court ruled that a negative inference may be allowed at trial because it 'should have done more to detect and preserve relevant data under [the employee's] control.' Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. Sept. 28, 2006).