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e-Discovery Docket Sheet
Court Finds Backup Tapes Not
Reasonably Accessible When
Discovery Parameters Not Defined
In this securities litigation, the plaintiff sought to compel the defendant to produce several named individuals' documents from backup tapes covering eight months. The defendant objected, arguing that the plaintiff's motion was unduly delayed and that restoring and searching the backup tapes would be extraordinarily burdensome and costly. The defendant also argued that if production of the backup tapes were ordered, then the plaintiff should bear the costs. The court noted that while the defendant had neglected to identify the backup tapes as an inaccessible source of potentially responsive information, as required by Fed. R. Civ. Pro. 26(b)(2), both parties had overlooked their obligation to discuss discovery parameters and protocols. Finding that the plaintiff could not reasonably assume that the defendant would have undertaken discovery of the backup tapes as a matter of course, the court determined that the backup tapes were not reasonably accessible. The court then considered whether good cause justified discovery of the backup tapes despite the associated burdens and costs. The court cited the resources of the parties, the discoverability of the information, the specificity of the request and the unavailability of the information from other more accessible sources as reasons demonstrating good cause. Accordingly, the court directed the defendant to restore the backup tapes for the specified period and to produce responsive, non-privileged information to the plaintiff. Turning to the issue of cost-allocation, the court directed the defendant initially to pay for the cost of production, and postponed further cost-shifting analysis until it had a chance to review the results of the search and consider the actual time and effort that the defendant expended. In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. Apr. 2, 2007).
Court Denies Sanctions Motion Where
Experts Fail to Retain Report Drafts
In a case where the plaintiff alleged that the defendants misappropriated the plaintiff's rights to medical-scanning technology, the defendants moved the court to sanction the plaintiff for spoliation of evidence by excluding the testimony of the plaintiff's proposed experts. The defendants alleged that the experts and plaintiff's counsel destroyed copies of e-mails and drafts of experts' reports to which they were entitled. The experts stated that they did not retain e-mail from the plaintiff's counsel because plaintiff's counsel had instructed them not to. The experts stated that they did not have the prior draft experts' reports because they worked only from one copy. The court rejected the defendants' argument and denied the request for sanctions. It ruled that although a draft of an expert's report might be discoverable under the Federal Rules of Civil Procedure, an expert need not preserve the drafts until the need to retain exists. Here, the experts and the plaintiff's counsel were not under an obligation to preserve the reports until the defendants subpoenaed records from the experts. Because the draft reports were destroyed prior to the creation of any obligation to retain, the court held that the destruction of the draft reports was 'not done intentionally, fraudulently, and with 'a desire to suppress the truth,' and therefore, [was] not sanctionable.' The court, however, did hold that it was improper for the plaintiff's counsel to have instructed or otherwise suggested to the experts that all e-mails be destroyed, as they were the subject of multiple discovery requests. The plaintiff's counsel apologized for the error, and the court did not issue sanctions. Univ. of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007).
Court Orders More Deposition After Plaintiff Produces Deponent Unknowledgeable About Electronic Data
In this antitrust litigation, the defendant filed a motion to compel the plaintiff to produce a Rule 30(b)(6) witness who could testify about the specific practices relating to the organization's handling of electronic data. The defendant also requested an award of costs for bringing the motion and taking the additional deposition. The plaintiff provided its chief executive officer for the deposition; however, during the deposition it was apparent that the CEO was unprepared or did not have the requisite knowledge to adequately answer the questions about the plaintiff's computer systems and electronic-discovery practices. The plaintiff argued that the topics of the deposition were overly broad and that it did not have enough time to prepare for the extensive deposition. Finding that it was the plaintiff's 'choice to use a designee without substantial personal knowledge of the noticed topics, and the fact that [the CEO] required extensive education about the noticed topics is a burden that must be borne by [the plaintiff] alone,' the court ordered an additional deposition about the unanswered electronic-data topics. The court refused to award costs or sanctions, because the parties did not discuss the narrow issue of compliance with Rule 30(b)(6) during the initial meet-and-confer conference. Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. Apr. 9, 2007).
Court Orders Non-Party To
Produce e-Mails At Plaintiff's Cost
In a case brought under the False Claims Act, the plaintiff subpoenaed e-mails from an accounting-services provider for the defendant, a non-party to the suit. The non-party produced some e-mail records, but the plaintiff claimed that the production was incomplete and compelled the court to order the non-party to produce all the sought-after e-mail records. The non-party argued that it would be unduly burdensome and costly to retrieve and produce the e-mails at issue. Inferring that the non-party had already retrieved all of the e-mails based on a statement contained in its briefing of the issue, the court held that the non-party had already assumed the costs of retrieval and should produce the sought after e-mails, with the plaintiff responsible for the costs of production. United States v. Premera Blue Cross, 2007 WL 852080 (S.D. Ohio Mar. 16, 2007).
e-Discovery Docket Sheet was written by Michele C.S. Lange, a staff attorney with Kroll Ontrack. 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 can be reached at [email protected].
Court Finds Backup Tapes Not
Reasonably Accessible When
Discovery Parameters Not Defined
In this securities litigation, the plaintiff sought to compel the defendant to produce several named individuals' documents from backup tapes covering eight months. The defendant objected, arguing that the plaintiff's motion was unduly delayed and that restoring and searching the backup tapes would be extraordinarily burdensome and costly. The defendant also argued that if production of the backup tapes were ordered, then the plaintiff should bear the costs. The court noted that while the defendant had neglected to identify the backup tapes as an inaccessible source of potentially responsive information, as required by Fed. R. Civ. Pro. 26(b)(2), both parties had overlooked their obligation to discuss discovery parameters and protocols. Finding that the plaintiff could not reasonably assume that the defendant would have undertaken discovery of the backup tapes as a matter of course, the court determined that the backup tapes were not reasonably accessible. The court then considered whether good cause justified discovery of the backup tapes despite the associated burdens and costs. The court cited the resources of the parties, the discoverability of the information, the specificity of the request and the unavailability of the information from other more accessible sources as reasons demonstrating good cause. Accordingly, the court directed the defendant to restore the backup tapes for the specified period and to produce responsive, non-privileged information to the plaintiff. Turning to the issue of cost-allocation, the court directed the defendant initially to pay for the cost of production, and postponed further cost-shifting analysis until it had a chance to review the results of the search and consider the actual time and effort that the defendant expended. In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. Apr. 2, 2007).
Court Denies Sanctions Motion Where
Experts Fail to Retain Report Drafts
In a case where the plaintiff alleged that the defendants misappropriated the plaintiff's rights to medical-scanning technology, the defendants moved the court to sanction the plaintiff for spoliation of evidence by excluding the testimony of the plaintiff's proposed experts. The defendants alleged that the experts and plaintiff's counsel destroyed copies of e-mails and drafts of experts' reports to which they were entitled. The experts stated that they did not retain e-mail from the plaintiff's counsel because plaintiff's counsel had instructed them not to. The experts stated that they did not have the prior draft experts' reports because they worked only from one copy. The court rejected the defendants' argument and denied the request for sanctions. It ruled that although a draft of an expert's report might be discoverable under the Federal Rules of Civil Procedure, an expert need not preserve the drafts until the need to retain exists. Here, the experts and the plaintiff's counsel were not under an obligation to preserve the reports until the defendants subpoenaed records from the experts. Because the draft reports were destroyed prior to the creation of any obligation to retain, the court held that the destruction of the draft reports was 'not done intentionally, fraudulently, and with 'a desire to suppress the truth,' and therefore, [was] not sanctionable.' The court, however, did hold that it was improper for the plaintiff's counsel to have instructed or otherwise suggested to the experts that all e-mails be destroyed, as they were the subject of multiple discovery requests. The plaintiff's counsel apologized for the error, and the court did not issue sanctions. Univ. of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007).
Court Orders More Deposition After Plaintiff Produces Deponent Unknowledgeable About Electronic Data
In this antitrust litigation, the defendant filed a motion to compel the plaintiff to produce a Rule 30(b)(6) witness who could testify about the specific practices relating to the organization's handling of electronic data. The defendant also requested an award of costs for bringing the motion and taking the additional deposition. The plaintiff provided its chief executive officer for the deposition; however, during the deposition it was apparent that the CEO was unprepared or did not have the requisite knowledge to adequately answer the questions about the plaintiff's computer systems and electronic-discovery practices. The plaintiff argued that the topics of the deposition were overly broad and that it did not have enough time to prepare for the extensive deposition. Finding that it was the plaintiff's 'choice to use a designee without substantial personal knowledge of the noticed topics, and the fact that [the CEO] required extensive education about the noticed topics is a burden that must be borne by [the plaintiff] alone,' the court ordered an additional deposition about the unanswered electronic-data topics. The court refused to award costs or sanctions, because the parties did not discuss the narrow issue of compliance with Rule 30(b)(6) during the initial meet-and-confer conference. Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. Apr. 9, 2007).
Court Orders Non-Party To
Produce e-Mails At Plaintiff's Cost
In a case brought under the False Claims Act, the plaintiff subpoenaed e-mails from an accounting-services provider for the defendant, a non-party to the suit. The non-party produced some e-mail records, but the plaintiff claimed that the production was incomplete and compelled the court to order the non-party to produce all the sought-after e-mail records. The non-party argued that it would be unduly burdensome and costly to retrieve and produce the e-mails at issue. Inferring that the non-party had already retrieved all of the e-mails based on a statement contained in its briefing of the issue, the court held that the non-party had already assumed the costs of retrieval and should produce the sought after e-mails, with the plaintiff responsible for the costs of production. United States v. Premera Blue Cross, 2007 WL 852080 (S.D. Ohio Mar. 16, 2007).
e-Discovery Docket Sheet was written by Michele C.S. Lange, a staff attorney with Kroll Ontrack. 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 can be reached at [email protected].
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