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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
specific date ranges. On the preservation issues, the court found the defendant’s
preservation efforts to be “clearly inadequate,” applying the standards of Zubulake, but
that the defendant did not violate any specific order of the court. The actions of the
defendant were merely negligent, and the plaintiff failed to establish prejudice as a result.
The plaintiff’s remedies are limited to an order compelling the defendant to restore and
search likely sources of responsive data and forensic inspection of particular computers at
the defendant’s expense.
U & I Corp. v. Advanced Medical Design, Inc., 2007 U.S. Dist. LEXIS 86530, 2007
WL 4181900 (M.D. Fla. Nov. 26, 2007). Plaintiff and defendant filed cross-motions to
compel the production of email from the hard drives of three plaintiff employees and for
a protective order in this breach of contract action. In addition, a nonparty filed a motion
to quash a subpoena for the email under Rule 45. The court rejected the vague assertions
of undue cost and burden offered by the plaintiff and nonparty. The court ordered the
nonparty to proceed with its production, and deferred consideration of the protective
order pending the results of the nonparty production and receipt of a detailed affidavit
from the plaintiff as to why the backup tapes were “unloadable,” as asserted.
United Medical Supply Co., Inc. v. United States, 77 Fed. Cl. 257 (Fed. Cl. 2007).
The plaintiff filed for bankruptcy in 2001, after a 4-year requirements contract to supply
military medical facilities in Texas and Oklahoma ended. In September 2002, the plaintiff
filed an adversary proceeding in bankruptcy court to recover damages from the United
States, alleging that the defendant had diverted funds and procured its own supplies from
other vendors, in breach of contract. The proceedings were transferred to the Court of
Federal Claims in December 2002. For approximately four years the defendant made
numerous half-hearted and incomplete attempts to collect relevant documents from 21
sites with little success, resulting in the loss or destruction of discoverable information.
Reviewing the precedents on spoliation in great detail, the court concluded that a finding
of bad faith was not necessary for the imposition of sanctions, holding that “repeated acts
of gross negligence, particularly if accompanied by inaccurate representations to the court
that serve to mask and perpetuate the spoliation, can be met with the same or a more
severe sanction than a single act of bad faith.” After detailed analysis of the
circumstances of this case, the court ordered that the defendant be precluded from
offering expert testimony or cross-examining the plaintiff’s expert on issues extrapolated
from the missing documents, and the defendant must pay the plaintiff’s attorneys’ fees
and other discovery-related costs.
United States ex rel. Kelly v. Hawaii Pacific Health, 2008 U.S. Dist. LEXIS 4933 (D.
Haw. Jan. 22, 2008). In a qui tam action over the submission of false reports, defendants
initially denied the existence of requested records, but later revealed that they had them in
microfiche format when faced with a Rule 30(b)(6) deposition and plaintiff’s request to
inspect computer hard drives. In addition, the court questioned the defendant’s
production of PDF-format images of documents, the integrity and authenticity of which
were in question, but deferred the plaintiff’s motion for production of the documents in
native format pending additional briefing.
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