Federal Court Decisions Involving Electronic Discovery, December 1 ...

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
document request, and it had failed to demonstrate that the paper and .pdf forms of
production were not “reasonably useable” within the meaning of Rule 34(b).
Babaev, et al. v. Grossman, et al., 2008 WL 4185703 (E.D.N.Y. Sept. 8, 2008). In an
investment fraud action involving $100,000, the plaintiffs sought discovery of the
defendants’ business records, which the defendants failed to produce, claiming that the
records could not be recovered from a computer that had been lost or discarded. The
plaintiffs moved for spoliation sanctions. The court held an evidentiary hearing and
received post-hearing submission from both parties, and found that “[a]lthough it is
difficult to discern precise dates when evidence was corrupted or destroyed, the
conclusion to be reached from the record is that the evidence on [the defendants’]
computer should have been preserved, that it was destroyed with a culpable state of mind,
and that it was relevant to the plaintiffs' claim.” The court ordered an adverse inference
instruction and $5,000 in costs, but declined to issue an instruction that the jury find
against the defendants on the ultimate issue of fraud, or award the full $52,765.80 in costs
that the plaintiff requested.
Baker & Hostetler LLP v. United States Department of Commerce, 473 F. 3d 312
(D.C. Cir. 2006). The plaintiff filed a Freedom of Information Act request with the
Department of Commerce seeking records related to Canadian lumber exports.
Dissatisfied with the Government’s response, the plaintiff contended that the Government
had performed an inadequate search. The Department of Commerce submitted extensive
documentation of the search and explained its inability to retrieve deleted email, which
was uncontroverted by the plaintiff’s expert. The trial court found that the Government’s
searches were calculated to find responsive documents, and that there was no evidence of
bad faith. These findings were upheld by the Circuit Court of Appeals.
Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008). In this employment
litigation, the plaintiff moved to compel additional production of e-mail, alleging that the
defendant’s production was incomplete. In an effort to ascertain the adequacy of the
defendants’ search, the court first ordered the defendant to submit an affidavit describing
the procedures undertaken to search for email. The defendant submitted an affidavit that
instead described the cost and burdens that would be associated with the restoration of
email from backup media, not the procedures used to search the accessible media.
Finding the affidavit incomplete, the court ordered depositions to determine what search
protocol the defendant used before ruling on whether the production was sufficient.
Balfour Beatty Rail, Inc. v. Vaccarello, 2007 WL 169628 (M.D. Fla. Jan. 18, 2007).
In an action for unfair competition, the plaintiff moved to compel further discovery on 15
previous requests. The defendants agreed to supplement discovery in all but three, and
the court stated that the plaintiff could have resolved the remaining differences with
further conferences. Two of the remaining requests were for the hard drives of any
computers used by two of the defendants. The court refused these requests as overbroad
and not grounded in any justification, such as prior non-compliance with discovery
requests.
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