This content is hosted on this server.

12 captures

19 Oct 2008 - 14 Jul 2024

Jun	NOV	May
	20
2009	2010	2012

success

fail

About this capture

COLLECTED BY

Organization: Internet Archive

The Internet Archive discovers and captures web pages through many different web crawls. At any given time several distinct crawls are running, some for months, and some every day or longer. View the web archive through the Wayback Machine.

Collection: Wide Crawl started October 2010

Web wide crawl with initial seedlist and crawler configuration from October 2010

TIMESTAMPS

HOT ISSUES

Follow new postings on Twitter: http://twitter.com/DiscoveryRef
New e-discovery cases of note are listed with the most recently reported cases first.
Only cases of significance are summarized. For selection criteria and more inclusive sources see below.
For an electronic data base see KL Gates htt'ps://extranet1.klgates.com/ediscovery/.

Romano v. Steelcase Inc. (NYSC 2010), __N.Y.S.2d__, __N.Y.Supp.__, 2010 N.Y. Slip Op. 20388 Citing numerous case authorities, a New York trial court ordered plaintiff to execute a consent and authorization for access to Facebook and My Space records including those previously deleted or archived. There was no reasonable expectation of privacy based in part on the privacy policies of the sites and the user's consent.

Qualcomm v. Broadcom (S.D.Ca., April 2, 2010), CASE NO. 05cv1958-B (BLM) Magistrate Judge "declines" to award sanctions against counsel concluding as follows.

"It is undisputed that Qualcomm improperly withheld from Broadcom tens of thousands of documents that contradicted one of its key legal arguments. However, the evidence presented during these remand proceedings has established that while significant errors were made by some of the Responding Attorneys, there is insufficient evidence to prove that any of the Responding Attorneys engaged in the requisite “bad faith” or that Leung failed to make a reasonable inquiry before certifying Qualcomm’s discovery responses. Accordingly, the Court declines to impose sanctions on the Responding Attorneys and hereby dissolves the order to show cause that initiated these proceedings."

Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order) Spoliation Sanctions issued: adverse jury instruction, set forth in full in the opinion, as to those grossly negligent in performing discovery duties and monetary sanctions against all. The opinion is lengthy and the court noted in Fn 56 that the Judge and 2 of her law clerks spent "close to three hundred hours resolving this spoliation motion". The original opinion was amended. The opinion reviewed various issues and considerable case law to be considered in evaluating spoliation sanctions in the 2d Circuit. Lawyers practicing in other jurisdictions should note distinctions in the law. See Toshiba America Electronic Components, Inc., v. Superior Court (2004) 124 Cal. App. 4th 762.

First the court found relevant evidence had been lost of destroyed because "... plaintiffs failed to timely institute written litigation holds and engaged in careless and indifferent collection efforts after the duty to preserve arose. "

DUTY TO PRESERVE:
"it was beyond cavil that the duty to preserve evidence included a duty to preserve electronic records. Fn.82. This duty was well established as early as 1985 and has been repeatedly stated by courts across the country."
LITIGATION HOLD
"Counsel telephoned and emailed plaintiffs and distributed memoranda instructing plaintiffs to be over, rather than under, inclusive, and noting that emails and electronic documents should be included in the production.
"This instruction does not meet the standard for a litigation hold. It does not direct employees to preserve all relevant records both paper and electronic nor does it create a mechanism for collecting the preserved records so that they can be searched by someone other than the employee. Rather, the directive places total reliance on the employee to search and select what that employee believed to be responsive records without any supervision from Counsel. Throughout the litigation, Counsel sent plaintiffs monthly case status memoranda, which included additional requests for Lancer related documents, including electronic documents. But these memoranda never specifically instructed plaintiffs not to destroy records so that Counsel could monitor the collection and production of documents."

Next the court approached the issue of whether and what sanctions should be imposed and listed four concepts it considered

(1) CULPABILITY LEVELS: acceptable, negligent, grossly negligent, or willful conduct. [The court found all the producing parties were negligent or grossly negligent "because they failed to execute a comprehensive search for documents and/or failed to sufficiently supervise or monitor their employees' document collection."]

GROSS NEGLIGENCE
"Thus, after the final relevant Zubulake opinion in July, 2004, the following failures support a finding of gross negligence, when the duty to preserve has attached:

to issue a written litigation hold;
to identify all of the key players and to ensure that their electronic and paper records are preserved;
to cease the deletion of email or to preserve the records of former employees that are in a party's possession, custody, or control; and
to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources."

(2)"the interplay between the duty to preserve evidence and the spoliation of evidence."

(3) BURDENS OF PROOF

DUTY TO PRESERVE & LOSS THEREAFTER:
        B of P on requesting party which may be met by circumstantial evidence

RELEVANCE, PREJUDICE, CAUSATION

Grossly negligent producers: rebuttable presumption that responsive documents were lost or destroyed, were relevant and the loss was prejudicial

Negligent producers: requester B of P to "show through extrinsic evidence that the loss of the documents has prejudiced their ability to defend the case".

In this case, no prejudice because information obtained from other sources. If no alternative sources, impossible to know the extent of the prejudice suffered

(4)REMEDY / SANCTION

"Appropriate sanctions should "(1) deter the parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore 'the prejudiced party to the same position [it] would have been in absent the wrongful destruction of evidence by the opposing party.' "
"It is well accepted that a court should always impose the least harsh sanction that can provide an adequate remedy. The choices include from least harsh to most harsh further discovery, cost shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal (terminating sanctions).

Accessdata Corp. v. ALSTE Tech. GMBH, 2010 WL 3184777 (D. Utah Jan. 21, 2010).  Form of production cannot be less useful than form in which maintained by producing party.  Requesting party failed to specify the form of production in its request as permitted by the rule. The opinion does not state whether responding party identified a form of production in its response in accord with the rule. The responding party produced "...electronic files containing scanned images of hardcopy printouts of emails and other documents rather than producing them in their original electronic format or converting them to electronically produced PDF files." The motion sought to compel production of "already-produced discovery, which consists of mostly emails, in its native format" because the form in which it was produced was not searchable.

The court held the producing party was required to re-produce it in a "reasonably usable form" in accord with FRCP Rule 34(b)(2)(E)(ii). The trial court was "confidant" that e-mail had been maintained in native format and that producing it as above stated reduced the ability to use the data. Therefore it required production in comparable form stating:

"If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.
"In the court's experience, scanned PDFs, as opposed to electronically produced PDFs, are not reasonably usable. Accordingly, the court orders ALSTE to produce the already produced electronic discovery in its native format or, at least, in an electronically-generated PDF format."

Forest Laboratories, Inc. v. Caraco Pharmaceutical Laboratories, Ltd. (E.D.Mich.,2009), Slip Copy, 2009 WL 998402
Duty to preserve internal e-mail on backup tapes
The court held that backup tapes at issue were “inaccessible” based on their disaster recovery purpose and function rather than ease or cost of access of information: the lack of any showing that “the backup tapes were used for primary storage or some purpose other than disaster recovery.” “FN3. Again, the rule is that the “litigation hold does not apply to inaccessible backup tapes ... which may continue to be recycled on the schedule set forth in the company's policy.”
The court held that “inaccessible” data (internal e-mail on backup tapes) need not be preserved subject to one exception with 3 requirements: (1) ability to “identify where particular employee documents are stored on [the] backup tapes,” (2) tapes must “stor[e] the documents of ‘key players' to the ... litigation, and (3) lack of alternative sources of information.
Backup tapes containing internal e-mail were not preserved after the “trigger date”( the filing of a new drug application by the opponent) when a general duty to preserve arose. Since the parties had not made adequate factual showings, the court set a spoliation hearing to determine “whether the spoliated evidence falls within the scope of evidence that must be preserved” and if sanctions were appropriate.

Arista Records, LLC v. Usenet.com Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009) In a copyright infringement case based on storage of material on usenet sites, Plaintiff claims defendant destroyed log data showing usage, copies of copyrighted materials, and promotional material previously available on its website. Plaintiff gave notice of infringement in August, filed a detailed complaint in October, and served document requests in January. Plaintiff delayed and thwarted discovery and some potential evidence was destroyed. Plaintiff's motion for spoliation sanctions was granted allowing adverse inferences as to some issues and precluding contrary evidence as to other issues. The motion to establish certain legal conclusions was denied as too severe being case dispositive. The court discussed 2d circuit spoliation law.
TIMING & SCOPE of PRESERVATION DUTY. It noted that the issue of “when” the duty to preserve arises in some cases may not only depend on notice but also the type of information sought, the specificity of the notice and the degree of relevance to an issue. It cited “Fox v. Riverdeep, Inc., No. 07 Civ. 13622, 2008 WL 5244297, at *7 (E.D.Mich. Dec. 16, 2008) (awarding sanctions where defendant in copyright infringement case failed to preserve evidence, including emails, once it received cease and desist letter); Google Inc. v. American Blind & Wall Paper Factory, No. 03 Civ. 5340(JF)(RS), 2007 WL 1848665, at *1 (N.D. Cal. June 27, 2007) (holding that defendant's duty to preserve relevant evidence arose no later than the date the complaint was served and that this duty “likely arose some eighteen months earlier” when it received a cease and desist letter).”
“Defendants' arguments may have some force with respect to when the duty to preserve transitory data arose, but once Defendants had actual notice that Plaintiffs were requesting the data, Defendants had the obligation to preserve it, if possible, or to at least negotiate in good faith what data they could produce.”
“Courts have recognized the relevance of user log data and infringing digital files in copyright infringement actions, and they have ordered litigants to preserve and produce such data. See Viacom Int'l v. YouTube Inc., 253 F.R.D. 256, 26162 (S.D.N.Y.2008) (compelling production of user log data and alleged infringing video files in copyright infringement action); see also Columbia Pictures, Inc. v. Bunnell, No. 06 Civ. 1093(FMC)(JCX), 2007 WL 2080419, at *13 (C.D.Cal. May 29, 2007) (requiring production of server log data stored in RAM, and denying sanctions for spoliation, in part, because data was not specifically requested); Twentieth Century Fox Film Corp. v. iCraveTV, No. Civ. A. 00120 & 00121, 2000 WL 255989, at *6 (W.D.Pa. Feb. 8, 2000) (relying on log data to demonstrate that users accessed video stream of copyrighted works).”
Defendants also had an obligation to preserve images of the webpages from their website....”

EXPERT DECLARATION. The motion to strike an expert declaration was granted in part for failure to comply with Daubert criteria. The expert was qualified regarding usenet technology but had not applied expertise to the facts in reaching conclusions.
“There are four main subjects addressed in Professor Farber's Declaration that are not based upon sufficient facts or data, or are not the product of reliable principles and methods: 1) the capacity of Defendants' servers; 2) what the Usage Data from Defendants' servers shows; 3) article retention times on Defendants' servers; and 4) the content of specific Usenet groups that have appeared on Defendants' servers. Paragraphs 714, 16, and 1821 are, therefore, stricken in whole or in part from Professor Farber's Declaration. The Court finds that the remaining portions of Professor Farber's Declaration, concerning Usenet technology and the Usenet network in general, which are based on Professor Farber's experience in both the creation and management of large software systems, his education, and direct, handson experience, sufficiently satisfy Rule 702 and Daubert.”

Micron Technology v. Rambus (D.Del 2009), Civ. No. 00-792-SLR  2009 WL 54887 (D. Del. Jan. 9, 2009) For opinion go to http://www.ded.uscourts.gov/SLRmain.htm   This is one of several Rambus DRAM patent enforcement cases that involve litigation planning, the crime fraud exception to the attorney-client privilege, claims of spoliation, and sanctions. The trial court enterred an order that Micron patents are unenforceable due to spoliation of evidence. The decision reviews and summarizes 3rd Circuit law on spoliation. Micron began to formulate a “license or litigate” plan in 1998 to enforce its patents against potential infringers and imposed a litigation hold a year later. Litigation planning included creation of a discovery database; the accumulation, organization and storage of documents; adoption and education of employees on the document preservation and destruction policies; and planning as to back up of documents. Documents not part of the official patent application record including documents detrimental to patent claims were subject to destruction. The Court held litigation was foreseeable in 1998, that documents destroyed thereafter were deemed to be intentionally destroyed in bad faith, that documents potentially relevant were destroyed in 1999, and a general policy of document preservation was insufficient given the litigation planning. In balancing bad faith and prejudice to formulate appropriate sanctions it found the bad faith so great that less prejudice need be shown to justify the extreme sanctions.

Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008)  Litigants encouraged to read and follow e-discovery rules.
“Thus, I am supposed to determine by examining ancient boilerplate designed for discovery in a paper universe such nice questions as whether an e-mail, existing in a computer's memory is a “tangible thing” and how e-mails are “maintained in the ordinary course of business.” While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production.”
“Since both parties went through the same stop sign, it appears to me that they both should pay for the crash. I will require them to share the cost...”

Rhoads Industries, Inc. v. Building Materials Corp. of America (E.D.Pa.,2008), --- F.Supp.2d ----, 2008 WL 4916026 (E.D.Pa.). In a multi-million dollar construction project case in which privileged documents were inadvertently produced and the waiver issue raised, the court considered the reasonable precautions taken to prevent and rectify an inadvertent disclosure in compliance with FRCP Rule 26(b)(5)(B) and FRE Rule 502. The Court adopted the five factor approach [1) reasonableness of the precautions taken, 2) number of disclosures, 3) extent of disclosure, 4) delay and efforts to rectify, 5) interests of justice].and then considered the facts applicable to each factor. Considerable attention was given to the reasonableness of the precautions taken regarding ESI in the factual context of the case: the reliability and accuracy of keyword searches designed and conducted, the testing and sampling of searches to assure accuracy, reliability and comprehensiveness, the early retention and use of qualified consultants familiar with the particular system, the use of sophisticated software to conduct searches and filtering of privileged material, the experience and expertise of counsel, the supervision by senior counsel. While the party opposing waiver failed to satisfy the first four standards, the court found there was no waiver based on the interest of justice because a privilege waiver was too severe even though the court was not familiar with the content of the documents.

The Court was critical of those using 20-20 hindsight in evaluating reasonable precautions, referencing Victor Stanley, Inc. v. Creative Pipe, Inc., and advocated an objective standard based on the facts and circumstances at the time of the events.

The Court applied the waiver rule for failure to list documents on a privilege log.

Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008) Discovery rules and cost / benefit analysis applied to meta data to reach a practical solution based on the facts and issues of the case. The case illustrates how the question posed is not whether meta data is discoverable but what meta data, at what cost or effort, providing what information, that is how probative of what issues relevant to this case, etc. the case emphasizes the need to raise the issue early and include the request for meta data in the request to produce as part of the form requested. As summarized by the Court:
“This lawsuit demonstrates why it is so important that parties fully discuss their ESI early in the evolution of a case. Had that been done, the Defendants might not have opposed the Plaintiffs' requests for certain metadata. Moreover, the parties might have been able to work out many, if not all, of their differences without court involvement or additional expense, thereby furthering the “just, speedy, and inexpensive determination” of this case. See Fed.R.Civ.P. 1. Instead, these proceedings have now been bogged down in expensive and time-consuming litigation of electronic discovery issues only tangentially related to the underlying merits of the Plaintiffs' Bivens claims. Hopefully, as counsel in future cases become more knowledgeable about ESI issues, the frequency of such skirmishes will diminish.”
The Court reviewed the nature of meta data and its role in e-discovery case law and literature. It noted the various types of meta data and the need for particular analysis recognizing the varying importance and relevance depending on the type of data as well as the facts and issues in a case. It noted the FRCP amendments do not mention meta data. It noted that the rules provide that a “party need not produce the same [ESI] in more than one form” and concluded that meta data can be requested as part of the form designated in the request. Of particular concern in this case was the failure to specify meta data in the request and the delay in raising the meta data production issues until 4 months after the original requests and after the responding party had searched and collected the data.
Having discussed general principles, the court focused on the problems and issue before it and sought a practical solution. While it recognized the value of meta data for searchability it noted the small number of documents and, in some cases, the fact that a searchable PDF had been provided. The Court considered each category of e-data [e-mail, backup tapes, word processing documents, power point presentation, spreadsheets, databases] and essentially applied the usual cost / benefit analysis based on the relevant facts. As to e-mail, the court considered such factors as delay in the request causing loss of information, the potential costs and efforts required to recover metadata, and the value or importance of potential information. As to backup tapes the court concluded “because the cost of this additional discovery is unquestionably high and the likely benefit low, the Defendants will not be required to review and produce any data regarding emails in ICE's back-up tapes.” With spreadsheets, the Court recognized that often a formula is critical to an understanding but that in this case the spread sheet was nothing more than a list and the formula was not important.

Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc.(D.N.J. Oct. 1, 2008), 2008 WL 4513696  (Not for Publication)  Granting spoliation sanctions for failure to preserve website as it existed during the time that the dispute between the parties first arose, the trial court stated: "This Court sees no reason to treat websites differently than other electronic files." Defendant was not represented by counsel and the motion was basically unopposed in substance.

Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008)
At a corporate 30(b)(6) deposition, the witness produced by the party “was unable to provide knowledgeable testimony on the majority of the sixteen topics designated in the deposition notice” and the party was “ordered...to produce a knowledgeable and fully prepared witness or witnesses to testify...concerning the ten topics not adequately addressed by [the witness] in the prior Rule 30(b)(6) deposition.” In addition the party was ordered “to conduct a diligent search and reasonable inquiry into each...requests for production and to produce all internal email regarding the subject matter of this case, communications between Taishan and CTG, relevant documents Taishan identified but did not produce, and documents for which Zhang admits no search was previously undertaken. If no documents are found, Taishan will be required to submit a declaration stating that a search was made for all responsive documents, explaining why any responsive documents could not be produced, or providing the circumstances under which the responsive documents were misplaced or destroyed.”
The trial court discussed 9^th Circuit and N.D. spoliation law and required the parties to provide further information in response to its questions to evaluate the spoliation claim
(1) Why was the document destruction policy not followed?
(2) Who was responsible for not following the document destruction policy?
(3) When were the items identified above destroyed, and when were they supposed to be destroyed under the document destruction policy?
(4) When did Taishan and CTG select their counsel for events relating to this litigation?
(5) What further facts and dates can be added to the general timeline noted above based on evidence submitted after this Court's August 25, 2008 Order? Such evidence would come from, but is not limited to, documents that were found, lost/destroyed documents that were found, and the new Rule 30(b)(6) deposition(s).
(6) Explain why should the letter from Calvin Li, in which he admitted graphite contamination, should/should not be the date of “anticipated litigation” for purposes of determining sanctions.
(7) Explain why the seventeen point report should/should not be the date of “anticipated litigation” for purposes of determining sanctions.
(8) How does the destroyed/lost evidence relate to the party's respective claim or defense?

Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) Conversion and production in TIFF improper. When no form of production of “documents and electronic documents” is specified , conversion from native format to TIFF for production violates FRCP Rule 34(b)(2)(E)(ii) and is not production in a  “reasonably usable form or forms.”  The court allowed the producing party 3 opitions: “provide any documents previously supplied as TIFF images in their native format, provide the documents in another comparably searchable format, or supply Goodbys with software for searching the TIFF images.”
The trial court relied upon "Rule 34 advisory committee's note, In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 655 (M.D.Fla.2007) (highlighting the importance of searching functions and the utility of native formats); Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL 665005, at *3-*4 (N.D.Ill. Mar.8, 2006) (finding TIFF images inadequate)."

Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008) Routine sanctions motion involving non-production and redaction of e-mails. The court evaluated the fault and prejudice and formulated a specific sanction to correct and remedy the discovery violation in the factual and  procedural context of the case.

Keithley v. Home Store.com, Inc.(N.D. Cal. Aug. 12, 2008), 2008 WL 3833384 In its decision awarding spoliation and discovery sanctions in the form of money and a recommended adverse inference instruction, and in a discussion of the the law and the details of the abuses in the case, the Court stated the following.
“Since Plaintiffs filed their initial request for sanctions on February 12, 2008, the Court has held several hearings and received extensive briefing on the spoliation issue, which became a moving target because of Defendants' belated production of evidence that it had previously stated was either nonexistent or destroyed. The Court is very troubled by Defendants' late production, particularly given Defendants' representations to the Court that some of these documents no longer existed. For the reasons stated in this Order and at the various hearings, the Court grants a monetary sanction of fees and costs associated with Defendants' discovery misconduct and recommends that the district court give a tailored jury instruction to address the spoliation that did occur, but declines to recommend terminating sanctions. The Court previously granted Plaintiffs' request for $148,269.50 in fees and costs expended in bringing the original motion regarding spoliation based on some of the conduct described in this Order.
“The discovery misconduct by Defendants in this case is among the most egregious this Court has seen. Not only have Defendants made representations to Plaintiffs that have turned out to be false or misleading, they have also made material misstatements to the Court on more than one occasion. At least some spoliation by Defendants has occurred in this case, although the extent of that destruction was not as extensive as was once thought, due to Defendants' very belated production of responsive documents from alternative sources that it only recently bothered to identify and search.”
“The lack of a written document retention and litigation hold policy and procedures for its implementation, including timely reminders or even a single e-mail notice to relevant employees, exemplifies Defendants' lackadaisical attitude with respect to discovery of these important documents.
“...the evidence shows that Defendants produced 480,000 files containing reports two weeks after they stated in Court in response to the Court's questioning that no reports existed, and approximately sixteen months after the Court ordered production of reports.
“Defendants belatedly began producing additional source code, some related to the spoliated code. It appears that only after the Court held a hearing on the motion for sanctions and indicated that sanctions may be appropriate, and fifteen months after the Court's express order to produce all versions of source code, did Defendants make any real effort to fulfill their discovery obligations to search for and gather source code.
“The Court is frankly shocked that when searching for source code to be produced pursuant to an unambiguous court order issued in December 2006, Defendants apparently waited until April 2008 to consult with the person at Move who was responsible for pouring over the files from the Development Computer to the new source code control system to determine whether she had responsive electronically stored information.
“Defendants engaged in reckless and egregious discovery misconduct as described above. Defendants were on notice no later than August 2001 that documents relevant to this case should have been maintained pursuant to a litigation hold. ... Defendants engaged in a large scale transfer of source code to a new source code control system without taking adequate precautions to safely maintain the older information, which was plainly relevant to this litigation and should have been the subject of a litigation hold, leading to destruction of some source code in 2004. The facts--specifically that Defendants have no written document retention policy nor was there a specific litigation hold put in place, that at least some evidence was destroyed when the Development Computer failed, that Defendants made material misrepresentations to the Court and Plaintiffs regarding the existence of reports, and that Defendants have produced an avalanche of responsive documents and electronically stored information only after the Court informed the parties that sanctions were appropriate--show a level of reckless disregard for their discovery obligation and for candor and accuracy before the Court sufficient to warrant severe monetary and evidentiary sanctions.

 Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008) The decision involves preservation and production of tachograph records which  show a vehicle's speed and the length of time it is moving or stationary. Otherwise, it is of little interest. Spoliation sanctions for failure to preserve such records were denied because the trial court found  no notice to preserve, no reason to believe potential evidence, no damage from failure to preserve, no relevancy, and the availability of alternative equivalent information.

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008) Conversion of e-mails and attachments to paper is not production in reasonably usuable form. Neither request nor response identified the form of production. Production of ESI, mainly e-mails and attachments was made by converting to PDF and producing in paper form.
"The advisory committee notes to the 2006 amendments to Rule 34 provide that the producing party's 'option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.' The committee notes further provide that '[i]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.'
“Because Plaintiff failed to specify a form for producing the electronically stored emails and attachments, Defendants were required under Rule 34(b)(2)(E)(ii) either to produce the emails and attachments in the form (1) in which they are ordinarily maintained, or (2) "in a reasonably usable form." In this case, neither party disputes that Defendants ordinarily maintain their emails and attachments in an electronic format. Nonetheless, Defendants produced the emails and attachments in paper form. They accomplished this by converting the emails and attachments to PDF format and then printing them out for production.
“The Court finds that Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a "reasonably usable form," as required by Rule 34(b)(2)(E)(ii). Defendants' conversion of the emails and attachments to PDF documents and production of the PDF documents in paper format does not comply with the option to produce them in a reasonable usable form. The advisory committee notes for the 2006 amendments to Rule 34 provide guidance that Defendants' option to produce in a reasonably usable form does not mean that they are free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for Plaintiff to use the information efficiently in the litigation. As Defendants have not produced the emails and attachments in a "reasonably usable form," Plaintiff is entitled to have the emails and attachments produced in their native format. She has further explained the critical importance of obtaining them in their native format with metadata intact.
The Court notes that this discovery dispute is an example of one which the re-production of discovery could have been altogether avoided had the parties adequately conferred at their Fed.R.Civ.P. 26(f) conference regarding production of electronically stored information ("ESI"). While not all disputes regarding discovery of ESI can be prevented by early efforts by counsel to investigate and consider the possible forms discovery may be produced, many disputes could be managed and avoided altogether by discussing the issue before requests for production are served. Guideline 4(f) of the Guidelines of Discovery of Electronically Stored Information, available on the District of Kansas' website, specifically mentions that during the Fed.R.Civ.P. 26(f) conference, counsel should attempt to agree on the format and media to be used in the production of the ESI.
The requesting party had argued to the Court:
“without electronic and native copies of the paper documents [ near the time of the employment termination] she is unable to confirm or contradict that the documents were prepared at the time Defendants say they were prepared. Plaintiff explains that the timing, of when the decision to terminate Plaintiff was made by Defendants, is a critical issue in this case. ...Additionally, without electronic copies, Plaintiff cannot be sure that, when prepared, the documents said what they say now. Plaintiff also wants to ensure that documents 2285 and 2286, an email with a Word attachment ... have not been modified....
The court also found responses regarding the search conducted for e-data to be sufficient.

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008) Duty to preserve surveillance video recording. Preservation duty arose at the time of the slip and fall when an incident report was filed by the potential plaintiff with the store manager.A supermaket had surveillance video recordings of the scene of the slip on a liquid substance and fall. Surveillance video was reviewed and destroyed except for the fall itself; video of the fall area before and after to show whether a substance on the floor existed at the time of the fall was not retained. Summary judgment based on lack of facts to show notice of dangerous condition was reversed due to spoliation inference when combined with plaintiff's testimony. The case discusses 3rd Circuit case law on spoliation. See Bright v. United Corp., d/b/a Plaza Extra, No. SX-04-CV-506, 2007 WL 2363497, at *4 (V.I.Super. June 11, 2007) (collecting cases).

Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008) Zubulake test does not apply to cost shifting for paper documents.
“...the seven-factor Zubulake test...is intended solely for electronic discovery, not for discovery of paper documents.”
“The rule for paper documents, on the other hand, is that '[a] party producing documents will ordinarily not be put to the expense of making copies for the requesting party.' [citations]
“Magistrate Judge Larson clearly erred by analyzing the dispute under Zubulake. However, other grounds may exist for shifting the costs of copying to Rite Aid. ...while the Court is unaware of such grounds, Plaintiff shall be granted the opportunity to argue....

Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D. Pa. July 21, 2008) Discovery of e-mail on legacy system denied on cost/benefit basis after court ordered defendant to provide specifics on cost and burden. “The burden and expense of rebuilding the district's e-mail system in order to provide the discovery requested by the plaintiffs, along with the additional and less expensive means available for plaintiffs to get this material makes the plaintiffs' discovery request impractical. Accordingly, the plaintiffs' motion for electronic discovery will be denied.”

Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D. Wash. July 17, 2008). Specification of the “form” of production does not determine the manner in which it should be organized. Requesting party did not specify the form of production and Producing party did not object to any form. Producing party produced "55,000 emails, six boxes of documents consisting of approximately 8,700 pages in .pdf form as ...requested, and nine CDs of data in native format that contain hundreds--if not thousands--of individual files."Requesting party complained of a “document dump”, the failure to respond by category, and that “production was unorganized and ... cannot determine what documents are responsive to what request for production.”
The trial court held the “form” of production of ESI does not refer to its organization the requesting party cannot require production by category. It added: “...the Court should require, under its discretionary authority, that Earthwise convey some information as to how documents were determined to be responsive or how the documents were kept in the normal course of business.”“Therefore, the Court should grant Suarez's motion to compel in so far as Earthwise's production did not conform to the organization requirements of Rule 34(b)(2)(E)(i). The Court is hopeful that the parties will work together to efficiently solve these deficiencies.”

Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008)
Cost shifting pursuant to FRCP 26 must be sought before production costs are incurred and only if the producing party identifies the source of ESI at issue and establishes that it is “inaccessible” because of undue burden and expense. “There is authority that "[a] court should consider cost shifting only when electronic data is relatively inaccessible, such as in back up tapes." Zubulake v. U.B.S. Warburg LLC, 217 F.R.D. 309, 324 (S.D.N.Y 2003). Thus, to the extent that DMC maintains that the information produced by it in discovery was accessible, court ordered cost shifting is inappropriate. The highly respected Sadona(sic) Principles are in accord.” The Court noted that timely motions allow the court and parties to consider alternatives and affords the requesting party the opportunity to waive the discovery or accept all conditions such as cost shifting.
Cost shifting was denied as untimely because it was sought after production had occurred pursuant to a stipulated order, even though defendant “reserved the right in the party's Stipulated Order for Discovery of ESI to request that Plaintiffs share in the costs of discovery.” That stipulation was found to be contrary to terms in the scheduling order and the intent of the discovery rules. The motion was also found to be untimely due to the scheduling order requirement to bring motions for protective orders earlier.

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008) Plaintiff had requested e-mails regarding the handling of its insurance claim and had received “almost no emails pertaining to his claim during the year 2006.” The insurance company claimed it had produced everything and plaintiff could not identify any specific missing e-mails. Plaintiff noticed a 30(b)(6) deposition of the insurance company and identified topics.
Insurance company sought protective order as to 13 of 17 topics noticed and the motion was granted as to the topic “Knowledge concerning the storage, preservation and backup of emails relating to claims authored or received by ... adjusters who handled Plaintiff's claims” on relevancy grounds.

John B. v. Goetz, 2008 WL 2520487 (6th Cir. June 26, 2008) Making forensic copies of numerous office and home computers for evidence preservation purposes requires (1) a factual basis of necessity [e.g. danger of destruction, lack of alternatives including sanctions remedy] and (2) proper exercise of discretion [including balancing of privacy against the need and benefit].
In a class action involving a state health care program, the trial court issued a preservation order to make forensic copies after it found a failure to comply with prior discovery orders or the duty to preserve including failure to timely issue, implement and monitor a litigation hold, automatic purging of e-mail after 180 days, and failure to archive e-mail. The appellate court granted a writ to “set aside those portions of the orders that call for the forensic imaging of all hard drives and other devices,” including home computers, of 50 state employees identified as “key custodians” because of a “demonstrable abuse of discretion” and because “the district court's order is clearly erroneous as a matter of law.” The court was also concerned about federalism and possible conflict between state employees and federal marshals accompanying the expert; the concurring opinion noted the unique nature of the case required intentional destruction or a threat thereof. The court noted:
“Because litigants are generally responsible for preserving relevant information on their own, such procedures, if at all appropriate, should be employed in a very limited set of circumstances.”
“...mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.”
“...the discovery orders merely call for the imaging of the relevant media and ... the district court has yet to determine how to proceed with respect to the information contained on that media. Nevertheless, the mere imaging of the media, in and of itself, raises privacy and confidentiality concerns. Duplication, by its very nature, increases the risk of improper exposure, whether purposeful or inadvertent.”
“The district court's compelled forensic imaging orders here fail to account properly for the significant privacy and confidentiality concerns present in this case. The district court has ordered plaintiffs' computer expert, accompanied by deputy U.S. Marshals, to enter state agencies, and the offices and homes of state officials, to make forensic images of hard drives and other devices, whether state-owned or privately owned, that contain information relevant to the instant litigation. As discussed, the media at issue will almost certainly contain confidential state or private personal information that is wholly unrelated to the litigation. Although the risk of improperly exposing such information, standing alone, might not preclude the employment of forensic imaging in all cases, the forensic imaging must be premised on an interest significant enough to override that risk. Such an interest is not demonstrably present in this case.”

In re Intel Corp. Microprocessor Antitrust Litig. (D. Del. June 4, 2008), 2008 WL 2310288. Attorney notes of interviews with client's employees[“designated custodians”] re compliance with preservation duties were ordered produced after redacting mental impressions, conclusions, opinions or legal theories of an attorney or party.
Despite prompt and extensive efforts detailed in the opinion to preserve potential evidence, failures occurred. Intel contends they were inadvertent while opponents contend they might be spoliation. When the failures were discovered, attorneys were retained by Intel to conduct an investigation and their notes of the investigation re preservation efforts and compliance by Intel custodians were held to be discoverable. At issue were “notes taken during and after the custodian interviews, meeting notices, e-mails between attorneys regarding the interviews, etc.” Intel had disclosed in summary form the result of its investigation but refused backup details. The court discussed the purpose of privilege, selective waiver, partial waiver, fairness doctrine, and waiver by tender of issue, assertion of claim, or assertion of fact. The attorney client privilege as to the substance of employee statements to investigating counsel and fact work product protection was waived. As to work product it also found the substantial hardship and unfair prejudice exceptions would require disclosure.

TOP

R & R Sails Inc. v. Ins. Co. of Pa.(S.D. Cal. 2008), 2008 WL 2232640    Sanctions for failure of a claims examiner to search for and produce electronic notes in database in an insurance breach of contract case. The Court ordered payment within 30 days of $39,914.68 [Cf. $67,154.72 requested and itemized] as reasonable expenses incurred due to the failure to conduct a reasonable investigation and produce electronic records from a data base. Sanctions were mandated since the failure to produce electronic notes was not “substantially justified” because the claims examiner “failed to recognize that the ... database that he entered notes into contained the 'daily activity logs or telephone records' that Plaintiff had been requesting.”
The Court also precluded evidence “Based on Defendant's past failure to timely produce electronically- stored information, and Plaintiff's concern that additional responsive electronically-stored information may be in Defendant's possession. ***The introduction of any documents or electronically-stored information which have already been requested by Plaintiff but were not produced by Defendant within the discovery period, would risk prejudice to Plaintiff.” The Magistrate recommended “that Defendant be precluded from relying on or introducing any documents, testimony, or expert witness' testimony which relies on documents or electronically-stored information that was requested by Plaintiff but was not produced by Defendant on or before [the close of discovery.”
Documents requested in state court under C.C.P. §2031 were defined by reference to the definition in Evidence Code 250. After removal to federal court, the Magistrate noted that the “boilerplate definition of "document" ... did not provide clear notice that Plaintiff sought discovery from electronic sources” but considered electronic documents to be within the scope of the request. It also noted that the requester had sent two letters requesting written or electronic copies of the documents at issue but that there was “no indication that the parties discussed the discovery of electronically-stored information at their 26(f) conference.” The court rejected the responding parties explanation “that [claims examiner] did not associate Plaintiff's document request with the electronically-stored records which are maintained on his computer rather than in hard-copy, paper form.”

Victor Stanley, Inc. v. Creative Pipe, Inc. (D. Md. 2008), 2008 WL 2221841 The court found a waiver by voluntary production of ESI due to a failure to take reasonable precautions to protect it. To meet its burden of showing reasonable efforts were made to avoid production of privileged documents, a party must be able to demonstrate that electronic efforts were reasonable.
“Defendants, who bear the burden of proving that their conduct was reasonable for purposes of assessing whether they waived attorney-client privilege by producing the 165 documents to the Plaintiff, have failed to provide the court with information regarding: the keywords used; the rationale for their selection; the qualifications of [the party and counsel] to design an effective and reliable search and information retrieval method; whether the search was a simple keyword search, or a more sophisticated one, such as one employing Boolean proximity operators; [FN9] or whether they analyzed the results of the search to assess its reliability, appropriateness for the task, and the quality of its implementation.”
The court also warned that asserting privileges without a factual basis is sanctionable conduct.
The case was criticized for using 20-20 hindisght in evaluating reasonable precautions in Rhoads Industries, Inc. v. Building Materials Corp. of America (E.D.Pa.,2008), --- F.Supp.2d ----, 2008 WL 4916026 (E.D.Pa.)

Johnson v. Wells Fargo Home Mortgage, Inc.(D. Nev. 2008), 2008 WL 2142219   Adverse inference spoliation sanction based on inherent power of court was granted because of the reformation of two laptop hard drives after a discovery request for their production, possibly destroying potential evidence showing fabrication of evidence. Court noted inapplicability of Rule 37 safe harbor provisions. Responding party claimed a virus required reformatting but had not advised opponent of virus and intent to reformat even though hard drives were an issue, had not preserved an image copy containing file fragments etc, and had not produced backups showing that all files had been restored.   Ninth Circuit spoliation law applied.

Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008)
Cost shifting for production of ESI denied for failure to meet and confer in good faith and for failure to meet the burden of proof with specific facts.
Failure “to discharge their meet and confer obligation in good faith”
“compliance with the Rule would have involved a more substantive discussion regarding defendants' difficulty in producing responsive ESI, the extent to which defendants have searched ESI to date, and the foundation for defendants' belief that a more thorough search of ESI, including backup tapes, would yield only information that has already been produced.”
Failure to meet its burden of proof that requested information was not reasonably accessible. Merely providing cost estimates and asserting the cummulative effect was not enough.
“In meeting this burden, the responding party should present details sufficient to allow the requesting party to evaluate the costs and benefits of searching and producing the identified sources.”
“...defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as "inaccessible." Defendants have not provided the Court with details regarding, for example: (1) the number of back-up tapes to be searched; (2) the different methods defendants use to store electronic information; (3) defendants' electronic document retention policies prior to retaining an outside consultant; (4) the extent to which the electronic information stored on back-up tapes overlaps with electronic information stored in more accessible formats; or (5) the extent to which the defendants have searched ESI that remains accessible. Beyond the estimated costs, defendants have not demonstrated an unusual hardship....”

In re subpoena duces tecum to AOL, LLC. (E.D.VA.,2008) 2008 U.S. Dist. LEXIS 39349. The Electronic Communications Privacy Act ("Privacy Act"), codified as 18 U.S.C. §§ 2701-03 (2000) prohibits the disclosure of a party's e-mails by an ISP when sought by civil subpoena by another party.
“...the plain language of the Privacy Act prohibits AOL from producing the Rigsbys' e-mails, and the issuance of a civil discovery subpoena is not an exception to the provisions of the Privacy Act that would allow an internet service provider to disclose the communications at issue here.”
“the Court holds that 'unauthorized private parties' and governmental entities are prohibited from using Rule 45 civil discovery subpoenas to circumvent the Privacy Act's protections.”
Theofel v. Farey-Jones (9th Cir. 2004), 359 F.3d 1066, 1071-72, 1077
Federal Trade Commission v. Netscape Communication Corp.,(N.D. Cal. 2000), 196 F.R.D. 559, 559, 561
O'Grady v. Superior Court (2006),139 Cal. App. 4th 1423, 44 Cal. Rptr. 3D 72, 76-77, 84, 86-87

In re Flash Memory Antitrust Litig.(N.D. Cal. ​ 2008), 2008 WL 1831668 (4/22/08)
ORDER REGARDING PRESERVATION OF EVIDENCE
SAUNDRA B. ARMSTRONG, District Judge.
IT IS HEREBY ORDERED THAT:
All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. "Documents, data, and tangible things" shall be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice mail, E-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, check statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition. Until the parties reach an agreements on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation. In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure.

Sterle v. Elizabeth Arden, Inc. (D. Conn.2008), 2008 WL 961216 (D. Conn. Apr. 9, 2008)  Allocation of inspection costs based on future results.   Monetary sanction including expert fees awarded when a court ordered forensic computer exam of “electronic records” was delayed and frustrated by counsel. More severe sanctions for any future non-compliance were threatened. Both inspection orders provided for costs of the ultimate inspection to be paid depending upon whether the sought documents, or evidence of their destruction,  was or was not discovered as a result of the exam.

Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth. (D.D.C. 2007), 242 F.R.D. 139, 2007 U.S. Dist. LEXIS 39605, 2007 WL 1585452 3 years of employee e-mail on backup tapes ordered produced and found not inaccessible.  Magistrate criticized the failure to suspend the automatic deletion of employees e-mails after 60 days and the loss of  “possibly relevant and discoverable emails every sixty days at least since the complaint was filed three years ago.” The “Safe Harbor” provision does not immunize a party from the cost of restoring and searching backup tapes and converting e-mails to TIF. The Magistrate rejected the claim that the e-mails were inaccessible and suggested the undue burden based on cost was not available due to the automatic purging and failure to suspend. It also found good cause for production even if they were inaccessible. It ordered production and ordered the parties agree on a search protocol and noted the possible use of concept searching.

Treppel v. Biovail Corp. (S.D.N.Y. 2008), 2008 WL 866594 (4/2/08). No sanctions for inadequate and tardy preservation efforts. The court previously declined to enter a preservation order or to address the search protocol. The issues reappeared 2 months later as a motion to compel further search and for sanctions for failure to preserve.
On a cost / benefit approach the court determined, with two exceptions of server backups, that the probability of finding new discoverable data was too remote to justify the expense of further restoration and search.
Preservation efforts were tardy and inadequate and general counsel failed to supervise and monitor compliance. While failure to preserve some early backup tapes was merely negligent, failures after Zubulake IV and receipt of a preservation letter were grossly negligent.
Spoliation sanctions in the form of an adverse inference instruction were denied because the moving party failed to show that any missing data would have been favorable. Possible recovery of additional discovery costs incurred was deferred to a future motion. 

Autotech Technologies Ltd. Partnership v. Automationdirect.com, Inc. (N.D.Ill.,2008), 2008 WL 902957. Production in native format with metadata was denied when not originally requested in that format and after production was made in PDF and paper format. The precise basis for the decision was unclear but the court implied that the format was “reasonably usable” under the circumstances since the alleged need for metadata was satisfied by the information provided including the chronological description of changes made. The “document” was created in word processing, converted to MS Word, and burned to CD. It was produced in PDF and paper. The form in which it was “ordinarily maintained” was not established.

Baker v. Gerould (W.D.N.Y.,2008), Slip Copy, 2008 WL 850236 No sanctions for failure to comply with court order to show adequate search efforts for e-mail in accessible data, but possibility of sanction in the future. When the adequacy of production of e-mail was challenged, respondent was ordered to detail search efforts but then failed to do so. The court order permitted further discovery by the requester and a renewed motion.

“Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources. (Docket # 97). Although Brennan evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than twelve months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit does not address what efforts, if any, were employed to search for such emails from accessible sources. Id. For example, Brennan's affidavit does not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.”
“As noted by this Court during oral argument, insufficient information had been presented at that time to determine the adequacy of defendants' search for the requested emails from accessible sources. Regrettably, the record is no more fully developed now than it was then. Although it is clear that some email communications have been turned over, the source or sources of those communications is not clear. For example, it is unknown whether those emails were recovered from existing hard drives, backup hard drives or traditional files used to maintain paper records. It is likewise unknown whether computer and/or paper files have been searched for all defendants, some of whom are no longer employed by the DEC, but some of whom are.”

The court ordered identification of “individual(s) with knowledge concerning the steps undertaken to search for responsive emails from accessible sources”, and permitted their depositions and a further motion and 3^rd hearing to compel compliance with discovery obligations

Flagg v. City of Detroit (E.D.Mich.,2008), 2008 WL 787061 (E.D. Mich. Mar. 20, 2008). Text messages. Court established protocol for review and discovery of text messages. The Name and , ID or PIN # for each device, and the time period each PIN# and device was assigned to each identified person was to be produced. The names and time periods would be reviewed by the parties to determine the most probable source of the most valuable information. Thereafter, 2 Magistrate Judges were to review the actual text of the voluminous text messages to make initial determinations of discoverability.

Qualcomm v. Broadcom (S.D.Ca., March 5, 2008), CASE NO. 05CV1958-RMB (BLM). The District Court Judge found that the self-defense exception to the attorney-client privilege applied to outside counsel because of the adverse position taken by their client in declarations filed in opposition to sanctions. Outside counsel are permitted to fully defend and produce evidence, without limitation by the attorney-client privilege, at a hearing on remand regarding discovery sanctions. When the exception was originally rejected, Qualcom had not submitted evidence. It subsequently submitted declarations in opposition to sanctions that suggested counsel was at fault, creating an adversity that justified application of the exception. The exception applies to communications and conduct relevant to the certain specified topics.
The matters was remanded for hearing on sanctions against the 6 attorneys only and they are not restricted in their presentation of evidence.  The Magistrate is not restricted and may increase or decrease the sanctions award. Both Broadcom and Qualcom can participate; neither had objected to the exception applying in the original proceedings. In the prior order, the Magistrate judge had declined to impose sanctions on the 6 attorneys.

Disciplinary action against lawyer accused of accessing information  on another firm's network  http://sundaygazettemail.com/News/200803010561
For briefs see http://www.state.wv.us/wvsca/calendar/April1_08adhtm.

Finley v. Hartford Life and Acc. Ins. Co.(N.D. Cal. Feb. 22, 2008), 2008 WL 509084 Court finds lack of reasonable search by party and lack of supervision by lawyers. Lack of bad faith by lawyers avoided sanctions against them. The client was sanctioned $9,000.
Defendant failed to disclose the full version of a video surveillance tape.  The Magistrate Judge found that defendant failed to conduct a reasonable search when “ it hinged responsibility for these [FRCP Rule 26] disclosures entirely on the shoulders of an administrative assistant. When she failed to search the "old database" as Hartford's own policy required, the kitchen video was not discovered, even though it was not lost or misplaced. The Court finds it unreasonable for Hartford to rely on a system which contains so few checks and balances that the mere fact that an administrative assistant did not look for a file, in the filing cabinet where that file was normally kept, could undermine Hartford's entire initial disclosure apparatus. The file was where it was supposed to be. It was unreasonable for Hartford not to find it there at the point of its initial disclosures. Therefore the Court finds that Hartford violated Federal Rule of Civil Procedure 26(a)
“The Court finds that Hartford's attorney should have diligently supervised the methods Hartford used to gather material for discovery. Doing so may have avoided much of the controversy now before the Court. The Court further finds that Hartford did not make the requisite "reasonable inquiry" required by Rule 26(g). However, since Hartford's attorneys relied, however erroneously, on Hartford's defective search methods, the Court finds they were negligent but did not act in bad faith in certifying Hartford's discovery. In light of the fact that plaintiff did not serve a clear and concise request for the tape from the attorneys before embarking on reconstructing it, the court declines to sanction Hartford's attorneys in this instance for their negligence.”

Petcou v. C.H. Robinson Worldwide, Inc. (N.D. Ga. Feb. 25, 2008), 2008 WL 542684 In a gender discrimination case, the Court ordered production of computer-generated reports of attempts by its employees to access adult websites. The court denied a request to search backup tapes for relevant emails that had been deleted from email servers. The court noted the requests were extremely broad, vague, required individual review of the emails over 8 years of 5,300 employees, required judgment calls on each email as to whether it was pornographic, and did not provide relevant information not otherwise available. Nevertheless, and illustrating how the new FRCP rules increase discovery hearings and costs, the court first denied without prejudice the discovery but “allowed Plaintiffs to file a motion for reconsideration with respect to the e-mails after they had been given an opportunity to obtain evidence regarding Defendant's burden of production.”
The Court also denied spoliation sanctions. Defendant's system made e-mails “inaccessible”, only available on backup tapes at great expense, after 8-10 days of deletion by the employee or by the employer upon secession of employment. The court determined:
“In this case, Defendant deleted its employee's e-mails in accordance with its normal retention and destruction schedule even after an EEOC complaint alleging company-wide sexual harassment had been filed in June of 2001. However, the plaintiffs in that case did not request company-wide preservation of e-mails, nor did they provide Defendant with the names of individuals in Atlanta whose e-mails should be preserved. It does not appear that Defendant acted in bad faith in following its established policy for retention and destruction of e-mails.”
“After considering the relevant factors, the Court finds that sanctions for spoliation of evidence would not be appropriate in this case. The degree of Defendant's culpability is low, and the resulting prejudice to Plaintiff is relatively minor given other available evidence.”
The court ordered production of two narrow categories but did not require search of backup tapes and it appeared unlikely that anything would be covered by the order.

Coburn v. PN II, Inc. (D. Nev. Mar. 28, 2008), 2008 WL 879746. Cost shifting and protocol for computer forensic exam of home computer.  In employmnet discrimination case, limited amd focussed discovery and forensic examination of a home computer hardrive was not opposed where a protocol similar to the Playboy case [60 F.Supp.2d 1050, 1054-55 (S.D.Cal.1999)] was adopted. Defendants offered to bear the entire cost of the inspection by a computer forensics specialist. The court ordered:
“...The parties shall...agree upon ... a computer expert...to create a "mirror image" of the relevant hard drives. *** The services of the expert will be paid by defendants.
“[The expert] will serve as an officer of the court. To the extent the [expert] has direct or indirect access to information protected by the attorney-client privilege, such "disclosure" will not result in a waiver of the attorney-client privilege. Defendants herein, by requesting this discovery, are barred from asserting in this litigation that any such disclosure to the court designated expert constitutes any waiver by Coburn of any attorney-client privilege. ***
“...the "mirror image" ...will be given to Coburn's counsel. Coburn's counsel will print and review any recovered documents and produce to defendants those communications that are responsive to any earlier request for documents and relevant to the subject matter of this litigation. *** All documents that are withheld on a claim of privilege shall be recorded in a privilege log.
“***To the extent that documents cannot be retrieved...or ... are less than the whole of data contained on the hard drives, Coburn's counsel shall submit a declaration to the court together with a written report signed by the designated expert explaining the limits of retrieval achieved.”
Addressing attorney-client waiver issues the court added:
“The court appointed computer specialist will serve as an officer of the court. To the extent the computer specialist has direct or indirect access to information protected by the attorney-client privilege, such "disclosure" will not result in a waiver of the attorney-client privilege.”

Qualcomm Inc. v. Broadcom Corp.(S.D. Calif. 2008), 2008 U.S. Dist. LEXIS 911 The Court awarded $8.6 million in attorney's fees and costs against Qualcomm, referred several lawyers to the State Bar and required Qualcomm and the Sanctioned Attorneys to participate in a remedial analysis "CREDO" program described below. 
The court found “Qualcomm intentionally withheld tens of thousands of emails and that the Sanctioned Attorneys assisted, either intentionally or by virtue of acting with reckless disregard for their discovery obligations, in this discovery violation.”
As to outside counsel, “the Court finds it likely that some variation ... occurred; that is, one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was sufficient, to ignore the warning signs that the document search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit. These choices enabled Qualcomm to withhold hundreds of thousands of pages of relevant discovery and to assert numerous false and misleading arguments to the court and jury. This conduct warrants the imposition of sanctions.”
“Counsel's conduct was sanctionable because they failed to supervise and “...did not make a reasonable inquiry into Qualcomm's discovery search and production and their conduct contributed to the discovery violation.”
In footnote 10 the Court elaborated. “Leung's attorney represented during the OSC hearing that Leung requested a more thorough document search but that Qualcomm refused to do so. ..... If Leung was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production, then he should have obtained the assistance of supervising or senior attorneys. If Mammen and Batchelder were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence. See The State Bar of California, Rules of Professional Conduct, Rule 5-220 (a lawyer shall not suppress evidence that the lawyer or the lawyer's client has a legal obligation to reveal); Rule 3-700 (a lawyer shall withdraw from employment if the lawyer knows or should know that continued employment will result in a violation of these rules or the client insists that the lawyer pursue a course of conduct prohibited under these rules). Attorneys' ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court. Id.; Rule 5-200 (a lawyer shall not seek to mislead the judge or jury by a false statement of fact or law); see also, In re Marriage of Gong and Kwong, 157 Cal. App. 4th 939, 951 (1st Dist. 2007) ("[a]n attorney in a civil case is not a hired gun required to carry out every direction given by the client;" he must act like the professional he is).”
“Finally, attorneys Young, Patch, and Batchelder bear responsibility for the discovery failure because they did not conduct a reasonable inquiry into Qualcomm's discovery production before making specific factual and legal arguments to the court.”

“...the Sanctioned Attorneys assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm's document search was inadequate, and blindly accepting Qualcomm's unsupported assurances that its document search was adequate. The Sanctioned Attorneys then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury. As such, the Sanctioned Attorneys violated their discovery obligations and also may have violated their ethical duties. See e.g., The State Bar of California, Rules of Professional Conduct, Rule 5-200 (a lawyer shall not seek to mislead the judge or jury by a false statement of fact or law), Rule 5-220 (a lawyer shall not suppress evidence that the lawyer or the lawyer's client has a legal obligation to reveal or to produce). To address the potential ethical violations, the Court refers the Sanctioned Attorneys to The State Bar of California for an appropriate investigation and possible imposition of sanctions.
“The Court also orders Qualcomm and the Sanctioned Attorneys to participate in a comprehensive Case Review and Enforcement of Discovery Obligations ("CREDO") program. This is a collaborative process to identify the failures in the case management and discovery protocol utilized by Qualcomm and its in-house and retained attorneys in this case, to craft alternatives that will prevent such failures in the future, to evaluate and test the alternatives, and ultimately, to create a case management protocol which will serve as a model for the future.”
“At a minimum, the CREDO protocol must include a detailed analysis (1) identifying the factors that contributed to the discovery violation (e.g., insufficient communication (including between client and retained counsel, among retained lawyers and law firms, and between junior lawyers conducting discovery and senior lawyers asserting legal arguments); inadequate case management (within Qualcomm, between Qualcomm and the retained lawyers, and by the retained lawyers); inadequate discovery plans (within Qualcomm and between Qualcomm and its retained attorneys); etc.), (2) creating and evaluating proposals, procedures, and processes that will correct the deficiencies identified in subsection (1), (3) developing and finalizing a comprehensive protocol that will prevent future discovery violations (e.g., determining the depth and breadth of case management and discovery plans that should be adopted; identifying by experience or authority the attorney from the retained counsel's office who should interface with the corporate counsel and on which issues; describing the frequency the attorneys should meet and whether other individuals should participate in the communications; identifying who should participate in the development of the case management and discovery plans; describing and evaluating various methods of resolving conflicts and disputes between the client and retained counsel, especially relating to the adequacy of discovery searches; describing the type, nature, frequency, and participants in case management and discovery meetings; and, suggesting required ethical and discovery training; etc.), (4) applying the protocol that was developed in subsection (3) to other factual situations, such as when the client does not have corporate counsel, when the client has a single in-house lawyer, when the client has a large legal staff, and when there are two law firms representing one client, (5) identifying and evaluating data tracking systems, software, or procedures that corporations could implement to better enable inside and outside counsel to identify potential sources of discoverable documents (e.g. the correct databases, archives, etc.), and (6) any other information or suggestions that will help prevent discovery violations.”

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007). Image copy of hard drive subject to protective order and protocol permitted. Appellate court held it was not an abuse of discretion to allow opposing party's selected expert to image the hard drive to search for 2 documents and iterations thereof and for metadata regarding creation or modification dates when such dates were at issue and when a protocol was adopted to limit access a search scope, allow for producing party's review and objection to any production, and otherwise attempted to protect privileged and confidential information. See also Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639, 640 (S.D.Ind.2000); Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1053 (S.D.Cal.1999) re protocol.

Vaughn v. City of Puyallup (11/6/07), 2007 U.S. Dist. LEXIS 84380 Reasonable search efforts.  Plaintiff contends that Defendant has not thoroughly searched its electronic storage network or devices for relevant documents. ...Plaintiff requests that the Court compel Defendant to conduct and document a reasonably comprehensive search of its electronic data such that "it is comprehensible to Plaintiff." ... Plaintiff, however, fails to cite authority for the proposition that the Court should enforce Plaintiff's subjective notion of how Defendant should conduct discovery. As explained supra, Defendant is under a duty to produce all relevant documents. Defendant is not under a duty to comply with every discovery procedure requested by Plaintiff. Therefore, the Court should decline to grant Plaintiff's Motion to Compel on this issue.

Mich. First Credit Union v. Cumis Ins. Soc'y, Inc.(11/16/07), 2007 U.S. Dist. LEXIS 84842.  Meta data production rejected when defendant provided declarations showing the burden outweighed the benefit and plaintiff made no showing. Defendant had produced documents on CD without metadata and not in native format. Defendant's declaration discussed the proprietary software and its lack of metadata, Lotus notes' metadata that was produced in PDF form with the exception of the unique identifier number, and the lack of metadata of value in the MS office documents plus the cost of providing metadata. The court relied on federal cases suggesting metadata discovery was not favored.

In re Ebay Seller Antitrust Litigation, (N.D. Cal. Oct. 2, 2007),  2007 U.S. Dist. LEXIS 75498.    Discovery of document retention efforts but not actual wording of document retention notice ("DRN").
The parties agreed “eBay will provide a witness to testify under Rule 30 (b) (6) ... regarding its ESI preservation and collection efforts."
“...eBay need not produce copies of the DRNs nor any information about matters contained therein that are privileged or constitute work product. Plaintiffs, however, are entitled to inquire into the facts as to what the employees receiving the DRNs have done in response; i.e., what efforts they have undertaken to collect and preserve applicable information.”
“...it is appropriate to permit plaintiffs to discover what those employees are supposed to be doing. Even though such inquiry may, indirectly, implicate communications from counsel to the employees, the focus can and should be on the facts of what eBay's document retention and collection policies are, rather than on any details of the DRNs. Thus, while plaintiffs should not inquire specifically into how the DRNs were worded or to how they described the legal issues in this action, plaintiffs are entitled to know what kinds and categories of ESI eBay employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.
Ebay was ordered to “provide a list of names and job titles of the approximately 600 employees who received DRNs.”

Garcia v. Berkshire Life Insurance Company of America, 2007 U.S. Dist. LEXIS 86639 (D. Colo. Nov. 13, 2007). Counsel lacking technical computer knowledge to comply with discovery request is obligated to hire an expert.  In an insurance bad faith claim regarding a disability claim, production of e-mails on an existing DVD were inadequate due to counsel's lack of technical knowledge to extract review and produce them.
“Perhaps plaintiff's counsel can be heard to plead technical ignorance or mistake in his initial dealings with the DVD, but...upon the receipt of Ms. Yates' letter, he was on notice of the potential problem and was obligated to seek competent professional assistance to ascertain the truth about the contents of the DVD.”
The court also rejected plaintiff's argument “that it would be unreasonably burdensome and expensive to require her counsel to review the more than 5,000 e-mails for relevancy purposes”.

W.E. Aubuchon Co. v. Benefirst, LLC (2007), 245 F.R.D. 38 .  "Good cause" to produce "inaccessible" information. After finding discoverable information was “inaccessible” the court found "good cause" for the defendant to retrieve and produce the requesting information at its cost.
“The search process for retrieving claims is further complicated by the fact that there is no index of images per se. The images are stored ...according to year of processing, then by claims examiner, then by the month of processing, and finally by the actual processing date. Inexplicably, ...[the] system was not set up to for the wholesale retrieval of claim images on a group by group basis. “... the records ... are stored on a server used by [defendant] which is clearly an accessible format. However, because of ...method of storage and lack of an indexing system, it will be extremely costly to retrieve the requested data. I am hard pressed to understand the rationale behind having a system that is only searchable by year of processing, then claims examiner, then the month of processing, and finally the claims date. None of these search criteria reflect the name of the individual claimant, the date that the claimant received the medical service, who the provider was, or even the company that employed the benefit holder. It would seem that such a system would only serve to discourage audits and the type of inquiries that have led to the instant litigation. Nevertheless, the retrieval of the records will be costly and for the purposes of this decision, I find that such retrieval would involve undue burden or cost. Accordingly, the images are not reasonably accessible within the meaning of Fed.R.Civ.P. 26(b)(2)(B).
Defendant explained “This setup was designed to locate, within a reasonable amount of time, a particular claim if it became necessary to locate the associated image. However, the image itself was generally not required in the normal course of ... claims processing operations. The organization of the image files was not designed for the wholesale retrieval of images on a group-by-group basis."

Ryan v. Gifford (2007), 2007 Del. Ch. LEXIS 168 The court granted the motion compelling response to "document requests in native file format, with original metadata, but without a separate production of metadata.”
“First, metadata may be especially relevant in a case such as this where the integrity of dates entered facially on documents authorizing the award of stock options is at the heart of the dispute. This relevance is further illustrated by the fact that Maxim's special committee, as well as Deloitte & Touche, undoubtedly reviewed metadata as part of their investigation into the backdating problems at Maxim. This latter fact also undermines the asserted burdensomeness of producing documents in native file format. Maxim need not produce metadata separately, but the Court does order the production of documents identified in plaintiffs' July 3rd motion to compel in a format that will permit review of metadata, as plaintiffs have clearly shown a particularized need for the native format of electronic documents with original metadata."

Orrell v. Motorcarparts of Am., Inc. (2007), 2007 U.S. Dist. LEXIS 89524 (December 5, 2007) Production of home computer ordered. Having wiped a company laptop hard drive that contained potential evidence, produced a small proportion of e-mails, produced other evidence late, produced e-mails that failed to show their origin or recipient, produced inconsistent testimony and responded to written discovery incompletely, plaintiff was ordered to produce her home computer for forensic exam.

“The undersigned also notes that recently in this District, where there were inconsistencies in the evidence produced during discovery by the plaintiff in a breach of employment contract case as to whether the responsive information on his home computer was identical to the information on his former work computer, the plaintiff was compelled to produce his home computers for forensic examination by the defendant. Hardin v. Belmont Textile Machinery Co., F. Supp. 2d , , 2007 U.S. Dist. LEXIS 57937 at *9 (W.D.N.C. Aug. 7, 2007).”
The court also cited “Teaguè v. Target Corp., F. Supp. 2d , , 2007 U.S. Dist. LEXIS 25368 at *6 (W.D.N.C. Apr. 4, 2007) (electronic information contained on plaintiff's home computer was "clearly relevant" to claims in plaintiff's gender discrimination case; where plaintiff had discarded the computer after it "crashed," court ordered that adverse inference jury instruction was appropriate).”

Auto Club Family Ins. Co. v. Ahner (E.D.La.,2007), Slip Copy, 2007 WL 2480322 Nonparty's motion to quash production in electronic form, and to produce in hard copy “because the requested electronic files are “not reasonably accessible” and production of these materials would be unduly burdensome and expensive” was denied because no showing to support the motion was made other than the lawyer's assertions.
In the opinion the court commented:
“Like other courts that have addressed this issue, this court will not automatically assume that an undue burden or expense may arise simply because electronic evidence is involved.”
F.R.C.P. Rules 34 and 45 “were amended ... to provide for routine discovery of electronically stored information from parties and non-parties.”
“In fact, whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production).”
“But in the world of electronic data, thanks to search engines, any data that is retained in a machine readable format is typically accessible.”

In re National Security Agency Telecommunications Records Litigation (N.D.Cal.,2007), Slip Copy, 2007 WL 3306579 November 06, 2007 Without hearing, the Court issued a brief and broad “interim order ... requiring the parties to take steps to prevent the alteration or destruction of evidence.”
“...the court reminds all parties of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. Counsel are under an obligation to exercise efforts to identify and notify such non-parties, including employees of corporate or institutional parties.
Counsel were ordered to inquire of their clients as to document retention practices and to halt destruction, remove or copy relevant documents. “The most senior lawyer or lead trial counsel representing each party shall, not later than December 14, 2007, submit to the court under seal and pursuant to FRCP 11, a statement that the directive [re litigation hold], above, has been carried out.”

Schmidt v. Levi Strauss & Co. (N.D.Cal.,2007), Slip Copy, 2007 WL 2688467 Absent a specific showing or need re specific documents, a party need not produce them a second time but in electronic form.

In re Maura (N.Y.Sur.,2007), N.Y.S.2d , 2007 WL 2231386 (June 28, 2007). Offer of production of backup tapes rejected in favor of cloning hard drive when authenticity of documents was issue; cloning of business computer by neutral at requesting part's expense ordered pursuant to procedure to protect privileged and confidential data.
“Respondent seeks access to the business computers of the [producing party]: (i) to copy all existing and deleted records of the ... agreement; (ii) to recreate any billing records ...; (iii) to copy all other [relevant]records...; and (iv) to obtain sample copies of other [similar] agreements....
“Respondent contends that the issue of the authenticity of the prenuptial agreement requires cloning of the [producing party's] computers, a process that was approved in Etzion v. Etzion (7 Misc.3d 940, 796 N.Y.S.2d 844 [Sup Ct, Nassau County 2005] ).
“The [producing party] argues that the use of the back-up tape will provide a less invasive and less burdensome method. The court agrees...; however, the gravamen of respondent's claim is the authenticity.... Allegations have been made that the ...agreement was somehow altered. The backup tape methodology proposed by the [producing party] will not yield deleted or altered information. Accordingly, the court directs that a clone of the [producing party's] hard drive shall be made. Nevertheless, the court declines to accept the forensics computer professional retained by respondent and declines to allocate the cost of the electronic discovery to the non-party as has been done in certain circumstances, especially in the federal courts. The CPLR provides that the party seeking discovery should incur the costs incurred in the production of discovery material ( Lipco Elec. Corp. v. ASG Consulting Corp., 4 Misc.3d 1019A [Sup Ct, Nassau County 2004] ).”
The court adopted the following procedure:
“The [producing party] shall select a computer forensic expert to conduct the cloning process. The expert selected ...shall submit ...a proposal as to the cost.... The [producing party] shall, within ten (10) days of being notified of the cost, forward a copy of the proposal to the respondent's counsel. Respondent, within ten (10) days of being notified of the costs of the cloning process, shall notify the [producing party] in writing of whether she wishes to proceed with such electronic discovery. Respondent's failure to so notify shall be deemed a decision to forego the electronic discovery. If respondent chooses to engage in such discovery, respondent's counsel, petitioners' counsel and a representative of the law firm may be present at the location where the cloning process occurs. Hard copies of any billing or other records retrieved from the hard drive concerning the ... agreement shall be delivered by the computer forensics expert to the court in a sealed envelope. Within ten (10) days thereof, the [producing party] shall review the records and interpose any objections, whether based on privilege or otherwise, it may have to release of the documents to counsel. The merit of any objections raised shall be determined by the court. If no objections are timely raised, hard copies of such documents shall be delivered to attorneys for both parties.”

Columbia Pictures Industries v. Bunneli (C.D.CA. 5/29/07) CV 06-1093 FMC(JCx), Magistrate order affirmed by District Judge Cooper 8/24/07  RAM is ESI within meaning of FRCP. See summary below. See cases and related document on Electronic Frontier Foundation website.   OSC re sanctions against attorneys for Qualcom continued for hearing in October.

Butler v. Kmart Corp. (N.D.Miss.2007), Slip Copy, 2007 WL 2406982 (August 20, 2007)
Relying upon In re Ford Motor Co. (11^th Cir. 2003), 345 F.3d 1315, the trial court denied “open access to ... home office databases” absent evidence of improper activity.
Absent some showing of adequate search efforts to produce electronically stored information, the party was ordered to produce the requested information “or..."responses (and accompanying affidavits, if necessary) demonstrating its diligent search of its computer systems.”

In re Seroquel Products Liability Litigation (M.D.Fla.2007), Slip Copy, 2007 WL 2412946 (August 21, 2007). The court concluded that overall conduct described as “purposeful sluggisness" justified sanctions but was not able to formulate an appropriate sanction based on the information provided including a lack of information on prejudice and costs incurred. . Reciting numerous examples of frustrations and delays of discovery, the court found that the “biggest failure has been what can properly be characterized as 'purposeful sluggishness' in the production ....” There were no single egregious acts but a series of shortcomings that resulted in delay and inadequate discovery.
The court noted that the “...failure to cooperate in the production of the databases and its failure to timely and systematically produce electronic discovery associated with eighty AZ 'custodians' in any manageable, searchable form are sanctionable conduct. The Court will reserve ruling on the appropriate sanctions pending further discovery and after Plaintiffs have the opportunity to offer evidence of the specific prejudice or added costs the sanctionable conduct has caused.”
In Fn.4 the court criticized the “refusal to allow contact between individuals with appropriate technical backgrounds as part of the effort to resolve technical issues” as “an inexplicable departure from the requirements of Rule 26.” The court also criticized both sides for their “...failure to communicate.” Worse, the posturing and petulance displayed by both sides on this issue shows a disturbing departure from the expected professionalism necessary to get this case ready for appropriate disposition. Identifying relevant records and working out technical methods for their production is a cooperative undertaking, not part of the adversarial give and take. This is not to say that the parties cannot have reasonable disputes regarding the scope of discovery. But such disputes should not entail endless wrangling about simply identifying what records exist and determining their format. This case includes a myriad of significant legal issues and complexities engendered by the number of plaintiffs. Dealing as effective advocates representing adverse interests on those matters is challenge enough. It is not appropriate to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence. The parties' mode of proceeding here has prevented the presentation of any genuine issues as to the proper scope of production of material from data bases. Both parties must bear some of the responsibility for the breakdown....”
The parties had previously agreed on most terms of  a case management order which the court adopted despite some concerns. See below.

QUALCOMM INC. v. BROADCOM CORP.(S.D.CA.8/13/07) #05cv1958-B (BLM) OST re sanctions against counsel for discovery abuses. Counsel ordered “to show cause why sanctions should not be imposed for their failure to comply with this Court’s orders.”  Copies:  OST   OST 
“...the District Judge found

'by clear and convincing evidence that Qualcomm[’s] counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007.' [citing Order on Remedy at p.32] 
'... These examples of Qualcomm counsel’s indefensible discovery conduct belie counsel’s later implied protestation of having been “kept in the dark” by their client.”'

“...this Court believes that the record evidence provides a basis for finding that Qualcomm’s attorneys violated this Court’s discovery and/or scheduling orders. As such, this Court is inclined to consider the imposition of any and all appropriate sanctions on Qualcomm’s attorneys, including but not limited to, monetary sanctions, continuing legal education, referral to the California State Bar for appropriate investigation and possible sanctions, and counsel’s formal disclosure of this Court’s findings to all current clients and any courts in which counsel is admitted or has litigation currently pending.

Peskoff v. Faber, 2007 WL 2416119 (D.D.C. Aug. 27, 2007) Two prior court orders required further search and declarations as to search but such efforts were unsatisfactory. The court ordered counsel to participate in a request for proposals from computer forensic experts to determine if e-mails existed and to estimate the cost for conversion to usable form. If e-mails exist, the court would determine whether production should be required and whether costs would be allocated.
ORDERED that counsel for the parties shall collaborate to create a request for proposals seeking bids from qualified forensic computer technicians to perform an examination of all computers...and ... the network server....
ORDERED that the examination of the computers shall specifically ascertain whether the following electronically stored communications exist: (a) all emails sent to and received by Peskoff in the period of his employment; and (b) all emails by whomever at NextPoint in which the word “Peskoff” appears anywhere in the email; and it is further
ORDERED that the request for proposals shall inquire the cost to convert any such located emails into another readable format such as TIFF or PDF; and it is further
***
In re Rule 45 Subpoena Issued to Robert K. Kochan (E.D.N.C.2007), Slip Copy, 2007 WL 4208555 A motion to compel production of computers pursuant to subpoena was granted. Counsel failed to provide any factual basis to support its objections and relied on “bald assertions” for opposing subpoenas to 2 persons for production by “drive imaging, all electronically stored information created, stored or maintained on or after August 29, 2005, on any laptop computer ever utilized by Adam Sammis in the state of Mississippi at any time on or after August 29, 2005” or “ any desktop or laptop computer utilized remotely or otherwise by Nellie Williams on or after August 29, 2005.” Counsel also failed, when asked, to suggest any limitations or protective orders but the court established the following protocol on its own to protect the client.
"4. Kochan shall produce to counsel for plaintiffs and their expert, Jon Hill, no later than 5:00 p.m. today the material sought in the subpoena at issue. Production shall occur at the offices of plaintiffs' local counsel ....
"5. In conducting the inspection and copying authorized by this order, plaintiffs shall make reasonable efforts to utilize a computer search methodology to inspect and copy only that information which is identified in the subpoena as subject to such inspection and copying. Upon determining that information on the computers in issue is outside the scope of the subpoena or otherwise privileged, plaintiffs, their counsel, their experts, and anyone else working on plaintiffs' behalf in this case shall undertake no further inspection or copying of such information. The search methodology used by plaintiffs may include, but is not limited to, the following techniques:
(a) surveying various file “directories” and the individual files they contain (analogous to looking at the outside of a file cabinet for the markings it contains and opening a drawer believed to contain pertinent files);
(b) “opening” or cursorily reading the first few “pages” of such files in order to determine their precise contents;
(c) “scanning” storage areas to discover and possibly recover recently deleted data;
(d) scanning storage areas for deliberately hidden files; or
(e) performing key word searches through all electronic storage areas to determine whether occurrences of language contained in such storage areas exist that are intimately related to the subject matter of the investigation."

Doe v. Norwalk Community College (D.Conn.2007), Slip Copy, 2007 WL 2066497. Safe harbor protection requires affirmative action such as litigation hold to prevent a system from destroying data. Adverse inference sanction granted for spoliation due to failure to issue litigation hold to prevent the destruction of electronic files and e-mails from the wiping of hard drives. Tr ct awarded costs including computer forensic expert expenses to examine computer and present evidence of spoliation.
“...in order to take advantage of the good faith exception, a party needs to act affirmatively to prevent the system from destroying or altering information, even if such destruction would occur in the regular course of business. Because the defendants failed to suspend it at any time, see supra at 6, the court finds that the defendants cannot take advantage of Rule 37(f)'s good faith exception.
“This Rule therefore appears to require a routine system in order to take advantage of the good faith exception,...” “...the defendants did not appear to have one consistent, “routine” system in place,....”
“the court finds...the defendants' failure to place a litigation hold and to preserve emails and hard drives relevant to Doe's allegations in this case to be at least grossly negligent, if not reckless.”
“The defendants claim that everything that happened was the result of a neutral retention system with limited resources. However, as discussed above, there is no evidence that the defendants did anything to stop the routine destruction of the backup tapes after NCC's obligation to preserve arose.”
“...the court finds at least gross negligence, if not more, in the defendants' replacing Seaborn's computer in December 2004, one month after this lawsuit was filed. Regardless of the fact that the entire business department at NCC may have received new computers, the defendants were involved in this litigation and Seaborn was one of its key players. Thus, they had a clear obligation to preserve Seaborn's old computer rather than decommissioning it or reimaging and reissuing it, as Bissell testified at Hearing II. At the very least, they should have kept track of what was done with her old computer.”

In re September 11th Liability Insurance Coverage Cases (S.D.N.Y.2007), 2007 WL 1739666. 
Trial court awarded Rule 11 monetary sanctions and Rule 37 monetary discovery sanctions but declined to rule on spoliation

“But, instead of one completed production in two weeks, before depositions began, Zurich stretched its production to fourteen separate productions and, instead of producing ahead of depositions when the documents would be most useful, delayed production until after depositions were completed. ***
But for persistent inquiries by the Port Authority and Westfield attorneys, it appears that these important documents would have not have been produced at all. ***
Zurich made fourteen separate productions thereafter, each untimely by the terms of the March 3, 2004 order ***
Zurich's "culpable state of mind" is established by evidence that it intended to delete, and deleted, the electronic version of the 9/11 Document, and by evidence that Zurich or its attorneys, or both, had possession of the printed version of the 9/11 Document, but failed to produce it. ***
Where the parties have settled the issue as to which the undisclosed information pertained, as they have in this case, reimbursement for the expense of unnecessary litigation caused by the failure to disclose is the most appropriate sanction."

Palgut v. City of Colorado Springs (D.Colo.2006), Slip Copy, 2006 WL 3483442  Stipulated Electronic Discovery Plan and Order to Preserve Evidence

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey ( E.D.Pa. 2007), 2007 WL 2085358 July 20, 2007. When a law firm investigating the merits of the complaint saved screen shots of archived websites on the lawyers hard drive and printed copies for use in litigation, it violated copyright law but was within the fair use doctrine. The court rejected a request for spoliation sanctions of an adverse inference based on a claim that defendant should have preserved temporary cache files of images of a website, involuntarily saved and automatically deleted, because the preservation letter had not specifically requested such preservation, they had no reason to believe this would be potential evidence in a future lawsuit, and there was no prejudice

United Medical Supply Co., Inc. v. U.S. (Fed.Cl.,2007), Fed.Cl. , 2007 WL 1952680 (June 27, 2007). Bad faith is not required for spoliation. Full monetary sanctions and evidentiary sanctions regarding expert testimony and expert cross examination on damages.
The Court began: “Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence. Our adversarial process is designed to tolerate human failings-erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant witnesses compelled to testify. But, when critical documents go missing, judges and litigants alike descend into a world of ad hocery and half measures-and our civil justice system suffers.”
Although notification to employees to preserve relevant documents was distributed by e-mail, it was ineffective and not verified; preservation and production was not monitored; document destruction continued . Several years later, when plaintiff moved to compel discovery, affidavits “[revealed] document retention problems far more extensive than previously disclosed” despite promises, assurances and agreements regarding production. The Court then issued a broad preservation order.
After reviewing discovery sanctions, spoliation sanctions pursuant to “inherent authority”, and conflicting federal circuit approaches to spoliation, “...the court concludes that an injured party need not demonstrate bad faith in order for the court to impose, under its inherent authority, spoliation sanctions.”
Concepts of fault, willfulness or bad faith, are relevant in determining the type of sanction to be imposed. “... the court concludes that, under both [discovery rules] and its inherent authority, it must construct a sanction that is just and proportionate in light of the circumstances underlying the failure to preserve relevant evidence, as well as the punitive, prophylactic, remedial and institutional purposes to be served by such sanctions. ... The court must also consider what ill effect-if any-the challenged conduct has had on the course of the litigation and on the integrity of the fact-finding processes. Under this balancing approach, there are no bright lines, at least in terms of mens rea, with the focus instead being on effectively addressing, overall, the spoliation conduct, as well as the harm it engendered-“the judge should take pains neither to use an elephant gun to slay a mouse nor to wield a cardboard sword if a dragon looms .”

Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP (S.D.N.Y.2006), Slip Copy, 2006 WL 1520227. Document retention notices are relevant and are discoverable unless privileged. "Like a party's destruction of relevant documents, if plaintiff's document retention notices are patently deficient or inadequate in some other respect, they might support a negative inference concerning the merits of plaintiff's claims." The court found there was no waiver of any privilege and denied production.

Omax Corp. v. Flow Intern. Corp. (W.D.Wash.,2007), Slip Copy, 2007 WL 1830631 (June 22, 2007) Database production. In response to the request for production of “All databases maintained by Flow, including but not limited to ...its Project database, to the extent sufficient to show [specified sales information of products that allegedly infringed its patents], Flow argued that the data might be incomplete, misleading or difficult to use. The court ruled: “Omax's motion to compel the production of data relating to quotes given to customers and potential customers contained in Flow's "Project" database is granted.

Warshak v. U.S. (6^th Cir. 2007), --- F.3d ----, 2007 WL 1730094 (June 18, 2007) “...individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP. The content of e-mail is something that the user “seeks to preserve as private,” and therefore 'may be constitutionally protected.' ”

Valdez v. Town of Brookhaven (E.D.N.Y.2007), Slip Copy, 2007 WL 1988792 (July 05, 2007). The trial court denied “a request that the court direct defense counsel to send out a litigation hold to the relevant Town employees to preserve records as well as to conduct a good faith investigation into what documents (electronic or otherwise) may have already been destroyed.”
“The law is clear that there is an obligation to preserve evidence “when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation”, [citations] To the extent, however, plaintiffs seek a preservation order that request is denied. Preservation orders are burdensome and expensive and in the absence of a clear need should not be lightly entered. [citing Treppel v. Biovail]”

Google Inc. v. American Blind & Wallpaper Factory, Inc. ( N.D.Cal.,2007), Slip Copy, 2007 WL 1848665. No retention policy or effort was made in a timely manner and potentially relevant documents were destroyed. Spoliation sanctions were limited to evidentiary and monetary sanctions due to a failure to show significant prejudices. Terminating sanctions were denied. Conclusory declarations were criticized. 9th Circuit law of spoliation and appropriate sanctions were discussed.

Reino de Espana v. Am. Bureau of Shipping (S.D.N.Y. 2007), 2007 U.S. Dist. LEXIS 41498.  Spoliation sanctions denied when no proof of culpability or prejudice caused by negligent failure to preserve.  Plaintiff failed to impose a timely and adequate litigation hold or to adequately search and produce electronic documents but terminating sanctions were inappropriate due to Defendant's failure to establish that the conduct was intentional, willful or taken in bad faith.
An adverse inference instruction is warranted if necessary to remedy the party prejudiced by the negligent destruction of documents by restoring the evidentiary balance, not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss. Where the culpable party was negligent, there must be extrinsic evidence to demonstrate that the destroyed evidence was relevant and would have been unfavorable to the destroying party i.e. that the party seeking sanctions suffered prejudice from the destruction of relevant evidence and that sanctions will remedy that prejudice. “Because ABS has not met its burden of demonstrating with sufficient evidence that the missing emails would have contained relevant information unfavorable to Spain, or that ABS is now prejudiced without those records, no adverse inference sanction is appropriate.”

Williams v. Taser Int'l, Inc.(N.D.Ga 2007) , 2007 U.S. Dist. LEXIS 40280. Court rejected protocols for search of e-mail database proposed by each party and created its own including its selected search terms, a clawback provision for inadvertently produced privileged documents, and a requirement that documents be produced “in a searchable, electronic form.” The parties could agree to any other protocol.
The court dismissed the parties argument that it had limited resources to perform the discovery search. “...because it has elected to hire and train only a single technology employee, and because it has chosen to retain only a handful of attorneys to conduct document review, it is somehow relieved from its obligations to timely respond to Plaintiffs' discovery requests. That is not the case. Rather, the Court expects that Taser will make all reasonable efforts to comply with its discovery Orders including, if necessary, retaining additional IT professionals to search electronic databases and adding additional attorneys to perform document review.”

Scotts Co. LLC v. Liberty Mut. Ins. Co. (S.D.Ohio 2007) slip opinion 2007 WL 1723509 (June 12, 2007) Routine computer forensic exam denied. Hard copy not prohibited format as a matter of law but may not be “usable”. Production of deleted ESI may be justified.
(1)The court denied Plaintiff's request for a forensic computer examination at its expense to “ensure the production of all electronically stored information in an acceptable format.” Reasonable search does not require the routine “search by computer forensic expert of computer systems, network servers and databases” including the production and search of “back up tapes of certain information systems to include data for the last nine years.” There is no “routine right of direct access to a p arty's electronic information system, although such access might be justified in some circumstances.”
(2) Issue: does the lack of metadata or ability to search render data not “reasonably usable”. The parties were ordered to meet and confer further as to whether hard copy was “reasonably usable” or whether re-production in electronic format was required.
Under FRCP Rule 34 “ responding party must state the form it intends to use for producing electronically stored information if the requesting party does not”; if not, it risks an order to reproduce in a “reasonably usable” format. Hard copy is not prohibited but may not be “reasonably usable”. The court held “ It is unclear to this Court whether the parties have fully exhausted extra-judicial efforts to resolve this dispute. The parties are therefore ORDERED to meet and confer within ten days with regard to this issue.”
(3) “Production of Deleted Documents.......If the information is in fact relevant, defendant must determine whether the deleted information is retrievable without undue burden.... If defendant takes the position that it is not, plaintiff will have the opportunity, and the burden, to establish by expert evidence that a forensic search of defendant's systems is reasonably likely to result in the recovery of relevant, deleted information. The parties are ORDERED to meet and confer on this issue....”

Lorraine v. Markel American Ins. Co. (D.Md.,2007), 2007 WL 1300739 lengthy case regarding federal evidentiary rules and their application to electronic data.

Guy Chemical Co., Inc. v. Romaco AG (N.D.Ind.,2007), 2007 WL 1521468 (May 22, 2007). Requesting party must pay non-party's $7,000 production costs as a condition to obtaining information.
“In sum, Romaco's request imposes an undue burden and cost upon ABRO, and because ABRO is a non-party, Romaco must pay for the discovery it seeks. Based on an estimated production cost of $7,000, the court found “the information is not reasonably accessible absent undue burden” but that good cause was shown for production. It considered cost shifting and found “The most crucial factor to this Court is the fact that ABRO is a non-party. Non-party status is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue.”

Warner Bros. Records, Inc. v. Does (D.Colo. 2007), 2007 U.S. Dist. LEXIS 41175 Court granted ex parte order to take immediate discovery on good cause showing the log file data would only be available for a short period. “They indicate that ISPs... typically keep these logs for brief periods of time before erasing the data they contain. Plaintiffs might never identify the Defendants without obtaining access to the data contained in the logs.”
Complaint alleged that “Defendants distributed and/or duplicated copyrighted sound recordings... via an online media distribution system.... Plaintiffs are only able to identify Defendants with a unique Internet Protocol ("IP") address; they do not know Defendants' names or any other identifying information. ...Plaintiffs seek permission to obtain immediate discovery from Defendants' Internet Service Provide ("ISP"),...whose subscriber activity log files would allow Plaintiffs to discover ...each Defendant's true name, address, telephone number, e-mail address, and Media Access Control address.”

Columbia Pictures Industries v. Bunneli (C.D.CA. 5/29/07) CV 06-1093 FMC(JCx),   2007 U.S. Dist. LEXIS 46364  2007 WL 2080419 [Motion for review denied by District Judge Cooper 8/24/07 Various documents including the orders of the Magistrate and District Judge can be found  at the EFF website,  http://www.eff.org/legal/cases/torrentspy/.]   Trial court order to preserve and produce “extremely relevant” server log data temporarily stored for 6 hours in website RAM. Although the data was transitory, the court found such data was “electronically stored data” withing the meaning of the recently amended FRCP; it was within defendants possession though routed to a 3d party because it had possession at one point and controlled the routing and the data. To capture and store the requested data, it could enable the logging function on its server software and produce some script. Preserving and producing such data is not tantamount to creating new data. Opposing party failed to show the data was inaccessible or that production should be denied because of undue burden (including the burden of ill will or speculative loss of business). Good cause was shown for production. In footnote 31 the court clarified the limited applicability of the case:

“The court emphasizes that its ruling should not be read to require litigants in all cases to preserve and produce electronically stored information that istemporarily stored only in RAM. The court's decision in this case to require the retention and production of data which otherwise would be temporarily stored only in RAM, is based in significant part on the nature of this case, the key and potentially dispositive nature of the Server Log Data which would otherwise be unavailable, and defendants' failure to provide what this court views as credible evidence of undue burden and cost.”

In considering the need for an injunction to preserve the data the court applied the three factor standard of Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429, 432-33 (W.D. Pa. 2004): likelihood of loss, irreparable harm, capability to preserve. The court rejected or quickly disposed of other concerns such as privacy [user IP addresses were masked and protected by a protective order], anonymous free speech [ID's were not disclosed], Stored Communications Act, Wiretap Act, Pen Register Act, and international issues. Spoliation and discovery sanctions were denied.
The District Court affirmed the Magistrate's order by order dated 8/24/07. It expressly held that data stored in RAM, however temporarily, is ESI within the meaning of Rule 34 and discoverable under the facts in this case. Data need not be used or accessed to be discoverable. It expressly rejected defendant's argument that “electronically stored data” is restricted to electronic data that is “stored for later retrieval” based on the clear meaning of unambiguous language of FRCP 34, the committee notes, and 9^th Circuit case law. Like th Magistrate, Judge Cooper put to rest Defendant's concerns about devastating impacts of the case by noting the facts of the case. The court also rejected the argument that the preservation order was an injunction

In re Genetically Modified Rice Litig., 2007 WL 1655757 (E.D. Mo. June 5, 2007)   Stipulated preservation order.

Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007). Production of e-mail from back-up tapes ordered.  Because the “email system [was] programmed with an automatic deletion feature that deletes any email after it has been in existence for sixty days”, and no litigation hold suspended that destruction, and “...with the exception of three individuals, there has been a universal purging of all possibly relevant and discoverable emails every sixty days at least since the complaint was filed three years ago”,  the trial court ordered restoration of backup tapes and production of e-mail at the producing party's expense. The court noted that the so-called safe harbor provisions of Rule 37(e) would not apply to a sanction request if made due to the failure to suspend destruction with a litigation hold. Noting that a party who fails to impose a litigation hold should not be allowed to complain of the resulting cost, burden or “inaccessibility” of e-mail, the court then found “good cause” for production after performing the cost / benefit analysis considering the factors now set forth in Rule 26(b)(2)(C) and the Committee Note. Padgett v. City of Monte Sereno  (N.D.Cal.,2007),  Slip Copy, 2007 WL 878575  March 20, 2007.  Sanctions for failure to produce computer pursuant to a Court Order and for spoliation. The Court determined that spoliation occurred and that terminating sanctions were justified. It reserved its final ruling on the form of sanctions until alternative sources were explored because the extent of prejudice was unknown but granted monetary sanctions. Monetary sanction included full costs of motion, additional expert fees, and all fees of discovery special master to whom the court referred issues regarding (1) the scope of inspection; (2) the manner of inspection; (3) the search criteria; and (4) the protection afforded privileged information.

Chronology

3/20/06 Motion to compel production computers, printers, and backup tapes denied
3/27/06 Motion for reconsideration
4/14/06 Hearing: Order - “continue to preserve everything.” Def request to continue use of computers representing “nothing is being deleted.”
8/26/06 employee's computer hard drive crash and disposal by IT staff unaware of order or litigation
12/28/06 order inspection of computers of two employees
1/ / 07 learn of disposal of hard drive
Defendant advised Court at the hearing that it had found the hard drive

“Spoliation of evidence occurs when a party (1) destroys evidence after receiving “some notice” that the evidence was potentially relevant to litigation; and, in so doing, (2) impairs the non-spoiling party's ability to go to trial, or threatens to interfere with the rightful decision of the case. United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir.1988); United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.2002). Sanctions for spoliation of evidence may be imposed under the court's inherent powers, or alternatively, if the spoliation violates a court order, under Federal Rule of Civil Procedure 37(b). See Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 367-68 (9th Cir.1992).”
“The trial court has broad discretion to fashion, on a case-by-case basis, an appropriate sanction for spoliation. Id. at 367. Sanctions may include monetary sanctions, issue-preclusion sanctions, evidentiary sanctions, terminating sanctions, or entry of default judgment. See Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir.1995). However, sanctions resulting in dismissal or entry of default judgment are authorized only in “extreme circumstances” where the spoliation is “due to willfulness, bad faith, or fault” and results in such unfair prejudice that no lesser remedy can cure the harm. In re Exxon Valdez, 102 F.3d 429, 432-33 (9th Cir.1996); United States v. Kahaluu Const., 857 F.2d 600, 603 (9th Cir.1988).”
“When a party despoils potentially relevant evidence, the trial court need not make a finding of bad faith before imposing corrective sanctions. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993); Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir.1993); Unigard, 982 F.2d at 368 n. 2. As the Ninth Circuit has noted, “a finding of bad faith will suffice, but so will simple notice of ‘potential relevance to the litigation.’ “ Glover, 6 F.3d at 1329 (9th Cir.1993) ( quoting Akiona, 938 F.2d at 161).”
“The Court finds that the City and Loventhal have failed to take adequate precautions to preserve Loventhal's computer equipment for forensic analysis. Whether characterized as willful or negligent, Loventhal's conduct constitutes the kind of “fault” sufficient to warrant sanctions, including dismissal, under the Court's inherent powers. Glover, 6 F.3d at 1329; Henry, 983 F.2d at 948; Unigard, 982 F.2d at 368 n. 2.”

University of Pittsburgh v. Townsend ( E.D.Tenn.,2007), Slip Copy, 2007 WL 1002317 (March 30, 2007). No duty to preserve until expert served with subpoena.  Trial court denied a motion to exclude expert opinion based on spoliation of expert's draft reports and e-mail communications with counsel. 
“The rules defining spoliation of evidence and the appropriate sanctions therefor are determined by state law, in this case, Tennessee.”
“...the Court does not read Rule 26(a)(2) to impose an 'affirmative duty' upon an expert to preserve “all documents,” particularly report drafts, and the defendants do not cite any support for such a sweeping obligation.”
“The defendants did make a clear request for drafts of expert reports in their subpoenas to [the experts]. Only at that point were the experts under a duty to retain any drafts and produce them at their depositions. It appears... that by the time that the subpoenas were served, any draft reports that had existed (by virtue of being attached to e-mails sent back and forth between counsel and the experts) had already been destroyed. Because the draft reports were destroyed prior to the creation of any obligation on the part of the experts, the plaintiff or the plaintiff's counsel to retain them, the Court finds that the destruction of these draft reports was not done intentionally, fraudulently, and with 'a desire to suppress the truth,' and therefore, is not sanctionable.”
“...any correspondence or communication between counsel and the experts was, at the very least, discoverable.”
“The subject e-mails were the target of multiple discovery requests, namely the defendants' February, 2005 request for production and the 2006 subpoenas to the experts. ...“Although the Court finds that counsel acted improperly in destroying these communications in light of the pending discovery requests, the Court does not find that this action was done with any fraudulent intent. Accordingly, the Court will not, in its discretion, impose any sanctions on the plaintiff. The Court finds that the defendants have not been prejudiced by the destruction of these communications, as the defendants have been able to fully cross-examine the witnesses....”

In re Veeco Instruments, Inc. Securities Litigation (S.D.N.Y.,2007), Slip Copy, 2007 WL 983987 (S.D.N.Y.) Backup tapes ordered restored under new FRCP. Finding production to be burdensome and not reasonably accessible but justified by good cause, the Court ordered defendant to restore backup tapes to obtain requested documents. The court noted: “Surprisingly, there was not an electronic discovery protocol entered into between the parties. The issue of searching back-up tapes was not discussed. ...all parties were obligated in a case such as this to discuss the limits of electronic discovery given the certain need for a protocal here.”
“Recently amended Fed.R.Civ.P. 26(b)(2) provides that the responding party must identify the sources containing potentially responsive information that it is neither searching nor producing.”
The court postponed a cost shifting analysis until it could consider the ultimate costs and results.

World Courier v. Barone (N.D.Cal.,2007), Slip Copy, 2007 WL 1119196 (April 16, 2007). Spoliation sanctions for destruction by non-party husband when accessible and under indirect control of party.Preservation duty arises “before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” A party can be sanctioned when potential evidence is destroyed by a non-party [husband of party] if the party “had access to or maintained indirect control over the hard drive, and therefore she had an affirmative duty to preserve it.”Sanction was based on the court's inherent power using the 2d Circuit's 3 part test: (1) the party having control over the evidence had an obligation to preserve it; (2) the records were destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the party's claim or defense.
Adverse inference instruction was granted but the terms were deferred. Monetary sanctions were deferred. Teague v. Target Corp. d/b/a Target Stores (W.D.N.C.,2007), Slip Copy, 2007 WL 1041191 (Apr 04, 2007) Adverse inference sanction granted against plaintiff who disposed on home computer containing evidence after wrongful termination claim filed with EEOC and one year after attorney retained. Although spoliation had occurred, dismissal was too severe a sanction.

In re Seroquel Products Liability Litigation (M.D.Fla.,2007), Slip Copy, 2007 WL 219989 (Jan 26, 2007) The case management order addresses several issues involving e-discovery including format of production, metadata, database discovery, and a preservation order.

DATABASE
"F. ...provide [counsel] with a list of databases that correspond to the 14 categories .... allow plaintiffs to conduct informal interviews, in person or by telephone, of a knowledgeable AstraZeneca-employed IT person or persons who can adequately address plaintiffs' questions about said databases and how information can potentially be produced or extracted from them. [If unable to answer, find someone who can] ....
"...databases: "1) adverse event database; 2) sales call tracking database; 3) IMS database; 4) clinical communications database; 5) regulatory database; 6) regulatory contact databases; 7) clinical trial database; 8) medical literature database; 9) research report database; 10) documentum or similar databases (document management systems used by many pharmacy companies); 11) visitor speakers bureau and/or thought leader databases; 12) clinical payments database; 13) field force rosters; and 14) instant message, voicemail, discussion forum and prior website page databases, transcripts and recovery."

"III. Format of Production of Custodial Files
A. Format of Production
1. AstraZeneca shall produce all responsive hard copy and electronic documents in single-page Tagged Image File Format ("TIFF") with an accompanying load file, an extracted text file of electronic documents that are unredacted, and an Optical Character Recognition ("OCR") text file of unredacted portions of redacted documents and hard copy documents.
2. ....The metadata for documents which have been "de-duplicated" across custodial files will indicate the names of the custodians in whose files the documents are located. The Plaintiffs shall produce documents on either DVD or CD and may produce fact sheets by email in ".pdf" format. AstraZeneca will produce documents on DVD or hard drives.
3. Each page of a produced document shall have a legible, unique page identifier ("Bates Number") ....
4. For redacted documents not yet reviewed by AstraZeneca as of the date of this order, the metadata for each document will indicate the basis for the redaction (e.g., "other AstraZeneca product," "privacy," or "privilege") at the time the redacted document is produced.

B. Metadata
To the extent possible and practicable, AstraZeneca will provide the following metadata fields:
(a) Electronic document type;
(b) Create date;
(c) File name
(d) File location;
(e) Source location;
(f) Starting production number;
(g) Ending production number;
(h) Custodian;
(I) Last date modified;
(j) Author;
(k) Recipient(s);
(l) Document date (if different from create date);
(m) cc(s);
(n) bcc(s);
(o) Subject;
(p) Title; and
(q) Attachment information (for e-mails).
If AstraZeneca determines that it is impossible to produce certain metadata fields for a type or types of documents, AstraZeneca shall so inform plaintiffs. "

IV. Preservation of Documents
All parties and their counsel shall preserve evidence that may be relevant to his action. The duty extends to document, data, and tangible things in possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. "Documents, data, and tangible things" is to be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice mail (for AstraZeneca only, to the extent practicable and to the extent a custodian utilized a program that allowed maintenance of such voicemail), E-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data (excluding duplicative data maintained for purposes of disaster recovery), removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, checks statements, worksheets, summaries, compilations, computations, diagrams, graphic presentation, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that serves to identify, locate, or link such material, such as file inventories, filed folders, indices, and metadata, is also included in this definition. Each party shall take reasonable steps to preserve all documents, data and tangible things containing information potentially relevant to the subject matter of this litigation. Counsel is under an obligation to the Court to exercise all reasonable efforts to identify and notify parties and nonparties, including employees of corporate or institutional parties. The definition and scope of the term "nonparties" will be defined later.

W.E. Aubuchon Co. v. Benefirst, LLC, (D.Mass. 2007), 2007 U.S. Dist. LEXIS 44574 Inaccessible data ordered produced on showing of good cause without cost allocation.

Balfour Beatty Rail, Inc. v. Vaccarello (M.D.Fla.,2007), Slip Copy, 2007 WL 169628 (Jan 18, 2007) Production of hard drive denied. 

"Plaintiff's requests simply seek computer hard drives. Plaintiff does not provide any information regarding what it seeks to discover from the hard drives nor does it make any contention that Defendants have failed to provide requested information contained on these hard drives. As another court in this district and the Eleventh Circuit have held, "Federal Rule of Civil Procedure 34 permits a party to request documents, but it 'does not give the requesting party the right to conduct the actual search.' " Floeter v. City of Orlando, 2006 WL 1000306 *3 (M.D .Fla.2006) (quoting, In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir.2003)). As those courts held, allowing a party direct access to another party's databases may be warranted in certain situations, such as a showing of non-compliance with discovery rules. In re Ford Motor Co., 345 F.3d at 1317. Plaintiff in the instant case has made no showing which would justify granting access to Defendants' hard drives. Indeed, allowing Plaintiff to gain access to Defendants' hard drives in this case would permit Plaintiff to engage in a fishing expedition. Therefore, the Court will deny Plaintiff's Motion to Compel...."

In re Payment Card Interchange Fee and Merchant Discount (E.D.N.Y.,2007), Slip Copy, 2007 WL 121426 (Jan 12, 2007) Production of metadata required under amended FRCP. In ruling on a protective order, the court required future production of electronic data to include metadata. The court determined that stripping metadata prior to production by  "printing electronic documents and then scanning the pages ... to create "TIFF" images, which can be converted into a searchable text file through the use of "OCR" software" would be contrary to Rule 34 as amended in that it diminished the searchability feature

In re Novellus Systems, Inc. Derivative Litigation (N.D.Cal.,2007),  Slip Copy, 2007 WL 46076  (Jan 05, 2007) Original produced in addition to unclear TIF documents. Trial Court ordered disclosure of the originals of  documents produced pursuant to FRCP Rule 26(a) after a CD containing over ten thousand TIF (tagged image file) documents was produced.  "Defendants are correct that the relevant portion of the rule does not expressly provide for the inspection of disclosed documents. Nevertheless, this court sees no reason why plaintiffs should not be allowed to inspect the originals of an apparent handful of documents which they claim are illegible or show facial irregularities as to signature dates and the like. Fairness would seem to require it"

Hedenburg v. Aramark American Food Services (W.D.Wash., Jan 17, 2007), Slip Copy, 2007 WL 162716. Hard drive discovery denied unless good reason. Mirror image of plaintiff's home computer in the hopes of finding some personal communication revealing something inconsistent with the claim for emotional distress denied absent some reason to believe relevant evidence might be discovered.

Semsroth v. City of Wichita,     F.R.D.   , 2006 WL 3913444 (D.Kan., Nov. 15, 2006).   New FRCP rules change the words used but not the analysis or  result.  In sexual harassment/discrimination case, Plaintiff wanted deleted e-mails that were only available on backup tapes. From emails of all employees, the parties reduced the scope of the request to 117 supervisors to the extent that such e-mails exist on a specific back-up tape. Defendant moved for a protective order to shift costs. The court engaged in the traditional cost benefit analysis, considering all relevant factors and rejecting "bright-line" rules,  and then employed the terminology of the new FRCP. It found the information was not "inaccessible" but then limited the scope. The court declined to shift costs but limited discovery to e-mail of 50 supervisors and searches to fewer key words.  Note that the defendant supplied considered detail and cost information which allowed the Court to make an informed decision.  Still, the Court noted that neither side provided information on the relative resources of the parties to pay for the discovery.

Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007) Apparently based on "the Court's experience", the trial court denied discovery of the litigation hold instructions issued to employees in response to litigation on relevancy grounds, because it was "likely to constitute attorney work-product", and because discovery of such litigation holds "could dissuade other businesses from issuing such instructions in the event of litigation."
"Plaintiffs request the document sent to Defendant's employees instructing them not to destruct certain kinds of documents required to be maintained as a result of this litigation, which otherwise would be permitted to be discarded pursuant to the Defendant's document retention policy.
"Plaintiffs want the list of material employees were required to maintain. This information is not reasonably calculated to lead to the discovery of admissible evidence. The document Plaintiffs request is simply a description of material employees were instructed not to discard. In the Court's experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation. This is not a document relating to the Defendant's business. Rather, the document relates exclusively to this litigation, was apparently created after this dispute arose, and exists for the sole purpose of assuring compliance with discovery that may be required in this litigation. Not only is the document likely to constitute attorney work-product, but its compelled production could dissuade other businesses from issuing such instructions in the event of litigation. Instructions like the one that appears to have been issued here insure the availability of information during litigation. Parties should be encouraged, not discouraged, to issue such directives. Defendants are not required to produce these materials."

Wachtel v. Health Net, Inc. (D.N.J.,2006), 239 F.R.D. 376 , 2006 WL 3538935 (D.N.J.) Trial court imposes sanctions after years of discovery abuse."The Wachtel and McCoy cases are two of the oldest on this Court's docket. The litigation has been fierce and without respite, through several changes of defense counsel. The docket sheet is 81 pages with 73 motions, 219 briefs, and 152 other applications to the Court. In sum, it gives new meaning to the term "scorched earth" litigation tactics. This litigation began more than five years ago and many of the events at issue in this Rule 37/Integrity Hearing go back even further. This Court is extremely reluctant to sanction parties or counsel. Unfortunately, Health Net's repeated and unabated discovery abuses and lack of candor leave this Court no other choice in order to protect the integrity of the judicial process, remedy the prejudice suffered by Plaintiffs, punish the wrongdoers, and accord a measure of relief to the other parties and counsel in this case. When the abuses are as extreme as they are in this case, to refrain from sanctions is unfair to the parties who conduct themselves according to the rules.

JPMorgan Chase Bank, N.A. v. Neovi, Inc. Slip Copy (S.D.Ohio,2006), 2006 WL 3803152 (Nov 14, 2006). Production of database. The trial court ordered production of a database that would provide requested information in response to a motion for sanctions based on inadequate searches for information and responses to discovery.
"As ... deposition testimony ultimately revealed, it would have been a simple matter ... to respond to that interrogatory by searching its database and providing the requested information....However, it elected to forego that reasonable approach to answering the interrogatories....
"Again, any reasonable litigant would have understood the purpose for the request [for admission] and would have understood that it had an obligation to confirm, at the very least, the fact that the documents appeared to be identical in all material respects to ones contained in Neovi's database.
"The Court concludes that Chase was unnecessarily required to contact the Court in order to obtain supplemental interrogatory answers and to take steps to arrange for and conduct [the CEO]'s deposition. Further, Chase should not have been required to file and brief its motion to compel and for sanctions. It is therefore appropriate to award Chase all of its costs and expenses, including reasonable attorneys' fees, associated with those activities.
Chase has also requested that Neovi either be precluded from litigating its motion to dismiss for lack of personal jurisdiction or that it be required to hand over its database so that Chase may make the appropriate searches for information relating Neovi's business contacts with the State of Ohio. The former request is an extreme sanction which, although it may ultimately be appropriate in this case, should not be imposed based upon the present circumstances. If Chase is awarded its costs and expenses for all unnecessary discovery and is given complete access to the database where the information it seeks is contained, it will be placed in the same position as if Neovi had complied with its discovery obligations. Consequently, the Court will direct that Neovi provide the database....
"....Within 15 days, Neovi shall provide to Chase in a readable format those portions of its database which would allow Chase to obtain [requested] information....

Ameriwood Industries, Inc. v. Liberman, 2006 WL 3825291 (E.D. Mo. Dec.27, 2006). New FRCP rules change the words used but not the result.
In essence the court followed procedures established over the past years by the Antioch, mySimon, and Playboy cases for use of a computer forensic neutral recovering documents from hard drives subject to protective and confidentiality orders.
High cost of mirror imaging hard drives made data "inaccessible" because of undue burden and expense but good cause trumped inaccessibility based
on fact that one e-mail was obtained from another source that should have been produced, allegations and postulations of what might have happened, and
because of the nature of computer generated information. Mirror imaging of hard drives including home hard drives was ordered and the cost of production was shifted due to plaintiff's lack of opposition to cost shifting. Defendants were ordered to produce all hard drives including those from homes for mirror imaging by an expert selected and paid by plaintiff. Files recovered were provided to defendant's for review and production in response to discovery requests.

Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., 2006 WL 3771090.  (S.D.N.Y. Dec. 22, 2006). Database discovery. The prior handling of reinsurance claims was 
sought to show a pattern and practice. The Court rejected the reinsurer's claim that it could not retrieve the data from its computer system but only 
ordered the parties to agree on a protocol for sampling.

"Ms. Hinkle attests that although R & Q processes thousands of claims, its computer system is incapable of segregating claims by the amount of the claim, the type of claim, the identity of the cedent, or the reason the claim may have been denied. (Affidavit of Elizabeth Hinkle dated Dec. 11, 2006, ¶¶ 8, 10, 12). A sophisticated reinsurer that operates a multimillion dollar business is entitled to little sympathy for utilizing an opaque data storage system, particularly when, by the nature of its business, it can reasonably anticipate frequent litigation."

In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo.Nov. 13, 2006). Discovery agreement prior to new FRCP rules.
Unresolved issues:

scope of discovery into electronic databases

apportionment of costs for computer forensic exam
who should perform the forensic examination of the computer hard drives.

Resolved issues:

Scope of application in multi-district litigation
Plaintiff's ESI

General preservation duty
ID custodians of other computers with relevant information
Preserve hard drives, cell phone, IM devices and related records
Hard drives to be imaged and analyzed by computer forensic expert per protocol to be agreed

Defendants ESI

Rolling production every 30-6- days due to high volume
Collected from active IT environment on a custodial basis [including file shares]
Not required to restore any backup tapes
Preserve 35 back-up tapes defendants made for litigation; recycle others
Provide organizational charts for pertinent departments to assist plaintiffs in ID of custodians
Defendants reserve the right to object to production of any custodian's ESI.
Collect from individual custodians

1)custodian's active e-mail;
2)custodian's personal PST file; and,
3)directory on defendants' server dedicated to the custodian (i.e., the custodian's u: drive).
4)relevant data on custodian's own desktop or laptop hard drive that is not backed up

Search collected ESI to reduce the scope of information to be produced or reviewed for production. The parties agree to work cooperatively to develop a threshold search
Defendants review for privilege, confidentiality, relevancy and related issues.
Plaintiffs agree to prioritize the custodians to allow review prior to depo
Redactions to remove person-identifying information for HIPAA etc.
Produce in any format that is searchable and manageable (including in native file format or as single page TIFF images with ASCII Text that represents the textual content of the electronic document and the following, to the extent applicable, as metadata--author, recipient, date, subject line).

Defendants hard copy documents scanned and converted to TIFF

Exact Software North America, Inc. v. Infocon, Inc., Slip Copy, 2006 WL 3499992 (N.D.Ohio 2006)  Database discovery.  The court reviewed in detail the history of discovery abuses, possible spoliation, and non-compliance with orders and granted sanctions awarding full monetary compensation and setting a show cause hearing for entry of judgment for "persistent and egregious noncompliance with a series of discovery orders" "For nearly two years ... efforts to procure information crucial to ... affirmative defenses and counter-claims have been as unsuccessful as they have been persistent. The information at issue is not ancillary to its case; most of it goes to the heart of one or more of its claims." The court also pointed out that counsel failed to obtain affidavits from persons with personal knowledge to support claims or provide explanations [e.g. for failure to preserve backup tapes or to disclose the failure in a timely manner]. Because the court could not "presently ascertain where the fault for that noncompliance lies as between ESNA and its now former counsel, and thus on whom sanctions for noncompliance should be placed, ESNA will be granted leave to show cause why the relief sought should not be imposed against it." However, the court ordered the party to pay compensatory sanctions at this point in the proceedings. [COMMENT. An alternative practice would be to properly notice a motion that pursued and obtained sanctions against both the party and responsible counsel and require them to allocate responsibility between them. The procedure in this case will require multiple hearings, increase costs for the innocent party and could result in neither being held responsible for the damages caused.]
In the opinion, the court indicated its expectations for e-discovery from databases:

"the search for documents via ESNA's "e-Synergy" system was largely unproductive. ESNA's counsel attributed the lack of success to defects in the keywords provided by Infocon. Here again, counsel seeking in good faith to provide the discovery it was required to provide would have worked with opposing counsel to ensure that production would be accomplished.
ESNA's counsel has not suggested that she and her client did not know what was being sought. In seeking it, they relied on Infocon's speculation about how the documents might be retrieved from their system.
Their attitude and approach were not appropriate. Just as a party asking for production of a paper document does not have to specify the room, cabinet, drawer, and file in which the document is to be found, a party calling for production of electronically created and kept information is not required to plot the search with exactitude. If the party from whom discovery is sought can comprehend with reasonable certainty what is being asked for, it is up to it to access its storage system to retrieve the document. If problems are encountered due to uncertainty about what is being sought, the party conducting the search of its own system and records is to ask for further clarification."

Bianchi v. The Bureaus, Inc., 2006 WL 3802758 (N.D. Ill. Nov. 1, 2006) Access to database raised issue of privacy, expense, and business disruption. Requester agreed to bear costs of hiring neutral to image database on hard drive, search for specified information under agreed protocol and without interrupting or disrupting business of database owner, and verify account subject to confidentiality orders and an order to destroy data as to non-parties immediately and as to party at conclusion of litigation. The Court stated it would not have granted motion but requester's offer to eliminate concerns convinced the court to grant the motion.

United Medical Supply Co., Inc. v. U.S. (Fed.Cl.2006), 73 Fed.Cl. 35 Preservation order terms set forth. Document preservation order issued based on standards of Pueblo of Laguna v. United States, 60 Fed.Cl. 133 (2004): “one seeking a preservation order [must] demonstrate that it is necessary and not unduly burdensome.” “To meet the first prong of this test,” this court stated, “the proponent ordinarily must show that absent a court order, there is significant risk that relevant evidence will be lost or destroyed-a burden often met by demonstrating that the opposing party has lost or destroyed evidence in the past or has inadequate retention procedures in place.” Id at p.138 As to the latter prong of this test, this court found that “the proponent must show that the particular steps to be adopted will be effective, but not overbroad.”

Reino de Espana v. American Bureau of Shipping (S.D.N.Y.,2006), 2006 WL 3208579 Basic discovery rules must be followed.
The trial court granted defendant's motion to compel production of e-mail and electronic documents and invited a further motion for discovery sanctions. Because of inadequate written presentations, the court conducted evidentiary hearings including expert testimony. The Court noted certain inconsistencies and lack of credibility of some witnesses and stated:
"It was incumbent upon [plaintiff] to identify and preserve relevant documentation related to its claims. The failure to conduct discovery in accordance with the Federal Rules and this Court's rules is sanctionable.***
"[Plaintiff] has failed to show that it conducted a timely and diligent search for electronic records, and that all electronic records have been produced. The failure to conduct an adequate search for electronic records inhibits the prosecution of this case, and adversely affects both parties' claims.***
"While [Defendant's] motion is brought as a motion to compel production of evidence, a central issue is whether [plaintiff] appropriately handled the records that were requested. ...The record and the testimony offered at the evidentiary hearing, however, shows that [plaintiff] failed to place a timely and adequate litigation hold in its agencies and ministries."

Advante International Corp. v. Mintel Learning Technology, "Advante II" (N.D. Cal. 2006), 2006 U.S. Dist. LEXIS 86334.
Inspection and imaging of server hard drive requires (1) showing of reasonable basis to depart from ordinary discovery procedures [shown herein by reason to question reliability& completeness of production due to alterations] (2) protocol to protect legitimate privacy and interests of producing party [including conditions of exam, selection of examiner and inspection by producing party for privilege etc prior to production to requesting party. [see Playboy Ent. v. Wells case re protocol]

Optowave Co., Ltd. v. Nikitin (M.D.Fla.,2006), 2006 WL 3231422
"While the undermining of the judicial integrity of the court by intentionally destroying evidence could subject the guilty party to the most severe sanction available, a finding on liability in favor of the non-spoliating party, so severe a sanction is inappropriate in the instant action. The Court finds that the appropriate sanction for Nikitin's spoliation is an adverse inference instruction to the jury directing that the destroyed evidence would have supported the Plaintiff's case on the following two issues: 1) the parties understood that acceptance tests, or the contract specifications, were incorporated into the Contract, and 2) the Contract must be construed against PTG, who drafted the Contract. The language of the adverse inference instruction must be left to the discretion of the District Judge to determine, depending on the issues remaining in the case at the time of trial."

United States v. Ganier (6th Cir. 2006),  468 F.3d 920,  2006 WL 3299862 The meaning of reports generated by forensic software requires expert testimony.  Testimony by a forensic computer expert who had conducted an examination to determine what searches had been run on the defendant's computer was expert testimony for which a written summary was required to be provided by the federal rules of criminal evidence.
Defendant was accused of obstructing justice by destroying computer evidence after a grand jury subpoena issued. The government's ..."forensic computer specialist... use[d] forensic software to determine what searches were run on the three computers [and] determined from reports generated by the forensic software that searches had been run... using search terms relevant to the grand jury investigation and the allegedly deleted files. ...a motion to exclude the reports and related testimony" was granted. The appellate court affirmed the determination but not the remedy of evidence exclusion explaining as follows. "The reports generated by the forensic software display a heading, a string of words and symbols, date and time, and a list of words. ....The government asserts that these reports reveal three different types of searches performed with particular search terms at particular times, but such an interpretation would require [the witness] to apply knowledge and familiarity with computers and the particular forensic software well beyond that of the average layperson. This constitutes 'scientific, technical, or other specialized knowledge' within the scope of Rule 702."

Bank of America v. SR Intern. Business Ins. Co., Ltd. (N.C.Super.,2006), 2006 WL 3093174 Production from Non-Party requires stronger showing. Defendants in an insurance coverage case sought production from a non-party insurance broker of "e-mails originating from eight persons over a two-year period contained on approximately 350 to 400 backup tapes." Although the request was narrowed subsequently, the broker "estimated, based on Defendants' original request, that the identification, restoration, extraction, conversion, and processing of e-mails on its backup tapes would cost approximately $1,395,960 to $1,400,920. It also estimated that it would incur additional expenses for work performed by its internal Expertise Technology Group (approximately $107,231), oversight by in-house counsel, and responsiveness and privilege review by outside counsel [and] that the requested discovery request would take approximately ten to eleven months to complete."  The Court denied the production on a cost / benefit analysis but considering all relevant factors. When the burden on a non-party is great the likely benefit should be clear and significant before the non-party is forced to produce. Even then, costs may be shifted.
The Court noted the express provision for protecting non-parties from undue burden in its rules. In this case the broker was independent and without financial interest in the outcome. Most of the information had likely been produced as part of the file in hard copy, was likely in the possession of one or both parties, or was not shown to be of any particular value or unique nature. Witnesses were available to testify. There was no showing that the non-party had failed to retain or had destroyed relevant information or would do so. The motion  to compel production was denied.   If it later appeared that the non-party possessed specific critical information that was otherwise not available, the court could reconsider based on such a showing.

Analog Devices, Inc. v. Michalski, 2006 NCBC 14 Basic discovery concepts and traditional cost / benefit analysis sufficient to handle e-discovery. In a trade secret case, e-mails from back up tapes of key players were sought for a four year period. After reviewing the various approaches to e-discovery, the North Carolina court relied on the basic discovery concepts and rules available in all jurisdictions, considering and balancing all competing factors and interests, to achieve a just result based on the facts and circumstances presented. It noted the desire of courts to avoid outcome determinative decisions that denied essential discovery or imposed excessive costs on either side. It concluded that the information at issue was important and should be discovered but that it had not been established that it was so essential that the producing party ultimately should pay the full amount. It deferred the final decision on cost shifting until after discovery occurred and the results could be evaluated.
"Lack of access to that information thus has the potential to be outcome-determinative. What is sought has a direct bearing on the key issues in this case.  It is not otherwise available. It may even prove helpful to Plaintiff.
"{54} The uncertainty of the cost combined with the potential probative value of the discovery is too great to deny Defendants’ motion.  On the other hand, the potential cost of production combined with the great uncertainty as to the contents of the requested documents is too great to require Plaintiff to bear the full burden of production on its own.  Neither party’s ability to pursue its litigation goals will be impacted by cost-sharing. The Court can retain the ability to assess the costs fully to one side or the other at the end of the case."  In essence, the court applied the traditional cost / benefit analysis.  While it considered the various approaches of courts and rule making authorties,  it did not find any need to go beyond existing and well established discovery principles.  It expressly rejected the idea of establishing a rigid heirarchy of factors noting the need of court to be flexible and fact specific. 

In re Napster, Inc. Copyright Litigation (N.D.Cal.2006), Slip Copy, 2006 WL 3050864. Spoliation sanctions granted based on the courts inherent powers. The Court granted an adverse inference instruction, evidence preclusion and monetary sanctions for spoliation of e-mail, with details to be determined. Entry of judgment was denied subject to reconsideration when plaintiff failed to establish either the degree of prejudice justifying such sanctions or that defendant acted wilfully giving rise to the presumption of such prejudice. The court first found spoliation and then evaluated the appropriate sanctions.
In multiple lawsuits involving Napster, the duty of an investor to preserve evidence first arose when it was told it would be sued if it failed to comply with an injunction against current defendants. Knowledge of lawsuit against and common interest with defendant plus the threat was sufficient to create a duty. The duty continued after one lawsuit naming it as a defendant was dismissed due to the matrix of facts including continued litigation against other investors on the subject, threats, seeking indemnification when selling its interest in defendant, seeming admissions of likelihood of suit.
The Court made the following observations: "Hummer's representations regarding its document retention policy are muddled and inconsistent, and do not suggest an organized effort to maintain Napster-related communications as required. ...At worst, Hummer mounted a knowing and concerted effort to destroy Napster-related emails that it had a duty to preserve and produce. At best, however, Hummer was grossly negligent in executing its duties to preserve evidence, by failing to implement a litigation hold and instead relying on Napster to preserve Hummer's emails. ... Documents may be lost and overlooked in large-scale document production, but the abject failure to preserve an entire source of relevant evidence is sanctionable conduct."
The court relied upon its inherent power to impose spoliation sanctions stating: "A party's destruction of evidence need not be in "bad faith" to warrant a court's imposition of sanctions.[citation] District courts may impose sanctions against a party that merely had notice that the destroyed evidence was potentially relevant to litigation.[citation] However, a party's motive or degree of fault in destroying evidence is relevant to what sanction, if any, is imposed." The court added: a "...claim that litigation must be "imminent" is incorrect. ... The duty to preserve documents attaches 'when a party should have known that the evidence may be relevant to future litigation.' The future litigation must be 'probable,' which has been held to mean 'more than a possibility.' "
Once Hummer's duty to preserve took effect in June 2000, Hummer was required to suspend any existing policies related to deleting or destroying files and preserve all relevant documents related to the litigation.[citations] 'The obligation to retain discoverable materials is an affirmative one; it requires that the agency or corporate officers having notice of discovery obligations communicate those obligations to employees in possession of discoverable materials.'. Therefore, even if Hummer's "long standing policies" included deleting emails, Hummer was required to cease deleting emails once the duty to preserve attached in May 2000. Since Hummer acknowledges that it did not cease its document policy, the court may impose sanctions for Hummer's deletion of documents.... The appropriate sanction, if any, depends largely on the culpability of Hummer and the resulting prejudice to plaintiffs.

Wyeth v. Impax Laboratories, Inc.(D.Del.,2006),  Slip Copy, 2006 WL 3091331 (D.Del.) Court denied motion to compel production of data in native format with all metadata in addition to the prior production in TIFF because of a lack of  "particularized showing of need".  "Since the parties have never agreed that electronic documents would be produced in any particular format, Wyeth complied with its discovery obligation by producing image files. Further, neither party has argued that the need for accessing metadata was foreseeable or generally necessary. Finally, Impax has not demonstrated a particularized need for the metadata or database production it has requested."  

Del Campo v. Kennedy (N.D.CA. 2006), 2006 WL 2586633, 2006 U.S. Dist. LEXIS 66728 The court granted Plaintiff's motion "to prevent the destruction of [recordings of telephone calls] and for an order requiring the parties to meet and confer to develop a document preservation plan." Defendant's new phone system provided the "ability to automatically record all calls". Defendant decided to discontinue that feature after a one month trial. Plaintiff produced an "email from ACCS counsel stating 'ACCS plans to maintain any such routine recordings only for two weeks, then discard them in the normal course of their business affairs.'"
First, the court issues an interim preservation order (which followed an earlier preservation order pending this hearing). "An interim order is appropriate. Accordingly, until the parties agree upon, or the court imposes, a document preservation plan, the parties are prohibited from destroying discoverable material including, but not limited to: all records of communications with, and collection activity, concerning putative class members, all records of agreements with, and transactions between co-defendants, all records of communications with, and transactions between, defendants and California district attorneys, and all records of communications with, and transactions between, defendants and merchants who referred returned.
Second the court suggested that if the meet and confer process did not produce an agreement, the court would rule on unresolved issues. If the parties fail to agree upon a plan, the parties can submit a joint statement of the issues in dispute and a brief argument in support of their positions.

Leon v. IDX Systems Corp. (9th Cir. 2006), 464 F.3d 951,  2006 WL 2684512  Case dismissed and $65,000 awarded for deleting e-mails.   In a whistle blower retaliation case, the 9th circuit affirmed dismissal of all claims with prejudice because plaintiff deleted 2,200 files from his company issued laptop computer during the pendency of the litigation despite requests by the opposition to preserve all files.. The court also imposed a $65,000 monetary spoliation sanction for the cost of investigating and litigating the spoliation issue.
The employee admitted deleting entire directories of personal files after he was placed on leave, wiping deleted files from the unallocated space in the hard drive including some with pornographic content. The Court noted there was no way of knowing what might have been stored on the laptop's hard-drive but also "no reliable way of recreating what might have been there." The district court discussed the types of "personal" files that could have helped the employer with its case, including correspondence with realtors and financial institutions (relevant to the timing of his decision to resign ); communications with health care providers regarding work-related illness (relevant to his ADA claim); and the timing of and efforts to find other employment. Lesser sanctions were not sufficient because excluding evidence would be "futile, as the most salient evidence has been destroyed, a jury presumption in favor of the employer would be ineffectual because it "would leave Defendants equally helpless to rebut any material that Plaintiff might use to overcome the presumption" and a fine would not "arm the Defense with evidence to counter Plaintiff's claim."
The 9th circuit noted that "...courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice" considering the following factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." A finding of "willfulness, fault, or bad faith" is required for dismissal.
The district court concluded that the employee's behavior amounted to willful spoliation because he knew he was under a duty to preserve all data on the laptop, but intentionally deleted many files and then wrote a program to write over deleted documents. The court concluded that the extraordinary measures to which the employee resorted to destroy evidence relevant to this litigation merit a finding of bad-faith."

Crandall v. City and County of Denver, Colorado (D.Colo.,2006), Slip Copy, 2006 WL 2683754.  Mere destruction of documents by itself, absent some showing of harm, is insufficient to justify spoliation sanctions. Defendant permitted overwriting of e-mail every 7 days and made no effort to suspend that policy or otherwise preserve e-mail despite opposing counsel's admonition to do so at the time of filing another action three years prior, the subsequent filing of this lawsuit one year prior, and the production pursuant to a request for documents including email six months prior. When plaintiff suggested spoliation of e-mails had occurred due to the inadequate production, "Defendant stopped the computer protocol for overwriting e-mails (they were previously overwritten every seven days), purchased software to recover overwritten e-mails, and identified and produced 91,000 e-mails that were generated between March 27, 2000 and March 30, 2006. Prior to March 6, 2006, Defendant had a policy of preserving e-mails that related to "regulatory compliance issues or environmental issues requiring responsive action."

The Court concluded on the record before it that defendant had proceeded in good faith though it permitted further limited discovery on the issue included expert analysis of the email system. It rejected as unsupported by 10th Circuit law "a presumption in favor of spoliation whenever a moving party can prove that records that might have contained relevant evidence have been destroyed." "Only the bad faith loss or destruction of evidence will support the kind of adverse inference that Plaintiffs seek, i.e., that the supposedly deleted e-mails would in fact have been unfavorable to Defendant.[citation]"Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case."

Powers v. Thomas M. Cooley Law School (W.D.Mich.2006) Slip Copy, 2006 WL 2711512  Computer forensic exams require a strong showing. While denying a "meritless" motion for reconsideration on routine discovery principles and noting that counsel did not understand the opposing sides computer system, the court discussed the propriety of a computer forensic examination absent a strong showing. It concluded that while "litigants have sought access to the opponent's computer or other electronic devices to search for evidence, especially for deleted e-mails...[t]he federal courts have generally resisted such incursions" It followed the Ford and Bethea cases and the Advisory Committee notes to the new Rule 34 "...suggesting that direct inspection of an opponent's computer should be the exception and not the rule and quoted the Committee Note:

'Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.' "

The Court observed: "The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery."
The court also discussed the particular discovery issue involving a change of software  that might have missed a relatively small number of documents in the discovery process.

O'Brien v. Ed Donnelly Enters., Inc.,  2006 WL 2583327 (S.D.Ohio 9/5/06)  Routine recycling and overwriting before litigation of backup tapes containing relevant records normally printed and maintained in hard copy and the loss of a few records would not support adverse inference instructions that the lost or destroyed documents would have been unfavorable to defendants. Nor, does such loss justify a hearing to determine efforts made to preserve and produce evidence

Consol. Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D. La. July 19, 2006) Sanctions must be appropriate and adverse inference must be justified by evidence. Inadequate preservation efforts and loss of some documents alone does not support significant adverse inference or other spoliation sanctions. Lesser sanctions to compensate for the costs of investigating and presenting discovery deficiencies and correcting them by further depositions or other discovery were awarded.
"In sum, Consolidated has failed to convince the Court that the email deletions at issue were motivated by "fraud or a desire to suppress the truth" or that Alcoa "intended to prevent use of the [emails] in this litigation." Concord, at *6. At most, Consolidated has shown that Alcoa negligently failed to preserve emails, which might have had some relevance to this lawsuit, by failing to timely inform employees of their duty to preserve....However, even assuming that bad faith could be inferred from Alcoa's negligent destruction of emails,... Consolidated is not entitled to the requested adverse inference instructions because it has failed to provide sufficient evidence that the destroyed emails were "relevant" to Consolidated's claims and defenses as alleged in its proposed adverse inferences.
"The "relevance" factor of the adverse inference analysis is generally broken down into three subparts: (1) whether the evidence is relevant to the lawsuit; (2) whether the evidence would have supported the inference sought; and (3) whether the non-destroying party has suffered prejudice from the destruction of the evidence. [citation] The party seeking the sanction of an adverse inference "must adduce sufficient evidence from which a reasonable trier of fact could infer that the 'destroyed or [unavailable] evidence would have been of the nature alleged by the party affected by its destruction'." [citing Residential Funding case] In other words, some extrinsic evidence of the content of the emails is necessary for the trier of fact to be able to determine in what respect and to what extent the emails would have been detrimental. [citing Concord case] Thus, before an adverse inference may be drawn, there must be some showing that there is in fact a nexus between the proposed inference and the information contained in the lost evidence. Id.

"Although Consolidated has generally asserted that the destroyed information is relevant to this litigation "based simply on the time frame and the individuals involved," a court cannot infer that destroyed documents would contradict the destroying party's theory of the case, and corroborate the other's party's theory, simply based upon temporal coincidence. While Consolidated is not held to "too specific a level of proof" regarding the destroyed documents, it must provide some evidence that the documents would have aided it in the manner alleged in their inferences in order for such sanction to be imposed."

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006) Cost shifting limited. Cost shifting is not appropriate when the party seeking recovery is responsible for the creation of those costs as when a party fails to preserve data in accessible media when it has a duty to preserve that data for discovery in litigation. .
Applying the Zubulake factors, the court held "defendant is entitled to recover 30% of the costs of restoring and searching backup tapes associated with producing [one former employee's] e-mails" The motion to shift costs was denied as to recovery of e-mail from backup tapes of 5 other employees because defendant should have reasonably anticipated having to produce them at the time they were made inaccessible.
Pursuant to a company policy of deleting e-mails of former employees from active and accessible servers and only retaining them on backup tapes, e-mails of 6 former employees were "inaccessible". The employer defendant retained e-mails from plaintiff and a key individual on its accessible database. The court determined that as to one of the six former employees at issue, defendant should have known the e-mail was potential evidence and should have retained it in accessible media.
The court phrased the issue: "Although...cost-shifting may be considered concerning the restoration and search of backup tapes because the process is burdensome and costly, the appropriateness of cost-shifting is less clear here because it appears that defendant converted the Former Employees' e-mails into an inaccessible format after it should have anticipated this litigation. Plaintiff argues that cost-shifting is inappropriate because defendant, pursuant to its obligation to preserve evidence, was required to maintain the Former Employees' e-mails in an accessible format .... Defendant argues that it satisfied its duty to preserve the e-mails by maintaining them on backup tapes." Cost shifting motion for restoration and search of backup tapes for e-mail was granted as to 30% of one of former employee; but, denied as to 5 former employees.
Previously, the court reduced to the scope of the requested search by time, by number of individuals, and by key words [by eliminating common words and by tailoring the key word range to be used to the particular individuals ranging from 3 to 15 terms for any given employee.]

Lewis v. School Dist. #70 (S.D.Ill.,2006), Slip Copy, 2006 WL 2506465   Litigation hold on auto deletion of e-mail and production in electronic form rejected.  The "e-mail server automatically removes e-mails not saved by the recipient to a specific folder after 14 days, and they are deleted with 10 days after that." Based on the facts of the case, the court rejected the argument that the program should have been suspended and a hold placed earlier noting "plaintiff relies on case law from the Southern District of New York, which is not controlling on this Court."
The court rejected an overbroad request and the argument that e-mails should have been produced in electronic form as requested rather than hard copy noting " it appears that defendants have made a reasonable attempt to provide responsive e-mails that are still in existence

Delta Financial Corp. v. Morrison (8/17/06 Sup.Ct, Nassau County, NY), 2006 WL 2403437

The state trial court followed federal cases in applying sampling of backup tapes and previously restored data to determine later issues as to further discovery and cost shifting. The requesting party alleged "failure to issue a proper litigation hold,...failure... to coordinate and organize a comprehensive search, supervised by outside counsel, of non e-mail electronic documents...[failure of] outside counsel... [to] issue.. or oversee... the dissemination of a written "litigation hold" for potential relevant documents.... [failure to use] search terms, [failure to implement] a quality control process or a set of guidelines ... that would assure the completeness or the consistency of the process. "

Frey v. Gainey Transp. Services, Inc. (N.D.Ga.,2006), Slip Copy, 2006 WL 2443787. Failure to preserve GPS tracking information after receipt of a detailed, broad, 15 page preservation letter prior to a lawsuit did not result in spoliation sanctions.

CV Therapeutics Inc. Securities Litigation (N.D.Ca 2006), No. C 03-03709 SI.    Order dated April 3 and filed April 4, 2006. Backup tape stipulation; use of search terms and deduplication approved to reduce burden. The parties stipulated that Defendant would catalog and provide an e-file showing the file structure down to the filename level of email on back up tapes and also inform Plaintiff when and what data was backed up. Backups for 3 dates and 20 people (excluding contacts) would be restored. When Plaintiff learned of additional undisclosed backup tapes 8 months later, it requested sanctions claiming Defendant did not have a preservation policy, concealed tapes, and destroyed e-docs. Plaintiff claimed destruction occurred when active files were "saved" to backup[making them "inaccessible"] and deleted from active servers. Defendant claimed Plaintiff did not understand the technology, that it had instructed its employees by e-mail to save relevant documents, and that it had suspended its tape rotation. The Court denied spoliation sanctions and required defendant to provide additional explanations for missing e-mails. The Court approved the use of search terms in selecting documents for discovery but required defendant to disclose those terms to Plaintiff subject to a protective order. It allocated in general terms the estimated $3.2 million costs to review and restore other tapes. The Court referred overbroad and unsubstantiated privilege claims to Magistrate Judge for in camera review of 3,220 pages of documents that were inadequately described on a privilege log. See 2006 WL 1699536(N.D.Cal.2006) on privilege issue.
As to 186 tapes discovered in a safe, the Court ordered Defendant to prepare a catalog and to produce at its expense any documents that Plaintiff identifies, subject to privilege claims. At a subsequent hearing the Magistrate Judge permitted use of deduplication and search terms to narrow the scope and reduce the cost and burden of production. See 2006 WL 2458720 (N.D.Cal.2006)

National Economic Research Associates, Inc. v. Evans (Mass.Super.,2006), 2006 WL 2440008  Confidentiality not lost as to attorney-client communication sent by using company computer to access Yahoo account when screen shots of communications are saved as temp files on the company computer. The employer's computer forensic expert inspected the employee's computer after he left and found attorney client communications recorded from screen shots and saved in the temp file when a private yahoo account was accessed. "NERA's counsel properly instructed his expert to retain these e-mails but did not review them, awaiting guidance from the Court." After analyzing the facts and company policies in detail, the court found the communications were made in confidence and had not been waived by use of the company computer. Had the employee used the company e-mail system or been advised that the screen shots would be accessed by the employer, the communications would have not been privileged.
"Many of these attorney-client communications were conducted by e-mail, with Evans sending and receiving e-mails from his personal, password-protected e-mail account with Yahoo rather than his NERA e-mail address. Evans often used the laptop issued to him by NERA to send and retrieve these e-mails via the Internet. Unknown to him, when one accesses information through the Internet from a private e-mail account, such as an account with Yahoo, all the information that is accessed is copied via a "screen shot" onto a temporary Internet file on that computer's hard drive.
"He did not engage in these attorney-client communications through the NERA Intranet but through his private, password-protected Yahoo e-mail account that he accessed through the Internet. He did not forward these communications to his Intranet e-mail address or save and store them as Word or Wordperfect documents in his My Documents (or equivalent) file on the NERA laptop. He attempted to delete all personal documents on his NERA laptop before returning it, and even ran a "disk defragmenter" program in an attempt to ensure that these personal documents could not be retrieved. The totality of these efforts are "adequate steps" to protect the confidentiality of his privileged communications with his Nutter attorney."
"NERA contends that any reasonable person would have known that the hard disk of a computer makes a "screen shot" of all it sees, which the computer then stores in a temporary file, including e-mails retrieved from a private password-protected e-mail account on the Internet. NERA further contends that any reasonable person would have known that these temporary files, although not readily accessible to the average user, may be located and retrieved by a forensic computer expert. This Court does not agree that any reasonable person would have known this information. Certainly, until this motion, this Court did not know of the routine storing of "screen shots" from private Internet e-mail accounts on a computer's hard disk."

Turner v. Resort Condos. Int'l., LLC. (S.D.Ind. 2006), 2006 U.S. Dist. LEXIS 48561 While granting summary judgment the court criticized an overly broad form preservations letter ("demanding that RCI for an indefinite time not modify or delete any electronic data in any mainframe, desktop, or laptop computers, or other storage media or devices, and not upgrade or replace any equipment or software. [and] that RCI immediately copy hard drives on personal computers and save any data created after the letter was received"), noted that discovery had been accomplished (including "the deposition of an RCI information technology specialist with regard to the 'layout and configuration of its computer system and electronic data sets.' [and] depositions of several RCI employees regarding efforts to produce documents she requested and efforts to comply with the directives of the pre-suit letter"), and concluded "Plaintiff has had ample opportunity to search for evidence that would support her claims. There is no need to prolong the case further". 

Equal Employment Opportunity Com'n v. Lexus Serramonte (N.D.Cal.2006), Slip Copy, 2006 WL 2329510 Producing party need not create an "An electronic database file, in Quattro Pro readable format" that does not exist in response to a discovery request. "It is unduly burdensome to require Defendant to do Plaintiffs' work for them by creating a computer-readable file." "...if Defendants do not presently maintain their employee contact information in the electronic format requested by Plaintiff, they shall produce it as maintained."

Matter of Ackermann v. Comm'r of Labor (N.Y. App. Div. 2006) 2006 NY Slip Op 5879, 2006 N.Y. App. Div. LEXIS 9439  "...a software support specialist in the information technology department of the Kings County District Attorney's office, was terminated after it was discovered that she had logged on to the e-mail accounts of three of her supervisors without their authorization." "...printed screen shots [were] admitted into evidence reflecting that claimant identified by her user name had logged on to her supervisors' e-mail accounts." The denial of unemployment benefits was affirmed by the court.

McDowell v. Government of Dist. of Columbia  (D.D.C.2006), 233 F.R.D. 192 [February 9, 2006 initial decision. See fee award order: ]
Delay and expense incurred due to failure of defendant to make proper queries of its database resulted in an award of monetary sanctions in the amount of $ 72,910.12. The requesting party was ordered to "submit to the court a detailed report identifying the amount of attorneys' fees and costs that have been expended since February 3, 2003 in attempting to secure the PD 163's."
"Since the beginning of discovery in this case, plaintiff has sought to query CJIS for information about those arrests in which the individual named officers, while not the arresting officer, nonetheless participated in some fashion in the arrest. While defendants have repeatedly acknowledged that CJIS contains an "other officer" field, defendants only recently conceded that a query of this field can actually be performed." "...almost three years after plaintiff's first request for production of documents, defendants finally stated conclusively that data could be accessed for arrest events where the named officer was not the arresting officer." "The most obvious problem relating to the PD 163's is the fact that plaintiff will only get the relevant PD 163's if the spreadsheet is the result of a carefully worded and accurately executed query."
In the fee award order [2006 WL 1933809 (D.D.C. 7/11, 2006) , 2006 U.S. Dist. LEXIS 46371], the court noted "...the rationale underlying my decision to award attorney's fees remains the same. But for defendants' failure to comprehend the capabilities of their own record-keeping system, plaintiff would have had the discovery she sought at a much earlier date."

Paramont Pictures  v. Davis (E.D. Pa 2006) 2006 WL 2092581   [Case involved spoliation by wiping the relevant hard drive. Preliminarily, the Court  described the process of using the copyright infringer's IP address to identify the  ISP and  suppoena ISP records to  identify the defendant.  "An IP address is a unique number assigned to an internet service subscriber by one's internet service provider (“ISP”) while one is connected to the internet. It is a matter of public record which IP addresses are assigned to each ISP. BayTSP downloaded segments of the digital file from the individual and identified the unique IP address being used as one assigned to Comcast." ...  "Comcast assigns its subscribers unique IP addresses to track their subscribers connectivity to the network in order to bill them for that time and monitor for any malicious activity. The accuracy of Comcast's billing records and the integrity of its network rely upon keeping accurate track of its subscriber's IP addresses."...  "BayTSP identified and tracked the motion picture file's metadata, the date and time at which the motion picture was downloaded, the infringer's IP address, the percentage available for download on the infringer's computer, and the infringing computer's unique hash number"]  See also the earlier opinion .  Paramount Pictures Corp. v. Davis (E.D.Pa.2005), 234 F.R.D. 102 , 2005 U.S. Dist. LEXIS 31065

Samsung Electronics Co., Ltd. v. Rambus, Inc. 2006 WL 2038417 (E.D.Va.) General admonitions by counsel to preserve relevant documents is insufficient and counsel must instruct on the subject matter and kinds of documents to preserve. In denying attorneys' fees, the court discussed document retention policies, spoliation, litigation holds and the duty of counsel to assure retention of documents relevant to litigation. Implementation of a document retention policy in anticipation of litigation resulted in findings of spoliation and court criticism of counsel with regard to advice given in 1998 regarding document preservation:

"...the fact that his advice to Rambus was incomplete. In [counsel's] presentations to Rambus, he failed to explain that spoliation could occur not only on the "eve of litigation," as he put it, but also if documents were destroyed when the company anticipated, or reasonably should have anticipated, litigation. That is a serious omission given that the test for spoliation universally includes this component. Nor did [counsel's] presentation, or anything else he claims to have said, explain that, in order to have an effective suspension of the document destruction plan during litigation, employees must be specifically instructed respecting what documents are relevant to the litigation (and thus cannot be destroyed) and what documents are not relevant (and thus can be destroyed). "

Litigation Counsel hired subsequent to the policy adoption were criticised for merely providing general admonitions to preserve. Cf. Hynix Semiconductor Inc. v. Rambus, Inc.(N.D.Cal.2006)Slip Copy, 2006 WL 565893 where N.D.Ca. decided destruction pursuant to the document policy was not spoliation since litigation was not probable. 

India Brewing, Inc. v. Miller Brewing Co. (E.D.Wis.,2006) 2006 WL 2023396.  Discovery was denied re documents in electronic form, document retention policy, computer information system: document retention policy irrelevant; computer system information irrelevant and burdensome. Production in electronic form is not required after the party produced in hard copy form. The court noted that the original request could have but did not request production in electronic form.

Peskoff v. Faber (D.D.C.,2006), Slip Copy, 2006 WL 1933483  Search effort details by declaration required. .  Where a two year gap in e-mails produced was not adequately explained, the trial court ordered the producing party to file a "detailed affidavit specifying the nature of the search it conducted and noted it may have to hold an evidentiary hearing in which [to] take testimony ...about the effectiveness and cost of any additional searches." Defendant had previously explained that "its electronic files are stored on [a sublessor's] server. ... When [plaintiff's] employment ended, counsel "caused the creation of an archive of all [plaintiff] electronic files, including documents stored on his computer hard drive, email, and any other [plaintiff] electronic documents."... This entire archive was produced to [plaintiff]"   The court noted "the producing party has an obligation to search available electronic systems for the information demanded" and suggested sources where such e-mail or copies thereof might be located:

1. the plaintiff's e-mail account
2. "the inbox, sent items, trash, and other folders of e-mail accounts of other employees, agents, officers, and representatives of the [defendant] entities, who may have been the author or recipient of the e-mails at issue";
3. the hard drive of [plaintiff's] computer or within any depository for [defendant] e-mails. The e-mails may be accessible from those locations through simple search technology, such as by conducting a key word search (i.e., a search on "Peskoff" or his e-mail address)";
4. "...with the help of a computer forensic technologist, the e-mails, even if deleted, may be recoverable from other places within [plaintiff's] computer, such as its "slack space." [citation](" 'Slack space' is the unused space at the logical end of an active file's data and the physical end of the cluster or clusters that are assigned to an active file. Deleted data, or remnants of deleted data can be found in the slack space....")"; or

5. "from periodic backups tapes or disks".

Deipenhorst v. City of Battle Creek  (W.D.Mich.2006),   Slip Copy, 2006 WL 1851243   Hard drive not subject to routine imaging.  "Defendant has demanded production of plaintiff's computer hard drive, so that defense experts can make a “mirror image” of its contents. By this process, the expert would essentially create a “clone” of the hard drive, duplicating all programs, files, and other information contained therein, whether or not germane to this case. Although defendant urgently presses its need to subject plaintiff's computer to this examination, defendant never explains to the court exactly what the object of the examination is or why defendant believes that it is necessary."
"The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, as noted above, imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery.[citation]This 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. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct."

Residential Constructors, LLC v. Ace Prop. & Cas. (D.Nev.2006), 2006 U.S. Dist. LEXIS 36943 Producing documents on CD in a format that was searchable was not sufficient and an index or table of contents was required.
"Plaintiff argues that the imaged documents are formatted so that Defendant can  perform key word searches for information in the documents, which it contends actually makes the documents more accessible than they would be if produced in paper form with some type of limited table of contents or index." Producing party must provide "a table of contents or index for the documents contained on CDs. In so doing, [it] is not required to index each document in each file. [It], however, is required to identify the files it has produced and in which boxes or group of document numbers the files are located."
"The Court disagrees that simply producing for inspection 41 boxes of documents, or producing documents in a computer imaged format, complies with Plaintiff's obligation under Rule 34. Although Plaintiff alleges that the documents are organized in the manner in which they kept in the usual course of business, Plaintiff has gathered these documents together from different entities and locations and has assembled the documents together in the boxes, which have now been imaged onto a computer data base. Clearly some form of table of contents or index of the materials produced should be provided. "

 Williams v. Sprint/United Management Co. (D.Kan.,2006.Slip Copy) , 2006 WL 1867478   Federal 10th circuit attorney-client privilege and inadvertent production waiver rules applied to information in spreadsheet generated from two non-privileged spreadsheets using a methodology involving "data entry in various combinations utilizing a formula provided by the Law Department. The formula automatically generated the adverse impact document in a specific format devised by counsel."
 "Plaintiffs' argument that the calculations necessary for adverse impact analysis are not privileged or confidential, but instead are readily available in the public domain, does not defeat the privilege. Whether this information is in the public domain, however, is simply immaterial to Defendant's claim of attorney-client privilege for the adverse impact/due diligence documents....The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with his attorney.” "...the due diligence matrices and adverse impact spreadsheets-were made at the direction of the Law Department in order to secure legal advice from counsel and were not mere compilations of non-privileged business data and underlying facts".
Defendant had reviewed a large volume of documents for privilege and had marked and password protected the spreadsheets.

Hynix Semiconductor Inc. v. Rambus, Inc.(N.D.Cal.2006)Slip Copy, 2006 WL 565893. The trial court rejected claims of spoliation and dismissal based upon unclean hands due to the adoption of a document retention policy while formulating a strategy for licensing and litigation of patent claims.
The propriety of the retention policy itself---which reduced the life cycle of backup tapes, eliminated drafts, encouraged elimination of unnecessary email--- was not disputed. The spoliation claim was based on the assertion that Rambus adopted its document retention policy and destroyed documents at the same time it was contemplating litigation. The court reviewed in detail the advice and testimony of counsel regarding the development and implementation of document retention policy. Litigation counsel raised the need for the policy in part due to the high cost of the search for and retrieval of documents in litigation in 1998 and the risk of spoliation claims if there were no policy. Counsel testified such advice was "commonplace" in 1998. In a presentation of the policy to employees a slide discussing e-mail entitled "Email -- Throw it Away." was used; it emphasized that e-mail was discoverable in litigation and that elimination of e-mail is an integral part of document control. Shred days were adopted. Employees were advised that they could not look to backup tapes as archives but would have to specifically archived necessary documents. Although the "horror stories" of e-mail were conveyed, employees were warned not to destroy relevant evidence.
"The primary question before the court is whether Rambus adopted and implemented its document retention policy in advance of reasonably foreseeable litigation for the purpose of destroying relevant information." The court concluded that litigation by Rambus was not reasonably foreseeable and no duty arose to preserve evidence at the time the policy was implemented because the " path to litigation was neither clear nor immediate. Although Rambus began to plan a litigation strategy as part of its licensing strategy as early as February 1998, the institution of litigation could not be said to be reasonably probable because several contingencies had to occur before Rambus would engage in litigation." "...although Rambus began formulating a licensing strategy that included a litigation strategy as of early 1998, Rambus did not actively contemplate litigation or believe litigation against any particular DRAM manufacturer to be necessary or wise before its negotiation with Hitachi failed, namely in late 1999. While hiring of litigation counsel or actually filing suit is certainly not necessary to demonstrate that a company anticipates litigation, in light of the record presented, it would appear that litigation became probable shortly before the initiation of the "beauty contest" in late 1999 in which litigation counsel for the Hitachi matter, Gray Cary, was selected. Thus, Rambus's adoption and implementation of its content neutral Document RetentionPolicy in mid-1998 was a permissible business decision. The destruction of documents on the 1998 and 1999 Shred Days pursuant to the policy did not constitute unlawful spoliation."
Note: the factual conclusions were considered in detail and criticised in  Samsung Electronics Co., Ltd. v. Rambus, Inc., 2006 WL 2038417 (E.D.Va.)

Krumwiede v. Brighton Assocs., L.L.C., (N.D.Ill. 2006), 2006 U.S. Dist. LEXIS 31669 Default judgment entered for spoliation of files on company laptop computer by former employee after complaint and preservation letter served. The opinion details the findings of a neutral expert who examined the laptop finding inter alia continual defragmentation, compressed files, nested data, destruction of metadata due to accessing files, batch processing of multiple files and concluding "Krumwiede did intend to destroy evidence and did intend to conceal the existence and/or movement of data in violation of defense's preservation letter dated August 25, 2005, as well as defy the Court's order dated 9/15/2005 to surrender the laptop."

Advante Intern. Corp. v. Mintel Learning Technology (N.D.Cal.2006) Slip Copy, 2006 WL 1806151 Forensic exam of computer systems on suspicion of evidence concealment denied. "... just as a party would not be entitled to inspect personally an opposing party's offices and filing cabinets simply because it believed that discovery misconduct had occurred, the accusations Mintel makes here do not justify the remedy it seeks. Accordingly the motion will be denied.*** in some cases it may be appropriate to allow a forensic examination of computer hard drives.

Even in such circumstances, though, a party would not be given an unfettered right to conduct its own examination of the opposing party's computers. Rather, a protocol would have to be established to protect legitimate privacy, privilege, and safety concerns, and to minimize disruption. *** it has not presented specific, concrete evidence of concealment or destruction of evidence sufficient to conclude that a forensic examination of the vast scope it proposes is warranted at this juncture, even under an examination protocol that would protect the other parties' legitimate privacy and other interests.

Benson v. St. Joseph Reg'l Health Ctr. (S.D.Tex.2006), 2006 U.S. Dist. LEXIS 28795 Absent evidence to the contrary, parties responding to discovery need not explain their efforts to search for and produce electronic information.
 "The Court presumes, in the absence of any showing to the contrary, that the statements made by Defendants under oath and the statements made by Defendants' counsel to the Court were made with a good faith belief in their truthfulness. Additionally, Plaintiffs have failed to offer more than  speculation .... Finally, it is unnecessary for Defendants to explain the details of their method of searching, when they have certified and represented to the Court that they have complied fully with Plaintiffs' requests and made reasonable efforts to find and disclose all responsive documents and emails. Plaintiffs' motion to compel additional electronic searches is DENIED."

Leviton Mfg. Co., Inc. v. Nicor, Inc.  (D.N.M. 2006)Slip Copy), 2006 WL 1305036, 2006 U.S. Dist. LEXIS 27655. Although "counsel repeatedly represented that his client had produced all the information requested and that his client's representations were accurate", Plaintiff had copies of documents that defendant should have produced that were produced by others, some of which were restricted by protective orders, including e-mails sent to others.

"The primary issue is what the Court should do given that Leviton has shown the Court documents that Leviton requested but Defendant Zhejiang Dongzheng Electrical Co., Ltd. did not produce. Because the Court is concerned that Dongzheng has not accounted for documents that at one time were in its files, the Court will order Dongzheng to produce all responsive documents, require Dongzheng to account for all the documents that Leviton has shown the Court, require Dongzheng to make its computers available for inspection, and require Dongzheng to provide Leviton with an authorization for production of Dongzheng's email communications with its customers."

St. Luke's Cataract & Laser Inst., P.A. v. Sanderson (M.D.Fla.,2006.Slip Copy) 2006 WL 1320242 Websites are not self authenticating and the court required a statement or affidavit from an Internet Archive representative with personal knowledge of the contents of the Internet Archive website. http://www.archive.org/index.php. See also Telewizja Polska USA v. Echo Star Satellite Corp. 2004 U.S. Dist. Lexis 20845, 2004 WL 2367740 (N.D.Ill.)

 Durst v. FedEx Express (D.N.J.,2006.), Slip Copy, 2006 WL 1541027 Adverse spoliation inference requested as motion in limini denied . "A spoliation inference is only appropriate if the Plaintiff has demonstrated four essential factors: (1) that the “evidence in question [is] under the adverse party's control;” (2) “that there has been an actual suppression of this evidence, i.e., that [the evidence at issue] was intentionally untimely disclosed;” (3) that “the untimely disclosed evidence was relevant” to the plaintiff's case; and (4) “that it was reasonably foreseeable that [the spoliated evidence] would later be discoverable."

 In re Qwest Communications Intern. Inc. (10th Cir.2006), 450 F.3d 1179, 2006 WL 1668246 Privilge waiver from voluntary production to adversary per non-waiver & confidentiality agreement. Another case illustrates the danger of entering into agreements as suggested by the new FRCP 26(f)(4). Voluntary production of privileged documents to federal investigative agencies and prosecutors is a waiver of attorney-client privilege despite confidentiality agreements including provisions stating that there is no intent to waive. The "selective waiver" doctrine was rejected. The court noted this was not an issue of inadvertent production.

Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL 1544621 (W.D. Tex. 2006) Attorney-client privilege case involving e-mail and 30(b)(6) deposition.

 Cardenas v. Dorel Juvenile Group, Inc., 2006 WL 1537394 (D. Kan. 2006) While granting monetary sanctions, the trial court reiterated counsels duty in conducting discovery relying upon Bratka v. Anheuser-Busch Co., Inc. (S.D.Ohio,1995), 164 F.R.D. 448, 461:

"Trial counsel have a duty to exercise some degree of oversight over their clients' employees to ensure that they are acting competently, diligently, and ethically in order to fulfill their responsibility to the Court and opposing parties. Accordingly, trial counsel have the obligation to communicate with in-house counsel to identify the persons having responsibility for the matters that are the subject of the document requests and to identify all employees likely to have been authors, recipients or custodians of documents falling within the request. Trial counsel also have an obligation to review all documents received from the client to see whether they indicate the existence of other documents not previously retrieved or produced. The Court does not find that these duties were met here...."

Residential Constructors, LLC v. ACE Property and Cas. Ins. Co. (D.Nev.,2006), Slip Copy, 2006 WL 1582122. Index or table of contents required for searchable CD of documents. Plaintiff gathered paper documents and produced them in 41 boxes. By agreement, plaintiff imaged the documents and provided them on CD in the same order. Defendant claimed additional documents were added creating a "document dump". Even though plaintiff noted that "imaged documents are formatted so that Defendant can perform key word searches for information in the documents, which it contends actually makes the documents more accessible than they would be if produced in paper form with some type of limited table of contents or index", the court order creation and production of "a table of contents or index for the documents contained on CDs." "The Court disagrees that simply producing for inspection 41 boxes of documents, or producing documents in a computer imaged format, complies with Plaintiff's obligation under Rule 34....Clearly some form of table of contents or index of the materials produced should be provided." "...producing large amounts of documents in no apparent order does not comply with a party's obligation."

Warner Bros. Records, Inc. v. Souther (W.D.N.C.,2006.), Slip Copy, 2006 WL 1549689 Cost shifting to party requesting production when it performs computer search and retrieval. Plaintiff requested production and provided instruction on how to provide electronic copy of the registry files and that "computer's windows desktop" but defendant was unable to to do so. The court ordered production and examination of the computer by plaintiff's forensic technician to make copies. In considering cost shifting of the requesting party's costs to the responding party, the court required a statement as to relevant information found and the costs of such retrieval. It also required the responding party to file "an affidavit concerning her computer skills so that the court may make an appropriate determination under Rule 37 as to the reasonableness of defendant's efforts prior to court intervention."

Morgan v. U.S. Xpress, Inc. (M.D.Ga. 2006), Slip Copy, 2006 WL 1548029. Adverse inference from "possible spoliation" of GPS data showing vehicle location at time of accident was sufficient to defeat summary judgment. In a motor vehicle accident, an eye witness and the plaintiff driver saw a second vehicle leaving the scene but Defendant claimed (1) the accident only involved a single vehicle, or (2) the second vehicle was not its tractor and trailer or (3) the trailer was pulled by another unknown party's tractor. Defendant's driver logs suggested two of its drivers could have been on the scene but the drivers denied it. Plaintiff sought GPS data from defendant's computers to show the location of defendant's tractor trailers. Defendant claimed the data was routinely purged after 14 days and before notice of the accident was received from plaintiff but plaintiff contends it was not purged in 14 days and was on backup tapes until after the litigation commenced before the backup tapes were destroyed contrary to the company's data retention policy. In denying summary judgment the court found "[driver itineraries], when coupled with the adverse inference that may be drawn from [defendant's] possible spoliation of evidence, raises a genuine issue of material fact and allows Plaintiffs to avoid summary judgment."

Kingsway Financial Services, Inc. v. Pricewaterhouse-Coopers LLP (S.D.N.Y.2006)  2006 WL 1295409 (5/10/06) AND 2006 WL 1520227 (6/1/06) The opinion indicates the parties and court assumed the documents at issue were privileged but disputed whether the privilege had been waived by failure to timely assert it. The Court held the failure to timely identify a document withheld on privilege grounds is not a waiver of privilege if the document was created after the response date. It noted that document retention notices are relevant and are discoverable unless privileged. " Like a party's destruction of relevant documents, if plaintiff's document retention notices are patently deficient or inadequate in some other respect, they might support a negative inference concerning the merits of plaintiff's claims." The court found there was no waiver of any privilege and denied production.

J.C. Assocs. v. Fid. & Guar. Ins. Co. (D.D.C. 2006), 2006 U.S. Dist. LEXIS 32919 Sampling to evaluate burden. "...plaintiff seeks...1.4 million active and inactive claim and litigation files...." The court found "...the information plaintiff seeks is clearly relevant" but recovery could not exceed $124,000. "...defendant has conducted an electronic search of the files, using internal codes that identify the category of the claim [and] identified 454 claims, including the 6 claims at issue in this case." The court required the following procedure to "determine whether or not any additional search is necessary." If so, cost shifting could be considered.

1. Plaintiff provide copy of document conversion program
2. Defendant randomly pull, scan and convert 25 of the 454 files into searchable documents using the conversion program
3. Defendant conduct an electronic search of the files using 4 terms
4. Defendant pull any files containing the words, ascertain if responsive and produce subject to privilege claims and using "comprehensible" redaction.
5. Defendant submit affidavit the time and costs for search, redactions and review. "I expect that attorney time will only be expended on work that requires an attorney's skill and judgment."

O'Grady v. Superior Court (2006),  139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 2006 WL 1452685  A writ issued directing the trial court to enter a protective order sought by publishers of a website to prohibit discovery of sources or content of e-mails stored on a service providers servers "because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act[citations]; (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield [citations]; and (3) discovery of petitioners' sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources [citation]."

Phoenix Four, Inc. v. Strategic Resources Corp. (S.D.N.Y.2006), 2006 WL 1409413(Slip Copy) Duty of counsel to pursue e-documents of defunct corporation. Defendant notified its insurance company of a dispute in April 2004; it delivered paper and electronic accounting records to Plaintiff in August 2004; it ceased operations and was evicted from its offices in March 2005 and left behind plaintiff's marketing documents, old prospectuses, and trade publications plus 10 workstations which the landlord disposed but took a server that contained potential evidence in a hidden partition. Suit was filed in May, 2005 and counsel requested the client to produce electronic and hard copy documents. The client did not find electronic documents and advised counsel that none existed. A year later on the eve of trial, the electronic documents were discovered; the client immediately notified counsel who notified opposing counsel. The court found counsel's "deficiencies here to constitute gross negligence" and awarded monetary sanctions against counsel and client.

Counsel "failed in its obligation to locate and timely produce the evidence stored in the server that the ... Defendants took with them .... [Counsel] affirms that it engaged in dialogue with the defendants on the need to locate and gather paper and electronic documents. .... But counsel's obligation is not confined to a request for documents; the duty is to search for sources of information.

It appears that [counsel] never undertook the more methodical survey of the ... Defendants' sources of information ... outlined in Zubulake V. [Counsel] simply accepted the defendants' representation that, because [it] was no longer in operation, there were no computers or electronic collections to search. Had [Counsel] been diligent, it might have asked-as it should have-what had happened to the computers .... Further, [Counsel's] obligation under Zubulake V extends to an inquiry as to whether information was stored on that server and, had the defendants been unable to answer that question, directing that a technician examine the server. In the case of a defunct organization such as SRC, this forensic effort would be no more than the equivalent of questioning the information technology personnel of a live enterprise about how information is stored on the organization's computer system.

....The proposed amendments [to the FRCP] essentially codify the teaching of Zubulake IV & V, of which [Counsel] should have been well aware. I find [Counsel's] deficiencies here to constitute gross negligence.

The trial court held the duty to preserve existed at the time the potential dispute was known by defendants who were also on plaintiff's board which was prior to the abandonment of the property. "Their indifference constituted an act of gross negligence that is not excused by the disarray of their business affairs." But it was not enough for an adverse inference because "I do not find this instance to be one in which gross negligence alone supports an inference that the abandoned evidence was unfavorable". The trial court denied all sanctions except partial monetary compensation. See  2006 WL 2135798 (S.D.N.Y. 2006) re award of  monetary sanctions.

Clare v. Coleman (Parent) Holdings Inc. (Fla.App.4th  Dist.2006.), 928 So.2d 1246,  2006 WL 1409137  Writ issued to strike revocation of pro hac vice status on due process grounds.
"Here, Coleman did not allege misconduct on the part of the petitioner and did not seek revocation of his status in the motion seeking a default against the petitioner's client Morgan Stanley. The idea first arose in a verbal request by Coleman's counsel at the end of the hearing on the motion for an adverse inference. The order resulting from that hearing did not revoke the petitioner's pro hac vice status.
"The petitioner did not have notice and was not given an opportunity to be heard concerning the revocation of his pro hac vice status.
"We can see no value in remanding this case to the trial court. The petitioner is no longer counsel of record, the underlying litigation is currently pending appeal in this court and Coleman neither requested the sanction in writing nor introduced evidence of misconduct on the part of the petitioner at the evidentiary hearing. We therefore grant the petition, issue the writ, and direct the trial court to strike the revocation of the petitioner's pro hac vice status from its order of March 23, 2005."

CP Solutions PTE, Ltd. v. General Elec. Co. Slip Copy, 2006 WL 1272615 (D.Conn.,2006). The trial court declined to preclude use of documents not produced initially per Rule 26 as too harsh a remedy and because Plaintiff did not and the Court could not identify any documents that should have but were not produced. It ordered further production  of some documents.  The trial court noted the FRCP is clear as to two alternatives available for production: by category or as maintained in usual course of business.
Regarding "gibberish" allegedly arising from document created with incompatible software, the trial court held: "To the extent that these documents were created or received by any of the Defendants in a readable format, they must be produced for Plaintiff in a readable, usable format."
"Based on Defendants' representations that disclosure of [PST] files would include privileged information, which they are unable to sort out, and would also involve the production of a “staggering” number of additional documents, the Court declines to order production of these PST files at this time."
The court required the producing party to provide the means to link e-mail with attachments.

Ukiah Automotive Investments v. Mitsubishi Motors of North America  (N.D.Cal.5/17/2006 Slip Copy), 2006 WL 1348562  [ "Accordingly, unless Ukiah is able to produce the relevant documents in electronic form on its own, Ukiah shall produce the computer to an agreed-upon neutral inspector within 30 days from the date of this Order. Any expenses shall be borne by Ukiah."

Wachtel v. Guardian Life Ins. Co. (D.N.J.2006 Slip Copy), 2006 WL 1286189  The crime-fraud exception to attorney-client privilege and work product applies to spoliation of e-mail.   "The Court also finds... Defendants may have used their counsel to delay discovery. Throughout discovery, Plaintiffs expressed concerns... Defendants were not taking all appropriate steps to preserve and produce relevant documents. In response ... Health Net's counsel...stated...'we are familiar with our obligations' and that the company 'has complied with its obligations to preserve evidence.' Despite these assurances, there has been a prima facie showing that Health Net did not have effective procedures in place to ensure the preservation of employees' electronic mail."  
The trial court affirmed an adverse inference instruction due to the failure to preserve and produce e-mails. Among other orders approved, the Magistrate Judge had ordered:

"...defense counsel to 'further ensure that an appropriate communication is sent to those employees who may have responsive documents' and directing them to 'make additional inquiries....'
production of "certifications setting forth (1) their retention policies, (2) steps taken to ensure preservation of information potentially relevant to these cases, (3) a copy of any notice to preserve, (4) a list of individuals to whom the notice was provided, and (5) how the preservation was implemented and monitored;"
"Judge Shwartz noted in her Opinion, 'it appears that many of the Health Net's high-level employees were unaware of either this litigation or their obligation to preserve documents.'"

In the opinion the trial court stated:

At no time did Defendants inform either Plaintiffs or the Magistrate Judge as to how they stored e-mails; the numbers of e-mails needed to be searched; the cost of such search; or a plan for allocating the burden of e-mail production. Had candid disclosures to the Magistrate Judge occurred, an appropriate order could have been tailored to deal with these issues and keep costs down. [fn 6] The huge costs now being complained of could have been minimized by timely compliance when the e-mails were more current.  [FN.6.  Many cost-sharing options could have been available to Defendants at the outset of discovery, had they been candid with the Court about the e-mail policies of Health Net and the expense of producing that discovery.]
Boilerplate objections simply stating “burden” did not constitute remotely adequate notice to the Magistrate Judge or Plaintiffs that the backup tapes were not being searched and that most HNNE employees, if asked to search on their own, could not access e-mails older than 90 days.
Defendants now assert that compliance with this Court's orders will cost them millions of dollars and take months to complete. Although the cost of compliance is indeed high, Defendants have litigated this case without regard to cost when it has been in their interest to do so. The cost Defendants must now incur is a direct result of non-compliant and deceptive discovery tactics and disregard of court orders throughout the course of discovery.
Defendants have made a practice of evasive discovery responses in this litigation and have relied on boilerplate responses, claiming they are sufficiently specific to provide notice to Plaintiffs and the Court when in fact they serve to obfuscate the truth.

FTC v. Ameridebt, Inc., (N.D.Ca. 2006),    2006 U.S. Dist. LEXIS 13687 A motion by a non-party to stay an order denying a motion to quash a subpoena based on estimated volume or attorney fee costs of review was denied. The non-party had been permitted to assert privileges by providing a log. "...the Court is skeptical that the volume is as great as his 'estimate,' and notes that the email could likely be screened efficiently through the use of electronic search terms that the parties agreed upon. The costs of compliance with subpoena for e-mail "...are quantifiable and, if appropriate, can be remedied by cost-shifting."

Kemper Mortg., Inc. v. Russell, (S.D.Ohio 2006), 2006 U.S. Dist. LEXIS 20729  Plaintiff's request for compensation for complying, pursuant to the advice of its own expert, with its duty to preserve was denied because "the Court believes that it is without authority to do so." "One of the unexpected costs of using the electronic tool is that it may become costly to abide by one's duty to preserve evidence, but that is not a cost which can be shifted to the opposing party, at least in the absence of a demand for a litigation hold which seeks court enforcement and/or requests for discovery which can limit the amount of information which needs to be preserved."

Tessera, Inc. v. Micron Technology, Inc. (N.D.Cal.),2006. Slip Copy, 2006 WL 733498. Non-party required to produce parent's electronic database in its physical possession, though cost may be shifted.

 “Control is defined as the legal right to obtain documents upon demand.”[citation] “The party seeking production of the documents bears the burden of proving that the opposing party has such control.” Id.

"Aside from documents from the Korean parent company which are already in possession of the U.S. subsidiary as a result of preceding...litigation, plaintiff Tessera has not shown that [U.S. subsidiary] has the legal right to obtain other documents from [parent] upon demand.

"...the duty by [U.S. subsidiary] to produce documents from its [foreign parent] is limited to existing electronic databases containing documents already in its possession (or that of their counsel).

"...non-party [U.S. Sub] shall produce on DVD-ROMS or hard drives documents derived using specific search terms from databases created for the [prior proceedings] and any related preceding litigation in which the Hynix Semiconductor companies were a party. The following search terms shall be run through electronic document databases for production to plaintiff Tessera: [search terms]. Because [U.S.Sub] has stated that the electronic document database for the FTC investigation of the DRAM industry cannot be electronically searched (beyond the “re” line), [U.S. Sub.]shall produce the entire electronic document database from that investigation on hard drive or DVD-ROM."

Thompson v. Jiffy Lube Intern., Inc. (D.Kan.,2006), Slip Copy, 2006 WL 1174040. Both parties failed to provide adequate information for a decision.

"With respect to the issues of cost and electronic discovery, the limited explanations provided by the parties do not provide sufficient information for the court to determine whether production of the electronic data is unduly burdensome. Unquestionably, producing 100 million vehicle reports dating back to 1997 entails a significant cost; however, the court questions whether defendant considered the most efficient method for producing such information when estimating the cost of generating readable “TIFF” images of vehicle history reports at $10,000,000. Similarly, plaintiffs' conclusory assertion that the information can be produced in “native PST format” and then printed “without any additional costs” is equally unpersuasive. The court is simply unable to determine the reasonable costs of electronic production based on the current record."

The parties were ordered to meet and confer.  "If the parties are unable to reach an agreement, the matter will be set for an evidentiary hearing and, at a minimum, Jiffy Lube must produce witnesses capable of testifying as to the most efficient manner of production and the costs associated with production. Similarly, plaintiff shall produce witnesses capable of addressing production formats and associated costs. The hearing, if necessary, will determine whether production is unduly burdensome and which party will bear the costs of production."

In re Grand Jury Investigation (3d Cir. 2006),  445 F.3d 266, 2006 WL 1044212. Application of crime / fraud exception to attorney-client and work product was affirmed in grand jury proceedings when the attorney advised the executive of receipt of a subpoena and e-mail was subsequently deleted. Such advice was used in "furtherance" of the crime.

"The crime was the "...obstruction of justice by participating in a scheme to delete emails on the computers of the Organization, its officers, and staff. "...the crime-fraud test [requires] that the communication have been “in furtherance” of the crime.

"If, with knowledge of the Government's interest in retrieving any remaining emails, Jane Doe continued to receive emails that were arguably responsive to the subpoena and failed to use her position as an executive of the Organization to direct that all email deletions stop immediately, she may be viewed as furthering the obstruction of the grand jury's investigation or the obstruction of justice.

"...if Jane Doe learned of the Government's interest in certain documents from her conversation with Attorney on January 20, 2005 and subsequently acquiesced in the deletion or destruction of those documents, the second prong of the crime-fraud exception would be satisfied.

"The government does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused. Typically that can be shown by evidence of some activity following the improper consultation, on the part of either the client or the lawyer, to advance the intended crime or fraud.
"...the crime-fraud exception applies even when an attorney is unaware that the client is engaged in or planning a crime."

TIG Ins. Co. v. Giffin Winning Cohen & Bodewes, P.C. 444 F.3d 587, 2006 WL 890763 (7th Cir.2006)  Malpractice case based on discovery failure.  TIG paid Lathom & Watkins $1.2 million to defend against a sanctions motion based in part on an alleged discovery failure by a prior law firm. The motion for sanctions was denied. TGI then sued the prior law firm for malpractice in handling the discovery to recover the $1.2 million it had paid Latham & Watkins. The summary judgment against TGI was affirmed based on lack of reasonable foreseeability that such damages  could be incurred.

Gonzales v. Google, Inc. (N.D.CA. 2006),   234 F.R.D. 674,  2006 WL 778720    At issue in the underlying case is the effectiveness of existing technological protections of children from pornography accessible via search engines. "Apparently, in preparing its defense, the Government initiated a study designed to somehow test the effectiveness of blocking and filtering software." It sought search engine data for its study from non-parties Yahoo, AOL, Microsoft and Google: a "listing of the URLs ...available to a user [and]... the text of users' search queries". Only Google resisted. The scope of the subpoena to Google was significantly reduced prior to the hearing to a random "sample of 50,000 URLs from Google's search index and 5,000 search queries entered by Google's users from Google's query log." In granting discovery of the URLs the Court stated: "Given the broad definition of relevance in Rule 26, and the current narrow scope of the subpoena, despite the vagueness with which the Government has disclosed its study, the
Court gives the Government the benefit of the doubt." The trial court further reduced production, based on a trade secret balancing analysis,  by denying access to any search queries and imposing conditions: 1. "Google shall not be required to disclose proprietary information with respect to its database; 2. The Government shall pay the reasonable cost incurred by Google in the formulation and implementation of the extraction protocol; 3. Any information disclosed in response to this Order shall be subject to the protective order in the underlying case."  The Court addressed several issues of general interest.
NON-PARTY DISCOVERY.   "The Court recognized a "third-party's interest in not being compelled by a subpoena to reveal confidential business information and devote resources to a distant litigation" as "vital". It stated "This Court is particularly concerned anytime enforcement of a subpoena imposes an economic burden on a non-party. Under Rule 45(3)(a), a court may modify or quash a subpoena even for relevant information if it finds that there is an undue burden on the non-party."
CREATIONS OF DATA. "Google argues that it faces an undue burden because it does not maintain search query or URL information in the ordinary course of business in the format requested by the Government.[citation] As a general rule, non-parties are not required to create documents that do not exist, simply for the purposes of discovery. [citation] In this case, however, Google has not represented that it is unable to extract the information requested from its existing systems. Google contends that it must create new code to format and extract query and URL data from many computer banks, in total requiring up to eight full time days of engineering time. Because the Government has agreed to compensate Google for the reasonable costs of production, and given the extremely scaled-down scope of the subpoena as modified, the Court does not find that the technical burden of production excuses Google from complying with the subpoena."
UNDUE BURDEN  The Court recognized undue burden in the form of loss of good will stating "there is a potential burden as to Google's loss of goodwill if Google is forced to disclose search queries to the Government."
TRADE SECRET. A statistically significant sample of Google's search index and Google's query log would have independent economic value from not being known generally to the public. The disclosure of a statistically significant sample of Google's search index or query log may permit competitors to estimate information about Google's indexing methods or Google's users. [citation] By declaration, Google represents that it does not share this information with third parties and it has security procedures to maintain the confidentiality of this information. [citation] At oral argument, counsel for Google acknowledged that samples from its proprietary search index and query log of 50,000 URLs and 5,000 search queries are far less likely to lead to trade secret disclosure than the Government's original requests. Because Google still continues to claim information about its entire search index and entire query log as confidential, the Court will presume that the requested information, as a small sample of proprietary information, may be somewhat commercially sensitive, albeit not independently commercially sensitive. Successive disclosures, whether in this lawsuit or pursuant to subsequent civil subpoenas, in the aggregate could yield confidential commercial information about Google's search index or query log."
The Court concluded that the government had shown a substantial need for a sample of URLs but not for search query text, stating "the actual similarity of the two categories of information sought in their presumed utility to the Government's study indicates that it would be unreasonably cumulative and duplicative to compel Google to hand over both sets of proprietary information." [The court] "determines that the marginal burden of loss of trust by Google's users based on Google's disclosure of its users' search queries to the Government outweighs the duplicative disclosure's likely benefit to the Government's study. Accordingly, the Court grants the Government's motion to compel only as to the sample of 50,000 URLs from Google's search index."

Fischer v, United Parcel Service Co   (E.D.Mich.2006 Slip Copy), 2006 WL 1046973. Discovery of search efforts  "Defendant produced the e-mail, but claims that it is unable to find the attachment. Plaintiff is unwilling to simply accept Defendant's claim and asked to depose someone familiar with Defendant's retrieval efforts. Plaintiff contends that the Magistrate's compromise order that Defendant make the appropriate person available for an informal telephone conference was not clearly erroneous or contrary to law." The district court judge affirmed the magistrate's decision. Note this informal procedure may not be proper under California law but the discovery of search efforts may be.

Floeter v. City of Orlando (M.D.Fla., March 2006 Slip Copy), 2006 WL 1000306 Sexual harassment suit against police department. E-mail issues were addressed in a routine manner on basic discovery issues such as relevancy, privilege and adequacy of factual showing to support legal assertions.
INSPECTION OF HARD DRIVE DENIED "Federal Rule of Civil Procedure 34 permits a party to request documents, but it “does not give the requesting party the right to conduct the actual search.” In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir.2003). Furthermore, Floeter has not made any showing that he has requested information contained on these computer hard drives that the City has failed to produce. Under these circumstances, the motion to compel the City to permit plaintiff's counsel to enter the OPD offices to inspect the computer hard drives of computers used by Lt. Uvalle and Shawn Hayden is DENIED. "
PRIVILEGE LOG DESCRIBED "If responsive documents, or portions thereof, contain privileged information, the City shall produce a privilege log describing each document or portion thereof withheld on the basis of privilege. The privilege log must identify each document withheld pursuant to a claim of privilege by date, author, recipients (including recipients of copies), specific privilege or protection claimed and shall describe the subject matter of each document in sufficient detail to permit opposing counsel and the Court to assess the applicability of the claimed privilege or protection. Fed.R.Civ.P. 26(b)(5); Golden Trade S.r.L. v. Lee Apparel Co., Nos. 90 Civ. 6291(JMC), 90 Civ. 6292(JMC) and 92 Civ. 1667(JMC), 1992 WL 367070, at *5 (S.D.N.Y. Nov. 20, 1992) (quoting von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.1987))."
TIMING & BURDEN OF PROOF TO PROTECT DOCUMENTS "Because the burden of establishing the existence of confidential and privileged information lies with the party asserting the objection, it was incumbent upon the City to seek a protective order before the date on which responses were due to the discovery request, to produce the documents, and, with respect to privileged documents, or portions thereof, to produce a privilege log."

Liturgical Publications, Inc. v. Karides (Wis.App.2006 Unpublished), 2006 WL 931892   "Six days after the filing of the summons and complaint, it denied Liturgical's motion for discovery and forensic inspection of the business and personal computers of [former employees] on the ground that no basis had been shown for concluding that information relevant to this case was on those computers.... [Later the Court] ordered that a referee would be appointed to supervise the making of the mirror images and inspection. In response to testimony from Liturgical's expert as to how an inspection could be performed, the trial court ordered that the inspection of the mirror images would be limited to a hash value search, comparing hash values of materials on the defendants' computers to hash values on the Liturgical computers..."When the hash value search did not result in any matches, Liturgical moved the trial court to compel the defendants to submit to a second inspection of the mirror images with defined search parameters, including a search for specified words, evidence of reformatting, evidence of wiping or deleting files, folders or utilities, and evidence of other computer activity.... The trial court denied the motion...."
Although alterations of discoverable documents would change the hash values, expensive discovery to date had yielded nothing and the the court held further discovery would be unreasonable.

Static Control Components, Inc. v. Lexmark Intern., Inc. (E.D.Ky.2006.Slip Copy),  2006 WL 897218 "The Magistrate Judge concludes that Lexmark is obligated to produce its ...database... in a reasonably usable form.... [citation]. The Federal Rules do not permit Lexmark to hide behind its peculiar computer system as an excuse for not producing this information to SCC. [case citations] Thus, SCC's motion to compel the production of the database [was granted subject to protective order for proprietary information]. Plaintiff sought "customer questions, complaints, comments, and communications" which were "maintained [in a] ...customer inquiry database: (a) in a form that is not text-searchable; (b) using software that is no longer commercially available; and (c) software which it modified for its own use. Therefore, 'production of relevant records from [defendant's] database prior to November 2004 in hard copy format was not reasonably possible.' ” Defendant offered to make it available for search "... under the following conditions: (1) at [defendant's] facilities; (2) with the ability for [plaintiff] to print from the database (which printouts were to be left with [defendnat's] counsel for review...; (3) [proprietary information subject to protective order]and (4) [non-waiver of privileges]. The terms prevented adequate review without additional information.

Creative Science Systems, Inc. v. Forex Capital Markets, LLC.   (N.D.Ca. 2006.Slip Copy), 2006 WL 870973 A broad protective order was issued in a software copyright case involving installation of software on too many computers. The requested adverse inference sanctions were considered excessive but monetary sanctions were imposed.

While it is possible to conclude from the evidence that FXCM's reinstallation of operating systems on certain servers was done in willful disregard of the Preservation Order, it is not clear that this is the only conclusion that could or should be reached. FXCM has provided evidence supporting the alternative explanation that its actions were motivated by the need to test and install new middleware.
The evidentiary sanctions requested by CSS would not restore CSS to the position that it would have been in prior to the alleged destruction of evidence. CSS requests that the Court instruct the jury that “it should (i) infer that FXCM installed the software program NetZyme on 45 additional computers, because FXCM reinstalled operating systems upon some or all of those computers after the Court's September 10, 2005 Order Preserving Evidence and Shortening Time for Discovery.” FXCM appropriately describes this evidentiary presumption as a potential “windfall” for CSS. Based on detailed evidence with respect to only five servers, CSS would require the jury to reach a conclusion about forty additional servers. Considering the extremely prejudicial impact that this sanction would have on FXCM, the Court concludes that this requested evidentiary presumption is not justified.****
"However, while the record does not contain convincing evidence that the reinstallations were motivated by bad faith, the Court does conclude the failure of FXCM and its counsel to take affirmative steps to comply with the Preservation Order-which would have caused FXCM not to reinstall the operating systems on the servers at issue-is evidence of at least some degree of bad faith. As it indicated during oral argument, the Court concludes that the appropriate resolution of the instant request for sanctions is that FXCM be required to bear the cost of analyzing those servers that have been copied but not yet analyzed. This will serve the dual purposes of sanctioning FXCM for its noncompliance with the Preservation Order and producing more precise information about the installation of NetZyme."

Rodriguez v. City of Fresno (E.D.Cal.2006 slip op.), 2006 WL 903675 ["Request for Production Numbers ... seek metadata for documents regarding the events .... Although Defendants point to Exhibit K as responsive to these requests, the document does not identify what changes were made to the documents. By way of the declaration..., Defendants estimate that it would take approximately eight hours to gather the requested metadata. This amount of time is not unreasonable. Accordingly, Defendants must produce the requested metadata.
"....Defendants shall produce these documents to the extent they have them in an electronic format. This includes email communications, radio communications and unit-to-unit electronic communications."]

Bergersen v. Shelter Mut. Ins. Co. (D.Kan.2006. Slip Copy), 2006 WL 334675 Dictim re production on CD is not production of documents “as they are kept in the usual course of business.” though motion denied as untimely.

Defendants have provided Plaintiff with three CDs containing a total of 7,253 documents which, according to Plaintiff, are not “kept in any perceivable sequential order.”... Plaintiff argues that this does not comply with Fed.R.Civ.P. 34(b), which requires a party producing documents for inspection to produce them “as they are kept in the usual course of business or ··· organize and label them to correspond with the categories in the request.” This provision was specifically designed to prevent parties from “deliberately ··· mix[ing] critical documents with others in the hope of obscuring significance.” See Advisory Committee Note for 1980 Amendment to Rule 34 (quoting Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association (1977)).

....a party who chooses the 34(b) option to produce documents as they are kept in the ordinary course of business bears the burden of showing that the documents were in fact produced in that manner. A mere assertion that they were so produced is not sufficient to carry that burden. In addition, merely categorizing the documents produced does not, without some further explanation, satisfy the requirement that they be produced as kept in the usual course of business.Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D.Kan.2005). Thus, the Court does not accept Defendants' assertion of their duty in this case.
It is clear that the documents produced by Defendants were not produced “as they are kept in the usual course of business.” Instead, at least some of the documents were kept as hard-copies, but were then scanned onto a CD for production. When this is done, a receiving party may not be able to determine which specific images comprise a single document or attachments to a document since there are no staples which bind together the scanned images as they would hard copies in a file. Faced with problems such as this, some courts have required a producing party to label, organize or index documents being produced, if doing so is necessary to make the documents usable by the requesting party. [citation]  Parties producing documents electronically often enter into agreed orders concerning the protocol to be followed. [citation] Those agreements may contain provisions for (1) keying which documents were produced from electronic files and which were scanned from hard-copy files, (2) keeping multi-page documents as a unit, (3) providing source information which identifies, where possible, the custodian of a particular document or set of documents, etc. ....

Select Medical Corp. v. Hardaway  2006 WL 859741 (E.D.Pa.2006 Slip Copy)  Although defendant destroyed potential evidence on its computer [trade secrets], an adverse inference was denied since there was no "finding of fault" because there was inadequate showing of intent to impair access to evidence [the motive was to comply with a duty not to take trade secrets] or prejudice to plaintiff. "The evidentiary rationale for the spoliation inference is nothing more than the common sense observation that a party who proceeds to destroy evidence relevant to litigation, is more likely to have been threatened by that evidence than is a party in the same position who does not destroy the evidence.   Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir.1994)."

Balboa Threadworks, Inc. v. Ronald A. Stucky 2006 WL 763668 (D.Kan.2006) The court reviewed prior case law regarding the showing required to permit imaging of hard drives. The court found sufficient basis to permit mirror imaging of all computers, including those not normally used in the business, because copyrighted material had been downloaded from a computer and evidence might exist on any of the computers. No search was permitted until counsel agreed on a search protocol that protected confidential and personal information that was not relevant. The Court recognized that some showing must be made to mirror image a computer that there is a likelihood of it containing discoverable evidence. It criticized the vague expert declaration:

"Plaintiffs have produced no affidavits to support their arguments that Defendants have purportedly deleted information from some of their computers. Instead, they submit an affidavit of a computer expert which only outlines, in general terms, why he believes it is important to collect digital and electronic evidence early in a case in order to avoid the possibility that relevant files are deleted or other residual data is overwritten or otherwise destroyed during normal computer use."

Henry v. IAC/Interactive Group and Expedia, Inc., 2006 WL 354971 (W.D.Wash.2006)  Privilgeged documents on company computer  Employer sought return of its documents and computer from a former employee claiming breach of contract to return such property and misappropriation of trade secrets. Employee was allowed to use the company computer and e-mail server while on leave, before terminated, and before lawsuit. She communicated with her attorney via email during that period and some privileged documents were on the computer. The court issued a preliminary injunction requiring return of the computer and all company documents but allowed the employee's computer expert to remove the employee's privileged documents from the computer and provide a log to the employer

Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L 2006 WL 665005 (N.D.Ill.2006) TIFF rejected when Producing party elected to produce as maintained in the normal course. Producing party insisted inspection occur on site. After inspection, Requesting party wanted data produced in electronic form as maintained in normal course of business. Producer first wanted to print hard copies and ultimately provided TIFF images. The trial court rejected production of TIFF images and required production in the same electronic form as maintained in the business. The trial court rejected the need to bate stamp argument and noted that the "parties agree that, unlike the original electronic media, the TIFF documents do not contain information such as the creation and modification dates of a document, e-mail attachments and recipients, and metadata." "Plaintiff claims that the TIFF documents are inadequate reproductions that (1) lack clarity and color, (2) lack metadata that track when a document was created or modified and whether e-mails contained attachments and to whom they were sent, (3) lack clear indications as to where each document starts and stops (i.e., the TIFF pages all run together and make it difficult to determine which pages are part of one document), (4) lack clear indications as to which documents are stored together on the original compact discs and DVDs (i.e., over sixty original compact discs and DVDs were reduced to four compact discs containing TIFF documents), and (5) make it impossible for Plaintiff to use search terms to quickly and efficiently search through the documents electronically."

Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). The trial court denied production of a database "because it is unclear how a party could go about producing "a database," which ordinarily is a dynamic collection of data that changes over time. It denied without prejudice a request for access to the database in order to generate its own information or reports provided there was an "adequate showing of need, and with adequate procedural safeguards in place to minimize business disruption and to restrict disclosure of irrelevant or proprietary material

United States ex rel Tyson v. Amerigroup Ill., Inc. (N.D.Ill.2005), 2005 U.S. Dist. LEXIS 24929. Motion to quash production of e-mails of 3 employees of a non-party governmental agency was granted on grounds of relevance and undue burden despite (1) the requesting party's offer to pay the costs, (2) the limit of search efforts to certain terms, and (3) the limitation to one year. 
The trial court noted a stronger mandate to protect non-parties from burden:

Rule 45(c)(3)(A)(iv) mandates that a court "shall quash or modify" a subpoena if it "subjects a person to undue burden." The Advisory Committee's Notes to the 1991 amendments to Rule 45 make clear that the amendments have "enlarged the protections afforded persons who are required to assist the court by giving information or evidence." The rule "requires the court to protect all persons from undue burden imposed by the use of the subpoena power." Id. This is not the discretionary language of Rule 26(c), under which a court "may make any order which justice requires to protect a party or person from . . . undue burden . . . ." It is a "command[]." Heidelberg Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003).
In keeping with the text and purpose of Rule 45(c)(3)(A), it has been consistently held that "non-party status" is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue. See N.C. Right to Life, Inc. v. Leake, -- F.R.D. --, 2005 U.S. Dist. LEXIS 22554, 2005 WL 2456982 (D.D.C. Oct. 6, 2005); Wyoming v. United States Dep't of Agric., 208 F.R.D. 449, 452 (D.D.C. 2002); In re Automotive Refinishing Paint, 229 F.R.D. 482, 495 (E.D.Pa. 2005). As the First Circuit has explained:

Although discovery is by definition invasive, parties to a law suit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.

Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998) (Emphasis added). Here, the "unique burden" of restoring the email records and the "special weight" to be accorded HFS's non-party status combine to require that the defendants' subpoena be quashed under Rule 45(c)(3)(A)(iv).

Burden is not limited to out of pocket expenses.

"It is not a decisive answer to say that the defendants have offered pay the costs that might be incurred in retrieving the emails. Expense is but a part of the burden. As Mr. Petty's uncontested affidavit indicates, the process of retrieving the emails also entails the extensive use of equipment and internal man-power. It will take six weeks to restore and review the data of just one of the three individual's email accounts. The entire project, then, will entail eighteen weeks of effort. To be sure, one can imagine the use of three dedicated servers to perform each of the six weeks of restoration work concurrently, but the end result is still eighteen weeks of man-power and eighteen weeks of use of the necessary equipment. That burden, which is undeniably substantial, exists independently of the monetary costs entailed."

The burden of proof is on the objecting party and undue burden is not presumed merely because electronic information is the subject matter. "There must be affirmative and compelling proof. Ipse dixits will not suffice. [citations] HFS has provided such evidence in the form of the affidavit of a testimonially competent HFS employee." Also, the requesting party must supply some evidence in support of its position. The court reviewed the detailed explanation provided by one expert as to the efforts and costs involved in producing the e-mails and then noted the opponents deficiencies:

"Significantly, the defendants do not challenge any of Mr. Perry's assertions. This omission, they claimed at oral argument, was the inevitable result of having no familiarity with the internal systems used at HFS. The argument is unpersuasive. The defendants could have sought leave to depose Mr. Perry, and, of course, they could have retained an expert of their own to opine on the validity of Mr. Perry's statements -- at least in a general sense. "
"The defendants have dealt with the question of undue burden by essentially ignoring its existence. This mode of dealing with potentially dispositive argument is as "pointless" as is ignoring potentially dispositive authority that is contrary to a party's position. [citations] While ignoring the question of burdens, the defendants have not cited not a single case in which a non-party was subjected to the significant burden of restoring electronic data from backup tapes."

Nova Measuring Instruments Ltd. v. Nanometrics, Inc.,  417 F.Supp.2d 1121,   2006 WL 524708 (N.D.Cal. 2006) "...Nanometrics offers no reason why the documents should not be produced in their native format. Indeed... it has agreed to do so. ....if it has not already done so, it must produce the documents in their native file format, with original metadata. See In re Verisign, 2004 WL 2445243 at 1 (N.D.Cal.2004)(upholding discovery orders requiring production of documents in native format with metadata as not clearly erroneous: " '[t]he electronic version must include metadata as well as be searchable')". See also In re Honeywell International, Inc., 230 F.R.D. 293, 296 (S.D.N.Y.2003).

International Airport Centers, L.L.C. v. Citrin    440 F.3d 418, 2006 WL 548995 (7th Cir.2006) Employee unauthorized destruction of data on employer's laptop may violate the Computer Fraud and Abuse Act

Procter & Gamble v. Haugen (10th Cir. 2005), 427 F.3d 727.  District Court sanctions order for failing to preserve and produce electronic data was reversed when the trial court had failed to address and clarifiy what preservation efforts were required and what had to be preserved or produced.  "Given these circumstances, it is simply unclear what the district court considered P&G's duties to have been regarding preservation and production of the IRI-related data. In turn, it is impossible to conclude that P&G acted with the requisite culpability to justify the sanction of dismissal."

Gilliam v. Addicts Rehabilitation Center Fund, Inc. Slip Copy, 2006 WL 228874  Not Reported in F.Supp.2d (S.D.N.Y.2006). Court relied on FRCP Rule One to justify prompt disclosure, while noting that producing party had already had 4 months to review documents.Privacy objection to producing electronic records was rejected since the information was routinely shared with an outside contractor and requesting party had agreed to a confidentiality order. Offer to produce in paper form was rejected by the court noting "...discs could then be reviewed in a more efficient manner and the sensitive information skipped by the reviewer(s). Admittedly, this means that the individual reviewing the computer files could look at the personal data, but the confidentiality order addresses this concern."

Treppel v. Biovail Corp.    233 F.R.D. 363 , 2006 WL 278170  (S.D.N.Y. Feb. 6, 2006). Plaintiff in defamation action sought various discovery orders including a preservation order. The court noted 3 judicial approaches in federal courts for issuing preservation orders: (1) the injunction standard requiring a showing of irreparable damages and likely success on the merits; (2) the balancing approach considering all facts and such factors as the concern that relevant evidence would be lost, irreparable harm and the ability and cost of preservation [see Capricon Power case]; and (3) the standard of necessary and not unduly burdensome. The Court applied the balancing test and denied the protective order since there was no showing of danger of destruction or loss of relevant evidence absent such order and no showing that the order would not be unduly burdensome while the proposed order appeared to be so on its face. The Court recognized the possibility of shifting some or all costs of preservation but did not reach the issue.
The Court ordered answers to inquiries re document retention and storage.
The Court addressed the search obligation of a party responding to document requests stating "...it must conduct a diligent search, which involves developing a reasonably comprehensive search strategy. Such a strategy might, for example, include identifying key employees and reviewing any of their files that are likely to be relevant to the claims in the litigation." A Responding party need not search "every scrap of paper." A requesting party need not agree to search terms and scope. "Absent agreement ...about a search strategy, [responding party] should have proceeded unilaterally, producing all responsive documents located by its search. It shall now do so promptly. In addition, [responding party] shall provide the plaintiff with a detailed explanation of the search protocol it implements."

Paramount Pictures Corp. v. Davis (E.D.Pa.2005),  234 F.R.D. 102,  2005 U.S. Dist. LEXIS 31065 (12/2/05) Defendant wiped crucial evidence from his hard drive upon learning of the law suit. Although the court determined spoliation sanctions were justified, it declined to establish facts as a spoliation sanction in the procedural context of a summary judgment motion. It also found other material issues of fact precluding summary judgment. The court found defendant knew or should have known the hard drive was potential and crucial evidence prior to destroying the evidence. It also found a spoliation inference was appropriate but declined to impose any spoliation remedy at the time. "The spoliation inference sanction is appropriate in this case because...the information stored on the computer was within Davis' exclusive control, he destroyed that information by wiping his hard drive clean after receiving notice of this action, the information destroyed was relevant to Paramount's copyright infringement claim, and Davis knew or should have known that the information stored on his computer would later be necessary to confirm any copyright infringement or to demonstrate that he had not infringed on Paramount's copyright."

At fn. 3, the court noted alternative remedies and functions thereof that could result from spoliation.

"There is no rule of law mandating a particular sanction upon a finding of improper destruction or loss of evidence; rather, such a decision is left to the discretion of the Court. .... [A court is] guided by the following factors: "(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future." In choosing an appropriate sanction for the spoliation of evidence, courts should "select the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim."[citations] ("A sanction that has the 'drastic' result of judgment being entered against the party who has lost or destroyed evidence must be regarded as a 'last resort,' to be imposed only if no alternative remedy by way of a lesser, but equally efficient sanction is available.")..."

Plaintiff claims defendant willfully and knowingly obtaining an illegal digital copy of the motion picture and making the motion picture available for digital distribution via an internet distribution system. The IP address identified the ISP which identified the defendant as a user at the time of making the digital copy available on a peer to peer network. The ISP notified the defendant that his identification would be revealed and 16 days later defendant's hard drive was wiped, destroying potential evidence before service and discovery commenced. [Should plaintiff have obtained a restraining order or at least have sent a preservation letter?]
See also McDowell v. Government of Dist. of Columbia, 233 F.R.D. 192, 2006 WL 302643 (D.D.C.,2006) where the court employed the term "summary judgment" when dealing with terminating sanctions.

In Re Old Banc One Shareholders Securities Litigation (N.D.Ill.2005), 2005 U.S. Dist. LEXIS 32154. Spoliation claim based on failure to create, disseminate and enforce a comprehensive document retention policy. Preventing cross examination of plaintiff's expert was sufficient to remedy to prejudice to plaintiff.

In Re: Priceline.com Inc., Securities Litigation (D.Conn.2005), 2005 U.S. Dist. LEXIS 32154 The Court provided guidelines for production when it was anticipated that expensive restoration and production of back-up tapes was required and cost shifting was a potential issue. It suggested it would expect justification of the need for discovery and the of the costs incurred.

"The following directives are meant to provide guidance to the parties at this stage of the proceedings.

1. Defendants shall retain possession of the original data through the restoration, data management, and document review stages.
2. Restoration of backup tapes shall proceed on a measured basis, with cost-shifting determinations made at each step of the process.
3. No party shall waive any claim that information contained on a computer file is privileged because that party produced an inventory, spreadsheet, or other survey of the contents of an item upon which data is stored.
4. Defendants shall produce responsive information contained in stored data files to plaintiffs in TIFF or PDF form with Bates numbering and appropriate confidentiality designations, shall produce searchable metadata databases, and shall maintain the original data itself in native format for the duration of the litigation.
5. Defendants shall begin to produce responsive information from the e-mail files of the 113 individuals and the remainder of the snapshot in the manner consistent with the preceding directive.
6. If one party seeks relief from the court concerning the scope of information searched or produced, the party producing the information shall not delay working toward the production of information that is not in dispute.
7. Beginning in January of 2006, defendants shall file a status report on the production of electronic information on or before the tenth day of each month, or the first business day thereafter, setting forth the following information:

a. What percentage of the responsive information from the 113 employee e-mail files has been produced.
b. The status of the review and production of the remainder of the information on the snapshot.
c. The status of the selection of backup tapes for restoration.
d. The status of the restoration of backup tapes selected for restoration.

8. Cost-shifting shall be applied for in the method set forth in the proposed revisions to Rule 26(b)(2) and the Committee Note attendant thereto, as detailed by the Report of the Civil Rules Advisory Committee, which has been approved by the Judicial Conference and submitted to the U.S. Supreme Court on September 20, 2005. The court will apply the analysis set forth in the proposed revisions and Committee Note in determining the propriety of cost-shifting."

Hopson v. Mayor and City Council of Baltimore (D.Md.,2005), 232 F.R.D. 228, 2005 WL 3157949, 2005 U.S. Dist. LEXIS 29882 Although the only ruling required the parties to meet and confer, the court addressed a major discovery issue compounded by the volume of electronic documents: full review by a lawyer and particularized assertion of privilege as to each document can result in huge costs and unacceptable delay in discovery while review takes place. The Court suggested a procedure whereby the parties would propose an acceptable review procedure, reasonable under all relevant circumstances, that would be reviewed by the Court. If approved upon independent review, the Court would order production subject to that reasonable but limited review and would provide that any revelation of privileged documents pursuant to that production order would not constitute a waiver of privilege since production would be compelled by court order. First, the Court noted the impropriety of serving boilerplate, general objections and of claiming burden without supporting it with a factual declaration quantifying the burden and cost.

"...objections, however, were boilerplate, general objections, rather than specific ones, as required by Fed. R. Civ. P. Rule 33(b)(4) and Rule 34 See Hall v. Sullivan, F.R.D. , 2005 WL 2621903 (D. Md. Oct. 11, 2005)."

Second, it noted the danger posed by the proposed federal rules 26(f) and 16 that suggest parties reach an agreement that disclosure would not constitute a waiver.

"Absent a definitive ruling on the waiver issue, no prudent party would agree to follow the procedures recommended in the proposed rule. And, as already noted, parties, with the apparent encouragement of courts, have been using these procedures even in advance of the adoption of rule changes authorizing them."

Menke v. Broward County School Bd.  916 So.2d 8, 2005 WL 2373923 (Fla.App. 4 Dist.2005).  Order for production of home computers vacated. Production of home computers for examination by the party’s expert to search for specific relevant evidence without provisions for objections and protection of privileged, confidential and private information violates the rights of the party and his family regarding self-incrimination, privileges, privacy. The order had allowed an agent of the producing party to be present and object as to privileged documents but the court noted that the agent of the requesting party would have seen such documents in the course of the inspection.

The relied on Strasser v. Yalamanchi, 669 So.2d 1142, 1145 (Fla. 4th DCA 1996):

“If plaintiff can present evidence to demonstrate the likelihood of retrieving purged information, and if the trial court finds that there is no other less intrusive manner to obtain the information, then the computer search might be appropriate. In such an event, the order must define parameters of time and scope, and must place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to defendant's computer and data bases…. Thus, intrusive searching of the entire computer by an opposing party should not be the first means of obtaining the relevant information.
Where a need for electronically stored information is demanded, such searching should first be done by defendant so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case. Id.  In fact, in the few cases we have found across the country permitting access to another party's computer, all have been in situations where evidence of intentional deletion of data was present.”

The court noted the lack of particularity in the request for wholesale production:

 “In civil litigation, we have never heard of a discovery request which would simply ask a party litigant to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation.”

Harbuck v. Teets 152 Fed.Appx. 846,  2005 WL 2510229 (11^th Cir. 2005)  Court IT personnel appointed as neutral to evaluate e-data production.
Plaintiff  requested for an adverse inference for failure to produce data accusing  Defendant of “deliberately deleting e-mails and destroying documents”. The trial court appointed its own computer personnel to review production of e-data and determined full production had occurred. The trial court found the “court's personnel had no problems retrieving the information from the data” and there was “no reason to believe the Air Force was hiding any information”. The adverse inference request was denied and summary judgment was granted against Plaintiff. Affirmed.

 “First, Harbuck asserts '[w]hen the [district court] allowed its own personnel to evaluate the computer data without the presence of either counsel and without the benefit of examination of the witnesses, the [district court] prejudiced the entire case. The [district court] could have appointed a neutral person to evaluate the data, and subjected that neutral person to cross examination as to the person's methodology and retrieval methods.'  Harbuck has failed to cite any authority to support the assertion the district court could not review the data. The district court is a neutral party in the case. Harbuck does not claim the district court had any improper agenda in having its personnel evaluate the data. We conclude this contention is without merit, and the district court did not abuse its discretion in having its personnel evaluate the data.”

APPLICATION FOR PEN REGISTER AND TRAP/TRACE DEVICE WITH CELL SITE LOCATION AUTHORITY 396 F.Supp.2d 747, 2005 WL 2656621 (S.D.Tex.,2005) Tracking locations of cell phones. Order authorizing government surveillance by tracking of cell phone location requires probable cause showing rather than mere certification by government that information likely to be obtained "is relevant to an ongoing criminal investigation." Case provides a description of how cell phones track locations. It is the second federal district to reject the government practice of obtaining surveillance tracking authorizing orders on mere certification without a probable cause showing. Sell also In re Authorizing the Use of a Pen Register  396 F.Supp.2d 294, 2005 WL 2739208 (E.D.N.Y. Oct 24, 2005

Williams v. Sprint/United Management Co.,  230 F.R.D. 640, 2005 WL 2401626 (D.Kan.,2005) discovery of metadata.   The Court ordered Defendant to "produce the electronic spreadsheets in the manner in which they were maintained, which includes the spreadsheets' metadata." The court denied sanctions for the "scrubbing" of metadata and the locking of certain data on electronic spreadsheets prior to production because "the production of metadata is a new and largely undeveloped area of the law." The Court also held: "Any assertion of attorney-client privilege or work product protection with regard to the metadata contained within these Excel spreadsheets, other than the metadata directly corresponding to the adverse impact analyses and social security number information, is deemed waived due to Defendant's failure to object and produce a privilege log regarding the metadata." In the decision, the court discusses the nature of metadata, alternative approaches to discovery and general guidelines.

Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D.Md.,2005) Duty to preserve arises when actual notice is received of claim that is likely to or could result in litigation.  Decision suggests complaint to direct supervisors was sufficient notice to trigger preservation hold duty. As sanctions, the court limited evidence, gave an adverse inference instruction and imposed monetary sanctions for spoliations when defendant  failed to suspend normal destruction and preserve documentss when notice of a potential claim was  received, failed to preserve any e-mails, failed to send company wide notice to preserve and failed to preserve basic personnel documents e.g. employee evaluations, investigative files, and company plans affecting employees. "Echostar clearly acted in bad faith in its failure to suspend its email and data destruction policy or preserve essential personnel documents in order to fulfill its duty to preserve the relevant documentation for purposes of potential litigation. These bad faith actions prejudiced Broccoli in his attempts to litigate his claims and measurably increased the costs for him to do so."  Although Echostar had an extremely short period for destruction of all e-mail  and records of terminated exployees, the retension policy alone did not give rise to sanctions though the court observed "under normal circumstances, such a policy may be a risky but arguably defensible business practice undeserving of sanctions."

Arthur Andersen v. United States [5/31/05] 544 U.S.  125 S.Ct. 2129 Interpreting a federal criminal statute prohibiting acts intended to cause evidence to be withheld from an official proceeding, the court disapproved of a jury instruction that could impose criminal liability on one who innocently, honestly and sincerely believed they were acting lawfully. The court expressed concern that the instruction could impose criminal liability on one advising a person to exercise a 5th amendment right or attorney-client privilege.

The case has attracted the attention of civil lawyers because it involved instructions to comply with a company document retention policy when it was aware of an impending SEC investigation. However, the case before the court involved criminal prosecution, interpretation of a specific statute and an expansion of criminal liability to persons lacking knowledge or intent to do wrong. It did not involve spoliation or discovery sanctions. At page 9 the Court stated:.

"Only persons conscious of wrongdoing can be said to "knowingly. . .corruptly persuad[e]." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of "culpability . . . we usually require in order to impose criminal liability." United Statesv. Aguilar, 515 U. S., at 602; see also Liparota v. United States, supra, at 426.

The outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing.

For civil lawyers the court did observe at page 7:

Document retention policies,. which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. .... It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.

At page 11, the court commented on forseeability and referred to "particular...proceedings":

It is, however, one thing to say that a proceeding "need not be pending or about to be instituted at the time of the offense," and quite another to say a proceeding need not even be foreseen. A "knowingly . . . corrup[t] persaude[r]" cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.

AdvantaCare Health Partners, LP v. Access IV, 2004 U.S. Dist. LEXIS 16835 (N.D.Ca.2005) N.D. Ca spoliation sanctions for failure to preserve potential evidence. Review of 9th Circuit spoliation case law .
Former employees copied files prior to leaving to start competing business. They violated a TRO and preliminary injunction to preserve evidence and to return confidential or proprietary information. Prior to producing hard drives, defendants had search for and downloaded wipe software to delete files and had deleted thousands of files. While imposing evidentiary and monetary sanctions for spoliation, the court reviewed 9th Circuit law on spoliation. The Court's inherent power to sanction may be invoked in response to destruction of evidence: a default judgment, instruct the jury that it may draw an inference adverse to the party responsible for destroying the evidence, civil contempt sanctions, and attorney's fees. "When choosing among possible sanctions, the Court should consider a sanction designed to: (1) penalize those whose conduct may be deemed to warrant such a sanction; (2) deter parties from engaging in the sanctioned conduct; (3) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (4) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party."

Coleman (Parent) Holdings Inc. v. Morgan Stanley, Inc., 2005 WL 674885 (Fla.Cir.Ct., 2005.)  (Fla. Cir. Ct. Mar. 1, 2005)   A Florida circuit court determined Morgan Stanley had failed to preserve and produce e-mails and essentially imposed sanctions establishing the factual allegations in the complaint. The Court also imposed monetary sanctions and revoked the pro hac vice admission of counsel. See also the earlier opinion at  2005 WL 679071. A $1.4 billion judgment was enterred and the Wall Street Journal reported on May 16, 2005 that notice of malpractice claim had been given. Morgan Stanley has appealed but the lesson to lawyers and parties remains: failure to properly conduct discovery regarding electronic data can lead to huge malpractice claims against any law firm.

In re Verisign, Inc. Securities Litigation, 2004 WL 2445243 (N.D.Cal.,2004) Production in native format with metadata. ORDER: produce documents in electronic form, documents in "pst" format must be produced in that native format, TIFF version alone is insufficient, metadata must be included, document must be searchable. Court rejected argument of cost burden based on costs of redactions and "bates" stamp and argument that expense had already been incurred in conversion to TIFF and cost of conversion back to pst would be unduly burdensome.

Hagemeyer North America Inc v. Gateway Data Sciences Corporation, (E.D.Wis. 8/12/04) [Documents in storage are produced in the manner such documents are kept in the normal course of business by making them available in that location; Court reviewed recent case law on cost shifting and followed the sampling approach of Zubulake I and expressed an intent to follow the 8 factor test set forth in Zubulake

Wiginton v. CB Richard Ellis, Inc. ( N.D.Ill.,2004.), 2004 WL 1895122
In a class action sexual harassment case involving discovery of e-mail on backup tapes for evidence of a hostile environment, the court shifted 75% of the $184-250,000 estimated costs to plaintiff. The court added a factor to the Zubulake list, "the importance of the requested discovery in resolving the issues of the litigation", and it emphasized  the importance of the proportionality test. The court considered the factors set forth in the FRCP and the Rowe and Zubulake cases. It found 5 factors including the two most important re marginal utility, favoring cost shifting [though 4 only slightly], 2 neutral and 1 against.

Multitechnology Services, L.P. v. Verizon Southwest f/k/a GTE Southwest Inc.(N.D.Tex.2004), 2004 WL 1553480, 2004 U.S. Dist. LEXIS 12957 .   The court split the estimated $60,000 cost of obtaining information from the responding party's computer databases or archives. Plaintiff sought answers to interrogatories from defendant regarding its customers. The electronic information was contained on defendant's "computer databases or archives". Defendant's estimate of the cost of obtaining the information was $100,000 but the estimate was reduced to $60,000. Defendant moved for a protective order due to the undue burden. The court did not apply the "accessibility" test suggested in Zubulake noting that the case is not binding. It noted that even under the Zubulake factors some division of the undue burden was appropriate. See also Open TV v. Liberate Technologies (N.D.Cal. 11/18/03), C 02-0655 JSW (MEJ) where the court split the retrieval costs after reviewing the Zubulake factors.

United States v. Philip Morris USA (DC D 7/21/04) After a preservation order was entered and, contrary to the company document retention policy, the e-mail of key players was systematically deleted every month for two years. Because of what the court termed "reckless disregard and gross indifference displayed by Philip Morris and Altria Group toward their discovery and document preservation obligations" the companies were sanctioned to pay $2,750,000 and 11 corporate offices were ordered to pay $250,000 each. In addition, the court precluded testimony by an expert and other witnesses who failed to comply with the company document retention policy and the court's general preservation order. The court declined to grant an adverse inference sanction because it concluded the requested order lacked proportionality. It precluded another adverse inference because it believed the request unnecessary since it did not go to a valid defense.

Zubulake v. UBS Warburg (SDNY 7/20/04)
THE CONCLUSION OF THE COURT IN ZUBULAKE V
"In sum, counsel has a duty to effectively communicate to her client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify sources of discoverable information. This will usually entail speaking directly with the key players in the litigation, as well as the client’s information technology personnel. In addition, when the duty to preserve attaches, counsel must put in place a litigation hold and make that known to all relevant employees by communicating with them directly. The litigation hold instructions must be reiterated regularly and compliance must be monitored. Counsel must also call for employees to produce copies of relevant electronic evidence, and must arrange for the segregation and safeguarding of any archival media (e.g., backup tapes) that the party has a duty to preserve.

Once counsel takes these steps (or once a court order is in place), a party is fully on notice of its discovery obligations. If a party acts contrary to counsel’s instructions or to a court’s order, it acts at its own peril.

UBS failed to preserve relevant e-mails, even after receiving adequate warnings from counsel, resulting in the production of some relevant e-mails almost two years after they were initially requested, and resulting in the complete destruction of others. For that reason, Zubulake’s motion is granted and sanctions are warranted. UBS is ordered to: <>

1. Pay for the re-deposition of relevant UBS personnel, limited to the subject of the newly-discovered e-mails; <>
2. Restore and produce relevant documents from Varsano’sAugust 2001 backup tape;
3. Pay for the re-deposition of Varsano and Tong, limited to the new material produced from Varsano’s August 2001 backup tape; and
4. Pay all “reasonable expenses, including attorney’s fees,” incurred by Zubulake in connection with the making of this motion.

In addition, I will give the following instruction to the jury that hears this case:

You have heard that UBS failed to produce some of the e-mails sent or received by UBS personnel in August and September 2001. Plaintiff has argued that this evidence was in defendants’ control and would have proven facts material to the matter in controversy.

If you find that UBS could have produced this evidence, and that the evidence was within its control, and that the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would<>have been unfavorable to UBS.

In deciding whether to draw this inference, you should consider whether the evidence not produced would merely have duplicated other evidence already before you. You may also consider  <>whether you are satisfied that UBS’s failure to produce this information was reasonable. Again, any inference you decide to draw should be based on all of the facts and circumstances in this case.

Mastercard Intern., Inc. v. Moulton 2004 WL 1393992 (S.D.N.Y.)
Spoliation based on gross negligence was found when defendant continued its 21 day e-mail deletion policy which probably resulted in the destruction of potentially relevant e-mails after the lawsuit was filed, after opposing counsel "reminded" defendant of its duty, and after discovery was served encompassing the e-mails. "In this case, defendants' failure to preserve the e-mails plainly constituted at least gross negligence in light of (a) the pendency of the case, (b) their attorney's advice to Kevin Moulton to preserve evidence and (c) the specific nature of plaintiff's document request." ... "As for culpability, we are not persuaded that defendants acted in bad faith, that is, for the express purpose of obstructing the litigation. They appear simply to have persevered in their normal document retention practices, in disregard of their discovery obligations." The lesser remedy was granted permitting plaintiff to "argue to the trier of fact that this destruction of evidence, in addition to other proof offered at trial, warrants the inferences that the public was confused and that the MasterCard marks were diluted and tarnished."

In re Merrill Lynch & Co., Inc. Research Reports Securities Litigation 2004 WL 305601 (S.D.N.Y.) Motion pursuant to. the Securities Exchange Act of 1934 for an Order lifting the automatic stay of discovery because of a need to preserve and restore emails already deleted denied. The court noted there was no imminent risk because appropriate sanctions could be imposed if evidence were destroyed and because "Defendants avow that they are aware of their obligations and have taken and are continuing to take all necessary steps to preserve all potentially relevant electronic evidence."

Aero Products Intern., Inc. v. Intex Recreation Corp. (N.D.Ill.,2004), 2004 WL 417193 Sanctions denied because the party sought sanctions disproportionate to the harm and not clearly related to discovery violations and had failed to pursue discovery by motion in a timely fashion. The court had required defendant to recover deleted electronic documents and emails and had invited plaintiff to seek the appointment of a computer forensic expert to perform the recovery at defendant's expense.

Arista Records, Inc. v. Sakfield Holding Co. S.L.(D.D.C.,2004), 2004 WL 881851, --- F.Supp.2d ----,
In the course of jurisdictional discovery the court ordered the production of servers held by non-party on which defendant's website was hosted. The servers contained data of persons accessing the site. Plaintiffs' expert determined that a program designed to erase electronically stored information had been run over 50 times from a remote location in an effort to erase all electronic information on the servers. Defendant's destruction of electronic evidence on servers by running the program 50 times after being advised of copyright claims created an adverse inference of jurisdictional contacts. In addition, plaintiff's expert was able to recover data and extrapolate information to opine as to contacts. In  Re: Lowe's Companies, Inc. (5/18/04), 134 S.W.3d 876,  2004 Tex. App. LEXIS 4432  In a PI case resulting from falling merchandise in a store, the corporate representative was questioned regarding a database containing information regarding accident trends. Tr.Ct was reversed for ordering production or access to entire database on grounds the order was overbroad. The Texas Court of Appeals rejected the trade secret claim for an accident database suggesting that, otherwise, all internal records would be trade secrets.

“In this case, the order requires [corp] to bring to [corp representative] deposition either: (1) the database and application necessary to search, sort, and print data from it; or (2) computer access to the database that would enable searching, sorting, and printing data from it as requested by the Morenos' counsel at the deposition. Data that may be so requested for printing is limited to accidents prior to the one made the basis of this suit and those involving reports of customers injured due to falling merchandise. Based on the foregoing authorities, we conclude that the order is overbroad to the extent it allows the Morenos to: (1) access (even if not print) data without any limitation as to time, place, or subject matter; and (2) print data concerning falling merchandise accidents for an unlimited period preceding the accident in this case and for an unlimited geographic area."

Capricorn Power Company, Inc. v. Siemens Westinghouse Power Corporation (W.D. Pa.2004) 220 F.R.D. 429. 

The court denied motions by both parties for preservation orders after a mistrial noting there must be some demonstrated need and factual basis. A preservation order in aid of the discovery process is an equitable remedy that differs from an injunction. Noting the lack of authority on the issue despite a common practice of issuing preservation orders, the court rejected the four part test for issuance of injunctions and formulated a three factor balancing test for a preservation order:

“While remaining consistent with the Federal Rules of Civil Procedure, but still addressing the need to perform the judicial duty to oversee and decide discovery disputes, this Court believes that a balancing test which considers the following three factors should be used when deciding a motion to preserve documents, things and land: 1) the level of concern the court has for the continuing existence and maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence; 2) any irreparable harm likely to result to the party seeking the preservation of evidence absent an order directing preservation; and 3) the capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to the evidence's original form, condition or contents, but also the physical, spatial and financial burdens created by ordering evidence preservation.

The court suggested that normally the first two factors should be present: there should be a real threat supported by facts beyond the normal fear or anxiety and the anticipated harm should be substantial: “In the presence of a significant threat, if an order of court can prevent the loss, deterioration or destruction of evidence, while also considering all other relevant circumstances, then such an order may be an appropriate remedy.” The Court reiterated, “Motions for the preservation of evidence should be restricted to those circumstances which raise significant concern that discovery lawfully sought by a party will be lost indefinitely without immediate court action in the form of an order of preservation.” However, a high degree of risk or of the importance of the evidence might suffice. The court also suggested that the burden of preservation, including costs, could be shifted.

QZO, Inc. v. Moyer (S.C.Ct.App.  3/15/04)  2004 WL 502288   Judgment entered for wilful violation of TRO directing defendant to immediately turn over computer that belonged to plaintiff and  believed to contain evidence of wrongful acts by defendant starting competing business. The  trial court  “determined that the information in the  computer was in danger of being altered or destroyed before a hearing on the matter could be accomplished, and that irreparable harm would result if the TRO were not issued.” The trial court  granted the TRO  ordering defendant “to immediately surrender the computer upon receipt of the order.” Defendant waited seven days after service before complying and the  “expert’s examination revealed that the hard drive was reformatted a day before the computer had been turned over, effectively erasing any information the computer may have contained”.   The trial court found defendant “willfully destroyed evidence relevant to Palmetto’s case.  Thereafter, while recognizing the severity of the sanction, the trial court struck Appellant’s pleadings and entered a judgment of liability in favor of Palmetto. The Court of Appeals finding no abuse of discretion

Northern Crossarm Co. v. Chemical Specialities (W.D.Wis. 3/3/04), 2004 WL 635606  Pursuant to request, 65,000 emails were reviewed and produced in hard copy. Requesting party then sought production in electronic form which the court denied. A party is not entitled to its preferred form of production absent a specific request or a prior understanding with counsel; but, if the request is for a specific form such as electronic, the producer must produce in that form, reach agreement with counsel or seek relief from the court. The court noted that counsel had failed to bring this issue to the court before it was too late and the costs had been incurred in a good faith production by the producing party. The court also declined to require the producing party to provide a copy of a CD of the emails made for its use since the CD was protected work product.

Rambus Inc. v. Infineon Technologies AG (E.D. Va. 2004),    222 F.R.D. 280    May 18, 2004 [220 F.R.D. 264. Preliminary decision  March 17, 2004. The court initially deferred its decision until completion of an in camera review of the documents sought.]  Retaining and consulting a lawyer to develop a document retention policy, if done in anticipation of litigation, may invoke the crime/fraud exception to the attorney client privilege. At the same time plaintiff was preparing for litigation it was developing its document retention policy and program. Defendant sought documents involving the creation and implementation of a document retention program contending counsel had been consulted to assist spoliation. Defendant was found to have engaged in spoliation by failing to suspend destruction of documents relevant to that anticipated litigation. There was some basis to infer the attorneys who had developed the document retention policy had been retained and consulted to effectuate the spoliation. If so, the crime/fraud exception to the attorney client privilege would apply, though spoliation might not be a crime, fraud or tort.

"...crime/fraud exception extends to materials or communications created in planning, or in furtherance of, spoliation of evidence. ... [The proponent] must make a prima facie showing: (1) that Rambus was spoliating, or was planning to spoliate, evidence and sought or used the advice of counsel or the input of work product to further that endeavor; and (2) that the documents containing the communications or work product bear a close relationship to Rambus' scheme to engage in spoliation.

"Rambus had in effect a document retention program that was conceived and implemented as an integral part of its licensing and litigation strategy. That strategy, including the document retention program portion thereof, was devised and implemented with the aid and advice of lawyers, both in house and outside. The company's plan was to destroy discoverable documents as part of its litigation strategy and the allegedly privileged documents evince that plan."

 Note ABA Civil Discovery Standards 10 and 29 relevant to this issue:

10. The Preservation of Documents. When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents and of the possible consequences of failing to do so.
29. Preserving and Producing Electronic Information.
a. Duty to Preserve Electronic Information.
i. A party's duty ... also applies to information contained or stored in an electronic medium or format, including a computer word-processing document, storage medium, spreadsheet, database and electronic mail.

Zakre v. Norddeutsche Landesbank Girozentrale (2004),  2004 WL 764895 (S.D.N.Y No. 03 Civ. 0257(RWS)..4/9 2004) Production of two CD's containing 6000 emails that is text-searchable by words or phrases but lacks an index satisfies FRCP Rule 34 (b) requirements for the manner of  production. The producing party had searched for privilege but not responsiveness. No index, labeling, or production by category was required. See In Re Lorazepam & Clorazepate Antitrust Litigation   [MDL No. 1290] (D.D.C. 1/16/04)

In re Lowe's Companies (2004), 134 S.W.3d 876 Tex.App.-Houston [14 Dist.]  Trial court order compelling testimony about and production or access to database at deposition was reversed to the extent it was overbroad as to the scope of discovery.

Anderson v. Crossroads Capital Partners, L.L.C. 2004 WL 256512 (D.Minn.2004)
Adverse jury inference instruction given but dismissal denied when plaintiff wiped her computer hard drive the day a motion for its production was served though after it had been sought on an informal basis.
Plaintiff was allegedly harassed in February 2001, fired May 24, created a chronology in October, and filed suit in November, 2001. At her depostion, defendant learned plaintiff's computer contained a chronology of her harassment and defendant sought the hard drive by motion in April 2003 to determine the date of creation and any versions. On June 3, 2003, the court “ordered [plaintiff] to furnish [defendant] with a 'copy of all documents/files relevant to this litigation that exist on [plaintiff's] personal computer as well as those that have been deleted or otherwise adulterated." On July 11, 2003 defendants computer expert examined the hard drive “limiting his search to November 1, 2000 to the present, discovered that the hard drive on the computer was manufactured in August 2002, and found that the hard drive contained a data wiping software application that was installed in September 2002, and last run on April 18, 2003. ...CyberScrub essentially erases all data from the hard drive and precludes both software and hardware recovery. ...Plaintiff claims that she did not use CyberScrub to destroy evidence, and states that she regularly utilized the program to protect her computer files.” “... [plaintiff] intentionally destroyed evidence and thus attempted to suppress the truth.... Due to Plaintiff's flagrant discovery violations and intentional destruction of potential evidence, the Court will give the jury an adverse inference instruction during trial concerning any and all discoverable material which was present on the hard drive of Plaintiff's personal computer.”

“While Anderson's exceedingly tedious and disingenuous claim of naivete! regarding her failure to produce the requested discovery, the age of her computer hard drive, and her use of CyberScrub defies the bounds of reason, her behavior is not sufficiently egregious to warrant dismissal.”

Super Film of America, Inc. v. UCB Films Inc. (D.Kan 2004) 219 F.R.D. 649
The court held “...allowing [a party responding to a document production request] to satisfy its electronic discovery obligations by simply turning over its two computers to [the requesting party] for inspection would unfairly shift the burden and expense of discovery to [the requesting party] and could potentially result in relevant and otherwise discoverable information being shielded from UCB.” Non-archived electronic versions of e-mail, documents and spreadsheets were produced; Responding party stated it attempted to provide electronic copies of the documents requested within its "knowledge or expertise” of how to retrieve such documents from the company's two computers [but]does not have the expertise to recover any further electronic documents and the court's order requiring such production would be unduly burdensome. It offered to produce its two computers and allow requesting party to search. The offer rejected as shifting burden and expense of the search and requesting party might miss some documents accessible to responding party. Conclusions re burden etc must be supported by facts.

Physicians Interactive v. Lathian Systems, Inc. (12/5/03 ED Va)
Defendant accused of hacking computer site and stealing trade secrets; Plaintiff provided affidavits of its IT staff tracing the source of the attack; The court granted a Preliminary Injunction and expedited discovery stating “...this case presents the Court with unusual circumstances or conditions that would likely prejudice the party if they were required to wait the normal time to initiate discovery. In this case, electronic evidence is at issue. Electronic evidence can easily be erased and manipulated.”... “Plaintiff is also GRANTED limited expedited discovery to enter the Defendants computer server, Mr. Martinez's work and home desktop and notebook computers, and any sites where the computers used in the alleged attacks are located, in order to obtain a "mirror image" of the computer equipment containing electronic data relating to Defendants' alleged attacks on Plaintiff's server. This discovery is limited only to information on Defendants' computers related to the alleged attacks, and must be done with the assistance of a computer forensic expert.”

In Re Lorazepam & Clorazepate Antitrust Litigation
Blue Cross Blue Shield of Minnesota v. Mylan Labs  [MDL No. 1290] (D.D.C. 1/16/04)
Antitrust, MDL, class action. Plt had opted out of class settlement after years of litigation and sought documents. Plt claims an unindexed, document "dump" does not meet def. “obligation to match documents with discovery requests as specifically as possible” and seeks an index to all documents. Def. relied on prior production of a “mountain of information” of e-docs and hard copy claiming if it isn't there it doesn't exist and it is Plt.'s job to find whatever it wants.
As to 40 boxes of hard copy, the court noted plaintiff had examined the boxes and selected 2 boxes of documents it wanted and concluded there was no longer any need for an index. Plt, “having taken what they want from these 42 boxes, do not need an index to their contents.”
As to documents produced on a CD ROM that Plt could not read the court deferred a ruling until Plaintiffs “first make the 23 CD-ROM's available to a company that specializes in computer forensics or electronic discovery to ascertain whether the information on the 23 CD-ROM's can be either read and searched by a commercially available software or whether it can be converted to a format that will render it capable of being read and searched by commercially available software.”
The court noted some of the value of obtaining discovery in electronic form: “The glory of electronic information is not merely that it saves space but that it permits the computer to search for words or "strings" of text in seconds....the presence of the information on the CDROM's is an opportunity for the Blues rather than a problem.” The court observed that the ability to search e-docs was more valuable than an index prepared by the opponent.
COMMENT. By requiring the party to review and select documents to be copied the producing party learns what the requesting party considers important, eliminates the possibility of a second look, and prevents the requesting party from using search techniques and software to review the documents in a thorough and efficient manner. 

Stevenson v. Union Pacific Railroad Company (8th Cir. 1/5/04) 2004 U.S. App. LEXIS 6 [
Adverse inference instruction as spoliation sanction affirmed. RR destroyed voice records and track maintenance records after an accident pursuant to document retention policy. Voice tapes between train crew and dispatch were routinely overwritten every 90 days. Track maintenance records were destroyed after one year. The latter were destroyed after a complaint and formal discovery request for two months records.
Absent some indication of an intent to destroy the evidence for the purpose of obstructing or suppressing the truth, sanctions such as an adverse inference are improper for prelitigation destruction of records pursuant to a proper document destruction policy. However, in the case of pre-litigation destruction of the voice tapes such intent can be inferred from knowledge of litigation history and relevance and importance of such records. It was not an abuse of discretion for the trial court to find “...that although Union Pacific's voice tape retention policy was not unreasonable or instituted in bad faith, it was unreasonable and amounted to bad faith conduct for Union Pacific to adhere to the principle in the circumstances of this case.” The element of prejudice to plaintiff was found from the nature of the evidence sought. In the case of the track maintenance records, it would be an abuse of discretion to permit an adverse inference based on prelitigaion destruction of track maintenance records for a two year period since there was no bad faith. However, such intent can be inferred from destruction after notice of their importance to litigation was provided by the filing of the complaint and service of a formal discovery request. In addition bad faith is not required for sanctions for destroying requested documents during litigation.“We find no abuse of discretion in the district court's decision to impose sanctions for the destruction of track maintenance records after the commencement of litigation and the filing of the plaintiffs' request for production of documents on October 25, 1999.” Appeals from the United States District Court for the Eastern District of Arkansas. Stevenson v. Union Pac. R.R. Co., 204 F.R.D. 425, 2001 U.S. Dist. LEXIS 21787 (E.D. Ark., 2001)

Procter & Gamble Co. v. Haugen (D.Utah,Aug. 19, 2003.) Case dismissed for failure to preserve relevant electronic data that was known to be critical to the issues. “...the Court finds that it would be basically impossible for Defendants to defend this case without the electronic data that has not been produced and apparently is no longer available.”

Bethea v. Comcast (D.D.C.2003), 218 F.R.D. 328
Plaintiff motion to enter upon their premises, inspect their computer systems and related programs, and copy any information relevant to her employment discrimination claims denied. Plaintiff sought access to defendants' hard drives to determine whether defendants possess any additional documents that they have not yet produced.Plaintiff's allegations of deletions of e-docs and skepticism regarding the complete lack of documents re plaintiff or reorganization was unsupported.Def claims it searched and produced everything requested; there was no showing by Plt data exists on the hard drive or that anything was destroyed or not produced ;  HR director testified everything produced. At  p. 329-30 the court stated:  “In the context of computer systems and computer records, inspection or seizure is not permitted unless the moving party can "demonstrate that the documents they seek to compel do, in fact, exist and are being unlawfully withheld." As indicated by this court and other courts, a party's suspicion that another party has failed to respond to document requests fully and completely does not justify compelled inspection of its computer systems. [Citing Alexander v. FBI case] The court added at page 330:  “Here, plaintiff seeks to enter defendants' premises and inspect their computer systems merely because they are "believed to contain appropriate discovery information.  Pl. Mot. to Insp. Comp. at 2. With this vague assertion, plaintiff fails to demonstrate what relevance any information still contained on the defendants' hard drives may have to the pending lawsuit. Rather, plaintiff is speculating, and such conjecture does not warrant the compelled inspection of a computer system that contains voluminous information relating to many topics other than plaintiff's employment discrimination claim. In addition, plaintiff has made no showing that the documents she seeks actually exist or that the defendants have unlawfully failed to produce them. Indeed, plaintiff has not alleged that the defendants failed to make a search of adequate scope or duration. Instead, defendants have stated that they have made diligent searches and complied with all discovery requests, and plaintiff has not refuted them. For all of these reasons, I will not compel the inspection of defendants' computer systems and records.

Thompson v. United States Department of Housing and Urban Development (D.Md 12/12/03), #MJG-95-309 (Magistrate Judge Paul W.Grimm). Court ruled e-mail had been requested, was discoverable & ordered production. After non-compliance, sanctions were imposed  but later reduced. In the course of the opinion the court discussed the nature of electronic data and the approaches to discovery cost/benefit analyses, the duty to preserve evidence, and spoliation. The court notes that the duty to preserve arises when a party reasonably should know that the evidence may be relevant to anticipated litigation; at that point a litigation hold is required especially for key players. On cost/benefit analysis the court noted "Under Rules 26(b)(2) and 26(c), a court is provided abundant resources to tailor discovery requests to avoid unfair burden or expense and yet assure fair disclosure of important information. The options available are limited only by the court’s own imagination and the quality and quantity of the factual information provided by the parties to be used by the court in evaluating the Rule 26(b)(2)factors."

In re Honeywell Intern., Inc. Securities Litigation (S.D.N.Y., Nov. 18, 2003), 2003 U.S. Dist. LEXIS 20602
Produce in electronic form if that is how documents are kept in the normal course of business. Non-party production of accounting work papers in class action securities fraud case. Plaintiffs sought documents in more usable form after hard copy production. “This Court finds that PWC's prior production of its workpapers is insufficient because they were not produced as kept in the usual course of business.” ... “PWC is obligated to produce its workpapers in their electronic form.”.... “...this Court directs PWC to produce electronically its workpapers by either: (1) producing a copy of its workpapers on CD-ROMs that could be viewed using commercially-available software; or (2) producing a copy of its workpapers on CD-ROMs that could be viewed using PWC's proprietary software, as well as producing the proprietary software to the extent it is necessary to view the workpapers.”“PWC's main argument...is that electronic copies of its workpapers are only accessible with the aid of its proprietary software, and therefore any production of the electronic files would reveal PWC's trade secrets.” The court rejected the trade secret argument because there was a confidentiality order and plaintiff was not a competitor. $30,000 cost shifting was rejected because the producer was given a cheaper alternative and because the producer could have avoided additional costs by proper production initially. A request to convert to PDF was not ruled upon.

Open TV v. Liberate Technologies (N.D.Cal. 11/18/03), 219 F.R.D. 474 (N.D. Cal. 2003)
The court required the producing party of source code to pay the cost of copying but it split the cost of extracting the source code for production from the producer's data base. Judge James first considered “Accessibility [which] turns largely on the expense of production.” The Court found the production to be “unduly burdensome and expensive” and therefore “inaccessible” for discovery purposes. It then considered the 7 Zubulake factors finding factors 1-3 & 5 weigh against cost shifting, 4 & 7 favoring cost shifting, and 6 neutral. It then noted that “because of the undue burden and expense involved...some cost shifting is warranted.” “The Court finds that because the parties are similarly situated, they are to split equally the cost of extraction of the source code from Liberte's database. Liberate is to bear the cost of copying the source code...once it has been extracted” citing Zubulake as authority

Kucala Enterprises Ltd. v. Auto Wax Company Inc. (N.D.Ill.,Case No. 02 C 1403, 10/27/03) When Counterdefendant Kucala used Evidence Eliminator to eliminate some files the Magistrate Judge concluded “Kucala has engaged in egregious conduct by his flagrant disregard of a court order requiring him to allow inspection of his computer and his utter lack of respect for the litigation process.” and recommended terminating sanctions. Even Kucala suggested a lesser sanction of an adverse inference. The District Court Judge on de novo review rejected the recommendations though she concluded: “Thus, the magistrate judge’s conclusion that Kucala’s conduct was “egregious” and “in flagrant disregard of a court order” is fully supported by the record.” She added, “The result is multiplication of expense, delay, and ravage of the common law method of seeking the truth in his case. Clearly, Kucala’s conduct has made Auto Wax unable to establish its claims for contributory infringement and inducement of infringement and unable to establish its damages....” However, the Judge concluded that “the claim of infringement could still be established if Kucala were to be forthcoming about its formula and methods” and admonished that it required “a complete change of heart on John Kucala’s part, a change that would include complete and truthful responses to all outstanding discovery. The court is willing to give Kucala an opportunity to demonstrate his willingness to make the discovery that would permit the infringement case to be tried. Absent full cooperation, however, a default judgment on infringement will be the inevitable consequence." The court awarded montary sanctions and prohibited a claim of invalid patent. Note the evidentiary objections that resulted in the disregard of an experts report because the expert was not qualified, had not submitted testimony and the report was inadmissible hearsay

Wiginton v. CB Richard Ellis (N.D.Ill.2003) 2003 WL 22439865Sanctions denied without prejudice to renewal upon a showing of harm resulting from a failure to preserve destroyed documents based on evidence from existing records in order to formulate appropriate sanctions proportionate to the offense. Sexual harassment case preceded by administrative complaint. Case filed followed by preservation letter two days later. Def. immediately sent email to all personnel to preserve records re plaintiff. Eight months later the parties stipulated to a more inclusive preservation letter and a month later to a presevation order. During this period, defendant followed its normal document retention/destruction policy and back up tapes and documents from hard drives were lost. The Magistrate Judge discussed the duty to preserve and spoliation noting that extraordinary measures are not required but that documents "reasonably likely to be the subject of a discovery request" must be preserved. Defendant had a duty to suspend or alter its document destruction to preserve potential evidence. The court noted that a preservation letter does not create a duty to preserve except that it puts the opponent on notice of the scope of its legal obligations. It also noted that defendant was on notice that electronic documents would be the subject of discovery nine months before the action was filed and when the EEOC complaint was filed. It found that the initial notice to employees to preserve was too narrow in that it restricted preservation to ducuments regarding plaintiff and should have covered alleged harassers, offices involved, and sexual harassment environments. 

Zubulake v. UBS Warburg   220 F.R.D. 212 (S.D.N.Y.,2003)  aka Zubulake IV. Spoliation was found when backup tapes containing emails of key players were lost and emails were deleted. Preservation duty arose, 10 months prior to litigation and 4-5 months prior to filing of formal complaint with EEOC, at the time the immediate supervisor and other key employees reasonably anticipated litigation. At that time "...it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents." In fashioning a remedy the court rejected further cost shifting for restoration of backup tapes since the facts had been previously considered by the court in its prior cost shifting order; it awarded payment of costs for redeposing people on the missing tapes and emails; but, it rejected a request for adverse inference instruction, “that the evidence, if available, would have been favorable to Zubulake and harmful to UBS.” as too extreme because the jury would be 'instructed that it may “infer that the party who destroyed potentially relevant evidence did so ‘out of a realization that the [evidence was] unfavorable.’” The injured party was required to prove relevance and damages i.e. that the destroyed evidence would have been favorable to her case. The court concluded: "“In sum, although UBS had a duty to preserve all of the backup tapes at issue, and destroyed them with the requisite culpability, Zubulake cannot demonstrate that the lost evidence would have supported her claims. Under the circumstances, it would be inappropriate to give an adverse inference instruction to the jury.”

In re Ford Motor Company 2003 U.S. App. LEXIS 19531; 345 F.3d 1315 (11th Cir.9/22/03) No. 03-10440, D.C. Docket No. 01-01759 CV-S 11th Cir.text source; OR findlaw text OR lexus text
Improper to grant direct and unrestricted access to corporate data bases which contained relevant information without proper factual basis and, probably, a protocol including reasonable limitations and protections. 11th Circuit vacated order of N.D. of Alabama ordering Ford Motor to grant Plaintiff direct and unlimited access to two specific databases to conduct searches for information. Although the court noted that FRCP 34 does not permit a direct search of databases but only a translation of data into usable form, it conceded that there may be times when direct access is proper e.g "...perhaps due to improper conduct...." The appellate Court noted "But, the district court made no findings--express or implied--that Ford had failed to comply properly with discovery requests." "Furthermore in its order, the district court granted [plaintiff] unlimited, direct access to Ford's databases. The district court established no protocols for the search. The court did not even designate search terms to restrict the search." A court should provide for objections. Court acknowledged circumstances may permit direct access but not "...without--at the outset--a factual finding of some non-compliance with discovery rules...." Link to Onsite Discovery of Opponent's Data under General Discovery of Electronic Data, onsite discovery


Zubulake v. UBS Warburg (SDNY 5/13/03) 217 F.R.D. 309 (S.D.N.Y. 2003)[Tr Ct. revisted the cost shifting criteria of Rowe Entertainment and formulated its own 7 factor test. More important the court emphasized the need to be fully informed of the technology and cost issues and confirmed that the test employed is a qualitative one in which all relevant factors must be considered in resolving issues on allocating costs and determining whether and how the presumption that the producing party pays should be altered. Presumption is that producer pays. Accessible data normally would not involve cost shifting issues.] copy of opinion SEE ALSO THE FOLLOW-UP DECISION DATED 7/24/03 BASED ON SAMPLING OF FIVE BACKUP TAPES. Based on 5 of 77 tapes, partial cost-shifting was ordered: plaintiff and requesting party to pay 25% of restoration costs only; defendant and producing party to pay 75% of restoration costs and all costs of review. A review of 5 tapes immediately preceding termination produced 6,203 unique e-mails, 1075 of which were within the search terms, and 600 of which were responsive to the request. Total costs $19,00, restoration costs $11,500, review costs $7500. 68 emails were presented to the court by plaintiff and the court assumed these were representative of the emails on the 77 tapes [page 11]. Plaintiff found 6 e-mails to be "particularly 'striking'". The court found none provided direct evidence of discrimination [at p.18 it described the exitence of such evidence as "still speculative"] and the 68 emails provided no evidence of dislike based on gender. [p.14]. Certain relevant e-mails sent after the discrimination complaint were not preserved and were deleted. The court concluded as a general rule that cost shifting would only apply to restoration and not to the cost of the producing party's review [p.25].
Link to Practice Point on Cost Shifting under DOCUMENT

Medtronic v. Michelson, 2003 WL 21212601 (W.D. Tenn. May 13, 2003
Discovery re 996 backup tapes + 300GB of e-data presents the background for required summer reading on electronic discovery. See decision by Magistrate Judge Vescovo at http://www.tnwd.uscourts.gov/judgevescovo/
The court applied the basic discovery principles of cost benefit analysis. Based on the volume it concluded that the production was burdensome and then analyzed the facts and costs in the context of the case to determine if the burden was "undue" and if so whether all or part of the costs should be shifted to the requesting party. The court reviewed the 8 factors of the Rowe case and determined most supported cost shifting to the requesting party. In a detailed opinion discussing the various costs involved the court concluded that the requesting party should pay for a significant part of those costs. The case should be read for a concrete example of the discovery problems and possible solutions presented by electronic discovery in general and backup tapes in particular.


Computer Associates International, Inc. v. Quest Software, Inc., [ND Ill, June 13, 2003].
Motion to shift costs of producing employee hard drives denied. Plaintiff requested production of hard drives of 6 employees for imaging, search and recovery of deleted material in copywrite infringement and trade secret case re software source code. Defendant reviewed hard drives and claimed privileed documents. It hired a consultant to image, search & delete privilege docs for production of hard drives. It then made a motion to recover estimated costs ranging from $28 to $40,000. The court denied the motion. The court held that it could shift the costs if the burden outweighed the benefit. It then considered the factors set forth in Rowe in making the decision and concluded cost shifting was not justified and that this was a normal cost of review for privileged documents that should be paid by the producing party. Link to Practice Point on Cost Shifting under DOCUMENT

Kucala Enters. Ltd. v. Auto Wax Co., 2003 WL 21230605 (N.D.Ill. May 27, 2003). Terminating sanctions recommended for using Evidence Eliminator software to destroy data shortly before production required.

Dodge Warren & Peters Ins. Serv. v. Riley (2003), 105 Cal.App.4th 1414 [Issuance of preliminary injunction to preserve electronic data affirmed; SEE BELOW FOR DETAILS] opnion

Medical Billing v. Intelligent Medical (N.D.Ill. 4/3/03) 01 CV 9148
Physical inspection of opponent's computer system denied. Parties dispute whether adequate search was made and requested email produced. There was no showing or other reason to believe requested discovery had not been produced.

SITE NAVIGATION      

©Richard E. best2000- 2008 All Rights Reserved

TOPICS

Case Outlines

Discovery Act

E-discovery New E-disco

Discovery Referee

Recent Discovery

Calif Resources

FEDERAL RESOURCES

Bio& Site Information

Contact

SPECIFIC CASE OUTLINES	Deposition	Interrogatory	Document Production	Admission	Experts	Medical Exam	Sanctions	Meet & Confer	Discovery Cutoff	Referee
	Basic Discovery Principles	E-discovery	Attorney- Client	Work Product	Privacy	Physician -Patient Privilege	Medical Quality Revue	Reporter Privilege	Official Information	Tax Return

TOP

SELECTION CRITERIA. Beginning in mid 2007 this site limited reporting to cases of some significance. Some vendors and law firms maintain sites that contain cases merely because e-data is involved and some include cases simply because they cover discovery issues and concepts that have been applied to e-data in the past. Those resouces are referenced on the home page for e-discovery.  Most trial court decisions are not binding and represent the opinion of one judge on the unique facts presented by the particular lawyers involved.  They may also be based on the particular law of that jurisdiction.  thus, what is discoverable or sanctionable in one court may not receive the same treatment in another court or even in that court if the facts, presentations, etc differ.
E-discovery is discovery in today's world of e-data. By 2007, most civil litigators and trial courts have become familiar with the subject and have handled or soon will handle e-discovery issues. Courts have addressed the subject by applying the panoply of flexible discovery concepts to the electronic data and the specific facts in the case. Understanding e-data and revisiting basic discovery concepts has been essential.  The adoption of new state and FRCP provisions has called attention to the pre-existing need to discuss all discovery, including e-discovery, issues at an early stage of the case and at the first case management conference.  While lawyers must comply with rules and should monitor the rule making process, they cannot expect rules to resolve most  issues that confront lawyers and courts in daily practice. Nor can lawyers await case law to provide all answers. Nor can lawyers defer to e-data "experts" to handle legal issues.  Most reported cases are not controlling and are dependent on the facts but they provide guidance and examples of how past issues have been addressed, for better or worse, by individual judges dealing with specific facts.  This is an area where a legal skills and judgment in the proper presentation of facts and e-data is essential.
An attempt is made to limit the cases reported to those involving issues or facts that are new or  unique regarding electronic information or the application of law to a different issue or different form of electronic information. For example, the law of privilege will vary with the jurisdiction and that jurisdiction's law is applicable to the determination of privilege issues with regard to all "documents", whether found in paper, native format, pdf etc. and whether found in spreadsheet, on a hard drive, as a "deleted document" etc.   The fact that one judge found an e-mail to be privileged and another found an e-mail not privileged is, by itself, of little importance as an electronic data issue. The determination may be based on privilege law unique to that jurisdiction or to privilege related facts unique to that e-mail. If so, those cases are not of general interest to electronic data issues that transcends the jurisdiction.  However, a decision may be based on the nature of electronic data that is of general interest regardless of the jurisdiction.   Information may be uniquely available from the electronic data that will bear on specific issues subsumed under the umbrella of attorney-client privilege, such as confidentiality.  Similarly, sanctions, spoliation, waivers, malpractice, legal ethics etc. are issues that have predated the use of computers.  The awarding of sanctions for the destruction of evidence, by itself,  is not unique to electronic data; but there may be aspects of electronic data that were relevant to the decision that make the case worthy of note. For example, at one stage,  there was some concern courts might find spoliation when data was altered or destroyed in the normal course of business without anyone's knowledge or fault and despitle the utmost good faith.