Electronic Discovery and Computer Forensics Case List - Kroll Ontrack

Electronic Discovery and Computer Forensics
Case List
(Organized by Jurisdiction)
TABLE OF CONTENTS
Supreme Court ............................................................................................................................... 3
Federal Circuit ................................................................................................................................ 4
District of Columbia ....................................................................................................................... 5
District of Puerto Rico ..................................................................................................................17
First Circuit – State and Federal Cases .......................................................................................18
Maine ..........................................................................................................................................19
New Hampshire ...........................................................................................................................20
Massachusetts ............................................................................................................................20
Rhode Island ...............................................................................................................................25
Second Circuit – State and Federal Cases ..................................................................................26
Connecticut .................................................................................................................................27
New York ....................................................................................................................................31
Vermont ......................................................................................................................................76
Third Circuit – State and Federal Cases......................................................................................77
Delaware .....................................................................................................................................78
New Jersey .................................................................................................................................85
Pennsylvania ...............................................................................................................................93
Fourth Circuit – State and Federal Cases .................................................................................105
North Carolina ...........................................................................................................................105
South Carolina ..........................................................................................................................110
West Virginia .............................................................................................................................112
Maryland ...................................................................................................................................113
Virginia ......................................................................................................................................120
Fifth Circuit – State and Federal Cases .....................................................................................126
Louisiana ...................................................................................................................................127
Mississippi .................................................................................................................................133
Texas ........................................................................................................................................135
Sixth Circuit – State and Federal Cases ....................................................................................147
1

Kentucky ...................................................................................................................................147
Michigan ....................................................................................................................................149
Ohio ..........................................................................................................................................158
Tennessee ................................................................................................................................167
Seventh Circuit – State and Federal Cases ...............................................................................170
Illinois ........................................................................................................................................172
Indiana ......................................................................................................................................189
Wisconsin ..................................................................................................................................194
Eighth Circuit – State and Federal Cases .................................................................................198
Arkansas ...................................................................................................................................199
Iowa ..........................................................................................................................................200
Minnesota .................................................................................................................................201
Missouri .....................................................................................................................................208
Nebraska ...................................................................................................................................211
North Dakota .............................................................................................................................213
South Dakota ............................................................................................................................214
Ninth Circuit – State and Federal Cases ...................................................................................216
Alaska .......................................................................................................................................219
Arizona ......................................................................................................................................219
California ...................................................................................................................................221
Hawaii .......................................................................................................................................251
Idaho .........................................................................................................................................252
Montana ....................................................................................................................................252
Oregon ......................................................................................................................................253
Nevada ......................................................................................................................................253
Washington ...............................................................................................................................256
Tenth Circuit – State and Federal Cases ...................................................................................262
Colorado ...................................................................................................................................264
Kansas ......................................................................................................................................269
New Mexico ..............................................................................................................................280
Oklahoma ..................................................................................................................................281
Utah ..........................................................................................................................................283
Eleventh Circuit – State and Federal Cases ..............................................................................288
Alabama ....................................................................................................................................289
2

Florida .......................................................................................................................................290
Georgia .....................................................................................................................................304
Other Jurisdictions .....................................................................................................................309
Court of International Trade ......................................................................................................309
Federal Claims Court ................................................................................................................309
United States Air Force Court of Criminal Appeals ...................................................................311
United States Tax Court ............................................................................................................311
Virgin Islands.............................................................................................................................312
Other Countries ...........................................................................................................................312
England .....................................................................................................................................312
Supreme Court
� City of Ontario v. Quon, 2010 WL 2400087 (U.S. June 17, 2010). In this appeal addressing an
employer’s search of an employee’s text messages, the United States Supreme Court found the
search to be reasonable, but declined to issue a “broad holding concerning employees’ privacy
expectations vis-à-vis employer provided technological equipment.” Addressing the reasoning for
the search (i.e., review of the text message transcripts), the court found the City possessed a
“legitimate interest” in ensuring employees were not forced to pay for overages out-of-pocket and
that the City was not paying for personal communications. In regard to the search itself, the court
found the City’s method of reviewing the text message transcripts to be reasonable as it was an
“efficient and expedient way” to determine the nature of the overages. In support of this decision,
the court noted the steps taken to reduce the search intrusiveness, such as the restriction of the
search date range and limitation of transcript review to messages sent by the employee while onduty.
The court also discussed that the employee should have understood or anticipated that it
might be necessary for the City to audit the pager messages to determine whether the pagers were
being appropriately used, or to assess the SWAT team’s performance in emergency situations (the
primary purpose for the pager issuance). Finally, the court determined the Ninth Circuit erred in
suggesting the City could have used “less intrusive means” to make the overage determinations
and also held that the search was not rendered unreasonable by the assumption that Arch
Wireless violated the Stored Communications Act by turning over the transcripts.
� Arthur Andersen LLP v. United States, 125 S.Ct. 2129 (U.S. 2005). After becoming of aware of
Enron’s financial difficulties, Arthur Andersen told partners working on the Enron team to ensure
compliance with Andersen’s document retention policy. Following that meeting, substantial paper
and electronic documents were destroyed. At trial, the jury found Arthur Andersen guilty of
knowingly, intentionally and corruptly persuading employees to withhold documents from a
regulatory proceeding. The Fifth Circuit affirmed the decision. On appeal, the Supreme Court
reversed and held that the jury instructions were flawed. The court declared that, under normal
circumstances, a manager could instruct employees to comply with a valid document retention
policy, even though the policy was partly designed to prevent others (including the government)
from accessing certain information. The court found that the jury instructions erroneously implied
3

the jury did not have “to find any nexus between the "persua[sion]" to destroy documents and any
particular proceeding.” The court further stated that 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.”
� Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1982). “[W]e do not think a defendant should
be penalized for not maintaining his records in the form most convenient to some potential future
litigants whose identity and perceived needs could not have been anticipated.” Where the expense
of creating computer programs that would locate the desired data was the same for both parties,
the court ordered that the party seeking the information must bear the cost of production.
Federal Circuit
� In re Ricoh Co. Ltd. Patent Litig., 661 F.3d 1361 (Fed. Cir. 2011). Following a court of appeals
affirmation of a district court’s order granting the defendant summary judgment in a patent
infringement suit, the plaintiff sought review of several items in a $938,957 taxation award. Namely,
the plaintiff disputed costs awarded for using a third-party document database service to produce
e-mail and fees for generically itemized exemplification and copying. With regard to the document
database, the court found that the review database was used as the exclusive form of document
production—rather than for the convenience of the parties—and was properly taxable. However,
the court reversed the original award of $234,702 based on a finding that the parties contractually
agreed to divide costs before leveraging the service. Reviewing the defendant’s costs, the court
found that vague phrases such as "document production" that were frequently itemized did not
represent a reasonably accurate calculation of documents copied for, or tendered by, the opposing
party. Accordingly, the court vacated the $322,702 award for copying fees, which was remanded to
district court.
� Jicarilla Apache Nation v. United States, 60 Fed. Cl. 413 (Fed. Cir. 2004). Alleging that the
government mismanaged trust funds, the plaintiff moved for a confidentiality agreement and
protective order. Determining that good cause existed for approval and entry of the order, the court
issued specific procedures for the production of electronic records. In defining records that needed
to be produced, the court included computer or network activity logs, voice-mail, data, databases,
images, e-mails, spreadsheets, and metadata. The court also determined that if the parties
provided access to electronic data rather than making actual copies of it, the parties should
designate which electronic records are available for production by categorizing them in writing by
record, category, search parameters, or other reasonable methods. In addressing production
format, the court directed the parties to produce records “in the format in which that party routinely
uses or stores them, provided that electronic records shall be produced along with available
technical information necessary for access or use.” If the requesting party is unable to access or
use an electronic record, the court indicated it may request that the responding party provide a
paper version of or underlying source data for the electronic record.
� First USA Bank v. PayPal, Inc., 76 Fed.Appx. 935 (Fed. Cir. 2003). In a patent infringement
action, the plaintiff subpoenaed the defendant’s former chief executive officer, specifically
requesting the court to compel his deposition and to require him to produce his laptop computer for
forensic inspection. The former-CEO had used the computer while employed by the defendant and
subsequently purchased it from the defendant when he left its employ. Despite objection, the
magistrate judge ordered the former-CEO to be available for deposition and approved a search
4

protocol. The search protocol allowed electronic evidence consultants to create a forensic copy of
the computer’s hard drive, identify any potentially relevant documents, and, if such documents
were found and identified, allow the former-CEO to create a privilege log. The district court affirmed
the magistrate’s order and former-CEO appealed. The appellate court dismissed the former-CEO’s
appeal of the lower court’s non-final interlocutory discovery order.
District of Columbia
� Williams v. Dist. of Columbia, 2011 WL 3659308 (D.D.C. Aug. 17, 2011). In this wrongful
termination litigation, the defendant requested the return of an allegedly privileged e-mail
containing a 104-page document related to the plaintiff’s termination. Although the defendant
initially requested the immediate return of the privileged documents, the plaintiff never responded
and the defendant took no further action for more than two years until the plaintiff identified the email
as an exhibit for trial. Reviewing the defendant’s discovery conduct, the court determined it did
not meet the burden required to demonstrate that reasonable steps were taken to prevent or
remedy inadvertent disclosure. Specifically, the court took issue with the defendant’s unsworn
statements from counsel — who had not been involved with the case at the time of disclosure —
and determined that the generic statements failed to sufficiently detail the reasonableness of its
review procedures including its methodology, the total number of documents reviewed or any time
pressure imposed by the plaintiff’s discovery requests. Further, the court found that the defendant’s
two year stagnancy did not constitute reasonable attempts to rectify its error. Citing each failure as
independent ground for denial, the court denied the motion to exclude and waived privilege.
� DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011). In this class action dispute
concerning free public education under the Individuals with Disabilities and Education Act, the
defendant filed a motion to reconsider the grant of the plaintiff’s motion to compel production and
the court’s determination that privilege was waived for all e-mails yet to be produced. On the day
the court was scheduled to issue its opinion, the plaintiffs’ counsel informed the court that the
defendants had produced thousands of e-mails days before trial and were continuing to "document
dump" after trial concluded. The defense counsel claimed the District was understaffed, committed
supplemental searches that yielded tens of thousands of additional e-mails, discovery was
voluminous and there were not "enough bodies" to complete the process before trial. Denying the
defendants’ motion, the court cited the "repeated, flagrant, and unrepentant failures to comply with
Court orders" and "discovery abuse so extreme as to be literally unheard of in this Court." The
court also repeatedly noted the defendants’ failure to adhere to the discovery framework provided
by the Federal Rules of Civil Procedure and advised the defendants to invest time spent "anklebiting
the plaintiffs" into shaping up its own discovery conduct.
� United States v. Halliburton Co., 2011 WL 208301 (D.D.C. Jan. 24, 2011). In this qui tam action
alleging fraud perpetrated against the United States, the plaintiff requested an order from the court
requiring the defendants to search the electronic data of all employees who were copied on e-mails
that were previously produced. The defendants argued that this search would encompass an
additional 35 custodians that possess an average of 15 to 20 GB of data and that it would take two
to ten days per custodian for the collection process before review could occur. Denying the
plaintiff’s request for additional searches, the court noted that the defendants had already spent “a
king’s ransom” of $650,000 on discovery and had produced more than 2 million paper documents,
thousands of spreadsheets and more than half a million e-mails. Further, the court determined the
plaintiff failed to demonstrate that any e-mails not produced were crucial to her claims.
5

� Covad Commc’ns Co. v. Revonet, Inc., 2010 WL 1233501 (D.D.C. Mar. 31, 2010). In this
ongoing secrets misappropriation litigation, the court considered six of nine discovery motions both
parties had filed. In particular, the court addressed the plaintiff’s motion to compel production of
35,000 e-mails in native file format including metadata, following the defendant’s production of
those e-mails as hard-copy printouts. Addressing this motion, the court noted that it was bound by
Fed.R.Civ.P. 26(b)(2)(C)(iii), which requires a limit of discovery if “the burden or expense of the
proposed discovery outweighs its likely benefit” and explained that the parties had “bigger fish to
fry” in the interest of judicial expediency. Based on this and the plaintiff’s failure to demonstrate a
specific need for the e-mail metadata, the court held that the production of the hard copies in native
format in this stage of the dispute was not necessary and denied the plaintiff’s motion.
� Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc.,
2010 WL 558719 (D.D.C. Feb. 12, 2010). In this litigation, the defendants filed a renewed motion to
compel documents withheld by the plaintiffs under the claim of privilege. First, the court addressed
whether privilege existed in the first place by examining the parties involved and determined
privilege existed despite the presence of two consultants at the meetings, since they became
integral members of the team assigned to deal with litigation and legal strategies. Next, the court
determined whether privilege was waived or “forfeited,” noting that Fed.R.Evid. 502 abolished the
“dreaded subject-matter waiver.” Thus, the defendants’ argument that the disclosure of nonprivileged
information should constitute a waiver of privileged information of the same subject
matter was “flat out wrong,” since the question is whether the information, both disclosed and
undisclosed, shares the same subject matter and ought in fairness to be considered together.
Based on this analysis, the court denied the defendants’ arguments that privilege was waived and
ordered the plaintiffs to provide documents marked as privilege for an in camera review.
� Amobi v. District of Columbia Dep’t of Corr., 2009 WL 4609593 (D.D.C. Dec. 8, 2009). In this
litigation, the court addressed the parties’ motions related to the production of a memorandum
created by an attorney for the defendants. The defendants argued the disclosure was inadvertent
and steps were taken to rectify the error immediately, whereas the plaintiffs argued the
memorandum was either not privilege-protected or privilege had been waived. After determining
that the document was protected by the work product doctrine, the court used the three-part test
set forth in Fed.R.Evid. 502(b) and found privilege was waived. In support of this finding, the court
cited the defendants’ failure to explain the methods used to prevent disclosure in order to establish
the magnitude of the error. The court reasoned that "defendants’ failure to take reasonable efforts
to prevent the disclosure in the first place doom[ed] their reliance on the rule." However, the court
refused to endorse the plaintiffs’ argument that lawyers could never make inadvertent mistakes,
claiming that would "gut [Rule 502] like a fish."
� Covad Commc’ns. Co. v. Revonet, Inc., 2009 WL 2595257 (D.D.C. Aug. 25, 2009). In this
ongoing trade secrets misappropriation litigation, the plaintiff sought compliance with the court’s
December 2008 order granting a motion to compel discovery. See Covad Comm. Co. v. Revonet,
Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008). The plaintiff argued production was incomplete,
the production format was noncompliant and that a discrepancy existed between certain e-mails
produced in both native format and hard copy. The court first deferred addressing the production
issue until the results of a forensic search of relevant electronically stored information were
discussed at a later hearing. Turning to the e-mail discrepancy, the court ordered the defendant to
produce all missing e-mails in native format. Regarding the remaining production disputes, the
court noted the parties were working to resolve the issues and ordered the defendant to answer
whether the documents were either produced in native format or if they would be produced at all.
6

Finally, the court expressed displeasure with data downgrading stating, "taking an electronic
document . . . printing it, cutting it up, and telling one’s opponent to paste it back together again,
when the electronic document can be produced with a keystroke, is madness." Ultimately, the court
stayed action on the motion pending the defendant’s responses to the questions posed.
� In re Rail Freight Fuel Surcharge Antitrust Litig., 2009 WL 1904333 (D.D.C. July 2, 2009). In
this antitrust action, the defendants moved for bifurcated discovery between class certification and
merits discovery. The defendants contended that bifurcated discovery was possible through the
use of search terms to effectively isolate electronically stored information (ESI) relevant to
"certification" but not "merits" discovery. The defendants argued that bifurcated discovery would
facilitate early resolution of the certification issue and reduce the burden of subsequent merits
discovery. In opposition, the plaintiffs argued that certification and merits discovery are
indistinguishable as evidence regarding the merits was also crucial to certification. The plaintiffs
also argued that bifurcated discovery would forced the defendants to conduct document review to
classify ESI as either class certification or merits discovery as no search engine could effectively
distinguish between the two, and thus simultaneous discovery would be more efficient and cost
effective. Magistrate Judge Facciola agreed with the plaintiffs’ contention that the issues involved in
certification and merits discovery were closely intertwined. The court expressed doubt that the
defendants’ could effectively distinguish between the two categories of documents, noting that the
defendants did not propose exactly how the lawyers will "create a search engine so refined and
exquisite." The court also held that bifurcation would delay the proceedings and hinder judicial
economy, citing the delays and costs associated with continued need for judicial supervision and
the increased number of disputes over discovery in a bifurcated case. Accordingly, the court
denied the motion for bifurcated discovery.
� Covad Commc’ns. Co. v. Revonet Inc., 2009 WL 1472345 (D.D.C. May 27, 2009). In this
ongoing trade secrets misappropriation litigation, the plaintiff sought forensic images of the
defendant’s drives and computers as well as forensic searches of its database and e-mail servers.
The defendant argued that its servers were too fragile for forensic images and that imaging
constituted an undue burden. The defendant also objected to the forensic search of its servers,
claiming it may reveal information that the defendant is obliged by contract to keep confidential.
Disregarding the defendant’s arguments, the court granted the plaintiff’s request for forensic
imaging, finding the imaging would not stress the servers any more than day-to-day use. The court
also ordered the forensic search of the defendant’s servers, stating that no alternative way existed
and that any confidential material could be safeguarded by a protective order. Regarding the e-mail
servers, the court determined insufficient authority existed to conclude ESI deficiency allegations
automatically warranted forensic searches. The court reserved decision on whether forensic
examination was appropriate until the plaintiff’s expert’s report was submitted. The court also
ordered a comparison between servers to determine what data existed on non-operational servers
that did not exist on the remaining operational one.
� Asarco, Inc. v. United States Envtl. Prot. Agency, 2009 WL 1138830 (D.D.C. Apr. 28, 2009). In
this environmental litigation, the plaintiff filed a motion to take discovery. The plaintiff contended
that the defendant’s keyword search was conducted in bad faith, as evidenced by the fact it used
only one search term. Finding the plaintiff’s argument persuasive, the court ordered an additional
keyword search utilizing four additional key terms. Notably, the court stated that "keyword searches
are no longer the favored methodology." The court concluded by recommending summary
judgment on the merits in favor of the defendant after the second search is completed, determining
that there is no genuine issue of material fact whether additional defendant data exist.
7

� Newman v. Borders, Inc., 2009 WL 931545 (D.D.C. Apr. 6, 2009). In this racial discrimination
litigation, the plaintiff requested an additional Fed.R.Civ.P. 30(b)(6) deposition seeking information
about the defendant’s e-mail retention policy. Frustrated with the high costs and time spent on
discovery that the court determined "will dwarf the potential recovery," the court denied the
plaintiff’s request and ordered the submission of an affidavit after determining a party’s document
retention policy was discoverable. The affidavit was to address the defendant’s e-mail systems,
deletion policies and search efforts.
� D’Onofrio v. SFX Sports Group, Inc., 2009 WL 859293 (D.D.C. Apr. 1, 2009). In this ongoing
wrongful termination litigation, the defendants agreed to provide the plaintiff’s counsel with attorney
notes taken by the defendants under certain conditions. Taking exception to these conditions, the
plaintiff’s counsel argued the plaintiff should be granted access to the attorney notes for relevancy
determinations. Magistrate Judge John M. Facciola granted the motion in part, finding the
defendants were allowing access to these documents for efficiency’s sake not because the plaintiff
was entitled to the documents. The court also noted that it is "difficult to unlearn something once it
is learned," and therefore the plaintiff should not be allowed access to the privileged documents.
Finally, the court agreed with the plaintiff that there is no need for the plaintiff’s expert to confer with
the defendants’ expert regarding methodology prior to conducting sampling of the documents.
� In re Fannie Mae Sec. Litig., 2009 WL 21528 (C.A.D.C. Jan. 6, 2009). In this litigation, the Office
of Federal Housing Enterprise Oversight (OFHEO), a non-party, appealed the district court’s order
finding it in contempt for failing to comply with a discovery d+eadline in a stipulated scheduling
order. OFHEO argued that the defendant’s decision to supply four hundred keyword terms was
outside the scope of “appropriate search terms,” thereby extending the time needed to comply with
its production requirements. However, aware of the deadlines, OFHEO sought several discovery
extensions, hired 50 contract attorneys and spent over $6 million – 9% of the agency’s entire
annual budget – to comply with the defendants’ discovery requests. Finding OFHEO’s efforts
legally insufficient, the court compared its treatment of the discovery deadlines as “movable goal
posts” and directed OFHEO to supply documents withheld for privilege that were not logged by the
deadline as a sanction for their discovery misconduct. However, the court ruled that any privileged
documents that are produced and identified as such will be promptly returned to OFHEO.
� Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008). In this trade
secrets misappropriation litigation, the plaintiff moved to compel the defendant to reproduce emails
in native format that were previously produced in hard copy. Having been written prior to the
effective date of the amendments to the Federal Rules, the plaintiff’s document production request
did not explicitly include electronically stored information and failed to request a particular format
for production. Magistrate Judge Facciola held that both parties played with fire by producing and
accepting documents in hard-copy form, as they were not reasonably kept in hard copy form in the
ordinary course of business. Therefore, Judge Facciola ordered the defendant to produce the
requested information in native format on a CD and split the costs of privilege review (capped at
$4,000) between the parties. Judge Facciola concluded by stating that, “Two thousand dollars is
not a bad price for the lesson that the courts have reached the limits of their patience with having to
resolve electronic discovery controversies that are expensive, time-consuming, and so easily
avoided by the lawyers’ conferring with each other on such a fundamental question as the format of
their productions of electronically stored information.”
� D’Onofrio v. Sfx Sports Group, Inc., 2008 WL 4737202 (D.D.C. Oct. 29, 2008). In this
employment discrimination litigation, the defendants filed several motions, including a motion for
leave to designate an expert to design a search protocol. Previously, the court stated the lawyers
8

should rely on IT professionals to create a protocol that was easily understood. After the
defendants proposed a highly technical search protocol, the court decided to create one of its own
that included: search parameters and locations, time limits and a requirement that the defendants
must restore newly discovered ESI.
� United States v. O’Keefe, 2008 WL 3850658 (D.D.C. Aug. 19, 2008). In this criminal prosecution,
the co-defendant sought further discovery, including Department of State e-mails, communications
memoranda and post indictment analyses. The government refused to provide this information
arguing the requested documents would necessarily result in work product disclosure and not be
discoverable. Finding defendant’s response equivocal, Magistrate Judge John M. Facciola ordered
the government to search for documents that fall within the discovery request and to produce them.
Citing Rule 26(b)(5) of the Fed.R.Civ.P., Judge Facciola required the government to create a
privilege log of documents withheld from production, explicitly describing documents so as to
prevent the necessity of in camera review. See also United States v. O’Keefe, 2008 WL 449729
(D.D.C. Feb. 18, 2008).
� Citizens for Responsibility and Ethics in Wash. v. Executive Office of the President, 2008 WL
2932173 (D.D.C. July 29, 2008). In this ongoing litigation alleging improper deletion of White
House e-mails, the plaintiffs sought an order requiring the defendants to recover and restore
certain electronic communications created and/or received within the White House. Previously,
Magistrate Judge John M. Facciola recommended the Court order the defendants to search the
workstations of employees during the time period at issue and issue a preservation notice directing
them to surrender media that may contain relevant e-mails. In the dispute at hand, the defendants
sought reconsideration, arguing all relevant e-mail was preserved on backup tapes. Finding the
defendants’ argument to be “fundamentally flawed,” the Magistrate Judge denied the motion for
reconsideration, pointing out that e-mail present in a personal folder on an employee’s work station
is not necessarily on the backup tape. However, as the defendants failed to keep track of which
hard drives were used by which individuals, the Magistrate determined that the burdens imposed
on the defendants to preserve all 545 workstations was too great, and therefore recommended no
further relief beyond his previous recommendation.
� Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008). In this ongoing contract dispute, the
court followed up on its previous holding that it was appropriate to ascertain the cost of a forensic
examination to determine if the cost was justified. After the previous ruling, both parties submitted a
joint bid resulting in a vendor proposal of $33,000. Determining the forensic examination to be
justified, the court considered whether the burden or expense justified a shift of cost to the
requesting party. Finding the defendant’s inadequate search efforts, failure to preserve
electronically stored information and overall unwillingness to take “discovery obligations seriously”
caused the need for a forensic examination, the court refused to shift costs since the problem was
one of the defendant’s “own making.”
� Pederson v. Preston, 2008 WL 2358589 (D.D.C. June 11, 2008). In this employment
discrimination litigation, the plaintiff filed a motion to compel discovery arguing that the defendant’s
responses to a number of interrogatories were insufficient and the defendant improperly asserted
attorney-client privilege. The defendant objected arguing that the plaintiff’s production requests
were vague, overly broad, unduly burdensome and not reasonably calculated to lead to the
discovery of admissible evidence. The defendant also defended its assertion of attorney-client and
work-product privilege by noting that the plaintiff had not specifically objected to any claim of
privilege provided in the defendant’s privilege log. After analyzing each disputed interrogatory for
relevancy and undue burden, the court granted the motion in part and denied in part. The court
9

also agreed with the defendant’s privilege argument, holding that the defendant’s attorney-client
privilege assertion would be sustained absent evidence that it was made in bad faith.
� Alexander v. F.B.I., 2008 WL 903115 (D.D.C. April 3, 2008). In this Privacy Act litigation, former
employees and political appointees from the Reagan and Bush administrations brought suit against
the FBI alleging violation of privacy interests after their FBI files were improperly handed to the
Clinton White House – a scandal known as “Filegate.” The plaintiffs filed an emergency motion to
supplement their motion to compel and request for evidentiary hearing, claiming the Executive
Office of the President (“EOP”) filed a false declaration in an attempt to obstruct the narrowed
request for e-mail. Finding the plaintiffs did not demonstrate the EOP obstructed the e-mail
request, or acted in bad faith, the court concluded no credible evidence existed to grant the
emergency motion. In making this determination, the court found the essential errors committed by
the White House’s counsel were a result of the lawyers’ lack of familiarity with computer
terminology, all of which occurred long before the “current sophisticated ways that lawyers have
had to learn to deal with computer experts.”
� Equity Analytics, LLC v. Lundin, 2008 WL 615528 (D.D.C. Mar. 7, 2008). In this suit, the plaintiff
claimed the defendant, a former employee, illegally accessed electronically stored information after
being terminated. The parties agreed a computer forensics examination was necessary to analyze
the defendant’s computer, but could not reach agreement on how the examination should
progress. To protect his privacy, the defendant sought to restrict the search by keywords and file
type, but the plaintiff argued such would be under inclusive. Recognizing that the effectiveness of a
particular search methodology requires expert testimony, Magistrate Judge Facciola required the
plaintiff to submit an affidavit from its examiner explaining, inter alia, the limitation of the proposed
search, how the search is to be conducted, whether a mirror image would be a perfect copy and
whether there would be some reason to preserve the drive once imaged.
� Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Limited, 2008 WL 565100 (D.D.C. March 4,
2008). In this trademark registration dispute, the defendant sought attorney’s fees and costs
associated with the plaintiff’s failure to comply with an earlier discovery order. The defendant
sought monetary reimbursement for the filing of the second motion to compel as well as the
pending motion for fees and costs. The plaintiff argued the time spent on unrelated issues and
those the defendant did not ultimately prevail on should not be awarded. Additionally, the plaintiff
claimed that the defendant’s time estimation was grossly unreasonable and excessive. Agreeing
with the plaintiff, the court denied reimbursement for ordinary litigation activities, including time
spent on document review and related activities and internal discussions concerning the plaintiff’s
discovery failures.
� United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008). In this suit, the government
alleged the defendant received gifts from the co-defendant in exchange for expedited visa
requests. The defendants filed a motion to compel claiming the government did not fulfill the
responsibilities set forth in a previous discovery Order. Included within the electronic search were
electronic documents and e-mails that the defendants claimed were produced in a manner
rendering them unidentifiable. Applying Fed.R.Civ.Pro. 34, the court ordered the parties to
participate in a good faith attempt to reach an agreement on production in a readily usable format.
� D’Onofrio v. SFX Sports Group, Inc., 2008 WL 189842 (D.D.C. Jan. 23, 2008). In this
employment discrimination case, the plaintiff brought suit against her former employer alleging
disparate treatment based on gender, a hostile work environment and termination in retaliation for
protected activities. After several discovery conferences and motions, the case was referred to
Magistrate Judge John M. Facciola for management of the discovery process. In the current motion
10

to compel, the plaintiff sought production of a document known as the “Business Plan” in its original
electronic format with accompanying metadata and claimed the defendant caused deliberate
spoliation of electronic records and failed to produce relevant documents. The defendant argued
production of the Business Plan in its original format was not required by FRCP 34 absent a
specific request and it never received any correspondence alleging deficiencies in its production.
The judge determined that because the plaintiff failed to request the Business Plan in a specific
format, she was precluded from seeking reproduction in a different format because the “if
necessary” clause of FRCP 34 establishes the permissible scope of a discovery request but does
not establish constraints on the manner of production. Additionally, the judge ordered an
evidentiary hearing to assess the merits of the spoliation claim, finding the record simply too thin.
� Hubbard v. Potter, 2008 WL 43867 (D.D.C. Jan. 3, 2008). In this suit, the plaintiffs claimed they
were denied an interpreter at safety meetings, preventing them from safely and properly performing
their duties. The defendant filed a motion to end pre-certification discovery, arguing the plaintiff had
adequate time to complete discovery. The plaintiffs argued that the defendant’s production was
insufficient and incomplete. The court granted the defendant’s motion and found that the plaintiffs
failed to show that documents produced by the defendant permitted a reasonable deduction that
other documents existed and refused to rely on the plaintiffs’ mere “hunch” or “speculation”. The
plaintiffs also claimed additional discovery was warranted due to the defendant’s labeling of
responsive documents as non-responsive and failing to initially produce them. Based on this
argument, the court ordered an evidentiary hearing to determine whether additional production may
be warranted.
� Smith v. Café Asia, 2007 WL 2849579 (D.D.C. Oct. 2, 2007). In this suit alleging sexual
discrimination, assault and battery, the defendant, a former employer of the plaintiff, sought images
stored on the plaintiff’s cell phone to prove the plaintiff invited the treatment that incited the suit.
The case was referred to United States Magistrate Judge Facciola for resolution. Judge Facciola
stated that Fed. R. Civ. P. 26 is not an “all-or-nothing proposition” and the probative value of the
sought-after materials must outweigh their prejudice. After conducting a Rule 26 and Federal Rule
of Evidence 412 analysis, Judge Facciola ordered the plaintiff to preserve the stored images.
Additionally, Judge Facciola allowed the defendant to designate one attorney to inspect the stored
images in order to provide the trial judge with a fully informed debate regarding the images’
admissibility.
� United States v. Ferguson, 508 F.Supp.2d 7 (D.D.C. Sept. 10, 2007). In this drug trafficking
prosecution, the defendant moved to suppress Yahoo! and MSN Hotmail e-mail evidence obtained
by the government, which was seized pursuant to the magistrate judge’s order under the Stored
Communications Act (SCA). The defendant challenged the SCA’s constitutionality, and in turn, the
government argued that the constitutionality of the SCA had no bearing on whether the evidence
warranted suppression. Denying the defendant’s motion to suppress, the court found that the SCA
does not provide a suppression remedy and concluded that the government’s reliance on the SCA
was objectively reasonable.
� Peskoff v. Faber, 2007 WL 2416119 (D.D.C. August 27, 2007). In this ongoing discovery battle,
unsatisfied with the defendant’s compliance with discovery obligations, the court ordered the
defendant to search all depositories of electronic information in which one could reasonably expect
to find emails where plaintiff’s name appeared. The plaintiff claimed there was no email from mid-
2001 to mid-2003 in the defendant’s original production with the plaintiff as recipient or sender or
any with his name in the text. However the plaintiff maintained the same email account from June
of 2000 to April 2004. The court ordered an evidentiary hearing at which the defendant failed to
11

appear, so the court construed his failure to comply with the order against him and proceed to
other evidence. The defendant’s counsel merely insisted any information not already produced was
no longer in existence, so the court ordered the parties to seek estimates from experts for a search
and production in tiff or pdf format to determine the importance of the discovery to the issue in the
litigation.
� Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 2007 WL 1585452
(D.D.C. June 1, 2007). In a suit alleging violations of the Americans with Disabilities Act, inter alia,
the plaintiff motioned the court to order the defendant to restore and search backup tapes for
discoverable information. The plaintiff claimed discovery of the backup tapes was necessary
because the defendant’s e-mail system was programmed to automatically delete all e-mails after
60 days, and the defendant did nothing to stop the obliteration since the filing of the law suit, over
three years earlier. The defendant argued that such an order would create undue burden and
expense, and that there was little reason to suppose that the backup tapes would produce relevant
information. The court granted the plaintiff’s motion noting that while, “[T]he newly amended
Federal Rules of Civil Procedure initially relieve a party from producing electronically stored
information that is not reasonably accessible because of undue burden and cost, I am anything but
certain that I should permit a party who has failed to preserve accessible information without cause
to then complain about the inaccessibility of the only electronically stored information that remains.”
The court also ordered the parties to meet and confer to reach an agreement as to how the backup
tape restoration, search, review, and production would be conducted. The court suggested concept
searching as opposed to keyword searching as a more efficient search method, likely to produce
more comprehensive results.
� Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. Feb. 21, 2007). In a suit alleging fraud, breach of
fiduciary duty, breach of contract, and conversion inter alia, the plaintiff moved the court to compel
the discovery of e-mails relating to the suit. In a previous electronic document production, there
were unexplained time gaps which, the plaintiff argued, suggested a complete and accurate search
was not completed by the defendant. The defendant argued that he would be willing to submit his
hard drive for imaging by the plaintiff, but that he would not endure the costs of production. After
supplemental submissions by the parties regarding the extent of the search, the court determined
the defendant only searched two of the five places where e-mail evidence may be found and that
this was not a sufficient search for relevant ESI. The court also ruled that the defendant must
endure the costs of producing relevant ESI contained his hard drive, citing the new Federal Rules
of Civil Procedure. The court stated that accessible data must be produced at the cost of the
producing party and that “cost-shifting does not even become a possibility unless there is first a
showing of inaccessibility.” It cannot be argued, stated the court, that “a party should ever be
relieved of its obligation to produce accessible data merely because it may take time and effort to
find what is necessary.”
� Peskoff v. Faber, 2006 WL 1933483 (D.D.C. July 11, 2006). The court considered the plaintiff’s
motion to compel the defendant to produce additional e-mails written by or addressed to the
plaintiff while employed by the defendant. During discovery, the defendant presented the plaintiff
with computer disks that the defendant asserted contained “all [plaintiff’s] electronic files, including
documents stored on his computer hard drive, e-mail, and any other [plaintiff] electronic
documents.” However, the discovery production did not include two years worth of e-mails received
or authored by the plaintiff from 2001 through 2003. The plaintiff argued the defendant failed to
adequately explain the missing e-mails or detail the steps taken to search for the e-mails in the
defendant’s computer system or archives. Countering, the defendant maintained no documents
12

had been withheld, and if e-mails were missing, they no longer existed. The defendant informed
the court that it subleases space from a law firm and its electronic files were stored on the law
firm’s server. The court observed there were several possible locations where the missing e-mails
could be located, including the plaintiff’s e-mail account at work, other employee accounts, on hard
drives of company computers and on backup tapes of the law firm’s server. The court ordered the
defendant to provide a detailed affidavit specifying the nature of the search the defendant
conducted in locating the responsive e-mails. It further ruled the plaintiff would then have ten days
to respond to the adequacy of the search described in the affidavit and at that point the court would
consider whether additional searches were necessary.
� J.C. Associates v. Fidelity & Guar. Ins. Co., 2006 WL 1445173 (D.D.C. May 25, 2006). In an
insurance coverage dispute, the plaintiff challenged the defendant’s interpretation of a policy
exclusion clause and sought discovery of related claim and litigation files in the defendant’s
possession. The defendant resisted the discovery request, but conducted a preliminary electronic
search of its 1.4 million claim and litigation files and identified 454 related claims. The judge
articulated that the issue of whether or not to order discovery of the defendant’s files was not a
matter of “relevance, but rather burdensomeness.” The judge ordered file-sampling, instructing the
defendant to randomly select and scan 25 of the 454 identified claims into an electronically
searchable document. The court identified four specific search terms that the defendant should use
in conducting and electronic search of the claims for responsiveness. The judge instructed the
defendants to review documents containing those keywords and to produce any non-privileged,
responsive information to the plaintiff. The court retained the authority to demand further discovery
and allocate costs after reviewing the information produced from the 25 files.
� Breezevale Ltd. v. Dickinson, 879 A.2d 957 (D.C. Cir. 2005). A tire distributing company brought
an action against its attorneys for legal malpractice. The company alleged the attorneys should
have delayed the deposition of one of the company’s employees until the company could further
investigate the employee’s conduct. The employee being deposed claimed she forged documents
relating to a lawsuit against a tire manufacturing company at the direction of and in collaboration
with company executives. At trial, the court dismissed the legal malpractice lawsuit and imposed
fees upon the company for knowingly bringing a suit based on forged documents. A computer
evidence expert testified two documents were created on the employee’s computer with a last
access date that corroborated the employee’s testimony. In addition, the expert determined one of
the documents was computer-generated, even though the defendant did not own a computer at
that time. Other evidence of forgery included two documents that were typed on a letterhead that
did not exist at the time of the alleged document create dates. Based on this evidence, the trial
court came to the “inescapable conclusion” the documents at issue were forged. The appellate
court affirmed the lawsuit dismissal and award of $4 million in fees based on its finding that
sufficient evidence demonstrated the company’s executives knew and participated in the forgeries.
However, the court vacated the $1 million punitive sanctions, noting, “[t]he other sanctions imposed
by the trial court themselves bore ‘punitive’ elements.”
� Wild v. Alster, 377 F.Supp.2d 186 (D.D.C. 2005). In a medical malpractice lawsuit, the plaintiff
moved for a new trial after the jury found in favor of the defendant. The plaintiff alleged the court
erroneously denied a request for an expert examination of the defendant’s computer. In particular,
the plaintiff sought to discover if certain dates, specifically the date photographs of her face were
taken, could be retrieved from the defendant’s hard drive. The original photographs were lost
during a computer system conversion; however, the defendant was able to recover some of the
photos with the assistance of a data recovery service. The recovered photos only displayed the
13

dates on which the photos were imported into the new system and not the dates on which they
were originally taken. Despite this, the plaintiff asserted the defendant’s computer consultant
testified in a deposition that the original dates were retrievable. In reviewing the deposition
testimony, the court determined the expert actually stated it would be impossible to print any of the
photographs with dates indicating when they were originally taken. In denying the motion for a new
trial, the court concluded the plaintiff was not prejudiced by being prohibited from presenting the
import date information to the jury and further stated that the court was well within its bounds to
prevent further discovery of the computer system given the plaintiff’s request was made a year and
a half after the discovery period closed.
� Jinks-Umstead v. England, 227 F.R.D. 143 (D.D.C. 2005). In a case involving discrimination
allegations against the U.S. Navy, the court granted a new trial to allow the plaintiff to present its
case using new evidence which the defendant initially claimed it no longer had and did not produce
during discovery. At trial, after the defendant produced this information – 1,400 pages of reports
generated from a database – for the first time, the court granted the plaintiff’s motion for a new trial
and for additional limited discovery. After the court granted the motion, the plaintiff filed a series of
related post-trial discovery motions. The plaintiff requested, inter alia, compliance with an earlier
order to provide access to the defendant’s database for review by either the plaintiff’s counsel or a
computer technology consultant, to determine if information could be retrieved from the database.
The defendant argued it had given the plaintiff access to the database during a specified time, but
the plaintiff failed to accept the offer. The court declined to analyze whether the plaintiff forfeited its
database inspection opportunity because new deposition testimony of one of the defendant’s
employee’s indicated the information could be retrieved by specific data queries. Based on this
testimony, the court ordered the defendant to query the database, retrieve the relevant information,
and produce it to the plaintiff within 60 days of the order. See also Jinks-Umstead v. England, 2005
WL 3312947 (D.D.C. Dec. 07, 2005)(Distinguishing Morgan Stanley decision in concluding adverse
inference instruction not appropriate where defendant did not act with “evil intent, bad faith, or
willfulness.”).
� Judicial Watch, Inc. v. United States Dep’t. of Justice, 337 F.Supp.2d 183 (D.D.C. 2004), rev’d,
432 F.3d 366 (D.C. Cir. 2005). The defendants filed a motion for reconsideration of the court’s
earlier ruling relating to the production of nine e-mail messages for which they had asserted the
attorney work-product privilege. Pursuant to the Freedom of Information Act (FOIA), the court had
previously required the defendants to provide the plaintiff with redacted copies of the privileged emails.
In its motion for reconsideration, the defendants argued that the FOIA segregability
requirement – mandating production of “any reasonably segregable portion of a record” – did not
apply and, as a result, the e-mails did not need to be produced. The court rejected this argument,
holding that the FOIA segregability requirement applies to all documents, including e-mails.
Emphasizing that the defendants made no effort to separate factual and privileged material, the
court denied the defendants’ motion and ordered production of the redacted copies. On appeal, the
court determined the entire contents of the e-mails were prepared in anticipation of litigation,
protected by the attorney work-product doctrine, and exempt from disclosure.
� United States v. Philip Morris USA Inc., 327 F.Supp.2d 21 (D.D.C. 2004). In a case brought by
the government involving smoking and health related issues, the government filed a motion for
evidentiary and monetary sanctions against the defendants for spoliation of evidence. Although the
court had ordered preservation of all potentially relevant documents, the defendants continued to
delete e-mail when it became sixty days old, on a monthly systemwide basis for a period of two
years after the court order. Even after learning about their inadequate document retention policy,
14

the defendants continued to destroy documents for several months, including relevant e-mails from
at least eleven company supervisors and officers. In addition, the defendants failed to notify the
court about the situation until four months after they found out about it. Finding that a significant
number of e-mails had been permanently destroyed, the court declared that “it is astounding that
employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining
to issues in this lawsuit, failed to follow [the] Order…which, if followed, would have ensured the
preservation of those e-mails which have been irretrievably lost.” Granting the government’s motion
for sanctions, the court stated that it will preclude the defendants from calling a key employee, who
failed to follow the retention policy, as a fact or expert witness at trial. The court also ordered the
defendants to pay costs relating to the spoliation as well as $2,750,000 in monetary sanctions. See
also United States v. Philip Morris USA Inc., 223 F.R.D. 1 (D.D.C. 2004).
� Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F.Supp.2d 27 (D.D.C. 2004). In a
copyright infringement suit, the court issued an order compelling the defendant to produce
computer servers, which hosted the defendant’s web site and contained records of its users. When
the plaintiffs’ computer expert inspected the servers, he discovered that the vast majority of that
information had been intentionally destroyed after the defendant learned that litigation was
imminent. The expert found that the defendant ran a program, designed to erase electronically
stored information, more than 50 times from a remote location in an attempt to delete all electronic
data from the servers. In spite of the defendant’s attempts, the expert recovered a small amount of
data to support the plaintiffs’ claims. Although the defendant attempted to attack the plaintiffs’
methodologies for extrapolating the number of users and downloads, the court indicated that the
defendant was “in a poor position to attack plaintiffs’ evidence,” noting that “[d]estruction of
evidence raises the presumption that disclosure of the materials would be damaging.” The court
decided not to issue sanctions but instead encouraged the plaintiffs to move for appropriate
sanctions as the case progressed.
� In re Lorazepam and Clorazepate Antitrust Litig. v. Mylan Lab., Inc., 300 F. Supp. 2d 43
(D.D.C. 2004). In a class action antitrust lawsuit, the plaintiff sought to compel discovery of
electronic documents. The defendant objected to the request arguing that the documents had
already been produced. The plaintiff responded, claiming that the unindexed document “dump”
produced on CD-ROM did not meet the defendant’s obligation to match documents with discovery
requests as closely as possible. The court required the plaintiff to take the CD-ROM’s to a
computer forensic or electronic discovery expert before the court would require the defendant to
index the information. The e-evidence expert was to ascertain whether the electronic information
could be read and searched by commercially available software or converted to a format in which it
could be done.
� Bethea v. Comcast, 218 F.R.D. 328 (D.D.C. 2003). Former employee sought to compel the
defendant to allow her to inspect their computer systems to determine whether the defendant
possessed any additional documents that had not yet been produced in discovery. The defendant
argued that the plaintiff should not be allowed to inspect its computers because the defendant had
already produced all unprivileged documents in response to the plaintiff’s discovery requests.
Additionally, the defendant claimed that the plaintiff did not show that relevant material existed on
the computer systems or that the defendant was unlawfully withholding documents. Ruling in favor
of the defendant, the court noted that the plaintiff did not show that the documents she sought
actually existed or that the defendant unlawfully failed to produce them. The court further declared
that mere suspicion that another party failed to respond to document requests was not enough to
justify court-ordered inspection of the defendant’s computer systems.
15

� Landmark Legal Foundation v. Environmental Protection Agency, 272 F. Supp. 2d 70 (D.D.C.
2003). Concerned that documents responsive to its Freedom of Information Act request would not
survive the transition between governmental administrations, the plaintiff requested the court to
enter a preliminary injunction prohibiting the EPA from destroying, removing, or tampering with
potentially responsive documents. The court granted the motion and issued an injunction. Despite
the court’s order, the hard drives of several EPA officials were reformatted, e-mail backup tapes
were erased and reused, and individuals deleted received e-mails. The court found the EPA in
contempt and concluded that the appropriate sanction was to impose sanctions in the form of the
plaintiff’s attorney’s fees and costs incurred as a result of the EPA’s conduct.
� McPeek v. Ashcroft, 212 F.R.D. 33 (D.D.C. 2003). In its August 1, 2001 Order, the court ordered
the defendant to search certain backup tapes to assist in ascertaining whether additional searches
were justified. After completing this backup tape sample, the parties could not agree whether the
search results produced relevant information such that a second search was justified. The
magistrate stated, “[t]he frustration of electronic discovery as it relates to backup tapes is that
backup tapes collect information indiscriminately, regardless of topic. One, therefore, cannot
reasonably predict that information is likely to be on a particular tape. This is unlike the more
traditional type of discovery in which one can predict that certain information would be in a
particular folder because the folders in a particular file drawer are arranged alphabetically by
subject matter or by author.” After examining the likelihood of relevant data being contained on
each of the backup tapes, the magistrate ordered additional searches of selected backup tapes
likely to contain relevant evidence.
� United States v. First Data, 287 F. Supp.2d 69 (D.D.C. Oct. 31, 2003). In directing a Scheduling
and Case Management Order, the court ordered limits on paper and electronic document
discovery. Specifically, the court instructed the parties to “produce documents in either hard copy
form, or, in the case of electronic documents, in the native electronic format (or a mutually
agreeable format).”
� New York v. Microsoft Corp., 2002 WL 649951 (D.D.C. Apr. 12, 2002). Microsoft challenged
several e-mails appended to the written testimony of one of the plaintiff’s witnesses, claiming that
the statement contained therein were inadmissible hearsay. The court excluded multiple e-mail
messages using the following reasoning: (1) they were offered for the truth of the matters they
asserted, (2) had not been shown to be business records as required under Rule 803(6), and (3)
contained multiple levels of hearsay for which no exception had been established.
� Cobell v. Norton, 206 F.R.D. 324 (D.D.C. 2002). The court issued sanctions, including attorneys
fees and expenses, under Rule 37 based upon the defendants’ request for a protective order
clarifying that it “may produce e-mail in response to discovery requests by producing from paper
records of e-mail messages rather than from backup tapes and may overwrite backup tapes.” The
defendants had previously been ordered to produce the e-mail messages from the back-up tapes.
The court held that the defendants’ motion for protective order clarifying their duty to produce the email
was not appropriate.
� United States v. Sungard Data Systems, 173 F. Supp. 2d 20 (D.D.C. 2001). In an antitrust
action, the court set forth specific confidentiality requirements, including a precise method for
designating confidential electronic documents.
� McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001). In a sexual harassment action against the
plaintiff’s employer, the plaintiff sought to force the defendant to search its backup systems for data
that was deleted by the user but was stored on backup tape. The defendant rebutted that the
remote possibility of yielding relevant evidence could not justify the costs involved. Instead of
16

ordering recovery and production of relevant documents from all of the existing backup tapes, the
Magistrate ordered the defendant to restore and produce responsive e-mails from one person’s
computer over a one year period. After this sample data was produced and accessed, the
Magistrate would then determine if a broader recovery and search was warranted given the burden
and expense.
� Alexander v. FBI, 186 F.R.D. 78 (D.D.C. 1998). The court concluded that it was appropriate to
order an examination of employee’s computer hard drive and server to determine whether
responsive documents that had not been already produced actually existed. See also Alexander v.
FBI, 188 F.R.D. 111 (D.C. Cir. 1998). The court refused to require the defendants to completely
restore all deleted files and e-mail where the plaintiff did not propose “targeted and appropriately
worded searched of backed-up and archived e-mail and deleted hard drives for a limited number of
individuals.”
� Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993), rev’d in part on
other grounds, 90 F.3d 553 (D.C. Cir. 1996). The district court held that government agencies who
merely instructed employees to print out a paper version of any electronic communication had not
reasonably discharged their preservation obligations under the Federal Records Act. The appellate
court affirmed stating, “[w]ithout the missing information, the paper print-outs--akin to traditional
memoranda with the "to" and "from" cut off and even the "received" stamp pruned away--are
dismembered documents indeed.”
� Armstrong v. Bush, 807 F. Supp. 816 (D.C. 1992). The plaintiffs filed a motion for a Temporary
Restraining Order (TRO) in order to prevent the destruction of presidential materials stored on an
electronic communication system, including any systems that were altered during the course of
litigation. The defendants objected, contending that discovery had been closed for over six months.
The court rejected the defendants’ argument and issued the TRO, stating that the preservation of
records on the tapes would not present an undue burden on the defendant.
� PHE, Inc. v. Department of Justice, 139 F.R.D. 249 (D.D.C. 1991). The court ordered the
plaintiffs to produce computerized tax records even though the plaintiffs possessed no computer
program to retrieve or display the records. “Although no program may presently exist to obtain the
information requested, the court is satisfied that with little effort the plaintiffs can retrieve the
necessary and appropriate information…It would not be unreasonable to require the plaintiffs to
incur modest additional expenditures so as to provide the defendants with the discovery necessary
to establish that they are not acting in bad faith and vindictively.”
� Indiana Coal Council v. Nat’l Trust for Historic Preservation, 118 F.R.D. 264 (D.D.C. 1988).
The court held that the work product doctrine prevented the plaintiff from gaining access to the
defendant’s legal research resources and findings conducted through a computer assisted legal
research system.
District of Puerto Rico
� Baez-Eliza v. Instituto Psicoterapeutico de Puerto Rico, 2011 WL 2413051 (D. Puerto Rico
June 16, 2011). In this suit under the Americans with Disabilities Act, the parties requested the
court determine if attorney-client privilege applied to ten e-mails sent between employees in the
defendant corporation. The court had previously sanctioned both parties $500 for extensive abuses
that turned the discovery process "into an all-out war," which included the filing of over 25 motions
and repeated orders by the court to cooperate. Despite the previous sanctions and court’s
insistence to resolve disputes amicably, the defendant continued to claim that all ten e-mails were
17

protected because they disclosed the fact that the defendant was consulting with its attorney. The
court found the defendant’s position showed "an ill-advised stubbornness" and "a poor
understanding of the privilege’s reach." Though the court did determine that some of the
defendant’s documents were privileged, others simply mentioned legal matters or representation
but were devoid of legal content. In line with its threat to sanction further discovery misdeeds, the
court sanctioned the defendant $1,000 for failing its duty of candor to the court. In an extended
conclusion, the court admonished both parties for showing "reprehensible gamesmanship" instead
of civility, urging responsible practitioners to adopt the latter.
� Amira-Jabbar v. Travel Servs. Inc., 726 F.Supp.2d 77 (D. Puerto Rico July 28, 2010). In this
racial discrimination litigation, the plaintiff argued the defendant was liable for an allegedly racist
comment that an employee posted on Facebook as the defendant allowed its employees to post
photos and comments on the website during company time for company purposes, and did not
have a firewall or software in place to prevent employees from using the site. The defendant
moved for summary judgment, asserting it was not responsible for the incident because it had no
ownership or control over the Facebook account, and did not authorize the plaintiff’s co-worker to
post comments. Finding the defendant responded promptly and appropriately by blocking site
access for all office computers after receiving a complaint from the plaintiff, the court held the
plaintiff’s allegations were insufficient to establish a hostile work environment claim and granted
summary judgment for the defendant.
� Rodriguez-Torres v. Gov’t Dev. Bank of Puerto Rico, 2010 WL 174156 (D.Puerto Rico Jan. 20,
2010). In this discrimination litigation, the plaintiffs sought sanctions and production of electronically
stored information. The plaintiffs argued that the requested ESI, unlike hard copy documents,
contained relevant information pertaining to authenticity, reliability and chain of custody in the form
of native format files and metadata. In opposing these motions, the defendants claimed the ESI
request was overbroad and would produce thousands of nonresponsive, confidential and privileged
documents. Following submission of an independent report approximating the ESI production cost
to be $35,000, the court held that under Fed.R.Civ.P. 26(b)(2), “$35,000 [was] too high of a cost for
the production of the requested ESI in this type of action” and determined the ESI was “not
reasonably accessible.” Furthermore, the court found the plaintiffs’ argument that e-mails are more
likely to lead to inappropriate comments was not sufficient to demonstrate good cause. Rather, the
court determined the plaintiffs’ “request [was] merely a fishing expedition,” which is contrary to the
point of discovery.
First Circuit – State and Federal Cases
� Koken v. Black & Veatch Constr., Inc., 426 F.3d 39 (1st Cir. 2005). The defendants appealed a
denial of monetary sanctions for alleged discovery violations relating to a product liability and
breach of warranty lawsuit. In particular, the defendants claimed its document review costs were
increased by the plaintiff’s delay and/or failure to provide electronic versions of damage calculation
documents. Although noting the defendants were entitled to the discovery and the plaintiff made
the process “more difficult than it need be,” the district court declined to impose sanctions. The
district court determined that expert discovery had been delayed at that time and it was “unclear
whether [the plaintiff] was deliberately obfuscating or merely stopped its discovery related expert
activities because of the stay…". On appeal, the defendants argued the district court was incorrect
as it never actually received the documents from the plaintiff. The appellate court noted the only
18

evidence supporting this contention was an affidavit from the defendants’ damages expert. Absent
further evidentiary support, the court found no clear error in the district court’s denial of sanctions.
� Sheppard v. River Valley Fitness One, 203 F.R.D. 56 (D.N.H. 2001), rev’d on other grounds,
2005 WL 2178821 (1st Cir. Sept. 9, 2005) aff’d in part and vacated in part by, 428 F.3d 1 (1st Cir.
2005). The plaintiffs served several requests for discovery upon the defendant which defined the
term “documents” broadly, encompassing both paper documents and electronic communications.
However, the defendant’s attorney (Whittington) failed to turn over the requested documents in a
timely fashion and some of the documents were lost or destroyed. The court held, “Notwithstanding
Whittington’s habit of trying to obstruct discovery in this case, I find that in this instance
Whittington’s failure to produce computer records and to retain all drafts or other documents
relating to the Aubin settlement reflects a lack of diligence rather than an intentional effort to abuse
the discovery process. Nevertheless, Whittington’s failure to fully comply with this court’s March 22
order has unfairly prejudiced the plaintiffs by depriving them of the opportunity to question Aubin
about the contents of the documents.” The court ordered the defendant’s attorney to pay $500 to
the plaintiff.
� Perez v. Volvo Car Corp., 247 F.3d 303 (1st Cir. 2001). In a suit under the Racketeer Influenced
and Corrupt Organizations Act, internal Volvo e-mails, which could have made a dispositive
difference on the issue of Volvo’s knowledge of the fraud involved in the suit, were not called to the
district court’s attention until after the court had issued summary judgment. Volvo claimed these emails
offered too little, too late. However, the First Circuit disagreed, “After all, Volvo did not
produce the e-mails to the plaintiffs until January 2000 (the same month that Volvo filed its
summary judgment motion)--and then only in Swedish. Given the timing, the sheer volume of
documents involved in the case, and the need for translation, fundamental fairness counsels in
favor of treating the e-mails as newly-discovered evidence within the purview of Federal Rule of
Civil Procedure 59(e).”
� Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996). The court denied the plaintiff’s
broad request for discovery of the defendant’s entire hard drive. The court explained that the costs,
burdens, delays, and likelihood of discovering the evidence must be weighed against the
importance of the requested evidence. The court held requesting party must show a “particularized
likelihood of discovering appropriate material.”
Maine
� Long v. Fairbank Farms, Inc., 2011 WL 722767 (D. Me. Feb. 17, 2011). In this discovery dispute,
the defendants sought to compel production, impose sanctions and require a third party defendant
to show cause why it should not be held in contempt of court for accessing documents designated
as for "Attorneys’ Eyes Only." Despite finding discovery violations relating to two of five categories
of documents allegedly withheld or destroyed, the court declined to impose sanctions or compel
production as extraordinary relief had already been granted in a previous order permitting mirrorimaging.
Regarding the next issue, attorneys for the third party defendant claimed they erroneously
disseminated materials to their client marked "Attorneys’ Eyes Only," pulled the documents back
and confirmed the client had not since accessed them. However, the defendants produced
evidence that a separate copy of the disclosure file was created and accessed using a USB
storage drive on at least two occasions, and the file had been transferred to an iPod or iPhone. In
light of this evidence, the court ordered the third party defendant to show cause as to why it should
not be held in contempt on account of the alleged misrepresentations.
19

� Burrell v. Anderson, 353 F.Supp.2d 55 (D.Me. 2005). In a case involving a domestic abuse
investigation, the plaintiff claimed employees of the district attorney’s office, police department, and
the county violated his civil rights. The plaintiff filed a motion for spoliation sanctions, declaring
several of the defendants failed to preserve voice-mails left by the plaintiff. The plaintiff argued the
defendants should have known the voice-mails would be helpful in proving his case. In response,
the defendants filed a motion for summary judgment. The court declared the plaintiff’s argument
“merit[ed] little discussion” and rejected the plaintiff’s contention that “any of the defendants had a
duty to keep recordings of his voice-mail messages in order to preserve evidence favorable to [the
plaintiff] in this civil litigation.” The court denied the motion for sanctions and granted summary
judgment in favor of the defendants, finding no genuine dispute of material fact.
New Hampshire
� State v. Lott, 879 A.2d 1167 (N.H. 2005). The defendant - convicted for using computer services
in a manner prohibited by the law – appealed an order denying his motion to suppress the instant
message evidence that led to his conviction. Specifically, the defendant claimed an undercover
detective violated a statute prohibiting interception of telecommunications when he recorded the
instant message conversation. While posing as a fictitious child, the detective had engaged in and
recorded an instant message conversation with the defendant. The detective had also enabled a
Yahoo! message archiving feature that automatically creates a record of the instant message
conversation, which he later saved as an electronic document. On appeal, the court found the
detective intercepted the defendant’s communications but declared the evidence was still
admissible. The court determined the defendant, as a matter of law, consented to the recording of
the messages because the defendant impliedly knew they were being recorded. The court noted,
“[l]ike an e-mail message and a message left on an answering machine, the recording of the
instant message is necessary for the intended recipient of that message to read the message.” The
court declined to address whether the detective illegally intercepted the instant message
communication by enabling the Yahoo! message archiving feature, as the evidence was already
properly admitted through the detective’s first recording method.
� Thompson v. Thompson, 2002 WL 1072342 (D.N.H. May 30, 2002). The copying of e-mail
messages from the hard drive of a personal computer does not constitute interception of electronic
communications for the purposes of the Electronic Communications Privacy Act of 1986. The court
reasoned that an interception can only occur “during transmission” of electronic communication
transfers; thus, the acquisition of stored e-mail does not qualify as an interception under the ECPA.
Massachusetts
� Limone v. United States, 2011 WL 2489965 (D. Mass. June 20, 2011). In this claim under the
Federal Tort Claims Act, the plaintiffs sought attorney fees for the government’s alleged bad faith
discovery conduct after winning a substantial jury award at trial for their wrongful murder
convictions – resulting in thirty years of undeserved prison time. Reviewing the government’s
discovery conduct, the court found that over 7,000 documents were redacted to an
"incomprehensible" extent due to the government’s claim that they contained information which
could reveal the identities of confidential informants. The court found that during the government’s
two-year-long discovery stonewalling effort, the FBI had not allowed the government lawyers
handling the case to see the unredacted versions of the documents in question. Citing this
20

ehavior as a direct contradiction of the reasonable inquiry requirement under Fed.R.Civ P. 26(g),
the court found the government’s actions constituted bad faith. Finding the government’s behavior
warranted sanctions, the court scheduled a hearing to determine which costs were reasonably
related to the bad faith conduct.
� Bower v. Bower, 2011 WL 1326643 (D. Mass. Apr. 5, 2011). In this tort litigation relating to the
alleged abductions of the plaintiff’s minor children, the plaintiff sought to compel Yahoo! and
Google to comply with a third party document subpoena and to compel the defendant to consent to
the production of e-mails. Agreeing with Yahoo! and Google that the Stored Communications Act
(SCA) barred the requested production absent the defendant’s consent and finding no exception
requiring compliance with a civil subpoena, the court denied the motion to compel. The court cited
case law that supported ordering consent as a sanction for failure to comply with a Fed.R.Civ.P. 34
document request, however, it found no support to order consent for failure to respond to a motion
to compel consent. Further, the court disregarded the plaintiff’s argument that the defendant’s
fugitive status should be sufficient to order consent and distinguished this case from those where
an implied agreement has been found in light of affirmative participation in the judicial process.
Based on this analysis, the court declined to find anything in the defendant’s actions (or fugitive
status) from which to imply consent to disclose her information.
� Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010). In this discovery dispute, the
defendant moved to strike an inadvertently produced e-mail to preclude its further use in the
litigation. The e-mail was disclosed when the defendant – a BCC recipient – accidentally
responded to all recipients of an e-mail sent by his attorney to co-counsel and opposing counsel.
Distinguishing this case from those in which counsel inadvertently discloses attorney-client
privileged communications while producing voluminous documents, the court nevertheless
considered whether counsel took reasonable steps to preserve the communication’s confidentiality.
The court found the counsel’s use of BCC gave rise to a foreseeable risk, but agreed that the
transmission was obviously unintended and was an easy mistake to make. Noting it was a close
decision, the court stated that “[a]n excessive readiness … to find waiver would tend to erode the
privilege” that is “tremendously important in our legal system.” Giving consideration to the fact that
counsel quickly demanded deletion of the inadvertently produced document, the court granted to
motion to strike and cautioned against “the temptation to seize opportunities arising from
inadvertent disclosures.”
� Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. June 22, 2009). In this antitrust
litigation, the plaintiffs moved for entry of an order governing discovery regarding costs, metadata
and production format. After making clear that electronic discovery must proceed in an organized
and managed fashion, the court first ordered the defendants to pay their own costs in producing
electronic documents to the plaintiffs, as they did not demonstrate the data’s inaccessibility.
Second, the court held the defendants did not have to incur costs to change the production format
of already produced documents, because the plaintiffs did not show that translating the documents
to another production format was necessary to make the documents “reasonably usable” under
Fed.R.Civ.P. 34. Third, the court refused to compel the defendant to produce “all metadata,” citing
wariness that metadata may not lead to admissible evidence and that requests for metadata should
be tailored to specific documents. Finally, the court ordered the defendants to produce their
spreadsheets and privilege logs in native format pursuant to Fed.R.Civ.P. 34’s requirement that
documents be produced as they are kept in the “usual course of business.”
� Capitol Records, Inc. v. Alaujan, 2009 WL 1292977 (D.Mass. May 6, 2009). In this copyright
infringement case, the defendant moved for a protective order to prevent the mirror imaging of two
21

computers. The defendant argued the discovery was overbroad, an invasion of privacy and
violated attorney-client privilege. The plaintiffs sought inspection of the computers to determine
whether they were used for file sharing. The court granted the protective order and denied imaging
with regard to one of the computers that was barely addressed by the plaintiffs in their response to
the defendant’s motion. The court allowed imaging of the second computer subject to a protective
order whereby the plaintiffs would select a computer forensic expert to examine relevant, nonprivileged
data on the computer, citing the centrality of the second computer to the litigation
alongside the defendant’s substantial privacy concerns. The court ordered the expert would
provide a report describing any relevant files to the defendant’s counsel, who would have five days
to lodge any objection before disclosing the report to the plaintiffs.
� Plasse v. Tyco Elec. Corp., WL 2623441 (D. Mass. Sept. 7, 2006). In a wrongful termination suit,
the defendant claimed that the plaintiff had misrepresented his credentials when applying for the
position. When the defendant indicated that it would be requesting to inspect the laptop used to
create the resume, the plaintiff accessed his resumes and cover letters and modified the
documents’ electronic properties. However, after a computer forensics expert recovered the
deleted metadata and discovered the plaintiff’s alterations, the court ruled that “Plaintiff has
destroyed or concealed evidence, engaging in an egregious pattern of misconduct that has
hampered the proceedings in this case.” It also noted that “Plaintiff’s explanation for this behavior is
more than unconvincing; it verges on the absurd.” The court granted defendant’s motion to dismiss
and for sanctions.
� Natl. Econ. Res. Assoc. v. Evans, 2006 WL 2440008 (Mass. Super. Aug. 3, 2006). Plaintiff
employer filed a motion to compel an employee’s e-mail communications with his attorney that
were created and received on a company-issued laptop while defendant was still employed with
plaintiff. The e-mails were deleted from the laptop shortly before defendant returned the laptop to
plaintiff, but were later recovered from the hard drive by a computer forensics expert. The court
denied plaintiff’s request because such documents were protected under the attorney-client
privilege. Plaintiff argued that defendant employee waived his right to an attorney-client privilege
because company policy stated that all e-mail from business and personal accounts would be
monitored. Plaintiff further argued that although the privileged documents were deleted before
recovery, defendant should have reasonably known that they were recoverable from his hard drive.
The court ruled that defendant could not “reasonably have understood that these attorney-client
communications could be ‘overheard’“. The court denied the motion because the privileged
communications were viewed through a private e-mail address by employee – not on the
company’s intranet, were not saved onto the laptop’s hard drive and the defendant took adequate
measures to ensure that his confidential information was not easily disclosed.
� Galvin v. Gillette Co., 19 Mass.L.Rptr. 380 (Mass. Super. 2005). The Secretary of the
Commonwealth of Massachusetts sought compliance with a subpoena duces tecum served upon
the defendant in connection with a proposed merger agreement. The defendant contended that
nothing remained to be litigated and that it complied properly with all outstanding requests from the
Secretary. Inter alia, the Secretary sought an order requiring the defendant, at its own expense, to
permit a vendor the opportunity to "search all e-mail, servers, archives, discs, back-up tapes, hard
drives (of all computers of Gillette and Gillette personnel), and all back-up systems thereof, and all
other data bases of Gillette necessary to investigate and accomplish retrieval, preservation and
copying of the documents." In denying the Secretary’s proposed order, the court noted several
factors making the effort impossible to comply with, including the size of the defendant’s
organization, the volume of computerized information, the defendant’s e-mail retention policy, and
22

the effort required to conduct a privilege review. Therefore, defendant did not waive his attorneyclient
privilege by purposely disclosing the information to plaintiff.
� Williams v. Mass. Mut. Life Ins. Co., 226 F.R.D. 144 (D.Mass. 2005). In a case arising from
employment discrimination allegations, the plaintiff filed a motion to appoint a neutral computer
forensic expert. The plaintiff indicated he needed the expert to inspect the defendants’ computer
hard drives and search for an allegedly incriminating e-mail, which the plaintiff had once possessed
but could no longer find. In the event the expert recovered the e-mail, the plaintiff asked the court
to order a more detailed investigation of the defendants’ computers. The plaintiff also requested an
order compelling the defendants to preserve all electronic and paper documents and to suspend
backup tape recycling, automated e-mail deletions, and hard drive reformatting. In response, the
defendants argued the e-mail was “most likely” in a memorandum which was already produced.
The defendants also claimed they already conducted a forensic investigation, which failed to
identify the e-mail. The court declined to appoint the forensic expert, finding the plaintiff’s request
“at best [a] highly speculative conjecture.” The court further reasoned, “[b]efore permitting such an
intrusion into an opposing party’s information system – particularly where, as here, that party has
undertaken its own search and forensic analysis and has sworn to its accuracy – the inquiring party
must present at least some reliable information that the opposing party’s representations are
misleading or substantively inaccurate.” Although declining to appoint the expert, the court ordered
the defendants to preserve documents, hard drives and e-mail boxes that their forensic expert had
previously searched.
� Swack v. Credit Suisse First Boston, 383 F.Supp.2d 223 (D.Mass. 2004). In a class action suit
involving investment fraud accusations, the plaintiffs argued that the defendants committed fraud
by disseminating research reports they knew to be overly optimistic. The defendants filed a motion
to dismiss for failure to state a claim, arguing the plaintiffs did not allege a “specific false or
misleading statement or omission” by the company analyst or the company manager. In support of
their claims, the plaintiffs produced e-mail messages from the company analyst to the company
manager relating to the fraudulent reports. In reference to the stock, one of the e-mails stated, “I
think there is a risk of bankruptcy … best case is dead money.” Based on this e-mail evidence, the
court determined that the plaintiffs’ complaint properly raised an issue in reference to false
statements made by the company analyst. However, the court determined no such showing existed
concerning the company’s manager, whose name was not on the misleading research reports and
who had only received the e-mails.
� Campbell v. General Dynamics Gov’t Sys. Corp., 321 F.Supp.2d 142 (D.Mass 2004). In an
employment discrimination suit brought by a former employee, the employer moved to compel
arbitration based upon a mandatory company arbitration policy. The employer sent the policy to the
employee via a mass e-mail containing two links to the policy and did not require any further action
from its employees regarding the policy. In response to the employer’s motion, the employee
claimed that he received a large volume of mass company e-mails daily and that he could not
specifically remember the e-mail discussing the arbitration policy. Although the employer submitted
an e-mail “tracking log” indicating the time and date that the employee opened the e-mail, the
employer could not prove that the employee had actually read the e-mail or clicked on the links. In
denying the employer’s motion, the court determined that the mass e-mail did not constitute
sufficient notification about the arbitration policy. The court further admonished the employer for not
taking "the incredibly simple and inexpensive step of configuring their system to log when and if
employees clicked on the links to the flyer or the handbook."
23

� In re Lernout & Hauspie Sec. Litig., 2004 WL 1196189 (D. Mass. May 27, 2004). In a securities
fraud action, an accounting firm responded to the plaintiff’s document production request by
producing eleven boxes of documents related to issues in the suit. The boxes contained several emails
sent to the firm’s attorney, including one e-mail that disclosed an anonymous phone call
implicating misconduct by the accounting firm. The accounting firm’s counsel insisted that the email
had been disclosed accidentally and that it should be protected under both the attorney-client
privilege and the work-product privilege. Rejecting this argument, the court determined that the
accounting firm waived any attorney-client privilege and declared that the work product doctrine did
not protect disclosure because the e-mail was prepared during the “ordinary course of business”
rather than in “anticipation of litigation.” The court ordered production of 15 e-mails withheld by the
accounting firm based on privilege.
� Munshani v. Signal Lake Venture Fund II, 805 N.E.2d 998 (Mass. App. 2004). In a breach of
contract action, the plaintiff appealed a superior court judgment that dismissed his complaint on the
grounds that he had intentionally fabricated an e-mail message and then attempted to hide that
fabrication. In the original action, the plaintiff presented an e-mail as evidence that precluded that
trial court from dismissing his claim. The defendant, however, alleged that the plaintiff had
fabricated the e-mail and moved for a preservation and production order. The court issued the
order and appointed a neutral computer forensics expert to investigate the allegations. The expert
prepared a 147-page report in which he determined that the plaintiff had fabricated the e-mail. The
judge adopted the expert’s report as his findings on the issue and dismissed the plaintiff’s suit,
ordering him to pay the expert’s costs and the defendant’s attorney fees. See Munshani v. Signal
Lake Venture Fund II, 13 Mass.L.Rptr. 732 (Mass.Super. 2001). On appeal, the plaintiff admitted
that he fabricated the e-mail and submitted a false affidavit. The plaintiff argued that the judge
erred in finding that the e-mail was material to the case and that dismissal sanctions were too
severe under the circumstances. The appellate court rejected the plaintiff’s argument and declared
that the judge was justified in “imposing the ultimate sanction of dismissal.”
� Cognex Corp. v. Electro Scientific Indus., Inc., 2002 WL 32309413 (D.Mass. July 2, 2002). The
plaintiff moved to compel the defendant to search its electronic backup tapes for documents
responsive to the plaintiff’s requests for production. Arguing that it had already conducted a lengthy
and reasonable search of paper and electronic based documents, the defendant contended that
the cost and burden of searching the backup tapes would be unreasonable. The plaintiff proposed
that the court split the costs associated with the request, or in the alternative, offered to assume all
costs associated with the request. In spite of the plaintiff’s willingness to bear costs, the court
denied the motion to compel production, noting that no record of conscious destruction of
documents or serious discovery discrepancy existed. The court further stated “[t]here is something
inconsistent with our notions of fairness to allow one party to obtain a heightened level of discovery
because it is willing to pay for it.”
� Premier Homes and Land Corp. v. Cheswell, Inc., 240 F. Supp. 2d 97 (D.Mass. 2002). In a
property dispute, the plaintiff used an e-mail purportedly sent from one of the defendant’s
stockholders to the plaintiff’s president to form the core of its claim that the defendant was not
complying with the terms of a lease. The defendant filed an ex parte motion to preserve certain
electronic evidence and expedite the production of electronic records. The court, stating that it was
necessary to determine the origin of the disputed e-mail, ordered the defendant’s experts to create
mirror images of the plaintiff’s computer hard drives, backup tapes, and other data storage devices.
Soon thereafter, the plaintiff confessed to his attorney that he had fabricated the e-mail by pasting
most of a heading from an earlier, legitimate message and altering the subject matter line. The
24

defendant’s motion to dismiss was granted and the court ordered the plaintiff to pay the
defendant’s attorney and expert fees and court costs for committing a fraud on the court.
� In re Pharmatrak, Inc. Privacy Litigation, 220 F. Supp. 2d 4 (D. Mass. 2002), rev’d on other
grounds, In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003). In a class action Privacy matter, the
plaintiffs alleged that defendants had secretly intercepted and accessed the plaintiffs’ personal
information and Web browsing habits through the use of “cookies” and other devices, in violation of
state and federal law. The plaintiffs raised claims under The Wiretap Act, The Stored
Communications Act, and The Computer Fraud and Abuse Act. Using computer forensic tools, the
plaintiffs’ expert was able to analyze the defendant’s Website tracking logs and determine that the
defendant had captured and possessed detailed private information about the plaintiffs, including
their: names, addresses, telephone numbers, dates of birth, sex, insurance status, medical
conditions, education levels, occupations, and e-mail content. Finding that the plaintiffs failed to
establish necessary elements of each of the above listed statutes, the court issued Summary
Judgment in favor of the defendant.
� Commonwealth v. Ellis, 1999 WL 815818 (Mass. Aug. 27, 1999). The defendants filed a motion
to suppress electronic evidence, claiming that the evidence was improperly seized and searched
by a computer expert. Among other things, the defendants alleged that the computer expert should
have used a keyword search instead of a file-by-file search in order to avoid unnecessarily
intruding upon the defendants’ privacy. The court noted that the expert began the computer
investigation with a keyword search but could not properly execute the searches because of the file
system and structure. The court stated “in computer searches, keyword searches are likely the
most efficient types of searches, but unless the computer analyst knows how the data was
organized and stored, there will necessarily be trial and error to determine key phrases, words, and
places.” The court determined that the file-by-file method was “reasonable under the
circumstances” because a keyword search would have been both under and over inclusive. Based
on the expert’s representation, the court denied the defendant’s motion, with a few exceptions,
determining that the computer search was constitutional and reasonable.
� Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super. June 16, 1999). The defendant
Wyeth failed to preserve e-mails and neglected turning over database information ordered by the
court. The court sanctioned Wyeth for such “inexcusable conduct” and allowed spoliation inference
to be given to jury. “A discovery request aimed at the production of records retained in some
electronic form is no different in principle, from a request for documents contained in any office file
cabinet.” The court continued, “To permit a corporation such as Wyeth to reap the business
benefits of such [computer] technology and simultaneously use that technology as a shield in
litigation would lead to incongruous and unfair results.”
Rhode Island
� Dziadkiewicz v. Blue Cross & Blue Shield of Rhode Island, 2004 WL 2418308 (D.R.I. Oct. 21,
2004). In a class action lawsuit, the plaintiffs brought a motion to compel document production and
further alleged the defendant’s “obfuscation, deliberate frustration of discovery, and ‘hide the ball’
tactics” warranted sanctions. The plaintiffs contended that the defendant waited until the “eleventhhour”
to produce documents, including a CD containing information that would have affected the
plaintiffs’ expert witness’ analysis. The plaintiffs also argued the defendant failed to disclose 400 to
500 e-mails that the defense expert witness had relied upon in making his own findings. In
response, the defendant claimed its expert did not rely on the e-mails and the plaintiffs failed to
25

properly request the e-mails during discovery. The court declared the plaintiffs should have
received the database material contained on the CD much earlier – when the plaintiffs originally
requested the data. Although the court found both parties partly responsible for the discovery
dispute, it declared the defendant “must pay the greater price as its tactics have led directly to this
situation.” The court ordered the defendant to produce all of the requested e-mails and permitted
the plaintiffs to review the e-mails and re-depose the defense expert witness. The court also
allowed the plaintiffs’ expert to review the e-mails and the documents on the CD and modify his
report if necessary.
Second Circuit – State and Federal Cases
� Thyroff v. Nationwide Mutual Ins. Co., 460 F.3d 400 (2d Cir. 2006). A former insurance agent
appealed the dismissal of his claims for conversion of electronic data contained in personal
software and computer files retained by his former insurance company. The defendant supplied the
plaintiff with computer equipment including hardware and software for operating an insurance
business but confiscated the equipment when the defendant terminated the business agreement.
The computer hard drives contained several software programs – bought and installed by the
plaintiff – including the plaintiff’s personal information for his client and business contacts. The
plaintiff and his employees gathered the information and entered it into the system without input
from the insurance company. The defendant refused to return the electronic data claiming client
lists and any personal information on the computer hardware was now property of the defendant
since it was stored on company equipment. The plaintiff sued, claiming the electronic data
contained on the computer was personal property and the defendant was liable under a theory of
conversion. The defendant argued electronic data cannot be converted since it is an intangible
asset and therefore dismissal was proper. In its holding, the court examined whether electronic
data is tangible property capable of conversion. It compared such information to stocks and bonds
which are not tangible unless a value is assigned to them by the holder. The court also noted, in
dicta, computers are much like file cabinets and an employer or principal could not expect to keep
an employee’s personal files contained in the file cabinet when the employee leaves the company.
In the end however, the court refused to rule on the matter and remanded the question of whether
electronic data is property and capable of conversion back to the state court for clarification.
� Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002). The defendants
appeal the trial court’s denial of the defendants’ motion for sanctions, specifically in the form of an
adverse jury instruction, for the plaintiff’s failure to produce e-mail in time for trial. The Second
Circuit held that where a party breaches a discovery obligation by failing to produce evidence, the
trial court has broad discretion in fashioning an appropriate sanction, including the discretion to
delay the start of a trial, to declare a mistrial, or to issue an adverse inference instruction.
Sanctions may be imposed where a party has not only acted in bad faith or grossly negligent, but
also through ordinary negligence. Vacating the trial court’s sanctions order, the circuit court
reversed and remanded with instructions for a renewed hearing on discovery sanctions.
� V Cable Inc. v. Budnick, 23 Fed.Appx. 64 (2d Cir. 2001). In an investigation of illegal sales and
distribution of cable equipment, the police seized computers believed to contain relevant evidence
of the crime. After holding the computers in question, the police sent them to an independent
software company for analysis. Appellant’s argument implies that, once they left police custody, the
computers and any records obtained therefrom became corrupted and, therefore, inadmissible
26

under Rule 803(6) of the Federal Rules of Evidence. The court found the documents to be
sufficiently trustworthy to be admitted under Rule 803(6).
Connecticut
� Tucker v. American Intern. Group, Inc., 2012 WL 902930 (D. Conn. Mar. 15, 2012). In this
unlawful discharge claim against a former employer’s insurer, the plaintiff sought to compel
inspection of allegedly relevant electronic records in the possession of her non-party former
employer. Noting that it had already turned over several hundred responsive documents, the
former employer argued that allowing the plaintiff further investigation for missing e-mails would be
unduly burdensome under 26(b)(2)(C). In order to show that additional discovery would be
unnecessarily duplicative, the former employer described that the plaintiff had already had some
prior success in discovering the sought-after e-mails through alternative methods of discovery and
that the plaintiff could only speculate that the employer actually possesses the information. Carving
out its undue burden argument, the former employer pointed to the affidavit of an IT director who
contended that the plaintiff’s computer had been repurposed pursuant to company policy since her
termination. While the plaintiff’s hard drive had been mirror-imaged, the image was
indistinguishable from the images of eighty-two other employers terminated at the time of a force
reduction. In order to allow for further investigation, “all eighty-three images would have to be
restored[,] analyzed” and hosted on a new server. Noting that courts should protect non-parties
from significant “expense and burden of compelled inspections,” the court agreed with the former
employer and cited Zubalake to stay the further investigation.
� Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 20, 2010). In this racial profiling and
harassment litigation, the plaintiffs sought to compel production of electronically stored information
from 40 custodians with 80 keywords over a period of six years. Estimating the cost (absent
attorney document review) to be $60,000 and noting that they had already produced 948 e-mails,
none of which supported the plaintiffs’ claims, the defendants objected that the ESI was not
reasonably accessible and that such a request was unduly burdensome and overbroad. Agreeing
with the defendants’ accessibility argument, the court found the plaintiffs failed to show good cause
and ordered a phased approach to discovery. Using the plaintiffs’ search terms, the defendants
were ordered to conduct a search of three of the 40 originally requested custodians for a three-year
period. The court held that, as modified, the request did not constitute an undue burden or
expense, and it therefore rejected the defendants’ cost-shifting request.
� Trusz v. UBS Realty Investors LLC, 2010 WL 3583064 (D. Conn. Sept. 7, 2010). In this
employment litigation, both parties sought sanctions, and the plaintiff sought to compel production
of electronic documents arguing the defendants engaged in a “massive document dump” by
producing 1.8 million documents without reviewing for
relevancy (producing over 4 million documents in total). The defendants contended the production
was inevitably massive despite a diligent review because the plaintiff served 208 document
requests and would have been smaller if the plaintiff had identified a narrower set of search terms.
Citing the Sedona Conference’s Case for Cooperation, the court found that the issues could have
been eliminated or resolved if counsel had conferred about refining search terms and ordered the
parties to meet and confer or face the appointment and expense of a special master. The court
also denied both requests for sanctions noting several months still existed for the completion of fact
discovery in this litigation.
27

� Aliki Foods, LLC v. Otter Valley Foods, Inc., 2010 WL 2982989 (D. Conn. July 7, 2010). In this
breach of contract and implied warranty litigation, the defendant sought dismissal, and the plaintiff
moved to vacate prior orders to preserve and produce discovery-related electronic materials.
Responding to allegations of stonewalling and spoliation of ESI, the plaintiff claimed that its
principal’s hard drive “failed” (suspiciously coinciding with the court’s order to produce it).
Moreover, months after the court ordered the drive to be forensically imaged, the plaintiff signed it
over to a non-party – its principal’s new employer – without ever attempting to comply with the
order. Having “lost patience,” the court found that the plaintiff’s “flagrant defiance” of numerous
court orders and warnings, intentional destruction of computers and hard drives, and blatant
disregard of discovery obligations, failed every factor of the Second Circuit’s test This bad faith
conduct resulted in a “tremendous waste of resources” and left dismissal as the only viable
sanction.
� Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 2010 WL 2195274 (D.Conn. June 1, 2010). In
this business litigation, the plaintiff requested forensic imaging of the defendants’ computers and
electronic media, sought preservation and production of evidence, and solicited sanctions. The
plaintiff presented evidence demonstrating that the defendants’ disposal of a computer occurred
after the duty to preserve arose. Citing Ameriwood Industries, Inc. v. Liberman, the court found a
"sufficient nexus" existed between the plaintiff’s claims and the need for forensic imaging. The
court disregarded the defendants’ argument a neutral expert was unnecessary, determining the
defendants’ hiring of an expert suggested an "end run" in the defendants’ efforts to deny discovery
requested by the plaintiff. In assigning costs for the imaging work, the court noted that the
defendants’ "apparent deceit, obstreperousness and destruction of relevant information"
necessitated the retention of the forensic expert and ordered the defendants to bear 80 percent of
the associated costs. Finally, the court awarded the plaintiff attorneys’ fees and costs, finding the
defendants "wasted the Plaintiff and the Court’s resources."
� Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 WL 1416169 (D.Conn. May 21, 2009). In this
environmental law litigation, the defendant sought sanctions alleging the plaintiff failed to preserve
electronic data packages associated with soil sample testing. Noting the data at issue was
undisputedly destroyed, the court analyzed whether a preservation obligation existed and whether
sanctions were warranted. The court found a duty to preserve arose by mid-2005 at the latest,
when the plaintiff’s documents evinced an understanding that the evidence would be critical to the
upcoming litigation. Citing the plaintiff’s own recognition of the importance of the evidence, the
court rejected the plaintiff’s argument that destruction should be excused since the defendant did
not demonstrate an intent to rely on the evidence during litigation. Noting an adverse inference
would be an insufficient remedy, the court found the appropriate sanction to be preclusion of the
evidence.
� S. New Eng. Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82 (D.Conn. 2008). In this ongoing
discovery battle, the plaintiff sought default judgment sanctions alleging the defendants failed to
comply with discovery orders. Detailing the lawsuit’s long history of discovery issues, the court
cited several factors that justified the imposition of default judgment, noting the defendants’
behavior exemplified the type of “willful disregard for the process of discovery” that warrants
dismissal. The factors cited included: willful violation of court order to produce general ledgers; use
of wiping software to intentionally destroy evidence, as determined by the plaintiff’s computer
forensic expert; lying to the court about the ability to obtain documents from third parties;
misleading answers to discovery requests; and the defendants’ long history of violating discovery
orders. Determining the defendants committed a fraud upon the court, the court ordered them to
28

pay judgment in favor of the plaintiff in the amount of $5,247,781.45, in addition to costs and fees
of $645,760.41.
� Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D.Conn. April 9, 2008). In this unlawful
termination litigation, the defendant sought a protective order to prevent further inspection of the
defendant’s computer systems and attorneys’ fees. In response, the plaintiff filed a motion for
contempt claiming the defendant violated the previously issued inspection order and a motion for
attorneys’ fees. Addressing the defendant’s motions, the court found no good cause to justify a
protective order or attorneys’ fees. Turning to the plaintiff’s motions, the court determined the
defendant failed to comply with the Inspection Order and failed to demonstrate that special
circumstances justified the non-compliance. Subsequently, the court ordered the defense attorneys
to pay reasonable fees and expenses to the plaintiff attorney, in addition to paying consultant
expenses incurred for prior inspection work hampered by the defendant’s non-compliance.
Additionally, the court ordered the defendant’s electronic records be inspected. Finally, the court
denied the plaintiff’s request for default judgment, but warned one will be entered if the defendant
does not comply with this court order.
� Doe v. Norwalk Cmty. Coll., 2007 WL 2066497 (D.Conn. July 16, 2007). In this suit brought under
Title IX of the Education Amendments of 1972, the plaintiff, claiming sexual assault by her college
professor, motioned the court to sanction the defendants for discovery misconduct and spoliation of
evidence. The plaintiff claimed that the defendants scrubbed or wiped the hard drives of relevant
individuals and altered, destroyed, or filtered relevant data. For example, one witness’s email PST
file contained no deleted items and only one sent item. The defendants argued that their production
was sufficient and further argued that scrubbing hard drives was their normal business practice and
therefore they should be protected by the safe harbor of Federal Rule of Civil Procedure 37(f). The
court held that in order to take advantage of the good faith exception in the new FRCP, 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. As the defendants failed to
suspend their destruction process at any time and such destruction was not due to the routine
operation of the information system, the court found the plaintiff was entitled to an adverse jury
instruction with respect to the destroyed evidence as well as reimbursement for costs associated
with filing the motion.
� CP Solutions PTE, Ltd. v. General Elec. Co., 2006 WL 1272615 (D. Conn. Feb. 6, 2006). After
receiving 301,539 pages of documents in response to 131 discovery requests, the plaintiff accused
the defendant of engaging in “dump truck” discovery tactics. The plaintiff asserted that the
documents were not produced in the “ordinary course of business,” citing emails that were
separated from their attachments and pages containing lines of “gibberish.” The plaintiff sought to
prohibit the defendant from using any documents not produced in their initial document disclosure;
or, alternatively, to compel defendants to supplement its initial production by (1) identifying every
document responsive to each of the plaintiff’s requests; (2) organizing and labeling each
responsive document to correspond to the categories of the plaintiff’s requests; and (3) producing
the “native” or “original” electronic documents identified as personal folder files (“PST files”). The
court denied the plaintiff’s motion for preclusion and refused to require the defendants to organize
and label the documents produced as requested by the plaintiffs. Additionally, the court declined to
order the defendants to produce emails in their native format, as the defendants would be unable
to sort out privileged files. However, in partially granting the plaintiff’s motion to compel, the court
required the defendants to “re-produce” the documents containing gibberish in a “readable usable
format.” The court also required the defendants to provide the plaintiff with the information, data, or
29

software necessary to match the emails with their attachments; remarking, “the fact that the
attachments were created with different software programs… does not provide [d]efendants with
an excuse to produce the e-mails and attachments in a jumbled, disorganized fashion.”
� In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 88 (D.Conn. 2005). In a securities class action
lawsuit, the parties failed to reach an agreement relating to the production of electronic files
archived on servers and backup tapes. In offering the parties guidance on the issue, the court set
forth nine e-discovery “directives.” The directives required backup tape restoration to be performed
on “a measured basis, with cost-shifting determinations made at each step of the process.” The
court also specified a production format, stating the defendants “shall produce responsive
information…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.” The court noted, however, that exceptions
may apply if native file production would be necessary to view the information contained in the file.
In addressing cost shifting, the court declared it would apply the proposed analysis outlined in the
proposed amendments to Fed.R.Civ.P. 26(b)(2).
� Tadros v. Tripodi, 866 A.2d 610 (Conn. App. Ct. 2005). The trial court determined the defendant,
a physician, and his wife had secretly stolen over $875,000 from a medical corporation in which the
defendant practiced and his wife managed the billing and other administrative matters. While the
corporation was in the midst of breaking up, corporate counsel seized the corporation’s computer,
made a copy of the hard drive, and then returned the computer to the office. When counsel seized
the computer a second time, he discovered that the physician’s wife had deleted over 200 prior
computer entries, some of which involved patient balances. The physican’s wife was unaware that
counsel had made a duplicate of the computer’s hard drive during the initial computer seizure. A
comparison of that copy with a copy made after the second seizure proved the deletions were
made. In admitting evidence of the deletions, the trial court noted that “[a]lthough the exact
economic effect of all of the deletions is not clear, they nonetheless reveal unauthorized tampering
with the computer records at a particularly suspect time.” On appeal, the court held that the trial
court properly admitted evidence of the deletions for the limited purpose of showing that the
changes had been made after the computer was initially seized.
� News Am. Mktg. In-Store, Inc. v. Marquis, 862 A.2d 837 (Conn. App. Ct. 2004). An employer
sued a former employee for accessing and misusing the employer’s computer system with the
intent of distributing the information to a competitor. The employee, who downloaded computer
data and e-mails without authorization, never actually shared the stolen information with a
competitor. The employer argued it was entitled to reimbursement for attorney’s fees and the cost
of investigating the employee’s computer. The trial court refused to award costs, finding no actual
injury occurred because the evidence showed the employee had not looked at the documents after
taking them and the employee ultimately destroyed the documents. On appeal, the appellate court
confirmed the trial court’s decision and declined to award costs, finding the employer did not prove
actual injuries.
� Ranta v. Ranta, 2004 WL 504588 (Conn. Super. Feb. 25, 2004). In a divorce proceeding, a
superior court judge ordered the plaintiff “to stop using, accessing, turning on, powering, copying,
deleting, removing or uninstalling any programs, files and or folders, or booting up her lap top
computer…” The order also directed the plaintiff to hand over all floppy disks, CDs, zip files or
other similar types of computer storage devices. The judge further required the plaintiff to turn in
her laptop to the court clerk’s office. Both the plaintiff and the defendant were instructed to share
30

equally all costs associated with hiring a computer forensics expert to inspect the laptop.
Additionally, the defendant was required to buy a new laptop for the plaintiff.
� United States v. Triumph Capital Group, 211 F.R.D. 31 (D.Conn. 2002). In order to prevent
spoliation of evidence in a public corporation case, the government sought and obtained a search
warrant to search and seize a laptop computer at issue. The warrant did not limit the search to any
particular area of the hard drive. However, it did limit the government to search for and seize only
certain evidence relating specifically to the charges and to follow detailed protocols to avoid
revealing any privileged information. So that the data would not be altered, the government made
mirror images of the hard drive and then proceeded with the computer forensic investigation. The
defendants argued that this mirroring amounted to a search and seizure of the entire hard drive
and moved to suppress all evidence from the laptop. The court determined that although the
search warrant limited the scope of the information that investigators could search for, technical
realities required the government to make complete mirror images of the hard drive. Furthermore,
the court ruled that copying a file does not necessarily constitute seizure of that file and that
examining a file more than once does not constitute multiple searches under the Fourth
Amendment.
� Hayes v. Compass Group USA, Inc., 202 F.R.D. 363 (D. Conn 2001). The plaintiff in an age
discrimination action requested information on similar claims filed against the defendant. The
defendant advised the court of the burden and expense involved with such a request given that
some of the data was stored in a non-searchable computer format. The court ordered the
defendant to manually search the unsearchable computer data and to produce all information for
which it had computer search capabilities.
� SKW Real Estate Ltd. v. Gallicchio, 716 A.2d 903 (Conn. App. Ct. 1998). A computer-generated
document is admissible in a foreclosure action, pursuant to the business records exception to the
hearsay rule.
� Scovish v. Upjohn Co., 1995 WL 731755 (Conn. Super. Ct. Nov. 22, 1995). The court found that
database was within attorney work-product, but that the plaintiff had substantial need of the
information in the database and undue hardship would result if it was not produced. The court
ordered the defendant to produce the database after removing any portions that contain subjective
thoughts and opinions.
New York
� People v. Harris, 2011NY080152 (NY Crim. Ct. New York Co. June 30, 2012). In this criminal
matter arising out of the Occupy Wall Street protests, the court reviewed Twitter’s motion to quash
a subpoena, which ordered the production of tweets and pertinent metadata from a user’s account.
The threshold determination required an assessment of whether the criminal defendant or the third
party respondent (Twitter) had standing to quash the subpoena. In line with the court’s previous
ruling on this matter, the court pointed to Twitter’s terms and policy, holding that Twitter—not the
criminal defendant—had standing to challenge the subpoena. Addressing Twitter’s contention that
responding to numerous subpoenas would result in an undue burden (and thus barred by the
SCA), the court held that because all third party respondents bear this burden, the argument
“cannot be used to create standing for a defendant where none exists.” Further, the court noted
that “it does not take much to search and provide the data to the court.” The court found that
Twitter’s services fall within the statutory definition of both an Electronic Communication Service
(ECS) (generally, a communication service) and a Remote Communication Service (RCS)
31

(generally, a storage service for substantive posts and metadata produced by the chat service).
Equating public tweets to yelling on the street, the court further determined that the posts were not
“private” and thus not outside of the scope of the SCA. Ultimately, the court largely denied Twitter’s
motion to quash the subpoena, holding that the prosecutor must obtain a search warrant for tweets
within 180 days of the decision date to comply with the SCA.
� Prestige Global Co. Ltd. v. L.A. Printex Indus., Inc., 2012 WL 1569792 (S.D.N.Y. May 3, 2012).
In this copyright infringement case, the defendants raised several issues with the plaintiffs’
discovery production, alleging that they negligently failed to search for and produce several
categories of documents and deleted relevant e-mail. Accordingly, the defendants sought an order
to permit forensic examination of the plaintiffs’ computer files. To support their allegations, the
defendants relied on testimony from a witness who said she was not shown the defendants’
discovery requests or asked to search for the documents identified in the requests. The court
rejected this argument, finding that the plaintiffs identified documents produced for each category
via bates number and further found “no requirement that a particular witness, even one designated
under Rule 30(b)(6), conduct her own search for documents.” Finally, the court found no evidence
of spoliation, noting that any e-mails related to garments implementing the allegedly copyrighted
design were likely deleted by the end of 2009—well before the plaintiffs’ preservation obligation
arose with the filing of the suit in March 2011. As such, the defendants’ motion for forensic
examination of the plaintiffs’ computer was denied.
� Ceglia v. Zuckerberg, 2012 WL 1392965 (W.D.N.Y. April 19, 2012). In this breach of contract
action concerning ownership of Facebook, the plaintiff asserted that an at-issue e-mail was
inadvertently produced by a technology expert who mistakenly copied a privileged e-mail attached
to a document he was hired to recover. Following the inadvertent production, the recipient
consulting firm disseminated the e-mail in its native format to all parties in the action. More than
two months later, the plaintiff claimed that the e-mail was inadvertently produced and motioned for
its return or destruction. Applying Fed. R. Evid. 502, the court considered whether the plaintiff took
reasonable steps to prevent disclosure and whether the privilege holder took reasonable steps to
remedy the error. In its analysis, the court found that the plaintiff failed to take the requisite steps to
prevent disclosure when his counsel failed to personally supervise the expert’s recovery and
production efforts. Furthermore, the court found that the substantial lapse in time between the
dissemination of the e-mail and the motion for its destruction did not suggest that the plaintiff took
reasonable steps to rectify the disclosure. Therefore, the court found that the plaintiff effectively
waived any privilege attached to the e-mail-in-question and denied the plaintiff’s motion
� People v. Harris, 2012 WL 1381238 (N.Y. Crim. Ct. April 20, 2012). In this case, the defendant
sought to quash a subpoena seeking information from his Twitter account following his arrest for
disorderly conduct during an October 2011 Occupy Wall Street Protest. As part of its prosecution,
the District Attorney’s office sent a subpoena duces tecum to Twitter, seeking tweets posted during
a specified timeline from the defendant’s alleged Twitter account. The defendant sought to quash
the subpoena in his own right or, alternatively, intervene in the proceedings to quash as an affected
party. Reviewing the record, the court analogized the Twitter account information to the bank
records of a customer’s account, to which the customer lacks ownership, possession, and standing
to challenge a subpoena. Analyzing the nature of a Twitter account—in which a user must agree
to terms of service that grant Twitter the unfettered right to publicly post that user’s information
immediately—the court held that the defendant had no proprietary or privacy interest in its tweets
and ultimately lacked standing. The court further denied the motion to intervene, holding the
32

subpoena would not “prejudice the substantial rights” of the intervening party because the
subpoena was sought to address defenses the DA anticipated from the defendant. Finally, the
court analyzed the subpoena under the Stored Communications Act (SCA), and found the
subpoena adhered to all of the SCA’s provisions for disclosure from a service provider of electronic
communications.
� Da Silva Moore v. Publicis Groupe, No. 11 Civ.1279 (ALC) (AJP) (S.D.N.Y. April 26, 2012).
Following U.S. Magistrate Judge Andrew Peck’s February 24 opinion and order finding predictive
coding appropriate for this ongoing employment discrimination litigation, the plaintiffs objected,
arguing the order was contrary to law and asked the District Court to overturn it. Specifically, the
plaintiffs argued that Peck adopted the defendants’ version of the ESI protocol based on an
insufficient record, improperly relied on outside documentary evidence, and failed to hold an
evidentiary hearing to obtain expert testimony regarding the reliability and accuracy of predictive
coding. Ruling on these objections, U.S. District Court Judge Andrew L. Carter, Jr. fully upheld
Peck’s order and opinion, finding Peck’s ruling was “well reasoned” in consideration of the potential
advantages and weaknesses of predictive coding. The court found the lack of an evidentiary
hearing was insignificant, reasoning that Peck was in the best position to determine if a later
hearing was necessary should the parties continue to dispute the effectiveness of the technology.
Finally, the court found the plaintiffs’ arguments regarding the efficacy of the predictive coding “too
speculative” and echoed Judge Peck’s earlier sentiments, noting that “there simply is no review
tool that guarantees perfection.”
� Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167 (S.D.N.Y. Apr. 4, 2012). In this
employment discrimination case, a third party website that offered online consulting sessions with
psychics to the plaintiff moved to quash a subpoena sought by the defendant. While the plaintiff
had closed her account with the website and deleted several arguably relevant chat excerpts, the
third party contested that if the plaintiff simply opened a new account, she would be able to access
any past chat logs—including the ones she deleted. Addressing the plaintiff’s argument, the court
recognized that forcing the third party to divulge the communications might implicate the Stored
Communications Act (SCA). However, the court sidestepped any potential SCA issues by
analogizing the online consulting communications to social media. The court cited a line of cases
that ordered named parties to consent to disclosure or otherwise produce relevant social media
information instead of burdening third parties. The court then ordered the plaintiff to create a new
account on the website, retrieve the pertinent transcripts and produce non-privileged copies to the
defendant.
� U.S. Bank Nat. Ass’n v. GreenPoint Mortgage Funding, Inc., 939 N.Y.S.2d 395 (N.Y. App. Div.
Feb. 28, 2012). In this cost shifting dispute, one plaintiff appealed the lower court’s order requiring
the requesting party to bear the cost of production, arguing the court should instead adopt the wellknown
federal Zubalake standard. The defendant countered that requiring requesting parties to pay
“encourage[s] parties to self-regulate the scope of their discovery demands,” deterring them from
leveling opposing parties with massive production costs. Resolving inconsistency among lower
courts, the court sided with the plaintiff and endorsed Zubalake (requiring the producing party to
pay for searching, retrieval and production, but permitting shifting of costs between parties based
on seven factors) as “the most practical framework” for cost allocation. The Appellate Division
went on to attack the requestor pays rule, noting that such a rule could deter parties from filing
meritorious claims altogether if e-discovery costs would be prohibitive, especially if the plaintiff is
33

an individual. This opinion surfaced within weeks of the Appellate Division’s endorsement of the
Zubalake preservation standard in Voom Holdings LLC v. EchoStar Satellite L.L.C.
� Da Silva Moore, et. al., v. Publicis Groupe & MSL Group, 2012 WL 607412 (S.D.N.Y. Feb. 24,
2012). In this employment discrimination case, the court took initial steps to explore the
defensibility of predictive coding—a computer-assisted review process by which a system of ESI is
“trained” through multiple search term iterations to code documents with various levels of
relevance. As an illustration of progress in litigation technology, the issue in this ongoing case is
not whether predictive coding should be used, but rather how it should be used. At a status
conference in early February 2012, the parties disagreed about various aspects of the
methodology by which they would conduct the predictive coding of a large amount of ESI. For
example, in an effort to retain relevant ESI, one of the plaintiffs’ main concerns was about how the
system would determine that a document is irrelevant. In response to the various concerns of the
parties, and as discussed in the order, the court reminded them that computer-assisted review
"works better than most of the alternatives, if not all of the [present] alternatives. So the idea is not
to make this perfect, it’s not going to be perfect. The idea is to make it significantly better than the
alternatives without nearly as much cost." Notably, the court found predictive coding appropriate for
this matter, but concluded that the opinion was not a blanket endorsement any particular
technology. The court further commented, “What the Bar should take away from this Opinion is that
computer-assisted review is an available tool and should be seriously considered for use in largedata-volume
cases where it may save the producing party (or both parties) significant amounts of
legal fees in document review. Counsel no longer have to worry about being the ‘first’ or ‘guinea
pig’ for judicial acceptance of computer-assisted review.”
� Pippins v. KPMG LLP, 2012 WL 37032 (S.D.N.Y. Feb. 3, 2012). In this class action labor
litigation, the defendant filed a motion for a protective order to limit the scope of its ESI
preservation obligations. At issue was whether the defendant was required to preserve all existing
computer hard drives for thousands of former employees, or whether a random sampling would be
sufficient to fulfill the preservation obligation. The Magistrate Judge denied the motion and ordered
the defendant to preserve all hard drives until the parties reached an agreement on obtaining an
appropriate sample or further ordered by the court. Appealing the denial, the defendant mainly
argued that the Magistrate erroneously adopted an “unreasonably broad” definition of key players,
ordered preservation without determining proportionality, and improperly imposed an affirmative
obligation on the defendant in response to its motion for a protective order. On appeal, the court
affirmed the Magistrate’s opinion, acknowledging that preserving the hard drives is expensive, but
that it would be “premature to permit the destruction of any hard drives before discovery.” The court
held that relevance is a broad standard and, accordingly, all the hard drives are likely to contain
relevant information. Finally, the court stated that it “smacks of chutzpah” to argue that the
Magistrate failed to determine proportionality when the defendant refused to provide the evidence
necessary to make that determination.
� Voom Holdings LLC v. EchoStar Satellite L.L.C., 2012 WL 265833 (N.Y.A.D. 1st. Dept. Jan. 31,
2012). At issue in this contract dispute was the scope of a party’s duties in discovery. On June 20,
2007, the defendant’s counsel sent the plaintiff a letter containing the defendant’s express notice of
breach of contract. In January 2008, the defendant terminated the contract, and the plaintiff sued
the following day. However, the defendant did not implement a litigation hold until after the lawsuit
commenced. Furthermore, the defendant’s purported “hold” did not suspend automatic deletion of
emails, by which any emails sent or deleted by an employee were automatically and permanently
purged after seven days. Four months after the commencement of the action, the defendant finally
34

stopped the automatic deletion of emails. Upon this revelation, the plaintiff moved for spoliation
sanctions. Citing Zubulake, the state trial court granted the motion and held that the defendant
should have reasonably anticipated litigation and preserved potentially relevant ESI no later than
June 20, 2007—the date of its own notice of breach letter—and ceased the automatic deletion of
its emails. Giving credence to the lower court’s adoption of the Zubulake standard, the Appellate
Division upheld sanctions for the defendant’s “grossly negligent” spoliation of ESI. The court noted
that the spoliation was especially negligent given that the defendant was put on notice of its
substandard ESI retention practices in a recent, similar lawsuit.
� Pippins v. KPMG LLP, 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011). In this action involving the Fair
Labor Standards Act and New York State Labor Law, the defendant sought a protective order
seeking to limit the scope of its preservation obligations, claiming it should not be responsible for
preserving computer hard drives of thousands of former and departing employees. Instead, the
defendant requested an order requiring it to only preserve a random sample of 100 hard drives that
have already been preserved, or alternatively, that the plaintiffs be required to bear the
preservation costs. Noting that relevancy determinations are difficult to make based on the
defendant’s “own efforts to keep that information at bay,” the court determined that each and every
former and departing employee is a “key player” at this time. The court also cited that courts in its
district have “cautioned against the application of a proportionality test as it relates to preservation”
and found that permitting the destruction of hard drives at this early stage of litigation was
inappropriate. Further, the court noted the ongoing burden is largely self-inflicted by the defendant
due to its continued reluctance to work with the plaintiffs to generate a reasonable sample of the
hard drives. Based on this analysis, the court denied the protective order and cost-shifting. Until a
further order or agreement is reached, the court ordered the defendant to preserve the existing
hard drives of all former and departing employees who are potential class members.
� Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 2011 WL 3738979 (S.D.N.Y. Aug.
18, 2011). In this discovery dispute, the defendants requested production of non-privileged and
responsive "missing" e-mail attachments. Objecting, the plaintiffs contended the requested
attachments were unresponsive and cited their reasonably diligent effort to produce 1.5 million
documents in a matter of weeks. Weighing both parties positions, the special master determined it
would be unfair to require the defendants to identify all the e-mails that were missing attachments,
and recommended the plaintiffs be required to produce attachments to the 126 e-mails already
identified by the defendants. Following that production, the defendants could move for further
production of e-mail attachments. Finally, the special master also recommended the parties meet
and confer to address items related to the production.
� Neverson-Young v. Blackrock, Inc., 2011 WL 3585961 (S.D.N.Y. Aug. 11, 2011). In this
employment litigation, the defendants sought sanctions alleging the plaintiff failed to produce
relevant information and further spoliated evidence by donating her personal computer to an
overseas school after commencing the action. Finding the plaintiff’s actions constituted negligence,
the court determined the plaintiff did not act in bad faith. Instead, the court determined that unlike
corporate actors, the plaintiff in this case was unsophisticated and unaccustomed to preservation
requirements. Further, the court noted the belatedly produced e-mails were withheld under good
faith misconceptions of relevance and privilege, and held it is not standard practice for litigants to
preserve their own telephone records in anticipation of litigation. Finding no evidence of prejudice
or bad faith, the court declined to impose sanctions, but awarded reasonable fees and costs
incurred by the defendants through searching the plaintiff’s hard drive and obtaining her e-mail
records.
35

� Mikhlyn v. Bove, 2011 WL 4529619 (E.D.N.Y. Aug. 3, 2011). In this trademark infringement and
unfair competition litigation, the defendants responded to the magistrate judge’s sanctions
recommendation claiming their formal counsel alone is responsible for discovery misconduct.
Although the magistrate judge previously found that the defendants’ misconduct was not egregious
enough to warrant the plaintiffs’ original request for default judgment, he recommended reopening
discovery to determine whether plaintiffs allegations of unproduced e-communications were true.
Following this, newly discovered evidence revealed that tens of thousands of e-mails, documents
and Skype chats were in the defendants’ possession, known about by counsel, not produced and
not identified in a privilege log. In light of this new evidence, the magistrate judge reconsidered his
previous recommendation and apportioned fault, fees and costs between the defendants and their
former counsel, finding them both responsible for the discovery misconduct (a separate firm
assisting with the intellectual property issues was not found liable for any discovery missteps). As a
result, the magistrate judge recommended the plaintiffs be awarded $48,700.52 in attorney fees
and costs.
� Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement
Agency, Case 1:10-cv-03488-SAS (S.D.N.Y. June 17, 2011). In this Freedom of Information Act
(FOIA) litigation, U.S. District Judge Scheindlin withdrew her landmark opinion that declared certain
metadata to be "intrinsic" to the electronic record. Noting the parties had resolved their production
format dispute, Judge Scheindlin declared that the earlier opinion "was not based on a full and
developed record," and that it would be prudent to withdraw the decision "[i]n the interests of
justice." Further, Judge Scheindlin declared that the withdrawn opinion "shall have no precedential
value in this lawsuit or in any other lawsuit."
� In re The Reserve Fund Sec. and Derivative Litig., 2011 WL 2039758 (S.D.N.Y. May 23, 2011).
In this securities litigation, the Securities and Exchange Commission (SEC) requested production
of approximately 60 e-mail communications between the defendant and his wife exchanged over
his employer’s e-mail system using his work e-mail address and employer-issued computer.
Although the defendant asserted the e-mails were protected by the marital communications
privilege, the SEC argued the employer’s e-mail policy extinguished any reasonable expectation of
privacy – a requisite factor to support marital privilege. Reviewing the employer’s e-mail policy
under the four-factor test from In re Asia Global Crossing, Ltd., the court found privilege did not
extend because the defendant was aware of the policy that expressly banned personal use and
reserved the rights of routine e-mail monitoring and third party access to employee e-mails; in
short, the e-mails were not sent in confidence. Further, the court noted that it was unreasonable for
employees working in “heavily regulated industries…in which companies are required by law to
preserve e-mail communications for later use by regulators or other interested parties” to have an
expectation of privacy. Accordingly, the court granted the SEC’s motion to compel the requested emails.
� Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL 1549450 (W.D.N.Y. Apr. 21,
2011). In this business litigation, the defendant sought spoliation sanctions for the plaintiff’s failure
to implement a timely written litigation hold. Arguing that the plaintiff’s oral litigation hold was
insufficient, the defendant cited three e-mails missing from the plaintiff’s production as evidence of
spoliation. However, noting that the record failed to reveal any relevant evidence had been
destroyed or lost, the court distinguished Pension Committee and declined to follow the court’s
presumption in that case that a failure to implement a written litigation hold would support an
inference of spoliation. Instead, the court found that the relatively small size of the plaintiff could
support its reliance on direct oral communication and that the substantial number of documents so
36

far produced refuted an inference of spoliation. Finding all relevant documents had been produced,
the court further declined to permit a "fishing expedition" of discovery into the plaintiff’s document
preservation actions based on mere speculation.
� Wood v. Capital One Servs., LLC, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011). In this debt
collection practices litigation, the plaintiff sought extensive discovery including broad searches and
production of ESI. Objecting to the requests, the defendants claimed the likely volume to be
generated by the searches would exceed 1,750,000 documents from the respective defendants –
projected to cost over $5 million to process, review and produce. Seeking protective orders, the
defendants invoked the rule of proportionality set forth in the Fed.R.Civ.P. 26(b)(2)(C)(ii). While
acknowledging that some of the documents in question were potentially relevant and that the
defendants were large corporations with resources available to finance the discovery effort, the
court determined the marginal relevance of the requests was far outweighed by the burden of
responding and the exceedingly modest amount at stake (roughly $1,000). With one narrow
exception, the court granted the defendants’ motions for a protective order and denied the plaintiff’s
motion absent an agreement the plaintiff would bear costs of the requested discovery.
� Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2011 WL 1125493 (W.D.N.Y.
Mar. 21, 2011). In this business litigation, the plaintiff sought disclosure of internal e-mails relating
to its breach of contract claim. Opposing the motion, the defendant argued the request was
untimely and the information sought was not relevant, responsive or readily accessible. Noting the
duty to supplement production continues even after the discovery period closes, the court found
the requested e-mails were relevant and responsive to the plaintiff’s initial document request.
Despite the defendant argument that producing the e-mails would require searching Exchange
databases housed on an external 4 terabyte storage array at a cost of $13,000, the court asserted
that the defendant had a duty to identify sources of information that were not reasonably accessible
in its discovery response and rejected its belated arguments regarding burden. Accordingly, the
court determined the defendant’s initial production was incomplete and granted the motion to
compel.
� Nat’l Day Laborer Org. Network v. United States Immigrations and Customs Enforcement
Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). In this Freedom of Information Act (FOIA)
litigation, the plaintiffs sought to obtain records in a usable format from four government agencies
that produced electronic text records, e-mails, spreadsheets and paper records in an unsearchable
PDF format, stripped of all metadata and indiscriminately merged together in one PDF file.
Determining the defendants’ production did not comply with FOIA or Fed.R.Civ.P. 34, Judge
Scheindlin remarked that “regardless of whether FOIA requests are subject to the same rules
governing discovery requests, Rule 34 surely should inform highly experienced litigators as to what
is expected of them when making a document production in the twenty-first century.” Citing Aguilar
v. Immigration and Customs Enforcement Division of the United States Department of Homeland
Security, in addition to three state court decisions, Judge Scheindlin held that certain metadata is
“intrinsic” to the electronic record. Accordingly, the Judge determined that parties may no longer
produce a significant collection of static images of ESI without accompanying load files. In addition,
“metadata maintained by the agency as a part of an electronic record is presumptively producible
under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’“
After ordering a detailed protocol for the defendants’ production and specifying the minimum
metadata fields that must be included, the court concluded by commenting that the whole
discovery issue could have been avoided “through cooperation and communication.”
37

� Orbit One Commc’ns, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D. N.Y. Oct. 26, 2010). In
this corporate litigation, the defendant sought spoliation sanctions. Discussing preservation
obligations, the court criticized the standard of “reasonableness and proportionality” articulated in
Victor Stanley II and Rimkus Consulting Group as “too amorphous to provide much comfort to a
party deciding” what to retain. Instead, the court advised parties to adhere to the Zubulake IV
standard of retaining “all relevant documents…in existence at the time the duty to preserve
attaches.” Noting that ordinary negligence is sufficient in its circuit for a spoliation inference, the
court found the plaintiffs did not adhere to appropriate preservation procedures by implementing an
inadequate litigation hold, failing to involve a key IT employee, entrusting data to the individual with
the greatest incentive to destroy it and allowing “cavalier” treatment of that information.
Nevertheless, the court asserted that although a party’s preservation efforts may be insufficient,
sanctions are not warranted unless there is proof that some information has actually been lost and
was relevant. In so holding, the court also noted it respectfully disagreed with the Pension
Committee ruling that held some level of sanctions are warranted as long as any information was
lost due to inadequate preservation practices. Despite the plaintiffs’ failure to “engage in model
preservation” of ESI, the court denied the sanctions request determining there was insufficient
evidence that any relevant information was destroyed.
� Voom HD Holdings LLC v. EchoStar Satellite LLC, No. 600292/08 (N.Y.Sup. Nov. 3, 2010). In
this breach of contract action, the plaintiff sought spoliation sanctions alleging the defendant
destroyed e-mails. The defendant relied upon its employees to make relevancy and
responsiveness determinations, and argued it was unnecessary to suspend the company’s
automatic document disposal process as it was up to the custodians to preserve. Addressing the
duty to preserve, the court dismissed the defendant’s argument that the parties’ settlement efforts
precluded the preservation duty, noting that argument would allow parties to freely destroy
documents and e-mails, simply by “faking a willingness to engage in settlement negotiations.” The
court also noted that the defendant was previously sanctioned for spoliation in a separate matter,
Broccoli v. EchoStar Communications Corp. in 2005. Finding the conduct in the instant action even
more egregious than in Broccoli, the court held the defendant acted in bad faith in destroying
relevant e-mails and engaged in the “type of offensive conduct that cannot be tolerated by the
court.” As such, the court imposed an adverse inference instruction and awarded attorneys’ fees
and costs. In support of its findings, the court noted that the defendant is “a large public corporation
with ample financial resources” to institute and enforce a proper litigation hold and referenced the
fact that the defendant hired a new in-house lawyer following the Broccoli decision primarily to
address these issues.
� Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010). In this personal injury action, the
defendants sought access to the plaintiff’s current and historical Facebook and MySpace accounts,
including all deleted pages and related information, which may have contained information
inconsistent with claims made concerning the extent and nature of the plaintiff’s injuries. The court
found that the public portions of the plaintiff’s social networking sites contained content that was
material and necessary to the litigation, and discerned a reasonable likelihood that the same would
hold true as to the private portions. Despite the plaintiff’s objections on privacy grounds, the court
cited privacy disclaimers in the MySpace and Facebook policies, and held that production of the
plaintiff’s social network account entries would not violate her privacy rights. The court also found
the defendant’s need for the information outweighed any privacy concerns, and determined that
preventing access would directly contravene the strong public policy in favor of open disclosure
and condone attempts “to hide relevant information behind self-regulated privacy settings.” Noting
38

commentary that “privacy is no longer grounded in reasonable expectations, but rather in some
theoretical protocol better known as wishful thinking,” and that sharing personal information with
others “is the very nature and purpose” of social networking sites the court ordered the plaintiff to
provide necessary authorization for access.
� Piccone v. Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010). In this employment
discrimination litigation, the parties cross-moved for spoliation sanctions, and the defendants
sought to compel production of certain electronic communications and forensic examination of the
plaintiff’s personal computer and other electronic data storage devices. The plaintiff argued
sanctions were warranted because the defendants failed to include in their production
approximately 200 e-mails that were allegedly destroyed when the defendants’ computer was
cleaned. Contending they produced all responsive e-mails in their possession, the defendants
countered that the plaintiff “cherry picked” her production such that forensic examination was
necessary to ensure complete production. Finding that both parties failed to establish the first
element of spoliation by not providing evidence that any relevant e-mails were destroyed after the
duty to preserve arose, the court denied sanctions. However, the court found the defendants were
entitled to explore through depositions an explanation for the discrepancies in the plaintiff’s
production. In regard to the forensic examination, the court ordered the defendants to pay for mirror
imaging of the plaintiff’s hard drive, and directed the plaintiff to turn the mirror image and certain
external disks over to her attorney for safekeeping.
� In re Payment Card Interchange Fee and Merch. Disc. Antitrust Litig., 2010 WL 3420517
(E.D.N.Y. Aug. 27, 2010). In this ongoing antitrust litigation, the defendants appealed an order
compelling the production of recordings and reports created pursuant to an investigation by the
European Commission into the defendants’ business practices in Europe. Joining the defendants
as amicus curiae, the Commission argued the information was confidential under European law
and that the doctrine of international comity should deny access to the plaintiffs. Analyzing the
foreign and domestic interests using the balancing test in the Restatement (Third) of Foreign
Relations Law §442, the court acknowledged the U.S. policy of broad discovery oriented toward
increasing fairness and accuracy in litigation and noted that foreign laws purporting to restrict
disclosure of information relevant to U.S. litigation are generally ineffective. On the other hand, the
court found that the Commission’s interests would be significantly undermined if its confidentiality
rules were disregarded, the documents originated in Europe and the information could be obtained
through other avenues. Despite the fact that the requested documents were likely to contain
relevant information, the court denied disclosure finding the interests of international comity
weighed in favor of the Commission.
� Nycomed U.S. Inc., v. Glenmark Generics LTD., 2010 WL 3173785 (E.D.N.Y. Aug. 11, 2010). In
this pharmaceuticals patent litigation, the plaintiff moved to strike portions of the defendants’
pleadings due to its unjustified withholding of relevant evidence and willful failure to search two
important and obvious repositories for responsive ESI. The defendants argued its withholding was
justified because the documents had already been produced by a third party, and claimed the ESI
repositories had been simply "overlooked." Rejecting the defendants’ excuses, the court
determined that the underinclusive nature of the defendants’ discovery efforts and searches was
willful – not an inadvertent omission. Based on the defendants’ "willful dereliction of its discovery
duties" and its status as a "substantial multinational corporation," the court found that monetary
sanctions in the amount of $100,000 to the plaintiff and $25,000 to the court clerk were justifiable.
The court denied more severe sanctions based on the level of prejudice suffered by the plaintiff
and declined to award attorneys’ fees noting the "resolution of these matters is long overdue."
39

� Harkabi v. Sandisk Corp., 2010 WL 3377338 (S.D.N.Y. Aug. 23, 2010). In this breach of contract
litigation, the plaintiffs sought sanctions, alleging the defendant failed to produce data contained on
laptops the plaintiffs used while employed with the defendant company along with some of the
plaintiffs’ corporate e-mail. The defendant argued it lost the laptop data despite reasonable
preservation steps, but agreed to produce the missing e-mails, which were ultimately located.
Following a thorough discussion of culpability standards, the court found the defendant negligent
based on "a cascade of errors" (including deficiencies in its native production and laptop spoliation)
"which aggregated to a significant discovery failure." The court noted that the defendant, "a global
business that champions itself a leader in electronic data storage," must be mortified by its claim of
innocent mistake. Finding terminating sanctions drastic, the court instead awarded $150,000 in
attorneys’ fees to compensate the plaintiffs "for their ‘David-and-Goliath-like’ struggle for electronic
discovery," and also granted an adverse inference instruction.
� Passlogix, Inc. v. 2FA Tech., LLC, 2010 WL 1702216 (S.D.N.Y. Apr. 27, 2010). In this licensing
agreement litigation, the plaintiff sought sanctions through an adverse inference instruction,
preclusion and costs, alleging the defendants failed to implement a litigation hold and spoliated
electronic evidence. Despite admitting to the deletion of the e-mails, text messages, Skype
messages, and network and computer logs, the defendants denied the relevance of the electronic
evidence to the pending case. Addressing the spoliation, the court reiterated that a litigation hold
must be put in place and routine document retention/destruction policies must be suspended,
which the defendants failed to accomplish. The court found the failure to preserve e-mails and text
and Skype messages constituted gross negligence while the failure to preserve computer logs was
intentional. Balancing the defendants’ “litigation conduct with its status as a small corporation,” the
court determined that a $10,000 monetary fine was the appropriate remedy.
� In re A & M Florida Props. II, 2010 WL 1418861 (Bkrtcy.S.D.N.Y. Apr. 7, 2010). In this bankruptcy
litigation, the defendant sought sanctions alleging the plaintiffs and their counsel intentionally
obstructed the discovery process by causing misunderstandings and by delaying the production of
relevant e-mails, which resulted in “needless costs and frustrations.” The plaintiffs eventually
produced more than 9,500 e-mails that were stored in the company archive system following two
forensic searches. Based on the absence of intentional destruction and the fact that the soughtafter
e-mails were ultimately produced, the court noted that dismissal or an adverse inference
would be “unjustly harsh.” However, the court found that the plaintiffs’ counsel “did not understand
the technical depths to which electronic discovery can sometimes go” and noted that counsel has
an obligation to search for sources of information to understand where data is stored. According to
the court, if the plaintiffs’ counsel would have spoken with key figures at the company regarding the
computer and archiving systems in place, the forensic search and subsequent motions would have
been unnecessary. As such, the court found monetary sanctions to be appropriate.
� In re Air Cargo Shipping Servs., M.D.L. No. 1775 (E.D.N.Y. Mar. 29, 2010). In this antitrust
litigation, the plaintiffs moved to compel production of documents withheld by the defendant on the
grounds that production is prohibited by the French blocking statute. The defendant argued the
plaintiffs should be required to obtain the documents pursuant to the Hague Convention
procedures. Citing to the Restatement (Third) of Foreign Relations Law of United States, the court
ultimately decided the fifth factor – the balance of the national interests at play – weighed in favor
of the plaintiff, since “France’s relatively weak national interest in prohibiting disclosure…[was]
outweighed by the more substantial United States interests.” The court also considered the
hardship of compliance factor, finding there was little proof provided that the defendant would face
prosecution for violating the blocking statute. Finally, the court ordered production of the
40

documents since resorting to the Hague Convention process would cause substantial delay, which
the court deemed “pointless.”
� Gucci Am., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010). In this trademark
infringement litigation, the plaintiffs served a subpoena on the third party United Overseas Bank of
New York (UOB NY) for the defendants’ bank records held in Malaysia, alleging the defendants
transferred approximately $900,000 received from the sale of counterfeit goods to the Malaysia
account. UOB NY denied disclosure to the plaintiffs arguing that disclosure would violate Malaysian
banking secrecy laws. Pursuant to the Restatement (Third) of Foreign Relations Law of the United
States § 442, the court followed a five-factor test in balancing the United States interest in the
foreign production of documents. After considering the factors, the court concluded that “the United
States interest in fully and fairly adjudicating matters before its courts…outweighs Malaysia’s
interest in protecting the confidentiality of its banking customers’ records.” The court also
considered the “hardship of compliance” on the party or witness from whom discovery is sought,
but determined that the prospect of significant hardship and likelihood of prosecution for
compliance with discovery in this case was nothing more than “mere speculation.”
� Irwin v. Onondaga County Res. Recovery Agency, A.T., 2010 WL 462948 (N.Y.A.D. 4 Dept.
Feb. 11, 2010). In this litigation, the plaintiff sought disclosure of all electronically stored
photographs and associated metadata. The defendant previously provided digital copies of 1,423
already-published photographs, with two photographs of the plaintiff, but denied production of the
remaining photographs, claiming the request was overbroad and constituted an invasion of
personal privacy. Pursuant to the Freedom of Information Law statute, the court held that
electronically stored photographs and associated metadata must be disclosed by a public agency if
properly requested by members of the public. However, unpublished photographs relating to active
or ongoing law enforcement investigations, or personal photographs depicting the agency’s
employees or staff, may be excluded from disclosure. Based on these determinations, the court
ordered production of the unpublished photographs and associated metadata that depict the
individual but do not depict active or ongoing law enforcement investigations. The court also
ordered production of metadata associated with the previously produced photographs.
� Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL
184312 (S.D.N.Y. Jan. 15, 2010). In this litigation involving hedge funds, the defendants sought
sanctions, alleging the plaintiffs engaged in evidence spoliation and submitted false and misleading
statements in regard to document preservation efforts. Originally, the thirteen plaintiffs discussed in
this case failed to issue written litigation holds when the duty to preserve arose in 2003. Seven of
the plaintiffs eventually issued written holds, while six plaintiffs failed to issue a written hold at any
time. After defining negligence, gross negligence and willfulness in the discovery context, the court
noted that following the final Zubulake opinion in July 2004, the duty to issue written litigation holds
was clear. The seven plaintiffs who eventually issued written holds were found to have acted
negligently, while the six plaintiffs who failed to issue any written litigation hold were found grossly
negligent and subject to a permissive adverse inference sanction. The court found all thirteen
plaintiffs worthy of monetary sanctions since they “conducted discovery in an ignorant and
indifferent fashion,” and awarded the defendants reasonable attorneys’ fees and costs associated
with the motion. Finally, the court ordered two of the plaintiffs to search backup tapes for the
relevant time period at their expense.
� Vagenos v. LDG Fin. Servs., LLC., 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009). In this action
brought under the Fair Debt Collection Practices Act, the defendant moved to prevent the plaintiff
from offering at trial an alleged duplicate of the automated telephone message that served as the
41

asis of the suit. The defendant asserted that the original message was destroyed with malicious
intent and therefore was inadmissible. In opposition, the plaintiff maintained that the destruction of
the original message was due to a change in cellular service providers and testified that the
recording reflected the original. Despite finding no evidence of bad faith, the court determined that
the plaintiff’s duty to preserve evidence was breached. The court declined to preclude the evidence
since it would be the "death knell" of the case, but it found an adverse inference sanction
appropriate. In making this determination, the court noted that the destruction and the plaintiff
attorney’s failure to inform his client of the preservation duty were especially "egregious" and
"highly troubling."
� Scalera v. Electrograph Sys. Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009). In this disability
and employment litigation, the plaintiff sought adverse instruction sanctions, citing the defendants’
loss of information contained on two e-mail backup tapes. The plaintiff claimed the defendants
produced only "a handful of emails" after claiming the e-mails were stored on corrupted backup
tapes that could not be restored. In addition, the plaintiff argued the hard drives of a defendant and
the plaintiff were "wiped clean," which prevented a search of the computer. Denying the plaintiff’s
motion for sanctions, the court found the defendants’ duty to preserve arose when the plaintiff’s
EEOC charge was received, which was more than 30 days after the plaintiff left her employment.
The court further held that while the defendants acted negligently in failing to preserve ESI until
almost two months after the duty to preserve arose, the plaintiff failed to demonstrate that the
destroyed e-mails would have been favorable to her case.
� Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009). In this
copyright infringement litigation, the court addressed several discovery disputes it claimed could
have been avoided if the parties had "focused their attention on discussing their differences, rather
than drafting dueling epistles." Addressing the defendant’s issues, the court did not agree with the
defendant that producing and searching files would be unduly burdensome. Thus the court ordered
the defendant to conduct thirty searches proposed by the plaintiffs, which included additional
custodians. The court then addressed the plaintiffs’ arguments that the discovery sought by the
defendant was unduly burdensome in part because they were unable to conduct centralized e-mail
searches without relying on an outside service provider. Noting that the day will come when the
burden argument based on a large organization’s lack of internal e-discovery software will not be
well received, the court found that e-discovery case law had not yet developed to this point.
Therefore, the court upheld the plaintiffs’ argument and concluded that the e-mail files the
defendant sought to search were not reasonably accessible. Finally, the court considered the
specific document requests from the defendant to the plaintiffs that were at issue, and restricted
the search terms and production scope as appropriate for each request.
� Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009). In this breach of contract
dispute, the plaintiff sought sanctions alleging the defendants failed to preserve and produce
electronically stored information (ESI). Finding the duty to preserve arose no later than the
lawsuit’s filing, the court determined the defendants’ counsel failed to meet discovery obligations by
neglecting to issue a litigation hold and properly search for responsive documents. Despite these
failures, the court declined to issue an adverse inference instruction since there was no proof that
the defendants’ actions created an unfair evidentiary imbalance, noting the absence of evidence
that any relevant information was destroyed. However, the court held other sanctions were
appropriate, including further discovery of ESI and an award of attorneys’ fees and costs to be
allocated among the defendants and counsel once the "respective blame-worthiness" was
determined.
42

� Arista Records LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009). In this
copyright infringement litigation, the plaintiffs sought terminating sanctions alleging the defendants
were continuingly unwilling to cooperate in discovery, refused to produce virtually any internal
documents and had destroyed evidence. The plaintiffs’ computer forensic expert determined that
four hard drives had been intentionally wiped, the contents of three hard drives had been primarily
deleted and that recovered fragments indicated incriminating documents had been stored on the
drives. The defendants offered conflicting explanations for the spoliation, finally claiming that the
drives only appeared wiped because of a recently installed upgrade, but that all files had been
backed up on a server. However, there were significant and unexplained gaps in the server and in
production of the defendants’ e-mail records. Finding the spoliation of evidence was intentional and
done in bad faith, and that the defendants engaged in evasive discovery tactics, the court issued a
sanction precluding the defendant from asserting its affirmative defense on the merits of a goodfaith
non-infringement policy. The court declined to award terminating sanctions despite the “strong
evidence of extreme wrongdoing,” noting that case-dispositive sanctions should only be imposed in
extreme circumstances after considering less drastic alternative sanctions.
� Am. Friends of Yeshivat Ohr Yerushalayim, Inc. v. United States, 2009 WL 1617773 (E.D.N.Y.
June 9, 2009). In this tax penalties litigation, the U.S. government sought an order to strike the
appellant’s opposition papers, or the exhibits that were not previously produced during discovery
that were filed in response to the government’s motion for judgment on the pleadings. Previously,
the appellant failed to respond to the government’s discovery demands for four months during
which it received three extensions, until responding that it was not in possession of the requested
financial records and that the accountant was to blame for not conducting a thorough search for the
documents. In considering whether sanctions were appropriate, the court found that the appellant’s
attorney’s failure to ask the appellant’s accountant for the financial records was “beyond
comprehension,” as was his filing of the documents without notice to the government. The court
noted that filing the documents without notice prejudiced the government in a way that, absent a
preclusion order, could only be remedied by the court reopening discovery. Concluding the case
had “languished long enough,” the court granted the government’s motion for sanctions, precluding
the financial records from evidence. The court also denied the appellant’s cross-motion for
preclusion sanctions.
� Linde v. Arab Bank, 2009 WL 1456573 (E.D.N.Y. May 22, 2009). In this case arising out of the
Anti-Terrorism Act and the Alien Tort Claims Act, the defendant sought production of documents
from three non-parties. The defendant first sought production of documents from Israel Discount
Bank New York (IDBNY) held in Israel by IDBNY’s parent company Israel Discount Bank (IDB).
The defendant also sought production of documents from Bank Hapoalim, which objected to
production citing various Israeli laws including laws against self-incrimination. Citing IDB’s
insignificant relationship to the litigation and that IDBNY was not a "mere department" of IDB, the
court refused to allow jurisdictional discovery of documents held by IDB. Turning to the second
request, the court rejected the non-party’s claims of self-incrimination and commercial secrets laws
violations but felt the other legal arguments raised constituted "prohibitions on disclosure that raise
a true conflict between United States discovery rules and Israeli confidentiality laws." The court
considered five factors contained within the §442 of the Restatement (Third) of the Foreign
Relations Law of the United States: the importance of the investigation of the documents, the
specificity of the request, whether the information originated in the United States, the availability of
alternative means of securing the information, and the extent to which noncompliance would
undermine American interests or compliance would undermine the interests of the state in which
43

the information is located. Noting all factors, except for the specificity requirement, weighed in favor
of the non-party, the court denied discovery of the materials protected by Israeli confidentiality laws
but ordered production of the remaining materials.
� In re the Account of Tamer, 2009 WL 1058594 (N.Y.Sur. Apr. 20, 2009). In this contested
accounting of a revocable trust, the objectant sought authorization to produce approximately 6,000
documents electronically on CD-ROMs and DVDs, while the trustees filed a cross-motion seeking
paper production. Noting the relevant state statute neither authorizes nor prohibits electronic
production, the court stated, "It is implicit that where a party seeks electronic discovery, the
responding party will produce the information sought by some form of electronic means."
Accordingly, the court held the objectant may produce documents electronically, provided the
production is accompanied by an index identifying each document’s file location and
responsiveness to a discovery demand. The court concluded that the index would prevent the
imposition of an undue burden on the trustees who would otherwise need to read through 6,000
documents.
� Adele S.R.L. v. Filene’s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009). In this
trademark infringement litigation, the plaintiffs moved for monetary sanctions for discovery
misfeasance citing the defendants’ allegedly inadequate search efforts and false representations
that production was complete. The plaintiffs also sought cost-shifting for loading and reviewing
backup tapes. Opposing the motion, the defendants argued they acted reasonably under the
circumstances. Finding the defendants made impermissibly false representations and did not come
"remotely close to meeting" their production responsibilities, the court granted the motion for
sanctions. However, the court denied the cost-shifting request, noting the plaintiffs did not
meaningfully address the appropriateness of cost-shifting under Fed.R.Civ.P. 26(b)(2) or the
reasonable accessibility of the backup tapes under the guidance of recent case law.
� William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y.
Mar. 19, 2009). In this multi-million dollar construction litigation, a non-party agreed to produce
electronic documents but objected to the search terms both parties proposed. The court issued a
"wake-up call" to attorneys about the need to effectively design search terms used in e-discovery.
Citing this as the "latest example of lawyers designing keyword searches in the dark, by the seat of
the pants," the court referenced a series of recent decisions (Victor Stanley, Inc. v. Creative Pipe,
Inc.; United States v. O’Keefe; Equity Analytics, LLC v. Lundin; and In re Seroquel Products
Liabilitiy Litig.) as guidance for searching. The court also endorsed the "Cooperation Proclamation"
from the Sedona Conference® and noted that cooperation and transparency in all aspects of
preservation and production of ESI is a requirement. Finally, the court stated that counsel must
carefully craft appropriate keyword searches with input from pertinent custodians, and concluded
by stating, "[I]t is time that the Bar—even those lawyers who did not come of age in the computer
era—understand this."
� T.A. Ahern Contractors Corp. v. Dormitory Auth., 2009 WL 806779 (N.Y.Sup. Mar. 19, 2009). In
this state contract dispute, the plaintiff moved to compel electronic discovery pursuant to CPLR
§3124. The plaintiff sought archived e-mails and other electronic documents, which the defendant
claimed amounted to 35 gigabytes of electronic data. Based on this amount of data, the defendant
argued it was necessary to hire an e-discovery vendor at cost to the plaintiff. The court found hiring
a vendor to be a necessary component of the production process. Addressing the plaintiff’s
argument that the Zubulake I cost-shifting factors should be considered, the court noted the
distinction between the CPLR and the Federal Rules of Civil Procedure and that the plaintiffs did
not allege that the defendants had maintained its electronic data in any way that added to the
44

expense of production. The court held it was not empowered to overturn the New York rule that
requires the cost of production to fall upon the party seeking discovery, which creates a strong
incentive for formulating requests to be as minimally burdensome as possible. Therefore, the court
denied the plaintiff’s motion to compel unless the plaintiff was willing to bear the costs.
� Anthropologie, Inc. v. Forever 21, Inc., 2009 WL 690239 (S.D.N.Y. Mar. 13, 2009). In this
copyright infringement litigation, the plaintiff sought production of electronic documents and
permission to appoint an expert to copy and inspect the defendants’ hard drives. The defendants
claimed the requested documents did not exist, but nonetheless provided summaries of the
information for "settlement purposes only." Finding it "virtually inconceivable" that the defendants
did not retain the data requested, given the scale of the defendants’ business, the court determined
that the defendants’ efforts reflected a "refusal to comply with even the minimal requirements of the
governing discovery rules." The court ordered production of the data that was used to create the
summaries and all documents that pertained to the plaintiff’s request, but delayed consideration of
the hard drive copying request until after production.
� Acorn v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009). In this civil rights litigation,
the plaintiffs sought sanctions alleging the defendants failed to issue a timely litigation hold or
conduct a search for responsive electronic documents. The defendants claimed it issued a "verbal"
litigation hold and instructed key individuals to search for responsive documents despite lacking the
technical resources to locate and access electronic documents. Finding the defendants had a duty
to preserve evidence and were grossly negligent in failing to issue a proper litigation hold, the court
granted motion costs and attorneys’ fees. However, the court denied an adverse inference
instruction citing the plaintiffs’ failure to demonstrate the favorability of the lost evidence. Regarding
the defendants’ searching efforts, the court ordered the defendants to review its prior responses
and supplement them if necessary, noting the plaintiffs had not provided any case law suggesting a
"manual" search of electronic files was insufficient.
� Port Auth. Police Asian Jade Soc’y of N.Y. & N.J. Inc. v. Port Auth. of N.Y. and N.J., 2009 WL
577665 (S.D.N.Y. Mar. 5, 2009). In this racial discrimination suit, the plaintiffs sought an adverse
inference instruction sanction for the defendant’s failure to preserve performance evaluations and
to issue a litigation hold. The defendant argued that its failure to preserve the evidence was, in
part, due to the September 11th 2001 attacks, which destroyed the defendant’s executive offices.
Accepting the defendant’s argument, the court found that the preservation failure was a result of
negligence, but not gross negligence. Despite the preservation failure, the court denied the motion
for sanction as it determined there were other sources of evidence available to the plaintiffs.
� Schanfield v. Sojitz Corp. of Am., 2009 WL 577659 (S.D.N.Y. Mar. 6, 2009). In this employment
discrimination suit, the defendants sought production of thirty-six purportedly privileged e-mails
identified in the plaintiff’s privilege log. The defendants argued that these e-mails between the
plaintiff and his friends, former colleagues and family members that are attorneys, were not
protected by privilege. Addressing each e-mail category, the court held that the e-mails sent to
friends were not protected since the plaintiff failed to indicate that they were prepared in
anticipation of litigation. The court also found that work product protection was waived with respect
to the e-mails with colleagues since the material was disclosed. Finally, the court determined the emails
sent to family members that are attorneys were not attorney-client privileged because a nonattorney
was copied on the e-mails; however, those e-mails constituted work product because they
were prepared in anticipation of litigation.
� Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater New York, 2009 WL
393644 (E.D.N.Y. Feb. 13, 2009). In this RICO suit, the defendants sought reconsideration of the
45

court’s previous order that directed the defendants to return or destroy the plaintiff’s inadvertently
produced privileged documents. Stating that it was “closing and locking the door” on future claims
of privilege protection, the court determined the time for raising inadvertent disclosure arguments
had passed. The defendant also asked the court to order the plaintiff to re-produce e-mails that
were previously produced without string headers. Siding with the defendants, the court was not
satisfied with the plaintiff’s explanation that header information was by default never created and
thus not maintained. However, the court stayed the defendant’s motion and ordered the parties to
attempt to resolve the issue and provide a report to the court.
� Ellington Credit Fund, Ltd. v. Select Portfolio Servs., Inc., 2009 WL 274483 (S.D.N.Y. Feb. 3,
2009). In this breach of contract litigation, the plaintiffs moved to lift a pending discovery stay and
sought a preservation order claiming systematic purges of the defendant’s computer systems
resulted in the destruction of relevant information. The defendant opposed the motion, arguing that
a litigation hold was in place and no relevant files had been destroyed. Finding that the defendants
were fully aware of their preservation obligations, the court refused to lift the discovery stay and
declined to issue a preservation order, noting the plaintiffs failed to propose terms, time frame or
scope for any such order.
� Arista Records LLC v. Usenet.com, Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009). In this
copyright infringement litigation, the plaintiffs moved for sanctions for spoliation. The plaintiffs
alleged the defendants deliberately destroyed and failed to preserve highly relevant materials that
would have provided evidence of the “wide-scale infringement.” The defendants argued that the
evidence sought was not relevant to the plaintiffs’ claim, the data was transient in nature and their
systems did not have the capacity to preserve the data. Regarding the duty to preserve, the court
found that the defendants had an obligation to preserve the requested data and defendants’ failure
to preserve was in bad faith. Therefore, the court imposed an adverse inference against the
defendants and awarded attorneys’ fees and costs.
� SEC v. Badian, 2009 WL 222783 (S.D.N.Y. Jan. 26, 2009). In this securities litigation, a non-party
corporation, Rhino, moved to “claw back” approximately 260 privileged documents allegedly
produced inadvertently in 2003. Rhino claimed that language accompanying the production, which
certified that production of any document shall not be construed as waiver of any privilege, required
the SEC to return the documents. To determine whether privilege was waived, the court analyzed
the four factors set forth in Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105
(S.D.N.Y. 1985): (1) reasonableness of the precautions taken to prevent inadvertent disclosure; (2)
time taken to rectify the error; (3) extent of the disclosure; and (4) overarching issues of fairness.
Factor one weighed in favor of privilege waiver as Rhino presented no evidence of privilege review
prior to the production. Factor two weighed in favor of waiver as Rhino waited five years before it
sought to “claw back” some of the production. Factor three also weighed in favor of waiver as the
court found 260 documents to be a significant number of documents. The last factor also weighed
in favor of waiver as the court was unable to find a reason to disregard Rhino’s carelessness. With
all four factors weighing in favor of privilege waiver, the court concluded that Rhino waived any
privilege it may have asserted on the production.
� SEC v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009). In this securities fraud
litigation, the defendant objected to the SEC’s production of 1.7 million documents maintained in
thirty-six separate databases. The defendant asserted the SEC produced a “document dump” of
unorganized documents and failed to perform adequate searches for e-mails. The SEC argued the
production format was in accordance with how the documents were maintained in the usual course
of business and that nearly all responsive e-mails would be privileged, protected or non-
46

substantive. Rejecting the SEC’s arguments, District Judge Shira A. Scheindlin found that
Fed.R.Civ.P. 34’s “usual course of business” requirement for production requires the documents to
be organized and therefore ordered re-production with documents responding specifically to
defendant’s requests. Furthermore, as e-mails are inherently searchable, the court found the
SEC’s blanket refusal to produce any of them to be unacceptable. Accordingly, the court ordered
the parties to meet to resolve the scope and design of a search with respect to e-mails. The court
noted that a government agency which initiates civil litigation must generally follow the same
discovery rules that govern private parties.
� Kingsway Fin. Serv’s, Inc. v. Pricewaterhouse-Coopers LLP, 2008 WL 5423316 (S.D.N.Y. Dec.
31, 2008). In this fraud action, the plaintiff moved to compel the production of metadata for a
number of produced documents. The court denied the motion, citing plaintiff’s failure to raise any
issue as to the authenticity of the produced documents. Additional factors giving rise to the denial
of the motion was plaintiff’s failure to identify the types of metadata sought or explain why metadata
was relevant to the matter.
� Aguilar v. Immigration & Customs Enforcement Divis. of United States Dept. of Homeland
Security, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008). In this civil rights class action alleging
unlawful searches of homes, the plaintiffs sought production of metadata from various types of ESI
including e-mail, word and excel documents and databases. Noting that the production of metadata
should have been discussed at the Fed.R.Civ.P. 26(f) conference, the court went on to consider
the various metadata production requests. Regarding e-mails and backup tapes, the court found
the plaintiffs’ requests untimely and too costly for the little benefit potentially gained. The court then
discussed Word documents and PowerPoint presentations and ordered the production of metadata
if the plaintiffs were willing to bear all costs associated with its production; despite finding the
metadata sought was marginally relevant, not critical to pretrial presentation and was untimely
requested. Additionally, declining to find production unduly burdensome for Excel spreadsheets,
the court granted production of the metadata as requested from Excel files.
� Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct. 15, 2008). In this fraud litigation, the plaintiffs
sought default judgment and monetary sanctions claiming the defendants destroyed crucial
evidence on a laptop belonging to one of the defendants. Previously, the court ordered a courtappointed
forensic expert to analyze the hard drives for evidence of a deletion program. The
examiner forensically copied the hard drive, discovered that a deletion program did exist, and that
hundreds of documents were deleted. The forensic expert also discovered that the computer’s
system clock had been altered, calling into question the integrity of the time stamps in the event
logs. Finding that the plaintiffs demonstrated spoliation of evidence on the laptop and that the
evidence was relevant, the magistrate judge determined the defendant acted in bad faith and
recommended a default judgment, holding that the spoliation made it impossible to identify files,
therefore making lesser sanctions inadequate. The magistrate judge also recommended awarding
attorneys’ fees to the plaintiffs relating to all expenses incurred regarding the laptop, but did not
recommend that any punitive monetary sanctions be imposed.
� Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008). In this
patent infringement litigation, the defendant moved to compel the plaintiff to organize its production
of electronic documents and explain which documents corresponded to each document request.
(The plaintiff previously produced 405,367 pages of electronic documents in response to seventytwo
separate document requests.) The plaintiff argued the documents were produced as they were
maintained in the ordinary course of business under Fed.R.Civ.P. 34(b)(2), and that further
organization and an index of the materials was not required. The court determined that the plaintiff
47

neither demonstrated that the documents were produced as they are ordinarily maintained, nor
provided information regarding how they are ordinarily kept. However, the court nonetheless
determined it would be unfair and unduly onerous to require the plaintiff to organize the documents
to correspond to the defendant’s numerous document requests. The court therefore ordered the
plaintiff to produce an index of the produced documents, including a description of the filing system
under which each document was ordinarily maintained, and an indication of whether the
documents were hard copy, digital or both.
� Babaev v. Grossman, 2008 WL 4185703 (E.D.N.Y. Sept. 8, 2008). In this litigation alleging
fraudulent inducement of investments, the plaintiffs sought sanctions claiming the defendants
engaged in spoliation of evidence and failed to produce other documents. The defendants argued
that some documents were inadvertently corrupted and could not be produced, a “lost” computer
was permissibly discarded as unusable prior to the anticipation of litigation and that bank records
were not in their control. Dismissing the defendants’ arguments, the court determined the relevant
computer evidence should have been preserved and was destroyed with a culpable state of mind.
The court also held that the defendants possessed sufficient control over their bank records to
produce them. For these reasons, the court imposed an adverse inference and awarded the
plaintiffs $5,000 in costs and fees.
� Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008). In this litigation
surrounding various intellectual property rights, the defendant sought sanctions claiming the
plaintiff failed to produce e-mails the defendant considered highly damaging to the plaintiff. The
defendant further argued that the belated discovery hampered its ability to pursue otherwise crucial
discovery related to the communications. Opposing the motion, the plaintiff vaguely asserted that
the defendant failed to demonstrate any misconduct or prejudice. Additionally, the defendant
pointed to its lack of an established written document retention policy, leaving the court to infer that
their argument was the e-mails were no longer in its system. Unimpressed with the plaintiff’s
assertions, the court found the plaintiff was, at the minimum, negligent in failing to preserve and
produce the e-mails. In addition, the court found the plaintiff’s failure to turn over a specific portion
of the e-mails to be intentional concealment. Accordingly, the court ordered an adverse jury
instruction and awarded attorneys’ fees incurred in bringing this motion.
� Reino de Espana v. Am. Bureau of Shipping, Inc., 2008 WL 3851957 (S.D.N.Y. Aug. 18, 2008).
In this action arising out of the sinking of an oil tanker off the coast of Spain, the plaintiff (Spain)
objected to a previous ruling that required the production of electronic documents and imposed
sanctions in the form of attorneys’ fees and costs associated with the defendants’ motion to
compel. The defendants made its first discovery request in January 2004, seeking non-privileged
electronic documents. In 2006, the judge determined the plaintiff’s failure to conduct discovery and
preserve documents in accordance with the Federal Rules of Civil Procedure was sanctionable as
the Rules govern international discovery in cases falling under American jurisdiction. Upholding the
ruling, the court found the plaintiff had received adequate notice regarding the preservation and
spoliation issues and further upheld the award of attorneys’ fees as a reasonable sanction, citing
the plaintiff’s negligent failure to preserve electronic evidence.
� Viacom Int’l Inc. v. YouTube Inc., 2008 WL 2627388 (S.D.N.Y. July 2, 2008). In this copyright
infringement litigation, the plaintiffs filed a motion to compel production of electronically stored
information, seeking copies of all videos currently stored on the defendants’ hard drives that were
once available for public viewing on YouTube.com. Additionally the plaintiffs sought the
defendants’ “logging” database which is stored on live computer hard drives and demonstrates how
often each video is viewed along with the viewer’s login ID and IP address. The defendants
48

claimed these requests raised user privacy concerns and were burdensome, expensive and
overbroad, especially since the database contained approximately 12 terabytes of data. Granting
the plaintiffs’ motion to compel with regard to these two requests, the court noted that the
defendants cited no authority barring them from disclosing user information in civil discovery and
that login IDs are anonymously created. The court ultimately determined that production of the
removed videos was not unduly burdensome and the plaintiffs’ need for the data outweighed the
unsubstantiated cost of producing the information, and granted the plaintiffs’ motion to compel.
� Margel v. E.G.L. Gem Lab Ltd., 2008 WL 2224288 (S.D.N.Y. May 29, 2008). In this trademark
litigation, several discovery disputes were raised including the defendants’ assertion that the
plaintiffs failed to respond fully to production requests and the plaintiffs’ application to compel
additional discovery. Finding that the defendants failed to establish sufficient evidence of the
existence of additional relevant documents, the court denied the defendants’ motion. However, the
court ordered the plaintiffs to pay reasonable attorneys’ fees and expenses associated with the
motion, noting the second production by the plaintiffs’ new counsel produced almost four times the
information previously produced. Addressing the plaintiffs’ motion, the court ordered the
defendants to produce the electronic data from which the report in question was generated.
� Attard v. City of New York, 2008 WL 1991107 (E.D.N.Y. May 5, 2008). In this age discrimination
litigation, the plaintiff filed second and third motions for sanctions, citing the defendants’ repeated
failure to comply with court-ordered discovery and failure to serve a timely opposition to the second
motion. After analyzing the case history, the court found that the defendants “forced [the] plaintiffs
to endure lengthy delays, struggle with defective data production and expend valuable resources to
compel [the] defendants to comply with the law.” The court found the statistical data produced was
not in a usable form because it contained flawed data that made accurate analysis impossible.
Subsequently, the court awarded monetary sanctions requiring the defendant to pay reasonable
expenses associated with the plaintiff’s use of expert witnesses, and attorneys’ fees and costs
accrued by the plaintiff to enforce discovery.
� Whitney v. JetBlue Airways Corp., 2008 WL 2156324 (E.D.N.Y. April 29, 2008). In this
negligence litigation, the plaintiff sought sanctions alleging that the defendant willfully destroyed a
critically relevant handwritten report. The defendant argued the handwritten document was
destroyed after it was entered into an electronic database as part of a bulk destruction of
documents. Finding the defendant acted negligently in allowing destruction of the handwritten
report, the court nevertheless denied the plaintiff’s request for sanctions. The court noted that the
plaintiff did not sufficiently establish the report’s relevance nor prove that the report contained
information beyond what was produced in electronic form. However, the court awarded to the
plaintiff the attorney’s fees and costs in connection with the motion due to the defendant’s
destruction of the document.
� Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. April 2, 2008). In this defamation suit
involving numerous ongoing discovery conflicts, the plaintiff moved the court to compel production
of additional electronic information and for sanctions for failure to preserve evidence. The plaintiff
sought restoration and search of all backup tapes from two servers and one employee’s laptop,
arguing that the defendant’s search was insufficient and possibly overlooked relevant data. The
defendant argued its recovery and search of the December 2003 and March 2005 backups was
sufficient as the events giving rise to the litigation occurred in the spring of 2002 and the complaint
was filed in May 2003. For the most part, the court agreed with the defendant that the likelihood of
finding additional relevant documents was exceedingly remote and therefore held that the burden
outweighed the likely benefit. However, the court ordered restoration and search of one e-mail
49

server for three specific days as well as two separate backups of another file server and e-mail
server.
� Barker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008). In this employment litigation, the
plaintiff initially filed a motion to compel production of e-mail among and between the parties. In
response, the defendants produced some e-mail; however, the plaintiff claimed the production was
inadequate and renewed its motion to compel. In an effort to ascertain the adequacy of the
defendants’ search, the court ordered the parties to submit an affidavit describing the procedures
undertaken, but the submitted affidavit merely described the additional work required to restore the
deleted data from backup tapes. Finding the record pertaining to the defendants’ search of the
requested e-mail from accessible sources incomplete, the court declined to compel production and
instead ordered the defendants to identify individuals with knowledge of the steps taken during
collection and allowed time for the plaintiff to depose those individuals.
� In re World Trade Center Disaster Site Litig., 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008). In this
ongoing multi-district litigation, the plaintiffs objected to the court-appointed special master’s
recommendation that a third party be hired to build, maintain and operate a database of “Core
Discovery.” The plaintiffs’ objection focused on the great expense and claimed lack of necessity
associated with creating such a large database. The court, sensitive to the costs of the litigation,
approved the recommendation due to the necessity of a common core of reliable information in this
important litigation.
� Ingoglia v. Barnes & Noble College Booksellers, Inc., 2008 WL 458504 (N.Y. App. Div. Feb. 19,
2008). In this action to recover damages for defamation, the defendant appealed the New York
Supreme Court’s decision to deny its motion to dismiss. The defendant sought dismissal based on
the common law doctrine of spoliation which provides for sanctions for negligent or intentional
destruction of evidence. Previously, the defendant sought inspection of the plaintiff’s home
computer and the court granted the request. The defense expert found evidence that numerous
files, images, folders and some internet history had been deleted following the request for
inspection but preceding the production, as well as evidence of the installation of software
designed to remove data. This court reversed, finding an abuse of discretion, and granted the
dismissal due to the severe prejudice suffered by the defendant as a result of the plaintiff’s
spoliation.
� Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007). In this suit, the
plaintiffs claimed the defendants violated their civil rights by blocking the sale of numerous parcels
of real estate. During discovery, the plaintiffs claimed the defendants failed to conduct a diligent
search for responsive e-mails based on the production of a mere two e-mails. The court agreed
with the plaintiffs and refused to allow the defendant to, “throw up their hands and walk away,” by
claiming they do not restore e-mails. The court narrowed the scope of the e-mail search by
custodian, time frame and keywords and ordered the defendant to prepare a search plan
estimating the time and cost to perform the search. The defendant sought the help of a third party
vendor, provided the court with an estimate and began the restoration process. Thereafter, the
defendant produced over two thousand pages of responsive e-mails. The plaintiff again claimed
the production was inadequate and sought spoliation sanctions based on the defendant’s
destruction of evidence, arguing that the destruction was caused by the failure to implement a
litigation hold or to alter its document retention procedures after the filing of the lawsuit. While the
court agreed that the defendant was under a duty to maintain e-mails and that they acted
negligently when failing to implement a litigation hold, the court was not persuaded that the missing
e-mails contained evidence that would have been favorable to the plaintiff. The court therefore
50

efused to issue adverse jury instructions or issue a default judgment against the defendant, but
instead ordered the defendant to pay the costs associated with the preparation and argument of
the motions.
� Scott v. Beth Israel Med. Ctr., Inc., 2007 WL 3053351 (N.Y.Supp. Oct. 17, 2007). In this case, a
former doctor-employee sought contractual damages arising from the defendant’s alleged
termination without cause. On remand following reversal of the district court’s earlier summary
judgment order, the plaintiff sought a protective order requiring the return of e-mail correspondence
between himself and his attorney claiming attorney client privilege and the work product doctrine.
The defendant argued that their e-mail policy states that company e-mail is to be used solely for
business purposes and that employees have no personal privacy rights in any material created or
communicated on the company computer systems. The court agreed and denied the plaintiff’s
motion since the defendant notified the plaintiff of the use and monitoring policies.
� PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept.
7, 2007). In this breach of contract case, the defendant sought production of all electronically
stored e-mails along with their corresponding attachments. The plaintiff produced a disc with emails
that, due to a technical glitch, were divorced from their proper attachments. Many efforts to
join the attachments failed and the defendant moved to order a second production at the plaintiff’s
expense. The plaintiff claimed such would be overly burdensome and costly but agreed to
reproduce at the defendant’s expense. Relying on Fed.R.Civ.P. 34(b), the court found that the
original production was not within the normal course of business or in a form readily usable and
therefore ordered the plaintiff to reproduce. The court also ordered the plaintiff to pay for the costs
of reproduction as the producing party presumptively bears the expense of production.
� In re Maura, 2007 WL 2231386 (N.Y.Sur.Ct. June 28, 2007). In a suit to determine her entitlement
to her decedent husband’s estate in spite of their prenuptial agreement, the respondent sought
discovery from the non-party attorney and his firm who drafted the agreement. She sought access
to the attorney’s computer for records of billing and all existing and deleted records concerning the
prenuptial agreement. The attorney argued attorney-client privilege with regard to other information
on the computer and offered the firm’s backup tapes in the alternative. The court held that the
backup tapes were insufficient as they would lack deleted and altered records and ordered the
attorney’s hard drive to be imaged. The court ordered the attorney to choose a computer forensics
expert to submit a cost proposal for the imaging. The attorney should then forward a copy of the
proposal to the respondent, at which time she would determine if she was willing to go forward with
or without the information.
� Valdez v. Town of Brookhaven, 2007 WL 1988792 (E.D.N.Y July 5, 2007). In a suit alleging
illegal eviction based on racial discrimination, the plaintiff sought a court imposed litigation hold on
the defendant’s relevant employee records, arguing the defendant had a history of “terrible record
keeping.” While the court noted that the defendant is under a duty to preserve evidence relevant to
the litigation, the court denied the preservation order request, stating preservation orders are
burdensome and expensive and should not be entered into lightly absent a clear need.
� Kingsway Fin. Serv. Inc. v. Pricewaterhouse-Coopers LLC, 2007 WL 1837133 (S.D.N.Y. June
27, 2007). In a securities suit, the parties entered an agreement whereby inadvertent production of
a purportedly privileged document would not operate as a waiver of privilege. In the issue at hand,
the defendant motioned the court for an order to compel the production of an email exchanged
between the plaintiff’s executive and attorney. The plaintiff originally produced the targeted email
inadvertently, but later included it as an attachment on a motion and served it on all the
defendants. The court held that as the plaintiff’s second production of the email was not
51

inadvertent, it waived the attorney-client privilege and therefore the defendant’s motion to compel
was granted.
� In re Sept. 11th Liab. Ins. Coverage Cases, 2007 WL 1739666 (S.D.N.Y. June 18, 2007).
Following the terrorist attacks of September 11, 2001, numerous victims filed claims against the
Port Authority of New York and New Jersey (“Port Authority”) as the owner and operator of the
Twin Towers, and its lessee Westfield Corporation, which procured commercial liability insurance
under the general name World Trade Center Properties LLC (“WTCP”) through Zurich American
Insurance Company (“Zurich”). In the pending litigation, these parties sought indemnification and
declaratory relief from Zurich. Zurich argued that neither the Port Authority nor Westfield were
named insureds under the policy and refused to indemnify or pay out claims. Ultimately, Zurich
changed its position, and following dismissal of the case, Port Authority and Westfield moved for
sanctions, alleging Zurich’s position throughout the pleadings was objectively unreasonable in
violation of Rule 11 of the Federal Rules of Civil Procedure (“FRCP”) and the discovery abuses
violated FRCP 37. The court held Zurich and its counsel liable for $1,250,000 based on violation of
both Rules. As Zurich deleted the electronic version of an essential document and possessed the
paper version for over three years before producing it, the lease holders were successful in
meeting the burden for the court to impose sanctions. The court determined the $1,250,000 was
sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.
� Calyon v. Mizuho Securities USA, Inc., 2007 WL 1468889 (S.D.N.Y. May 19, 2007). In a suit
alleging violation of the Computer Fraud and Abuse Act, breach of fiduciary duty, unfair
competition, inter alia, the plaintiff motioned the court to compel the defendants to produce mirror
images of the hard drives of their personal computers and other computer storage devices to the
plaintiff’s computer forensic expert for inspection. The plaintiff alleged the defendants used e-mail
and small computer storage devices to remove vast quantities of the plaintiff’s confidential and
proprietary data. While the defendants agreed to preserve the hard drives by creating mirror
images, the parties disagreed as to who should inspect the mirror images. The plaintiff argued their
expert should have complete access to the images, and the defendants argued that granting the
plaintiff’s expert unfettered access would impermissibly invade the privacy rights of the defendants
and their non-party family members who also used the computers. The defendants proposed their
own expert should inspect the mirror images using search terms provided by the plaintiff, or that
the search be performed by an independent third-party expert. The court referred to the committee
notes of Fed. R. Civ.P. 34(a), which states that a party is not entitled to “a routine right of direct
access to a party’s electronic information system, although such access might be justified in some
circumstances.” The court held the plaintiff failed to show how its direct access was justified under
these circumstances. As the defendants’ expert was fully capable of performing the search, as well
as working with the plaintiff’s attorney, the court found no reason to introduce an additional layer of
expertise by requiring an independent expert. The court ordered the defendants to preserve the
mirror images in question and to make their expert accessible for consultation with the plaintiffs
counsel and expert on an on-going basis.
� De Espana v. American Bureau of Shipping, 2007 WL 1686327 (S.D.N.Y. June 6, 2007). In a
suit regarding the casualty of a vessel off the coast of Spain, the defendant sought sanctions for
the plaintiff’s alleged spoliation of email and electronic documents. The court set out a three factor
test to determine if sanctions were warranted, which stated that the party seeking sanctions for
spoliation must demonstrate: (1) that the opposing party had an obligation to preserve the
evidence; (2) it acted culpably in destroying or failing to preserve the evidence; and (3) the
evidence would have been relevant to the case, in that a reasonable jury could find that the
52

evidence would have been favorable to the opposing party. The court held that the plaintiff had a
duty to preserve relevant electronic information upon filing suit and acted negligently, not willfully,
in failing to timely issue a litigation hold. The court also found that the defendant did not meet its
burden of demonstrating that the missing email would have contained relevant information
unfavorable to the plaintiff or that it was prejudiced without those records. As such, the court
refused to issue an adverse inference instruction but did find that the defendant was entitled to
reimbursement of reasonable expenses incurred in bringing the motion.
� Gragg v. Int’l Mgmt. Group (UK), Inc., 2007 WL 1074894 (N.D.N.Y. Apr. 5, 2007). In an action
initially centering on various breach of contract and related claims, the magistrate judge found the
defendant’s disclosure of four privileged e-mails to plaintiff’s counsel was inadvertent and did not
provide a basis for waiving attorney-client privilege. The e-mails in question were compiled along
with approximately 200 other e-mails by an assistant in the defendant’s in-house legal department
and produced on CD-ROM. Neither outside nor in-house counsel reviewed the CD-ROM for
privileged material before it was sent to the plaintiff. After an appeal by the plaintiff, the magistrate’s
discovery order was reversed and remanded for additional consideration. In the interim, the plaintiff
supplemented his original complaint with several federal RICO related claims. Characterizing the
bulk of the claims as matters of federal question jurisdiction, the magistrate judge held that federal
law governed any privilege determinations in the suit. Weighing factors outlined under federal law,
the magistrate found the defendant had waived privilege as to the inadvertently produced e-mails.
In particular, he cited a lack of reasonable precautions to prevent disclosure and the relatively low
volume of e-mails produced in total as reasons for that conclusion. However, the magistrate
declined to find that the scope of the waiver extended to the subject matter of the e-mails, as the
plaintiff urged, and held that the waiver only extended to the produced materials.
� In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. Apr. 2, 2007). In this
securities litigation, the plaintiff sought to compel the defendant to produce several named
individuals’ documents from back-up tapes covering an eight-month period. The defendant
objected, arguing that the plaintiff’s motion was unduly delayed and that restoring and searching
the back-up tapes would be extraordinarily burdensome and costly. The defendant further argued
that if production of the back-up tapes was ordered, the plaintiff should bear the costs. The court
noted that while the defendant had neglected to identify the back-up tapes as an inaccessible
source of potentially responsive information, as required by Fed. R. Civ. Pro. 26(b)(2), both parties
had overlooked their obligation to discuss discovery parameters and protocols. Finding that the
plaintiff could not reasonably assume that the defendant would have undertaken discovery of the
back-up tapes as a matter of course, the court determined that the back-up tapes were not
reasonably accessible. The court then considered whether good cause justified discovery of the
back-up tapes despite the associated burdens and costs. The court cited the resources of the
parties, the discoverability of the information, the specificity of the request and the unavailability of
the information from other more accessible sources as reasons demonstrating good cause.
Accordingly, the court directed the defendant to restore the back-up tapes for the specified time
period and to produce responsive, non-privileged information to the plaintiff. Turning to the issue
cost allocation, the court directed the defendant to initially to pay for the cost of production and
postponed further cost-shifting analysis until it had a chance to review the results of the search and
consider the actual time and effort expended by the defendant.
� Stanziale v. Pepper Hamilton LLP, 2007 WL 473703 (S.D.N.Y. Feb. 9, 2007). In a case involving
claims of malpractice and breach of fiduciary duty, inter alia, the defendant moved a federal court
in New York to compel the production of e-mails contained on a third-party’s server. The third-party
53

already produced other e-mails which were relevant to the case; however, they withheld
documents that may have been subject to certain privileges. The third-party argued that to disclose
the e-mails contained on the server would violate a confidentiality agreement made between the
third-party and another party to the lawsuit. Furthermore, the defendant argued that there should
be no cost-sharing because the documents are reasonably accessible and must be produced at
the third-party’s own cost. The New York judge declined to rule on the defendant’s motion and
instead transfer the issue to a federal judge in Delaware, stating that “[a] judge who is fully familiar
with the underlying litigation is in a better position to resolve such issues than a judge in a different
district with no knowledge of the case.” The parties did not object to the ruling and the motion was
sent forth before the federal court judge in Delaware overseeing the entire litigation.
� In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007). In a class action claim
involving federal securities law violations, the plaintiffs moved for sanctions against the defendant,
alleging that the defendant deliberately destroyed and allowed spoliation of e-mails and other
electronically stored information. The defendant company fell into bankruptcy before this suit and
emerged from bankruptcy with two distinct subsidiaries conducting business on behalf of the
defendant. After bankruptcy, many electronically stored documents and e-mails were lost or
destroyed when the company emerged split into the two new companies. The plaintiffs argued that
one of the new entities had a duty to preserve and produce e-mails created and saved during the
previous company’s existence. The defendant argued that it had no duty to preserve the
information because the possibility of litigation could not have been foreseen prior to the
bankruptcy of its parent company. It further argued that it had no responsibility to preserve any of
its electronic documents sent from the parent company prior to the current suit. The court
concluded that defendant’s duty to preserve actually started when litigation was foreseen by former
company even though most of the documents and ESI ended up in the physical possession of new
companies. The court found that the defendant’s failure to preserve relevant documents and ESI
was grossly negligent and that it reasonably should have known to preserve all documents from
the parent company and issue a proper litigation hold that spanned across the old company and
the new companies. The court granted the motion for an adverse inference instruction and ordered
the defendant to pay attorneys’ fees and costs.
� In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 2007 WL 121426
(E.D.N.Y. Jan. 12, 2007). In this class action, the defendants brought a motion to compel native
production of documents from the plaintiffs. During discovery, the plaintiffs made at least six
productions where electronic documents were printed to paper and then scanned and converted
into searchable TIFF images using optical character recognition software. This laborious process
stripped all metadata references from the original files. The defendants filed a motion to compel the
plaintiff to re-produce these documents natively and asked the court to order all subsequent
production of electronic documents in a native format. The plaintiffs opposed the motion to compel,
stating that the already produced the requested documents and to produce the documents again in
a native format would be burdensome and costly. The court determined that the newly amended
Federal Rules would apply to the parties; however, to require the plaintiffs to reproduce discovery
already in possession of the defendants would place a substantial and costly burden on the
plaintiffs. Yet, the court also ruled that the plaintiffs are on notice of the defendants’ request for
native files and stated that any subsequent discovery should be produced in a native format.
� Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006). In this
trademark infringement case, the plaintiff moved for discovery sanctions against the defendant,
claiming that the defendant failed to conduct complete or timely searches for electronic documents,
54

failed to issue a proper litigation hold, and failed to preserve chat room discussions taking place on
the defendant’s website. Denying the plaintiff’s motion, the court found no discovery misconduct.
Instead, the court questioned the plaintiff’s delay in raising these discovery issues and stated that
the plaintiff failed to demonstrate that the defendant’s discovery production was materially
incomplete. The court noted an ambiguity as to whether some employees’ e-mail accounts had
been searched and ordered the defendant to confirm this in writing. The court also found that the
defendant’s failure to instruct certain employees to preserve documents after the lawsuit was either
imminent or already pending did not result in any relevant documents being destroyed. Lastly, the
court held that chat room discussions on the defendant’s website would not fall under the same
discovery requirements as e-mail, and the defendant could not be sanctioned for failure to preserve
the discussions.
� Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., 2006 WL 3771090 (S.D.N.Y. Dec. 22, 2006).
In an insurance dispute, the plaintiff sought to compel electronically stored information regarding
two lawsuits involving the defendant, a large reinsurance company, with similar circumstances to
the plaintiff’s case. The defendant failed to pay its share of a settlement the plaintiff reached with
one of its insured. The defendant argued the information sought could not be retrieved from its
computer system since it could not segregate claims according to specialized search terms.
However, the court gave the defendant’s argument little merit since, “[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.” Yet, the court also recognized that a search of its entire database may be
infeasible. Therefore, the court ordered the parties agree upon a discovery protocol to sample
possible claims in the defendant’s database.
� MacNamara v. City of New York, 2006 WL 3298911 (S.D.N.Y. Nov 13, 2006). This case stems
from the arrest of over 1,800 people at the 2004 Republican National Convention. The class of
plaintiffs motioned the court to compel the city to produce certain electronically stored information.
The plaintiffs’ request the electronic version of paper arrest worksheets used when booking a
criminal into jail. The handwritten worksheets are normally entered into the city’s electronic online
booking system by someone other than the arresting officer. The plaintiffs’ argued they were
entitled to the electronic versions of worksheets because there are often inconsistencies and
omissions when information is transferred between the paper version and the electronic version.
The plaintiffs had evidence of one such instance prior to the motion. The city argued that such
production would merely be duplicative since they already provided the paper worksheets to
plaintiffs. The court held that the plaintiffs’ example of inconsistent data entry would support a
motion to compel the remainder of the electronic documents. However, the court further held that
the production of the electronic worksheets would be subject to an “attorney’s-eyes-only”
description. Furthermore, the court held that an additional request by plaintiffs for “all electronic
data” relating to the 1,800 arrests was vague and ambiguous.
� Reino de Espana v. Am. Bureau of Shipping, 2006 WL 3208579 (S.D.N.Y. Nov. 3, 2006). In a
matter concerning the casualty of a ship off the coast of Spain, the defendant requested the court
to compel e-mail from the plaintiff regarding the incident. The plaintiff is a Spanish entity that
investigated the accident scene. The plaintiff claimed that electronic data sought by the defendant
did not exist or was privileged. Furthermore, the plaintiff argued against production of e-mail
because Spain’s privacy laws prohibit discovery of private e-mail. The defendant argued that any
e-mail information pertaining to the issue would be kept on the plaintiff’s individual computers used
by each employee and the specific computers should be subject to discovery requests. The court
55

uled that the plaintiff failed to properly preserve any e-mail evidence. The court noted the
defendant was not asking for a ruling based on spoliation and failure to preserve evidence, but it
found that it would be “futile to order [the plaintiff] to conduct a diligent computer-by-computer
search.” The court further ruled that Spain’s privacy laws are not applicable in United States
Federal Courts and cannot stand as a legal basis for failure to produce documents or preserve
documents. The defendant was granted leave to file a motion for sanctions.
� United States v. Tamez, 2006 WL 2854336 (S.D.N.Y. Oct. 5, 2006). A judge’s sentence for a
defendant convicted of embezzlement, inter alia, was increased by two levels for obstruction of
justice -- namely the defendant’s deliberate deletion of e-mail from a workplace-issued laptop. A
computer forensics expert determined the defendant, a high-ranking DEA official, deleted
incriminating e-mails and files from his government computer shortly after the DEA informed him
that he was placed on administrative leave for suspicion of embezzlement. The defendant filed a
motion asking the court to set aside the upward departure from the sentencing guidelines because
the e-mails were not deleted deliberately. He argued that he only deleted the files because of
department policy requiring departing employees to return laptops in the same condition in which
they were issued. The defendant further argued his personal AOL log in information was only
deleted to prevent others from obtaining his personal information. The court, however, found
defendant’s arguments “patently absurd”. There was no doubt that defendant was “intentionally
seeking to destroy this evidence to interfere with the investigation. By deleting the files--some of
which have not been recovered in usable form or at all--he impeded the Government’s
investigation.” The upward departure of two levels in sentencing was affirmed by the court.
� Quinby v. WestLB, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006). In an employment discrimination
suit, the defendant sought a court order requiring the plaintiff to bear a portion of the costs for
restoring and searching backup tapes. The defendant hired Kroll Ontrack to restore and search
data from the following locations: 171 backup tapes; Kroll Ontrack’s archives from a previous
matter; and backup tapes containing e-mail for employees who worked outside the United States.
The plaintiff argued the costs should not be shifted since the defendant had a duty to preserve the
requested e-mail in an accessible format. The defendant argued its only duty was to preserve the
evidence, it had no duty to preserve the data in a particular format, and a restoration of so many
documents should fall on the plaintiff. The court agreed in part, holding the producing party does
not have an explicit duty to preserve evidence in an accessible format. However, the producing
party will bear the cost of producing any evidence preserved in an inaccessible format after
litigation is reasonably anticipated. The court stated this would “[P]revent parties from taking unfair
advantage of a self-inflicted burden by shifting part of the costs of undoing the burden to an
adversary.” However, it if was not reasonably foreseeable that the evidence at issue would have to
be produced, the responding party who converts the evidence into an inaccessible format after the
duty to preserve evidence arose, could still seek to shift the costs associated with restoring and
searching that evidence. For a small portion of the defendant’s inaccessible data that the
defendant could not have reasonably anticipated producing, the court relied on the Zubulake
seven-factor cost-shifting test and ruled the plaintiff should share 30 percent of the production
costs. See also Quinby v. WestLB AG, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007) (amending the
court’s original cost-shirting decision relating to backup tape restoration costs).
� Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (2006). In a fraudulent transaction case, plaintiffs
requested the court to order the production of e-mails created almost two years prior to the alleged
misconduct. Plaintiffs’ request required defendant to restore several backup tapes at a significant
cost. Defendant argued that there was no obligation to restore any backup tapes because the
56

tapes were meant only for disaster relief recovery and not for possible litigation. The court ruled
that the defendant did not have to produce all responsive documents under plaintiffs’ requests as it
was not entirely convinced that relevant and responsive documents would be found. However, the
court held that defendant must perform an abbreviated search using a small sample of dates and
search terms as supplied by the plaintiff. If the small search returns positive results, the plaintiff
would be given leave to move the court for further electronic searches of the backup tapes.
Furthermore, the court held that all costs, including attorney’s fees would be paid by plaintiff after
the defendant supplied proper affidavits and the court determined that such cost-shifting was
warranted.
� Eastman Kodak Co. v. Sony Corp., 2006 WL 2039968 (W.D.N.Y. July 20, 2006). The district
court affirmed the Special Master’s Report and Recommendation requesting, inter alia, to deny the
defendant’s motion to compel the plaintiff to “more specifically correlate information produced
electronically via a computer server, CD-Rom and DVD’s.” Asserting deprivation of due process,
the defendant argued the practical impossibility of finding relevant documents hidden in the
“electronic equivalent of 300 million pages.” After performing searches on the contested server, the
Special Master found the server appeared to be organized in a usable format. Although the court
recognized substantial time, effort and expense would be required to sort through the produced
documents, the court found this reasonable in light of the billions of dollars at issue in the case.
Ruling the documents were accessible, had been produced in the form in which it is usually
maintained, and that the plaintiff was in no better position to correlate the information to the
defendant’s discovery requests than was the defendant, the court denied the defendant’s motion to
compel.
� In re NYSE Specialists Sec. Litig., 2006 WL 1704447 (S.D.N.Y. June 14, 2006). In an order
addressing several discovery disputes, the court directed the defendants to produce all hard copy
documents as single page tiff images, along with corresponding Opticon and Concordance load
files, and instructed that all electronic documents be produced in their native format with metadata
intact.
� Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006). In a
case involving breach of fiduciary duty, fraud and misrepresentation, the plaintiff brought a motion
for sanctions against defendants and their counsel for spoliation and late production of evidence.
Despite notice of potential litigation, the defendants abandoned ten computer workstations
containing relevant information at a former office location. Defendants also failed to timely identify
and produce approximately 25 gigabytes of data stored on a server that was still in their
possession, initially asserting to their own counsel there were no electronic files to search. The
court found the defendants grossly negligent in abandoning the workstations and “at least
negligent” in their representations to counsel regarding the absence of any files to be searched.
The court also held that defense counsel had been grossly negligent in their failure to conduct an
independent inquiry to verify the accuracy of those representations. Granting plaintiff’s motion in
part, the court declined to issue an adverse inference instruction or preclude the defendants from
making a summary judgment motion, but awarded monetary sanctions and ordered the defendants
and their counsel to bear the costs equally.
� Curto v. Medical World Communications, Inc., 2006 WL 1318387 (E.D.N.Y. May 15, 2006). In
an employment action, the defendants objected to a finding that the plaintiff had not waived her
right to assert attorney-client and work product protection claims concerning e-mails and data
contained on two laptops owned by the plaintiff’s former employer. Specifically, the defendants
claimed a magistrate judge erred in considering whether the employer properly enforced its
57

computer usage policy. Before returning the laptops to her employer, the plaintiff deleted all
personal files, including protected communications. Two years later, the employer’s computer
forensic expert restored some deleted files and e-mails. The employer produced the recovered
data to the plaintiff’s counsel, who claimed many of these documents were privileged. Agreeing
with the magistrate that the plaintiff reasonably believed the documents and e-mails were
confidential, the court noted, “Plaintiff’s laptops were not connected to [the employer’s] computer
server and were not located in [the employer’s] offices; thus, [the employer] was not able to monitor
Plaintiff’s activity on her home-based laptops or intercept her e-mails at any time.”
� Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006). In a defamation action alleging the
defendants engaged in a “smear campaign” and destroyed his career, the plaintiff moved to
compel the defendants to: 1) preserve electronic and paper data, 2) answer questions about their
electronic data management practices, and 3) produce all accessible and responsive data. Before
filing the motion, the plaintiff’s counsel sent defense counsel a proposed e-discovery preservation
order that included provisions for exchanging document retention policy information, identifying a
deposition witness with computer system knowledge, and preserving all relevant electronic data.
The proposed order also declared accessible data would be produced in its native format and
inaccessible data would be identified but not immediately produced. Declining to agree to the
order, defense counsel stated they would abide by their preservation obligations under the Federal
Rules of Civil Procedure. They further argued the proposed order was onerous and it was
inappropriate to consider production format in the absence of specific production requests.
Although the court found a preservation order would be unduly burdensome and premature at that
point in the litigation, the court ordered the defendants to answer the electronic data management
questions as if they were interrogatories. The court also ordered the defendants to search for
relevant data and provide the plaintiff with a detailed explanation of the search protocol. The court
found native production was appropriate as the defendant failed to offer a substantive basis for its
objection to native format.
� Gilliam v. Addicts Rehab. Ctr. Fund, Inc., 2006 WL 228874 (S.D.N.Y. Jan. 26, 2006). In a class
action lawsuit, the plaintiffs requested records relating to the defendants’ timekeeping, payroll, and
policies and procedures. The defendants produced some timekeeping records but failed to produce
the other requested information including data contained on 148 compact discs. The defendants
claimed producing the compact discs would reveal private employee data and stated they would
produce paper records containing the relevant information. Observing the paper production would
comprise 46 boxes and approximately 36,000 pages, the court declared, “there seems little doubt
that the time and cost expenditure could be disproportionate to the interests sought to be
protected.” The court contrasted this with an electronic review whereby the “plaintiffs could make
duplicates of the computer discs quickly and inexpensively. These discs could then be reviewed in
a more efficient manner and the sensitive information skipped by the reviewer(s).” The court further
assured confidentiality concerns would be covered in a confidentiality order.
� Quinby v. WestLB AG, 2005 WL 3453908 (S.D.N.Y. Dec. 15, 2005). Objecting to a request for the
production of e-mails, the defendant claimed the e-mails were stored on backup tapes and not
readily available, making them too expensive to retrieve. In response, the court ordered the
defendant to consider the guidelines set forth in Zubulake v. UBS Warburg LLC, to provide an
affidavit addressing technical issues and a deposition witness who could discuss these issues, and
to restore and put sample tapes into a searchable format. The defendant produced affidavits from
its chief information officer and a Kroll Ontrack expert explaining that each tape would need to be
“uncompressed” before it could be put into a searchable format. Further, the affidavits set forth the
58

cost and time considerations required to complete this work. The plaintiff argued the affidavits were
“incomplete, misleading and contain ‘outright false statements’ because they improperly focused
on back-up tapes and…[failed to address] the costs of searching and contents of the Database and
archives that Kroll [Ontrack] maintains containing WestLB e-mails” from past e-discovery projects.
Rejecting this argument, the court declared the defendant correctly focused on the backup tapes
as “they were the most complete source for the e-mails.” In refusing to award sanctions, the court
stated, “the fact that defendant is producing e-mails from the most complete, but most expensive,
source is compelling evidence of defendant’s honesty and good faith.” See also Quinby v.
WestLB AG, 2006 WL 59521 (S.D.N.Y. Jan. 11, 2006)(order granting motion to quash two
subpoenas seeking “all e-mails sent to or received by plaintiff’s personal e-mail account during the
period from October 2002 throughout July 2004, other than e-mails between plaintiff and her
current and former counsel.”)
� In re Natural Gas Commodity Litigation, 2005 WL 3036505 (S.D.N.Y. Nov. 14, 2005) decision
set aside in part by 235 F.R.D. 241 (S.D.N.Y. Apr 18, 2006). In a lawsuit relating to natural gas
price fixing, the plaintiffs sought to compel production of published trade data from two non-parties.
The non-parties objected arguing, inter alia, that producing the information would be unduly
burdensome. The court found the subpoena was not unduly burdensome with respect to one of the
non-parties, and noted the non-party had already produced redacted and un-redacted electronic
versions of requested spreadsheets to the government in connection with a criminal matter. The
court stated, “While those spreadsheets themselves will not satisfy plaintiffs’ subpoenas here, they
do show the [non-party] can produce this information in electronic format and still redact
information about companies other than the target sources. . . .” The court also pointed out that the
non-party had an outside document management firm overseeing the production and that the
plaintiff agreed to pay for associated costs. The other non-party claimed some of the historical data
sought was located on “old” and “antiquated individual computers.” In addressing this issue, the
court required the parties to use a sampling protocol, “perhaps searching one of the ‘old’
computers, with leave to re-visit the burden vs. utility question based on information from that
process.”
� Tilberg v. Next Mgmt. Co., 2005 WL 2759860 (S.D.N.Y. Oct. 24, 2005). During discovery, the
court ordered the defendants to give the plaintiff’s computer forensic expert access to two e-mail
servers and ordered the parties to split costs. However, when the forensic expert began his
examination, he was unable to access the defendants’ second server. The defendants claimed this
was the result of a system crash. After the discovery deadline passed, the plaintiff again sought
access to the second server as well as permission to search the defendants’ central non-e-mail
server and two specific employees’ desktop computers. The defendants submitted an affidavit from
its information technology personnel indicating the computer system did not contain relevant
documents. However, the plaintiff’s expert “found 187 occurrences of the word ‘Tilberg’ in ‘active
space,’ which could have been found with standard search tools, and 97 occurrences of ‘Tilberg’ in
deleted files.” The plaintiff declared the defendants should have produced these files without the
need for a forensic search. Additionally, the plaintiff presented documents obtained from third
parties that further proved relevant documents existed despite the defendant’s contrary claims.
Finding the defendants “either inadvertently or deliberately delayed and obstructed discovery in this
case,” the court ordered the defendants to provide the expert with access to the second e-mail
server, the central server, and the two desktop computers. See also Tilberg v. Next Mgmt Co.,
2005 WL 3543701 (S.D.N.Y. Dec. 28, 2005)(addressing the issue of privileged e-mails uncovered
in the search).
59

� Atronic Int’l, GMBH v. SAI Semispecialists of Am., Inc., 232 F.R.D. 160 (E.D.N.Y. 2005). During
discovery in a breach of contract action, the plaintiff inadvertently produced two e-mails from the
plaintiff’s employee to the plaintiff’s international counsel. The plaintiff again inadvertently
reproduced the e-mails over a year later as deposition exhibits. After discovering the inadvertent
productions, the plaintiff sought an order directing the defendant to return the documents and to
refrain from using any information contained in the documents. A magistrate judge determined the
plaintiff had waived its privilege claim as a result of the inadvertent productions. The plaintiff
objected to the magistrate’s determination, claiming New York state law does not recognize
attorney-client privilege waiver for inadvertent document production. Rejecting this argument, the
district court held inadvertent disclosure could waive the attorney-client information depending on
the circumstances in the case.
� Okoumou v. Safe Horizon, 2005 WL 2431674 (S.D.N.Y. Sept. 30, 2005). In an employment
related suit, the plaintiff sought sanctions against the defendants for failing to produce documents
and e-mails pursuant to an earlier production order. In response, the defendants verified they had
produced all e-mails that were responsive to the request and readily retrievable. The defendants
also informed the court that archival tapes from an obsolete “Lotus ccmail” system may contain
responsive e-mails but such e-mails were not readily accessible. Finding the defendants in
substantial compliance with the initial production order, the court declined to award sanctions. The
court, citing Zubulake, noted, “[i]f plaintiff wants to pursue discovery of the e-mails on the Lotus
ccmail system she is free to do so. However, the extent to which those e-mails are discoverable
and the allocation of the cost of restoring those e-mails requires further analysis.”
� Cook v. Deloitte & Touche, LLP, 2005 WL 2429422 (S.D.N.Y. Sept. 30, 2005). The plaintiff filed
an employment discrimination lawsuit alleging violations of the Americans with Disabilities Act and
other state human rights laws. After the defendant filed a motion for summary judgment, the
plaintiff requested a continuance to permit time for further electronic discovery before the court
ruled on the summary judgment motion. The plaintiff claimed the defendant failed to produce
certain electronic entries made by the defendant’s employees. The court granted the defendant’s
motion for summary judgment and declared the plaintiff failed to show the defendant did not
produce critical electronic entries. The defendant had also produced an e-mail – characterized as a
“smoking gun” by the plaintiff – from one of its employees indicating the company wanted to
replace the plaintiff. Although recognizing the existence of the e-mail, the court declared, “Even if
other e-mails exist in [the defendant’s] computer archives, as [the plaintiff] alleges, he has not
made the showing necessary to warrant their retrieval at this late date at [the defendant’s]
expense, nor has he volunteered to foot the bill for doing so.”
� Bazak Int’l Corp. v Tarrant Apparel Group, 378 F.Supp.2d 377 (S.D.N.Y. 2005). The court found
an e-mail exchange between a textile merchandiser and a seller, regarding a purported agreement
to buy jeans, satisfied the New York statute of frauds signature requirement. In reaching its
conclusion, the court noted the merchandiser’s typed signature appeared at the signatory line of
the attached letter, and the letter was typed on merchandiser’s company letterhead.
� Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 21 A.D.3d 90 (N.Y. App. Div. 2005). The
plaintiff sued the defendant for an alleged breach of an agreement to sell bonds. The defendant
filed a cross-motion for summary judgment and requested the court dismiss the complaint for lack
of personal jurisdiction. In negotiating the agreement, the parties had communicated through the
Bloomberg Messaging System which provides instant messaging between Bloomberg subscribers
for the purpose of negotiating and completing trades and dispensing other financial information.
During the message exchanges, the plaintiff’s director was located in New York, and the
60

defendant’s investment officer was located in Montana. At trial, the court found it lacked personal
jurisdiction over the defendant and granted summary judgment. The plaintiff appealed. On appeal,
the court determined it had personal jurisdiction over the defendant because the defendant had
transacted business in New York – even though it was physically located in Montana. The court
stated, “We cannot countenance defendant’s argument that merely because plaintiff initially
approached defendant through modern technology--which enabled defendant to very purposefully
conduct a $15 million deal in Montana with a bank in New York--defendant should be allowed to
evade jurisdiction because that very technology can technically be viewed as only furnishing
services in Montana.”
� Papyrus Tech. Corp. v. New York Stock Exch., Inc., 2005 WL 1606059 (S.D.N.Y. July 7, 2005).
Weeks after completing expert depositions, the plaintiff sought an order directing the defendant to
produce certain computer files. The plaintiff declared that its late request was immaterial given the
defendant’s continuing duty to supplement its discovery responses under Fed. R. Civ. P. 26(e)(2).
The defendant had previously produced computer files it found relevant and a list of all of its
computer files, which included the files the plaintiff currently sought. The magistrate refused to
issue the order and declared, “Plaintiff sought a broad array of computer data in 2004 and the
defendant supplied some, objected to some, and identified all of the files in question. Plaintiff chose
not to pursue the matter until now, and offers no basis either for excusing this delay or for deeming
the files in question to be so significant as to justify reopening discovery more than five months
after its close.”
� Public Relations Soc’y of Am., Inc. v. Road Runner High Speed Online, 2005 WL 1330514
(N.Y. May 27, 2005). In connection with their intention to commence a defamation action against
the sender of an alleged defamatory e-mail, the petitioners sought production of relevant
documents pursuant to preaction disclosure rules. The sought after e-mail was in the custody and
control of an internet service provider, the respondent in this case. After finding out about the
motion, the individual who authored the e-mail sought to intervene in the proceeding, vacate the
default judgment, and block the disclosure of the identifying documents. The court looked to a fivefactor
disclosure evaluation test. The test weighed: “(1) whether the claimant has shown a prima
facie cause of actionable harm, (2) whether the discovery request was sufficiently specific as to be
reasonable likely to lead to the identifying information, (3) whether there was an alternative means
to obtain the information, (4) if the information sought was central and necessary to advance the
claim, and (5) if the defendant had any reasonable expectation of privacy in the identifying
information.” Based on the test, the court determined disclosure was warranted and ordered the
respondent to produce the identifying documents.
� Lyondell-Citgo Ref., LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461 (S.D.N.Y. May 2,
2005). In a dispute between two oil companies, the defendant moved to set aside an adverse
inference instruction issued by a magistrate based on the defendant’s failure to produce certain
documents. Specifically, the magistrate had ordered the defendant to "make all Board minutes and
related Board documents available in hard copy, and electronic database, for review by plaintiff’s
counsel." The magistrate further stated that sanctions would be entered for noncompliance with the
order. After the defendant stated it would not be able to comply with the order because Venezuelan
law prohibited disclosure of the relevant documents, the magistrate entered an adverse inference
instruction. In appealing the magistrate’s decision, the defendant claimed the documents being
withheld were irrelevant to the litigation and that the defendant did not possess the requisite
culpable state of mind for such a severe sanction. The court noted the defendant did not provide
precise reasons for refusing to produce the documents and did not attempt to narrow the scope of
61

withheld documents. Upholding the magistrate’s adverse inference instruction, the court declared,
“the detrimental effect of [the] defendant’s failure to produce documents on [the] plaintiff is the
same regardless of [the] defendant’s reasons for refusing to produce them.”
� Board of Managers of the Atrium Condo. v. West 79th St. Corp., 17 A.D.3d 108 (N.Y. App. Div.
2005). In a property ownership dispute, the defendant claimed the plaintiff failed to timely serve a
reply to the defendant’s counterclaims. The plaintiff claimed to believe the matter was being held in
abeyance pending ongoing extensive negotiations. Noting the plaintiff’s late reply did not show a
“demonstrable pattern of willful delay,” the court denied the defendant’s request for electronic
discovery of the plaintiff’s attorney’s computers.
� In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005). In a bankruptcy proceeding,
company officers used the company e-mail system to communicate with their personal attorney.
During discovery, the officers refused to produce these e-mails, withholding on the grounds of the
attorney-client, work product, and joint defense privileges. The employer’s trustee moved to compel
production, claiming the officers waived any privileges with regard to the e-mails by using the
corporate e-mail system to draft them. In analyzing whether the attorney-client privilege applied,
the court weighed the following four factors: “(1) whether his employer maintains policy banning
personal or other objectionable use; (2) whether employer monitors use of employee’s computer or
e-mail; (3) whether third parties have right of access to employee’s computer or e-mail; and (4)
whether employer notified employee, or whether employee was aware, of any use and monitoring
policies.” Noting that “[s]ending a message over the [company’s] e-mail system was like placing a
copy of that message in the company files,” the court nevertheless found the attorney-client
privilege was not waived as a matter of law, because the company’s e-mail policies regarding use
and monitoring were unclear. The court also found the work product privilege was not waived
because the parties did not distinguish between opinion and non-opinion work product. The court
further noted that the officers may have reasonably believed the e-mails would remain confidential.
� Zubulake v. UBS Warburg LLC, 382 F.Supp.2d 536 (S.D.N.Y. 2005). In the seventh decision
issued in this employment discrimination lawsuit, which has addressed numerous electronic
discovery topics, the defendants moved to preclude various pieces of information from evidence at
trial, including the court’s first five opinions relating to its deficient discovery. The defendants
argued the earlier decisions – which included the court’s award of electronic discovery spoliation
sanctions against the defendants – were irrelevant and unfairly prejudicial. The court agreed,
noting “jurors will be told all they need to know through the evidence admitted at trial and my
charge.” The defendants also requested preclusion of discovery correspondence among defense
counsel and evidence relating to its failure to preserve monthly backup tapes. The court
determined the plaintiff would be allowed to introduce this evidence only if the defendants opened
the door by offering evidence regarding the reasonableness of their actions. Finally, the plaintiff
indicated that she intended to elicit testimony from defendants’ counsel relating to its client’s e-mail
and backup tapes preservation practices. The defendants sought preclusion of defense counsel
testimony and argued the testimony would be cumulative since the defendants had already
produced information relating to their document retention policy. The court granted the motion,
stating it did “not see any legitimate need plaintiff may have for calling opposing counsel given the
extensive discovery on the issue of e-mail and back-up tape preservation and retention.”
� Weiller v. New York Life Ins. Co., 2004 WL 3245345 (N.Y. Sup. Ct. Mar. 16, 2005). In a class
action disability insurance coverage lawsuit in New York state court, the plaintiff sought a
stipulation to a state court preservation order based on e-mail destruction in a related federal class
action lawsuit by one of the defendants. See Keir v. UnumProvident, 2003 WL 21997747 (S.D.N.Y.
62

Aug. 22, 2003). Stating the order would be redundant because of the existing federal preservation
orders, the defendants declined to stipulate to the order in state court but acknowledged their
ongoing preservation duties. The defendants also asserted that preserving the computer
information at issue would cost a considerable amount of money. In addressing the motion, the
court noted it was almost a “word-for-word” duplicate of the orders previously issued in the earlier
lawsuits and the defendant’s destruction in the current lawsuit was inadvertent. Despite this, the
court granted the motion, finding the federal preservation orders may not be “sufficient protection
for [the] plaintiff in this state action.” Addressing the defendant’s cost concerns, the court indicated
it would entertain cost-shifting but “not constrain the production of possibly relevant evidence on
account of the later need to allocate cost.”
� Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 WL 459267 (S.D.N.Y. Feb. 24, 2005). In a
breach of contract action, the defendant sought sanctions against the plaintiff for ignoring its
discovery obligations, violating document production orders, and irremediably prejudicing the
defendant’s ability to prepare for its case. The defendant claimed that the plaintiff engaged in
partial and delayed document production throughout the discovery period, specifically in one
instance producing more than 600 pages of e-mail one day before a scheduled court conference.
In assessing the defendant’s motion, the magistrate judge found no “coherent justification” for the
plaintiff to have “engaged in an excruciatingly slow and disjointed disclosure of documents,
stretching over a period of one year, under the guise of a ‘rolling’ production or a production in
‘waves’.” The magistrate further noted the plaintiff should have sought discovery extensions,
produced substantially all of its documents early on, and ensured document searches were careful
and thorough. The magistrate declined to dismiss the case and instead issued a detailed protocol
that outlined remedial discovery measures, including payment of attorney’s fees and costs relating
to the motion, preclusion of some evidence, and reopening of specified depositions.
� Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y.Sup. 2005). Claiming the defendant had a history of “past
fraudulent conduct,” the plaintiff, in a divorce proceeding, sought permission for her computer
forensic experts to “impound, clone and inspect the computer servers, hard drives, individual
workstation P.C., laptop and other items containing digital data” from the defendant. The plaintiff
also requested the defendant pay attorney fees and computer forensic expert costs. In response,
the defendant stated the request was overbroad, intrusive and burdensome. He also declared he
had no confidence in the plaintiff’s ability to safeguard his data based on the plaintiff’s history of
reckless and careless data handling. The court ordered both parties’ forensic experts, as well as a
court-appointed referee, to meet at the data collection locations. The court ordered that the
plaintiff’s expert would then copy the hard drives and immediately turn them over to the referee.
After all of the drives were copied, the experts and referee would examine the hard drives and both
parties would receive hard copies of relevant business records. The referee would maintain control
over the hard drive images until the case closed. The court also ordered the plaintiff to bear
production costs and each party to bear the costs of their own experts.
� United States v. Brand, 2005 WL 77055 (S.D.N.Y. Jan 12, 2005). In prosecuting charges against
the defendant for transporting minors for illegal sexual activity, the government claimed the
defendant used America Online instant messaging software in an attempt to engage in sexual
conduct with “Julie,” an undercover government agent posing as a minor. The government sought
to admit two transcripts of AOL internet communications between the defendant and two other
undercover agents, who had sent and received instant messages from the defendant. The
defendant argued the transcripts should not be admitted as they were irrelevant, unfairly prejudicial
and potentially confusing to the jury. The court determined one of the chat transcripts was
63

admissible since it was sufficiently similar to the charged conduct, permitting a reasonable jury to
infer the defendant was motivated by a sexual intent in his interactions with "Julie." The court found
the other chat was not admissible as it was not sufficiently relevant due to its non-sexual subject
matter.
� Streamline Capital, L.L.C. v. Hartford Cas. Ins. Co., 2005 WL 66898 (S.D.N.Y. Jan. 11, 2005).
The defendant moved to compel the production of e-mails, previously withheld by the plaintiff on
the grounds of attorney-client privilege. Prior to this motion, the defendant had filed a motion for
sanctions, claiming key plaintiff witnesses had systematically deleted relevant e-mails. In response,
the court had directed the plaintiffs to consent and allow Yahoo and Microsoft to release the emails,
deliver them to the plaintiff’s counsel for privilege review, and produce the remaining e-mails
to the defendant. See Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564
(S.D.N.Y. Nov. 19, 2004). In the current motion, the defendant argued the plaintiff waived privilege
by failing to produce its privilege log within the timeframe specified in the scheduling order. The
court determined a waiver was not justified as the plaintiff was not prejudiced by the production of
the log five days late, especially in light of the “expedited nature of the process.” The court also
specifically addressed some of the disputed e-mails. It ordered the plaintiff to reproduce a nonredacted
copy of an e-mail – that had previously been produced in redacted form – finding an
explanation for the redacted copy did not exist. The court also instructed the plaintiff to produce emails
to or from a non-employee, finding insufficient evidence to support the plaintiff’s argument
that the party was acting as its agent. Finally, the court declined to order production of a legal
assistant’s e-mails but required the plaintiff to supply an affidavit confirming the legal assistant’s
role.
� Laurin v. Pokoik, 2004 WL 2724767 (S.D.N.Y. Nov. 30, 2004). In an employment suit, the
defendants referenced an entry the plaintiff allegedly made in a ledger on the defendants’
computer system shortly before they fired the plaintiff. The plaintiff requested the defendants
produce a document showing the “true date when the entry was actually entered into the computer
system.” The court declined to order the production but stated the plaintiff could, at the plaintiff’s
expense, request the court to order the defendants to permit the plaintiff’s computer forensic expert
to examine the computer.
� Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A, 2004 WL 1924810 (S.D.N.Y. Aug.
30, 2004). In a breach of contract action, the plaintiff sought discovery sanctions against the
defendants for failing to produce electronic documents. During the initial discovery conference, the
defendants claimed it could not produce the documents because the attorney general of Venezuela
issued a directive precluding them from producing any electronic discovery. At the conference, the
court issued an order stating it would enter a default judgment for the plaintiff if the defendants did
not produce all responsive electronic documents. When the defendant still did not produce the
documents, the plaintiff sought a default judgment against the defendant for violating the order. In
response, the defendant argued the motion would be premature and unwarranted because it had
disclosed the data after the attorney general had granted permission to do so. Stating the
defendant’s production was incomplete, the plaintiff continued to assert its motion for default
judgment. The court denied the motion, determining that the default judgment remedy was
inappropriate because it was aimed at correcting the attorney general’s discovery directive not at
remedying the nature of the defendant’s electronic document production. See also Lyondell-Citgo
Refining, LP v. Petroleos de Venezuela, S.A, 2004 WL 3019767 (S.D.N.Y. Dec. 29, 2004).
� Metropolitan Opera Ass’n, Inc. v. Local 100, 2004 WL 1943099 (S.D.N.Y. Aug. 27, 2004). In a
case involving a labor dispute, the defendants moved for reconsideration of an earlier decision in
64

which the court issued severe sanctions for mishandling and deleting electronic data during
discovery. See Metropolitan Opera Assoc., Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003).
Among other things, the defendants argued sanctions were unwarranted because they had initially
produced all relevant documents despite the plaintiff’s contrary arguments. The defendants also
contended that the court could not impose sanctions unless proof existed that the deleted
documents were actually relevant. In response, the court declared it was unknown whether they
actually produced all relevant documents since the defendants had deleted documents. The court
further stated the decision to impose sanctions was not based upon whether the documents were
relevant but, rather, based upon the “vexatious manner” in which the defendants failed to comply
with discovery. In upholding the sanctions award, the court noted the “defendants and their counsel
may not engage in parallel know-nothing, do-nothing, head-in-the-sand behavior in an effort
consciously to avoid knowledge of or responsibility for their discovery obligations and to obstruct
plaintiff’s wholly appropriate efforts to prepare its case.” See also Metropolitan Opera Ass’n, Inc. v.
Local 100, 332 F.Supp.2d 667 (S.D.N.Y. 2004). (In another decision issued in the case on the
same day, the judge refused to recuse herself for remarks about the case made during a
continuing legal education seminar.)
� Fox Indus. v. Gurovich, 2004 WL 2348365 (E.D.N.Y. Aug. 25, 2004). The defendant appealed
two contempt orders issued against him for discovery misconduct, arguing that the magistrate
judge should not have appointed a computer forensic expert to examine his computer without his
attorney present during the examination to shield the expert from looking at personal or privileged
data. In response, the district court declared the defendant had the right to request a protective
order concerning the privileged information, to have his attorney present at the examination, and to
have his attorney identify privileged or personal data. However, the court found the defendant’s
objection under the present circumstances unconvincing and adopted the magistrate’s order,
noting the defendant’s or his attorney’s “mere assertions that a document or e-mail is personal or
privileged will not suffice to prevent its discovery.”
� Philip Morris USA, Inc. v. Otamedia Ltd., 331 F.Supp.2d 228 (S.D.N.Y. 2004). In a case
involving allegations of trademark infringement and unfair competition, the plaintiff accused the
defendant of illegally using the Internet to sell the plaintiff’s brand of cigarettes, which was intended
only for sale abroad, to customers in the United States. Arguing the plaintiff’s cigarettes comprised
“merely a fraction” of the products sold, the defendant presented two batches of sales data. The
plaintiff’s computer forensics expert examined the sales data and found inconsistencies in
computer programming formulas, individual sales records, and customer e-mail confirmations.
After being confronted with the expert’s analysis, the defendant admitted its sales data was
unreliable, and likely fraudulent. Finding the defendant’s “supporting testimony and data … so
riddled with fabrication and deception as to warrant the inference that the truth is the exact
opposite of what [the defendant] contends,” the court ordered the transfer of the defendant’s
domain names to the plaintiff.
� Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004). In a patent
infringement and trade secret theft suit, the plaintiffs requested direct access to all of the
defendants’ hard drives, servers and databases. The defendants argued the discovery request was
overbroad because it included more than the products at issue in the suit. Refusing to grant the
plaintiffs’ request for direct access to all of the defendants’ computer systems, the court stated
such a request “would require an expenditure of time and resources far out of proportion to the
marginal value of the materials to this litigation.” Alleging discovery misconduct by the defendants,
the plaintiffs also moved for spoliation sanctions against the defendants for failing to preserve e-
65

mails and other electronic data relating to the product in dispute. However, the court declined to
award spoliation sanctions because no evidence of intentional destruction of the e-mails existed,
the plaintiffs did not attempt to establish the circumstances under which the e-mails were deleted,
and a preservation order was not in place for the other electronic data.
� Lipco Elec. Corp. v. ASG Consulting Corp., 2004 WL 1949062 (N.Y. Sup. Ct. Aug. 18, 2004).
The plaintiffs sought to compel discovery of relevant electronic files, data and backup tapes from
the defendants, despite the fact the defendants had already produced hard copies of the electronic
documents at issue. The plaintiff asserted that the only way it could confirm the accuracy of the
hard copy data was by obtaining the raw data in computerized form. In response, the defendants
argued that extraction of the electronic data would be difficult, costly, and time-consuming, even if
the requested data was “material and necessary” to the action. The defendants claimed they would
need to hire an expert to retrieve the documents because they could not extract the data from hard
drives or backup tapes without assistance. The court noted that, under New York state law, the
party seeking discovery must bear the costs of production. Concluding that the electronic data was
discoverable, the court noted it “need only determine whether the material is discoverable and
whether the party seeking discovery is willing to bear the cost of production.” The court declared it
was unable to order production of the electronic data until the plaintiffs established they would bear
production costs. The court ordered the parties to supply a detailed breakdown of the electronic
data’s location, procedures used to extract it, and the costs involved. Noting that “[d]iscovery has
been proceeding at a snails pace, if at all,” the court also appointed a special referee to manage,
arrange, and monitor the e-discovery progress.
� Securities and Exch. Comm’n v. Beacon Hill Asset Management LLC, 231 F.R.D. 134
(S.D.N.Y. 2004). Alleging various violations of the Securities Exchange Act, the SEC moved to
compel production of numerous electronic documents previously withheld on the grounds of
attorney-client and work-product privilege. Among the documents requested by the SEC were files
attached to privileged e-mails. The defendant claimed the attachments were drafts of attorney
comments and need not be produced. Ordering the defendant to produce the attachments, the
court declared the defendant had not identified which documents fell within the privilege. The
defendant also protested production of a computer-created “Contact List” as it had not been
identified as privileged until three weeks after the privilege index deadline. The defendant claimed
the list did not “exist” because it had not been printed to paper until three weeks after the deadline
for producing privileged document indexes. The court rejected this argument as frivolous, asserting
that Fed.R.Civ.P. 34(a) has included electronic data as being part of a Rule 34 request for more
than 30 years. The court declared, “[t]he fact that the data has not been printed out does not mean
that the document does not exist … [otherwise] any party could avoid producing damaging
documents through the simple expedient of storing them on electronic media and never printing
them out.”
� Creditriskmonitor.com, Inc. v. Fensterstock, No. 006211/2001 (N.Y. Sup. Ct. Aug. 6, 2004).
Alleging that a former employee stole a customer list and other confidential information, the plaintiff
brought charges against the former employee and his new company for violating a non-compete
clause. In a court-ordered settlement, the defendants stated that they did not possess the plaintiff’s
customer list or any other confidential information, agreed that the former employee would refrain
from working for the defendant for a period of time, and confirmed that they would not solicit any of
the plaintiff’s customers. Several months after the court ordered settlement, the plaintiff filed a
contempt proceeding against the defendant for violating the agreement by possessing the plaintiff’s
customer list, working with the former employee, and soliciting the plaintiff’s customers. The court
66

ordered a computer forensics examination of the defendants’ computers, resulting in the discovery
of hundreds of e-mails and other relevant documents, including the customer list and other various
e-mails from the former employee to many of the defendant’s employees. Finding the defendants
violated the settlement order, the court stated that the defendants “acted willfully and in some
cases maliciously in violating the Order…perhaps the best description of [their] acts…would be
‘reckless indifference’ which has been found to be equivalent to willfulness…To put it bluntly they
just didn’t care about the Order." The court awarded $820,000 in compensatory and punitive
damages, as well as legal fees and costs.
� Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004). During an ongoing discovery dispute
in an employment discrimination case, the employee moved for sanctions against the employer for
failing to produce backup tapes containing relevant e-mails and for failing to produce other relevant
documents in a timely manner. See Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In
this latest motion, the employee contended that the employer, who recovered some of the deleted
relevant e-mails, prejudiced her case by producing recovered e-mails long after the initial
document requests. Furthermore, some of the e-mails were never produced, including an e-mail
that pertained to a relevant conversation about the employee. As such, the employee requested
sanctions in the form of an adverse inference jury instruction. Determining that the employer had
willfully deleted relevant e-mails despite contrary court orders, the court granted the motion for
sanctions and also ordered the employer to pay costs. The court further noted that defense
counsel was partly to blame for the document destruction because it had failed in its duty to locate
relevant information, to preserve that information, and to timely produce that information. In
addressing the role of counsel in litigation generally, the court stated that "[c]ounsel must take
affirmative steps to monitor compliance so that all sources of discoverable information are
identified and searched." Specifically, the court concluded that attorneys are obligated to ensure all
relevant documents are discovered, retained, and produced. Additionally, the court declared that
litigators must guarantee that identified relevant documents are preserved by placing a “litigation
hold” on the documents, communicating the need to preserve them, and arranging for
safeguarding of relevant archival media. See also Zubulake v. UBS Warburg, LLC, 231 F.R.D. 159
(S.D.N.Y. 2005) (Denying employer’s motion to assert an affirmative defense based on the delay in
asserting the defense and the prejudicial effects it would cause the employee in re-opening
discovery.)
� Cellco Partnership v. Nextel Communication, Inc., 2004 WL 1542259 (S.D.N.Y. July 9, 2004).
Responding to a motion to compel the production of documents in a case arising from a trademark
disagreement, the defendant withheld production of eight e-mails. The defendant claimed that
seven of the e-mails were protected by the attorney-client privilege doctrine. Six of these e-mails
contained advice given to the defendant’s employee from the defendant’s in-house counsel, and
the seventh e-mail contained legal advice from the defendant’s in-house counsel to one of the
defendant’s employees as well as to an advertising agency. Granting the plaintiff’s motion to
compel the 7 e-mails, the court determined that the e-mails were not attorney client privileged
because the “agency failed to demonstrate that it intended for the in-house counsel ‘to act as its
attorney’.” The defendant also disputed production of an e-mail from one of its employees to the
agency, claiming it was protected under the work-product doctrine. The court determined that this
e-mail was protected because the advice contained in the e-mail was given in anticipation of a
previous lawsuit involving the defendant.
� MasterCard Int’l, Inc. v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004). Asserting a
copyright infringement claim against the operators of a pornographic website, the plaintiff sought
67

spoliation sanctions against the defendant for failing to produce all e-mails relating to the website.
In response, the defendants admitted that they failed to retain four months worth of e-mails sent
and received after the plaintiff filed the lawsuit. The defendants argued that no effort was made to
print or to save the e-mails before they were automatically destroyed by the computer server
because such e-mails were not preserved in its ordinary course of business. Rejecting this
argument, the court sanctioned the defendants by granting an adverse inference jury instruction
stating that “the very fact that the e-mails are missing leaves us in the realm of speculation as to
what they contained and in what manner they might have assisted plaintiff in litigating claims.”
� Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL 764895 (S.D.N.Y. Apr. 9, 2004).
The plaintiff moved to compel further discovery of two compact disks. One of the disks included
over 200,000 e-mails, and the other disk contained over 4,000 offline e-mails. Although the
defendant had already searched the disks for privileged e-mails, it had not reviewed them for
responsiveness to the plaintiff’s specific document requests. The plaintiff argued that the defendant
did not satisfy its burden of production under Rule 34(b), which requires a responding party to
produce documents “as they are kept in the usual course of business.” The defendant responded
that it had satisfied this burden by providing all of the e-mails in a text searchable format, which
allowed the plaintiff to search for single words or phrases or combinations of words or phrases. The
court accepted the defendant’s argument and determined the defendant was not obligated to
provide more than the text searchable compact disks.
� Ermolaou v. Flipside, Inc., 2004 WL 503758 (S.D.N.Y. Mar. 15, 2004). The defendant, an
operator of an internet lottery game, moved for summary judgment on a breach of contract claim
filed by a lottery player. Contending that a genuine issue of material fact existed, the plaintiff
argued that there was a dispute about the creation, transmission, and receipt of two notification emails
sent to her by the defendant. In support of her argument, the plaintiff submitted affidavits and
documents that attempted to show a conflicting record regarding the date and time stamping
procedures for the e-mails. The defendant contended that the notification e-mail received by the
plaintiff had no relation to the official winning numbers because the e-mail time stamp showed that
it had been sent several hours before the defendant selected the winning lottery numbers. In
granting summary judgment for the defendant, the court noted that even if it were “correct that all
e-mail received by her bears the date and time it is received by her e-mail account…that fact would
undermine her case rather than [support] it.”
� Invision Media Communications, Inc. v. Federal Ins. Co., 2004 WL 396037 (S.D.N.Y. Mar. 2,
2004). In an action for breach of an insurance contract, the defendant moved to compel production
of documents and requested monetary sanctions, contending that the plaintiff made false
statements regarding the location and existence of its documents and destroyed evidence relevant
to the lawsuit. Among the documents requested by the defendant were e-mail communications
sent by the plaintiff. Specifically, the defendant sought “All electronic mail communications sent or
received by the plaintiffs during August 2001, September 2001 and October 2001.” The plaintiff
represented to the defendant that the e-mails could not be produced because the plaintiff archived
e-mail on its servers for only a two week period. The court found these statements false because
the plaintiff eventually disclosed the requested e-mails after further investigation. Accordingly, the
court awarded the defendant costs and attorneys fees, noting that “[a] reasonable inquiry by the
plaintiff’s counsel…would have alerted counsel that the plaintiff possessed electronic mail that fell
within the scope of Federal’s document request…the plaintiff has disregarded its discovery
obligations, made misleading statements regarding the existence and location of relevant
68

evidence, and/or failed to make reasonable inquiries into matters pertinent to the pretrial discovery
phase of this litigation.”
� Baptiste v. Cushman & Wakefield, Inc., 2004 WL 330235 (S.D.N.Y. Feb. 20, 2004). In an
employment discrimination lawsuit, the court addressed the issue of whether an e-mail was
protected by the attorney-client privilege. The e-mail contained advice from the defendant’s
counsel regarding legal matters concerning the plaintiff, one of the defendant’s employees at the
time. The plaintiff, who claimed that a printed copy of the e-mail was left anonymously on her desk,
argued that the e-mail was not protected by the attorney-client privilege because it was not labeled
as protected, was not authored or circulated to attorneys, and did not refer to or contain legal
advice. The plaintiff further argued that in the event the e-mail was privileged, it was inadvertently
produced, thus waiving any of the defendant’s attorney-client privilege claims. The court
determined that the first four paragraphs of the e-mail were protected by the attorney-client
privilege because “the e-mail was clearly conveying information and advice given . . . by . . .
outside counsel.” However, the court concluded that the final paragraph of the e-mail was not
protected because it contained the defendant’s own impressions and frustrations about the
plaintiff’s job performance. Finally, the court decided that the defendant did not waive the attorneyclient
privilege with respect to the first four paragraphs of the e-mail. In response to the plaintiff’s
requests, the defendant did not produce the e-mail and the defendant further identified the e-mail
as privileged attorney-client information in the privilege log submitted to the plaintiff’s counsel. As
such, the court ordered that the original e-mail should be returned to the defendant and reproduced
in a redacted form to the plaintiff.
� In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 2004 WL 305601 (S.D.N.Y Feb.
18, 2004). Pursuant to a section of the Securities Exchange Act of 1934, the plaintiff sought an
order lifting the automatic stay of discovery during the pendency of a motion to dismiss. The
plaintiff contended that discovery was necessary to preserve and restore e-mails deleted by the
defendant. The court cited U.S. Code provisions permitting discovery when the legal sufficiency of
the complaint has not been decided “only if exceptional circumstances, such as the necessity ‘to
preserve evidence or to prevent undue prejudice to [a] party,’ exist.” The defendant declared that it
was aware of the preservation obligations and was taking all necessary steps to preserve all
potentially relevant electronic documents. Therefore, the court denied the plaintiff’s motion because
the plaintiff failed to establish an “imminent risk” of data being deleted and rendered irretrievable.
� In re Honeywell Int’l Sec. Litig., 2003 WL 22722961 (S.D.N.Y. Nov. 18, 2003). In response to a
subpoena, the defendant’s financial auditor, a non-party to the securities suit, produced several
thousand documents in hardcopy. The plaintiffs complained that they were unable to review the
documents and sought an electronic version of these documents, or alternatively a complete
hardcopy set produced in the order they are kept in the ordinary course of business, specifically
claiming that the documents were produced in a way that makes it impossible to determine which
attachment belongs with a particular document. The auditor claimed that it had provided a
complete index for the documents and attachments and that electronic copies were only accessible
with the aid of its proprietary software. The court found that the auditor’s production was insufficient
because it was not produced as kept in the usual course of business and ordered the auditor to
produce its documents in electronic form.
� United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003). The defendant prepared an email
in response to her attorneys’ requests for factual information in the furtherance of their legal
representation. A day later, the defendant accessed the e-mail and forwarded it to her daughter.
69

The court held that the e-mail was protected work product and that the defendant did not waive its
immunity by forwarding the document to her daughter.
� Xpedior Credit Trust v. Credit Suisse First Boston, 2003 WL 22283835 (S.D. N.Y. Oct. 2,
2003). The plaintiff moved for an order to compel the defendant to produce certain electronic
documents in connection with the breach of contract action. The defendant countered with a
motion for a protective order requiring the plaintiff to bear half the costs of producing the electronic
documents. The documents at issue reside on optical disks and DLT tapes. Applying the Zubulake
seven factor cost shifting test, the court found that cost shifting was not appropriate and ordered
the defendant to bear its own costs in producing the electronic data.
� United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003). The government in a bank fraud,
wire fraud, and securities fraud case issued grand jury subpoenas to several executives and topemployees
in the company, Adelphia Communications Corporation, being investigated. Adelphia
produced copies of 26 computer hard drives in response to the subpoenas. The Assistant United
States Attorneys assigned to the matter directed their staff to install the hard drives in certain
computer terminals belonging to the United States Attorney’s Office (“USAO”) so that the data
could be reviewed. The staff informed was informed that the hard drives “were evidence” and
should be installed in such a way as to prevent additions to or deletions from those drives. Shortly
thereafter, the computer consultant hired by defense counsel was permitted to make copies of the
hard drives in question at the main USAO office. In the course of reviewing the images, defense
counsel’s computer expert determined that several USAO confidential files associated with the
case at issue as well as other pending cases were produced during the imaging. The defendants
argued that the Government waived its work product privilege when it voluntarily permitted defense
counsel to copy the hard drives. The Government contended that disclosure of USAO files was
inadvertent and therefore did not constitute waiver of the privilege. The court used a four part
balancing test to determine that no waiver of privilege had occurred.
� Keir v. UnumProvident, 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003). In an ERISA class action
suit, the plaintiffs sought an order from the court directing the defendant to preserve all electronic
evidence relevant to the matter. After noting that the defendant “already had a duty to preserve any
tapes containing e-mails as of the date litigation commenced,” the court ordered the defendant to
preserve all relevant electronic data and to specifically preserve six days of e-mail records which
were contained on backup tapes and hard drives. Instead of preserving all existing backups, or
conducting a full tape e-mail backup, the defendant’s technical staff decided to implement a special
snapshot backup which would only preserve e-mails on the system as of the day or days the
snapshot was taken. In evaluating the defendant’s conduct with respect to the preservation order,
the court stated that “UnumProvident had ample time in the weeks before the December 27
[preservation] Order was signed to consult with its IT Department and with IBM to inform itself
about the technological issues relevant to the preservation of electronic data so that it could bring
accurate information to the negotiations of the preservation order and the conferences with the
court in which the December 27 Order was shaped, and comply promptly with the Order after it
was issued.” The court found the defendant’s failure to preserve was unintentional and criticized
the defendant’s poor compliance with the preservation order. The court recommended that further
action be taken to determine the feasibility of retrieving the lost data and the extent of prejudice to
the plaintiffs in order for the court to fashion a remedy for the plaintiffs.
� The Carlton Group v. Tobin, 2003 WL 21782650 (S.D.N.Y. July 31, 2003). The plaintiff, a
financial services company, brought suit against several defendants claiming that the defendants
deleted files from the plaintiff’s computers, conspired to steal confidential and proprietary
70

information from its computer network, and used that information to compete unlawfully with the
plaintiff. One group of defendants, Mission Capital, is a company that competes directly with the
plaintiff’s company, and the individual Mission Capital defendants were formerly employed by the
plaintiff. The other group of defendants, PDP Capital, is an investment advisor and fund
management company and does not compete with the plaintiff or Mission Capital. All parties in the
suit maintain offices in the same business suite, and all tenants of this office suite share a
communication switch and data transmission line which connect the tenants’ computers to the
Internet. As such, all the computers in the suite constitute a network, although the tenants do not
have access to each other’s computers. PDP defendants sought Rule 11 sanctions against the
plaintiff and plaintiff’s counsel for filing suit against them lacking in evidentiary support. The plaintiff
maintains that its allegations against PDP were objectively reasonable based upon information
from computer forensic experts that PDP had deliberately established a link between computer
systems to move data back and forth between the plaintiff’s computer network and the PDP
computer. Denying the PDP defendants’ motion for Rule 11 sanctions, the court held that the
plaintiff made a substantial pre-filing inquiry that gave them a reasonable basis for believing that
PDP defendants conspired with the Mission defendants.
� Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). In a gender discrimination suit
against her former employer, the plaintiff requested that the defendant produce “[a]ll documents
concerning any communication by or between UBS employees concerning the plaintiff.” The
defendant produced 350 pages of documents, including approximately 100 pages of e-mail. The
plaintiff knew that additional responsive e-mail existed that the defendant had failed to produce
because she, in fact, had produced approximately 450 pages of e-mail correspondence. She
requested that the defendants produce the e-mail from archival media. Claiming undue burden and
expense, the defendant urged the court to shift the cost of production to the plaintiff, citing the
Rowe decision. Stating that a court should consider cost-shifting only when electronic data is
relatively inaccessible (such as in this case), the court considered the Rowe 8-factor cost shifting
test. The court noted that the application of the Rowe factors may result in disproportionate cost
shifting away from large defendants, and the court modified the test to 7 factors: (1) the extent to
which the request is specifically tailored to discover relevant information; (2) the availability of such
information from other sources; (3) the total cost of production compared to the amount in
controversy; (4) the total cost of production compared to the resources available to each party; (5)
the relative ability of each party to control costs and its incentive to do so; (6) the importance of the
issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the
information. The court ordered the defendant to produce, at its own expense, all responsive e-mail
existing on its optical disks, active servers, and five backup tapes as selected by the plaintiff. The
court determined that only after the contents of the backup tapes are reviewed and the defendant’s
costs are quantified, the court will conduct the appropriate cost-shifting analysis. See also
Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003).
� Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). In the restoration effort that occurred
according to previous e-discovery decisions in the matter, the parties discovered that certain
backup tapes were missing and that e-mails had been deleted. The plaintiff moved for evidentiary
and monetary sanctions against the defendant for its failure to preserve the missing tapes and emails.
The court found that the defendant had a duty to preserve the missing evidence, since it
should have known that the e-mails may be relevant to future litigation. Although the plaintiff did not
file her charges until August 2001, by April of that year, "almost everyone associated with Zubulake
recognized the possibility that she might sue," the court wrote. The court also found that the
71

defendant failed to comply with its own retention policy, which would have preserved the missing
evidence. The judge found that although the defendant had a duty to preserve all of the backup
tapes at issue, and destroyed them with the requisite culpability, the plaintiff could not demonstrate
that the lost evidence would have supported her claims. Therefore, it was inappropriate to give an
adverse inference instruction to the jury. Even though an adverse inference instruction was not
warranted, the court ordered the defendant to bear the plaintiff’s costs for re-deposing certain
witnesses for the limited purpose of inquiring into the destruction of electronic evidence and any
newly discovered e-mails.
� RLS v. United Bank of Kuwait, 2003 WL 1563330 (S.D.N.Y. Mar. 26, 2003). In a contract dispute
arising from the defendant’s alleged failure to pay the plaintiff commissions due under the terms of
written consulting agreements, the court concluded that the defendant did not meet its burden of
demonstrating that two e-mails were subject to privilege protection under the common interest rule.
� Metropolitan Opera Assoc., Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003). In a labor
dispute, the defendants failed to comply with discovery rules, specifically failing to search for,
preserve, or produce electronic documents. The court stated “[C]ounsel (1) never gave adequate
instructions to their clients about the clients’ overall discovery obligations, what constitutes a
‘document’…; (2) knew the Union to have no document retention or filing systems and yet never
implemented a systematic procedure for document production or for retention of documents,
including electronic documents; (3) delegated document production to a layperson who (at least
until July 2001) did not even understand himself (and was not instructed by counsel) that a
document included a draft or other non-identical copy, a computer file and an e-mail; (4) never
went back to the layperson designated to assure that he had ‘establish[ed] a coherent and effective
system to faithfully and effectively respond to discovery requests,’…and (5) in the face of the Met’s
persistent questioning and showings that the production was faulty and incomplete, ridiculed the
inquiries, failed to take any action to remedy the situation or supplement the demonstrably false
responses, failed to ask important witnesses for documents until the night before their depositions
and, instead, made repeated, baseless representations that all documents had been produced.”
The court granted severe sanctions, finding liability on the part of the defendants and ordering the
defendants to pay the plaintiff’s attorneys’ fees necessitated by the discovery abuse by the
defendants and their counsel. The court found that lesser sanctions, such as an adverse inference
or preclusion, would not be effective in this case “because it is impossible to know what the Met
would have found if the Union and its counsel had complied with their discovery obligations from
the commencement of the action.”
� People v. Carratu, 755 N.Y.S.2d 800 (N.Y. Sup. Ct. 2003). The defendant moved to suppress
computer evidence seized from his home and subsequently searched by the police department’s
computer forensic examiners. The defendant claimed that the search warrants and supporting
affidavits limited the search to documentary evidence relating to his illegal cable box operation and
thus, the forensic examiner violated the defendant’s Fourth Amendment rights upon inspection of
non-textual files with folder names clearly relating to other illegal activity. Granting the suppression
motion, in part, the court stated, “In view of the Fourth Amendment’s ‘particularity requirement,’ a
warrant authorizing a search of the text files of a computer for documentary evidence pertaining to
a specific crime will not authorize a search of image files containing evidence of other criminal
activity.”
� In re Livent, Inc. Noteholders Sec. Litig., 222 F.R.D. 29 (S.D.N.Y. 2003). In a securities litigation,
the defendant accounting firm produced approximately 25 e-mail pages from the files of a particular
individual at issue, in addition to 14 e-mails from other employees. The plaintiffs suspected this
72

production was incomplete, and moved the court for: (1) an order "directing Deloitte to make a
thorough search of all its computer systems, servers and other storage devices, back-up tapes,
and the individual hard drives of employees who worked on the Livent audits" and (2) an order
directing the defendant "to produce all responsive materials found within 30 days, along with a
written explanation of all the steps it has taken to find responsive materials." The court denied the
plaintiffs request and directed the defendant to produce a written explanation of all steps taken to
find responsive e-mail. The court directed the parties to consult the Rowe decision and, if unable to
reach resolution, to inform the court.
� United States v. Holihan, 236 F. Supp.2d 255 (W.D.N.Y. 2002). The defendant, who was charged
with embezzling bank funds, moved for the production or, alternatively, the suppression of
electronic evidence allegedly withheld by the government. Among other things, the defendant
requested a history of the bank’s computer terminal “sign on” and “sign off” times, as well as daily
logs of on-line computer entries. In response to the request, the government contended that it had
fully complied with discovery and that the documents requested by the plaintiff were not in the
government’s possession. Although the government stated that it would attempt to locate the
documents by inquiring with the relevant agency or the bank, it failed to demonstrate that it had
done so. As such, the court granted the defendant’s motion to compel the production of documents
that the government could obtain upon a diligent inquiry of the appropriate agency or the bank.
� J.P. Morgan Chase Bank v. Liberty Mutual Ins., 2002 WL 31867731 (S.D.N.Y. Dec. 23, 2002).
In a suit against insurance companies that had guaranteed payment in the event of Enron’s
bankruptcy, the court weighed the admissibility of several e-mails. The court determined that emails
authored by senior bank officials would be allowed into evidence and that a reasonable juror
could find these e-mails probative of the defendants’ central proposition that the transactions were
actually uninsurable “off-the-books” loans.
� Gambale v. Deutsche Bank, 2002 WL 31655326 (S.D.N.Y. Nov. 21, 2002). As a step toward
resolving several discovery disputes, the Magistrate Judge ordered the defendants to serve an
affidavit explaining the steps they have taken to search their paper and electronic files for
documents responsive to the plaintiff’s discovery requests and outlining the feasibility and cost of
retrieving such electronic documents. The Magistrate then stated that the plaintiff must choose
between two options for producing the electronic data: (1) follow the protocol set forth in Rowe
Entertainment v. William Morris Agency,H 205 F.R.D. 421 (S.D.N.Y.2002)H, with the slight
modification set forth in Murphy Oil USA, Inc. v. Fluor Daniel, Inc.,H 2002 WL 246439 (E.D.La.
Feb. 19, 2002)H, or (2) confer with the defendant and propose a joint protocol.
� Kormendi v. Computer Associates Int’l, Inc., 2002 WL 31385832 (S.D.N.Y. Oct. 21, 2002). The
parties in this employment case jointly wrote the Magistrate, requesting reconsideration and
clarification of a prior order. The court previously had ordered the defendant to produce all e-mail
messages mentioning the plaintiff over a one-year time period, with the plaintiff to pay for the cost
of the search. In the letter to the Magistrate, the defendant stated that it had already produced the
e-mails from persons involved in the suit and had no method to locate and reconstruct e-mails
mentioning the plaintiff for the listed period because its document retention policy called for
employees to retain e-mails for a period of only thirty days. The Magistrate noted that the plaintiff
should seek other means of attaining the sought after e-mails, such as searching the computers of
other employees who might have saved the e-mails. The plaintiff must still bear the cost of
searching for these e-mails.
� United States v. Al-Marri, 230 F. Supp. 2d 535 (S.D.N.Y. 2002). In the wake of the September
11th attacks, the FBI visited the defendant’s home perusing tips of the defendant’s allegedly
73

suspicious activity. The FBI agents obtained the defendant’s consent to search his home and, with
his affirmative consent and cooperation, seized his laptop computer, disks, and CDs for further
investigation. Investigation of the computer hardware revealed evidence of credit card fraud. The
defendant moved to suppress the computer evidence, arguing that even if he validly consented to
a search of his home, that consent did not encompass the contents of his computer. The court
denied the motion to suppress and ruled that the FBI’s lawful search of the defendant’s home
encompassed the right to search the computer as a closed container.
� Jones v. Goord, 2002 WL 1007614 (S.D.N.Y. May 16, 2002). The plaintiffs, prison inmates
bringing suit against the New York State Corrections Commission for prison overcrowding,
requested the production of six different electronic databases maintained by the New York state
prison system. The plaintiffs claimed that the electronic information would be more valuable than
the already produced hard copies because the information would be more manipulable. The court
refused to compel discovery of the databases because the burden of the proposed discovery
outweighed its likely benefit, particularly in light of the plaintiffs failure to seek discovery in a timelier
manner and the vast amount of material that had already been produced in hard copy. The court
stated, “As electronic mechanisms for storing and retrieving data have become more common, it
has increasingly behooved courts and counsel to become familiar with such methods, and to
develop expertise and procedures for incorporating ‘electronic discovery’ into the familiar rituals of
litigation.”
� eSpeed, Inc. v. Chicago Board of Trade, 2002 WL 827099 (S.D.N.Y. May 1, 2002). Cantor
Fitzgerald, a third party and partial owner of the plaintiff, asserted the attorney-client privilege with
respect to a series of e-mails and attachments addressing a patent purchase negotiation. These emails
and attachments were sent by an outside attorney to an employee of Cantor Fitzgerald. The
court examined the e-mails and attachments in camera and ordered production finding that the
messages and documents did not contain client confidences and were not privileged.
� Collette v. St. Luke’s Roosevelt Hospital, 2002 WL 31159103 (S.D.N.Y. Sept. 26, 2002). The
New York court mentioned without further comment that e-mails were made available during
discovery, confirming the general discoverability of e-mail evidence.
� Rowe Entertainment, Inc. v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002).
Denying the defendants’ motion for a protective order insofar as it sought to preclude the discovery
of e-mail altogether, the court set forth a procedure for identifying responsive e-mails while
protecting privileged documents. The court also adopted a balancing approach, consisting of eight
factors, to determine whether discovery costs should be shifted. See also Rowe Entertainment, Inc.
v. The William Morris Agency, 2002 WL 975713 (S.D.N.Y. May 9, 2002). After reanalyzing and
reaffirming Judge Francis’ eight factor balancing test, the court upheld the January 15, 2002 Order
that granted the defendants motion to shift the costs of production of their e-mail communications
to the plaintiffs.
� United States Fidelity & Guaranty Co. v. Braspetro Oil Servs. Co., 2002 WL 15652 (S.D.N.Y.
Jan. 7, 2002). In a discovery dispute concerning the potential waiver of privilege with respect to
materials provided to the defendants’ expert witnesses, the court ordered the defendants to
produce all materials provided to their experts – privileged or unprivileged, whether in paper or
electronic form.
� In re the Matter of the Application of Lees, 727 N.Y.S.2d 254 (N.Y. Sup. Ct. 2001). A rape
defendant submitted an ex parte motion asking that the victim and a third party be ordered to turn
over their computers for inspection. The defendant sought to uncover an e-mail in which the victim
74

falsely claimed to have been raped on a prior occasion. The application of the defendant was
granted to the extent that he could show cause to the court.
� Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assocs., 286 A.D.2d 320 (N.Y.
App. Div. 2001). Where the defendants purged their computer databases against court order and
produced compromised and unusable backup tapes, the court dismissed the parties’ counterclaims
and third-party complaint as spoliation sanctions. The court stated “The striking of a party’s
pleading is a proper sanction for a party who spoliates evidence.”
� People v. Markowitz, 721 N.Y.S.2d 758 (N.Y. Sup. Ct. 2001). In a larceny and possession of
stolen property suit, the court admitted computer databases that indicated how much money
should have been collected by the defendant toll-booth worker. The testimony of an employee of
the company that prepared the databases was sufficient foundation for admission of the electronic
records.
� GTFM, Inc., v. Wal-Mart Stores, 2000 WL 1693615 (S.D.N.Y. Nov. 9, 2000). The court allowed
the plaintiff to recover fees for the inspection of Wal-Mart’s computer records and facilities by the
plaintiff’s expert and also upheld fees and expenses caused by Wal-Mart’s failure to provide
accurate discovery information in response to valid discovery requests. The court found the award
of expenses “reasonable in view of the prior repeated misinformation provided by Wal-Mart
concerning the availability of information . . . .”
� Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y. 2000), vacated 2001 WL 1149017 (S.D.N.Y. Sept.
27, 2001). The court found the plaintiff had a duty to preserve information contained on a Palm
Pilot. Since the plaintiff’s conduct did not destroy evidence, but rather just made it more difficult to
discover, the court imposed monetary sanctions as a consequence of the spoliation.
� Telecom Int’l Amer., Ltd. v. AT & T Corp., 189 F.R.D. 76 (S.D.N.Y. 1999). “Even without a
specific discovery order, a district court may impose sanctions for spoliation of evidence, exercising
its inherent power to supervise the litigation before it.”
� United States v. VISA, 1999 WL 476437 (S.D.N.Y. July 7, 1999). In a suit against VISA and
MasterCard, the parties agreed to narrow the scope of the archived e-mail search, both in terms of
the number of employees whose e-mail is to be produced and the number of days per month for
which e-mail is to be produced. The court reserved decision about which party will ultimately bear
the cost of producing e-mail.
� New York State Nat’l Org. for Women v. Cuomo, 1998 WL 395320 (S.D.N.Y. July 14, 1998).
The court refused to impose sanctions on the defendants for destroying computer databases
where there was no showing that the defendants deleted computer databases or destroyed
monthly summary reports in order to impede litigation and the plaintiffs failed to demonstrate that
they were prejudiced by the loss of the records.
� In re Cheyenne Software, Inc. v. Securities Litig., 1997 WL 714891 (E.D.N.Y. Aug. 18, 1997). In
a securities proceeding, the court imposed $15,000 in attorney’s fees and sanctions for failing to
heed the court’s discovery order. The court also compelled the defendant to bear the cost of
downloading and printing up to 10,000 pages of additional documents responsive to appropriate
keyword searches requested by the plaintiff.
� Cerruti 1881 S.A. v. Cerruti Inc., 169 F.R.D. 573 (S.D.N.Y. 1996). The plaintiff argued that the
defendant fabricated computer records in an attempt to demonstrate sales for trademarked clothing
items. The defendant claimed the records were inaccurate as a result of a defect that occurred in
the process of copying the data from his hard drive to the archival media. A computer forensics
expert compared the data on the hard drive to the archived records that the defendant produced
75

and found that the records produced matched “perfectly.” Contrary to the defendant’s claim, the
expert explained that it was “highly unlikely” that the data became corrupt as a result of the process
used to copy the data. Rather, the data on the archival media had been manually manipulated.
Based on the expert’s testimony, the court granted judgment in favor of the plaintiff.
� Byrne v. Byrne, 650 N.Y.S.2d 499 (N.Y. Sup. Ct. 1996). In a divorce proceeding, the wife sought
access to her husband’s computer, which husband used for both business and personal purposes
even though computer was provided by husband’s employer. The wife was awarded such access
to search the computer for information about the couple’s finances and marital assets.
� Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995). The court found
that the law is clear that data in computerized form is discoverable even if paper copies of the
information have been produced. The producing party can be required to design a computer
program to extract the data from its computerized business records. But such an order is subject to
the court’s discretion as to the allocation of the costs of designing such a computer program.
� Strauss v. Microsoft Corp., 1995 WL 326492 (S.D.N.Y. June 1, 1995). The court denied
Microsoft’s motion to exclude evidence of offensive e-mails in a hostile work environment lawsuit.
� Santiago v. Miles, 121 F.R.D. 636 (W.D.N.Y. 1988). The court noted that “[a] request for raw
information in computer banks is proper and the information is obtainable under the discovery
rules.”
� United States v. IBM, 76 F.R.D. 97 (S.D.N.Y. 1977) Where the defendant was to produce
information to the plaintiff pursuant to prior court orders, but production did not comport with spirit
and intent of those orders and was highly technical and complex in nature, the court determined
that “exceptional conditions” existed, warranting appointment of examiner. The examiner’s duties
included reporting to court as to information that the defendant possessed and produced and
supervising discovery.
Vermont
� In re Boucher, 2007 WL 4246473 (D.Vt. Nov. 29, 2007). In this criminal case, the defendant was
stopped at the customs and border station while entering Vermont from Canada. Agents searched
his laptop and found what appeared to be images of child pornography. The defendant was
arrested and charged with transportation of child pornography. After imagining the defendant’s
hard drive, agents learned they were unable to further access the files on the drive because the
files were encrypted, password protected and inaccessible. Thereafter, the government
subpoenaed the defendant and directed him to provide all documents that reflected the password.
The defendant moved to quash the subpoena, claiming compliance would violate his Fifth
Amendment right against self-incrimination. The court reiterated the requirements for Fifth
Amendment protection as: a compelled, testimonial communication that is incriminating in nature.
The court determined that a subpoena constitutes compulsion because it requires compliance and
as the files sought allegedly contained child pornography, entry of the password would therefore be
incriminating. As such, the contentious issue was whether entry of the password constituted a
testimonial communication. The court held that entering a password into a computer communicates
facts that convey the contents of one’s mind, and therefore found the act of entering this password
to be testimonial, implicitly demonstrating that the defendant knew the password and had access to
the files. The court therefore granted the defendant’s motion to quash the subpoena.
76

� State v. Voorheis, 2004 WL 258178 (Vt. Feb. 13, 2004). The appellate court affirmed the trial
court’s finding that “instant messaging” text was sufficient evidence to support the defendant’s
conviction of incitement and attempt of use of a child in a sexual performance. The State
introduced evidence recovered from a computer forensic examination of the computer system and
floppy disks taken from the child’s home. The computer forensic expert recovered text from “instant
messaging” conversations in which the defendant discussed with the child’s mother a plan to have
a lewd photo shoot. At trial, the expert noted that instant messaging is not usually saved on a
computer and that saving it to floppy disks required “concentrated effort.” Based on the instant
messaging evidence, the jury found the defendant guilty. The defendant argued that the instant
messaging text was “meager evidence” of guilt, since the text had allegedly been altered and
edited. The court rejected this claim finding that the retrieved electronic conversations, together
with witness testimony, offered ample evidence to support the jury’s findings.
Third Circuit – State and Federal Cases
� Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2012 WL 887593 (3d Cir. Mar. 16,
2012). In this taxation dispute, the plaintiffs sought review of the district court’s opinion granting
taxation of costs for a variety of e-discovery vendor services. The Third Circuit scrutinized a line of
authority granting broad taxation of vendor costs where the services were “highly technical” or
beyond the expertise of an attorney. The court bore down on the plain meaning of 28 U.S.C. §
1920(4) and ruled that the crux of a particular taxation issue simply turns on whether the cost falls
within the statute’s coverage of costs incurred for “exemplification” or “making copies”—nothing
more. After rattling through the defendant’s list of e-discovery expenses, the court held that only
scanning documents and file format and VHS to DVD conversions fell within the scope of taxable
costs. In turn, the court vacated district court’s original award of costs and chopped the defendant’s
purse down by $95,210.13 (to around 25% of the district court’s award).
� In the Matter of the Application of the U.S. of Am. for an Order Directing a Provider of Elec.
Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010). In this ongoing
criminal investigation, the federal government appealed a twice-denied request to compel
production of a customer’s historical cellular tower data, also known as cell site location information
(CSLI). The government sought the CSLI of unidentified subscribers pursuant to a court order
under § 2703(d) of the Stored Communications Act (SCA). Reviewing the magistrate judge’s
analysis, the court rejected the premise that because CSLI could potentially be used to track
individuals, it required the traditional probable cause necessary for a warrant. Citing legislative
history and two U.S. Supreme Court decisions, the court found that CSLI would only encroach
upon reasonable expectations of privacy if used to track individuals out of public view – an
inference not supported by the record. However, the court determined § 2703(c) created a sliding
scale standard, granting a judge discretion to require the government to obtain a warrant based on
probable cause. Holding that § 2703(d) provided the minimum standard required, the court vacated
the order and remanded for additional fact finding.
� Institute for Motivational Living v. Doulos Inst. for Strategic Consulting, Inc., 110 Fed. Appx.
283 (3d Cir. 2004). The plaintiff sued the defendant, seeking to retrieve its proprietary materials
and to recover damages for copyright and trademark infringement and misappropriation of trade
secrets. The district court previously ordered the defendant to preserve relevant documents,
software and equipment. During settlement negotiations, the defendant agreed to return a laptop –
including the data stored on it – to the plaintiff. Minutes before the parties signed the agreement,
77

the defendant violated the preservation order and deleted data from the laptop. At a subsequent
evidentiary hearing, a magistrate judge recommended civil contempt sanctions against the
defendant for “knowingly and in bad faith violat[ing] the original discovery preservation order and . .
. deliberately deleting data from the laptop.” The district judge found the defendant in civil contempt
and awarded $50,000 in costs and attorney fees against him. The appellate court, however,
reluctantly found the defendant not liable for violating the settlement agreement since he deleted
the data before signing the agreement. Nonetheless, the court held the defendant liable for
violating the district court’s preservation order and ordered the defendant to pay attorney fees
attributed to the file deletion.
� Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 107 (3d Cir. 2003). In an employment termination
suit, the plaintiff alleged that the defendant violated the Electronic Communications Privacy Act
(ECPA) by searching, without the plaintiff’s express permission, the plaintiff’s e-mail stored on the
defendant’s central file server. The ECPA prohibits “intentionally access[ing] without authorization a
facility through which an electronic communication service is provided.” The court held that
because the plaintiff’s e-mail was stored on the defendant’s system, the defendant’s search of the
plaintiff’s e-mail fell within the exception to protection of the ECPA, which allows seizures of e-mail
authorized “by the person or entity providing a wire or electronic communication service.”
� United States v. Lloyd, 269 F.3d 228 (3d Cir. 2001). The Third Circuit has ruled that a man
convicted of planting a computer “time bomb” that crippled operations at New Jersey-based
Omega Engineering Corp. is not entitled to a new trial on the basis of a juror prejudice. The ruling
reinstates the verdict in which the defendant was convicted on one count of computer sabotage.
Computer experts were essential in recovering the evidence of the "time bomb.”
Delaware
� Cordance Corp. v. Amazon.com, Inc., 2012 WL 1194211 (D. Del. April 11, 2012). The defendant,
who prevailed in this patent infringement suit, submitted a bill of costs that included $447,694.69
for e-discovery costs. The plaintiff objected, alleging it was indigent, that the defendant engaged in
stalling tactics to increase costs and, alternatively, that costs should be significantly reduced
because the bill was unsubstantiated. With regard to the plaintiff’s primary objections, the court
found that the plaintiff failed to provide sufficient evidence of its financial health or of the
defendant’s repeated attempts to delay discovery. Analyzing the plaintiff’s alternative objection, the
court cited the Third Circuit’s decision in Race Tires Am., Inc. v. Hooiser Racing Tire Corp —
specifically the finding that 28 U.S.C. § 1920(4) “does not authorize taxation merely because
today’s technology requires technical experience not ordinarily possessed by the typical legal
professional”—as controlling precedent. Under this framework, the court limited recoverable costs
to scanning or conversion of documents. Reviewing the defendant’s invoices, the court found that
expenses for “intelligent culling,” “tech time,” and “processing services” were not recoverable and
reduced the defendant’s request for $447,694.63 in e-discovery costs to $2,721.53. Finally, the
court noted that the bulk of the defendant’s invoices were deficiently itemized, and allowed it to
submit more detailed invoices within 30 days to attempt to recover more of its e-discovery costs.
� Genger v. TR Investors, LLC, 2011 WL 2802832 (Del. Supr. July 18, 2011). In this shareholder
litigation, the defendant (an "international man of mystery") sought review of the Court of
Chancery’s judgment including, its award of $3.2 million in attorney fees and costs for the
spoliation of ESI in violation of a preservation order. On appeal, the defendant argued the
78

sanctions were disproportionate and excessive as he merely erased unallocated free space, which
was not specifically prohibited by the order and did not did not result in the spoliation of material
evidence. The defendant further argued that because normal computer use causes similar
overwriting to occur, sanctioning this behavior would require the suspension of all computer
activities every time a court issued a preservation order. Rejecting both arguments, the court
determined the trial court’s finding was based on narrow grounds related to evidence spoliation –
not rewriting in general – and that the parties previously compromised, agreeing to the specified
fee amount. In order to avoid future confusion, the court recommended that parties address the
issue of unallocated free space in their preservation orders and document retention policies.
� SOC-SMG, Inc. v. Day & Zimmerman, Inc., 2010 WL 3634204 (Del. Ch. Sept. 15, 2010). In this
complex transactional dispute involving the sale of a limited liability company (LLC), the petitioner
sought to disqualify opposing counsel, impose monetary sanctions, suppress use of allegedly
privileged ESI and terminate the claims and defenses pending in arbitration, arguing public policy
mandated the court – rather than arbitrators – to adjudicate the alleged misuse of ESI because
ethical violations were involved. Emphasizing that the petitioner itself initiated the arbitration
agreement, the court affirmed the power of arbitrators to rule on disqualification and privilege
motions and declined to become involved. Nevertheless, the court hinted at the likely outcome on
the merits given the reality that the petitioner “sold its ESI, as part of the asset sale, to the LLC . . .
failed to retain control over the servers on which it claims privileged information rests…and failed to
screen its ESI or negotiate carve-outs for allegedly privileged ESI before turning it over to the LLC.”
The court further admonished the petitioner for its “self-serving desire” to use allegations of
attorney misconduct as “procedural weapons.” Noting the petitioner is free to forgo arbitration in the
future, the court denied the motion and entered summary judgment for the respondent.
� Takeda Pharm. Co. Ltd. v. Teva Pharm. USA, Inc., 2010 WL 2640492 (D.Del. June 21, 2010). In
this patent litigation, the defendants sought production of electronically stored information for an
18-year period, despite the five-year period previously imposed in the case. The plaintiffs
demonstrated that the sought-after ESI was not reasonably accessible and would cost between $1
and $1.5 million for an outside vendor to retrieve the data, not taking into account the cost of
review. Despite the burden on the plaintiffs, the court found the information was relevant and
potentially unavailable from other sources. The court also considered the "importance of the
interests at stake in this litigation" and the significant financial stakes in ordering production of data
from the additional 13-year period. Finally, the court ordered the defendants to pay 80 percent of
the costs incurred by the plaintiffs if they employed an outside vendor.
� Eurand, Inc. v. Mylan Pharm., Inc., 2010 WL 1458442 (D.Del. Apr. 13, 2010). In this patent
litigation, the defendants sought further discovery arguing the plaintiffs failed to disclose pertinent
information and requested disclosure of search terms used. Maintaining that a comprehensive
search of all relevant files was performed, the plaintiffs argued that the defendants’ motion was a
“back door” effort to obtain information previously denied by the court. Noting that the defendants’
arguments forced the court into “mysteries of keyword search techniques [and] the efficacy of
various methods used to search electronically stored information” the court acknowledged that
“[n]either lawyers nor judges are generally qualified” to evaluate the adequacy of keyword search
terms. Despite this, the court employed a reasonableness test to determine whether the search
performed was adequate, or “could . . . have been expected to produce the information requested.”
While the plaintiff’s search appeared adequate, it may not have included evidence of subjective
intent, and thus limited, additional e-mail searching was warranted. The court also declined to order
disclosure of the search terms used.
79

� TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009). In this stockholders
litigation, the plaintiffs sought default judgment sanctions, citing the defendant’s destruction of
electronic evidence in violation of a court order. The plaintiffs asserted that, following review and
encryption of electronic evidence by a third-party firm, the defendant used wiping software to
permanently delete temporary files in the unallocated space not reviewed by the neutral party for
relevance. The defendant, an "international man of mystery" who performed sensitive tasks for the
Israeli government and was concerned about the confidentiality of personal documents, claimed
that he believed the wiping software only deleted duplicate copies. Finding the use of wiping
software to be a clear violation of the unambiguous court order, the court determined sanctions
were appropriate. The court declined to impose a default judgment and held the defendant in
contempt, ordering him to pay $750,000 in attorneys’ fees and costs. The court also ordered
production of documents previously subject to a claim of privilege, elevated the defendant’s
required burden of persuasion on any counterclaims or defenses, and prohibited the defendant
from prevailing on any material matter based solely on his uncorroborated testimony.
� In re Global Power Equip. Group, Inc., 2009 WL 3464212 (Bkrtcy.D. Del. Oct. 28, 2009). In this
bankruptcy proceeding, the debtors filed a motion to compel the claimants, a Dutch corporation,
and its agent entity, a French corporation, to comply with discovery requests under the Federal
Rules of Civil Procedure (FRCP). The claimants argued the French Blocking Statute prescribes
sanctions for any French corporation that "engages in the discovery process of a foreign judicial
proceeding without using the procedures established under the Hague Evidence Convention."
According to a U.S. Supreme Court case, when a court is asked to use the Hague Evidence
Convention procedures, it must conduct a "comity analysis" to determine whether the FRCP or the
Hague Procedures apply. The "comity analysis" requires consideration of five factors: the
importance of documents, degree of specificity of the request, whether information originated in the
United States, availability of alternative means and the effect of noncompliance on interests of the
United States or the state where the information is located. Concluding the chance of prosecution
under the French Blocking Statute to be minimal, the court determined the factors weigh in favor of
using the FRCP to govern discovery in this case.
� Lluerma v. Owens Ill. Inc., 2009 WL 1638629 (Del. Super. June 11, 2009). In this toxic tort action
brought by the plaintiffs (Spanish citizens who worked abroad on U.S. warships), the defendant
filed a motion to dismiss based on forum non conveniens grounds. Among the defendant’s
contentions for Spain as the proper forum was that the alleged injury occurred in Spanish territory,
most of the discovery was located in Spain and that Spain had advised the Hague Conference that
it would not grant requests for pretrial discovery of documents. The plaintiffs countered that Spain
was not an adequate forum as many of the defendant’s employees and corporate records were in
Delaware or were easily accessible to the defendant’s Delaware counsel. Recognizing there were
burdens to the defendant’s procurement of evidence in Spain, the court nonetheless found that the
defendant did not establish either an overwhelming hardship or the complete inability to procure
discovery in Delaware and thus denied the defendant’s motion.
� Beard Research, Inc. v. Kates, 2009 WL 1515625 (Del.Ch. May 29, 2009). In this tortious
interference with business relations litigation, the plaintiffs sought spoliation sanctions claiming a
computer was irretrievably altered after the defendants’ preservation duty arose. Specifically, the
plaintiffs alleged the repeated reformatting of a personal computer and the loss of a hard drive
caused the destruction of relevant incriminating e-mails and a presentation. The defendants argued
there was no obligation to preserve one of the defendant’s computers since there was no request
for it. Finding this "mistaken view" let the defendants "off the hook too easily," the court determined
80

the defendants were responsible for the evidence destruction. The court also found the defendants
liable for the loss of an original hard drive. Based on these discovery abuses that led the plaintiffs
and their IT expert on a "wasteful wild goose chase," the court granted an adverse inference
sanction with regard to the presentation but declined to sanction the loss of e-mails as the plaintiffs
did not adequately prove their existence. The court also awarded attorneys’ fees and expenses
associated with the sanctions motion.
� Omnicare, Inc. v. Mariner Health Care Mgmt. Co., 2009 WL 1515609 (Del.Ch. May 29, 2009). In
this breach of contract litigation, the plaintiff moved to compel restoration and production of e-mails
contained on backup tapes at the defendant’s expense and to comply with the terms of a nonexecuted
e-discovery stipulation regarding search terms. The defendant’s e-mails were stored on
backup tapes pursuant to an internal data retention policy. The court denied the plaintiff’s motion to
compel backup tape restoration and to shift costs to the defendant, finding that data stored on
backup tapes are not necessarily non-reasonably accessible and that the defendant had not
adequately demonstrated that the e-mails were not reasonably accessible. However, the court was
not convinced that relevant data would be retrieved from restoration of the backup tapes.
Accordingly, the court ordered production from the defendant’s active data stores in order to
assess the likelihood of finding relevant data on the backup tapes, noting that it found no
impropriety in the defendant’s data retention policy. Turning to the search term dispute, the court
declined to resolve the issue as it had not been adequately informed about the dispute and lacked
a sufficient basis to resolve the parties’ impasse. The court noted the search term dispute may best
be resolved by "a neutral third party with recognized expertise in searching complex databases.”
� Triton Constr. Co. v. Eastern Shore Elec. Servs., Inc., 2009 WL 1387115 (Del.Ch. May 18,
2009). In this breach of fiduciary duty litigation, the plaintiff sought an adverse inference instruction
claiming the defendant intentionally destroyed ESI on his work computer and did not produce his
personal laptop or thumb drive. The plaintiff retained a computer forensic expert who found a
wiping program installed on the computer that made certain files and deleted e-mails irretrievable.
The defendant argued he never used wiping software and no longer owned the home computer or
thumb drive. Finding the defendant intentionally, or at least recklessly, destroyed relevant evidence
on his work computer and intentionally failed to preserve evidence on the other media forms, the
court imposed an adverse inference sanction.
� Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009). In this patent
infringement litigation, the plaintiff sought sanctions claiming the defendant spoliated relevant
documents. In 1998, the defendant implemented a document retention policy whereby relevant
documents were destroyed. Finding the defendant was an “aggressive competitor,” the court
determined that litigation was inevitable and reasonably foreseeable since December 1998.
Therefore, the court determined that any document destruction following December 1998 was
intentional and in bad faith. As the plaintiff established that the documents that were destroyed
were discoverable and relevant to the instant litigation, the court concluded that the plaintiff was
prejudiced by the defendant’s conduct. The court therefore sanctioned the defendant by declaring
the patents in suit unenforceable against the plaintiff.
� In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008). In
this antitrust litigation, the plaintiffs moved to compel production of notes from the defendants’
attorneys who interviewed the defendants’ custodians as part of an investigation regarding
compliance with electronic evidence preservation obligations. The special master found that the
parties did not agree to extend an earlier privilege waiver agreement to these notes. However, the
special master found that the privilege was waived with regard to the substance of the custodian
81

statements that were voluntarily disclosed by the defendants. It was determined that to find
otherwise would allow the defendants to “use its sword to assert facts while at the same time
shield” the plaintiffs from the defendants’ assertion that it had discovered human errors in its
execution of its document preservation plan. The special master ultimately concluded that the
protection of the non-core work product was waived, so the plaintiffs were entitled to the
information. Judge Joseph Farnan, United States District of Delaware, adopted the special
master’s report and recommendation regarding privileged and work product information.
� Ryan v. Gifford, 2007 WL 4259557 (Del.Ch. Nov. 30, 2007). In this suit involving claims of stock
option backdating, the plaintiffs filed multiple motions to compel the defendants to produce
responsive documents in the native file format with original metadata. The court granted the
plaintiffs’ motion to compel, finding metadata “especially relevant” in cases where the integrity of
dates lies “at the heart of a dispute.” The relevance of the metadata was further illustrated by the
defendants’ review of metadata as part of their investigation of backdating problems. The court
granted the plaintiff’s motion and ordered the defendants to produce responsive documents in
native file format.
� RLI Ins. Co. v. Indian River Sch. Dist., 2007 WL 3112417 (D.Del. Oct. 23, 2007). In this case, the
plaintiff filed a motion requesting the court to order the defendant to comply with the district of
Delaware’s default standard for the discovery of electronic documents. The motion was filed over
one year after fact discovery ended per the scheduling stipulation. The plaintiff argued that the
defendant failed to provide full and complete e-discovery based on the lack of computer generated
documents relative to the overall volume of documents produced. Relying on Fed. R. Civ. P.
26(f)(3) which requires parties to discuss the form and scope of e-discovery prior to the Rule 16
conference, the court denied the plaintiff’s motion which was filed months after the close of
discovery and lacked a compelling reason to reopen.
� In Re Quintas Corp. v. Avaya, 353 B.R. 77 (Bankr. D. Del. 2006). In a bankruptcy petition, the
trustee of the debtor’s estate claimed that the purchaser of the debtor’s assets deliberately deleted
the debtor’s general ledger which would show the debtor’s unpaid liabilities. The evidence showed
that the defendant deleted the electronic records on its computer in order to make more storage
space on its server. By law, the defendant was only allowed to delete the records after 7 years.
The court found that such deliberate deletion of records greatly prejudiced the creditors from
collecting their debt from the estate and the only sanction capable of repairing the harm done by
the defendant would be default judgment since the destroyed ledgers went directly to the heart of
the case.
� Wyeth v. Impax Lab. Inc., 2006 WL 3091331 (D. Del. Oct. 26, 2006). In a patent infringement
claim, the defendant filed a motion to compel electronic documents from the plaintiff in their native
file format with complete metadata instead of in the already produced TIFF format. The defendant
argued it was entitled to an entire electronic database of documents in its natural state, but the
plaintiff argued there was no particular need for the native files. Agreeing with the plaintiff, the court
found the parties did not agree to produce native files at the pre-discovery conference. The court
also noted the defendant could not show a need for the native file documents. The court used
Delaware’s Default Standard for Electronic Discovery as authority and stated if parties cannot
agree to a file format before discovery occurs, imaged files shall be the default format. The plaintiff
also argued in favor of shifting half of the discovery costs to the defendant, which included imaging
a large amount of documents for a litigation database. The court denied the cost-shifting claim
because the defendant “is not the only party benefiting [sic] from the organization of these
documents” into the database. It held the plaintiff was “also a beneficiary of its imaged files” and it
82

was not equitable to force the defendant to pay for the electronic organization of the opposing
party’s database.
� In re Instinet Group, Inc. Shareholders Litig., 2005 WL 3501708 (Del. Ch. Dec. 14, 2005).
Following the settlement of a class action shareholder lawsuit, the plaintiffs sought $1,450,000 in
fees and more than $173,000 in costs. Although recognizing the plaintiffs were entitled to some
fees and expenses, the defendants objected to the amount requested based on the plaintiffs’
attorneys’ inefficiency in managing the discovery process. In considering the award, the court
noted that prior to settlement, the plaintiffs obtained several hundred thousand pages of discovery
documents and devoted a substantial amount of time to document review. The court issued a total
award of $450,000, stating “the obvious inefficiencies involved in this case, highlighted by the
plaintiffs’ decision to pay nearly $125,000 to convert documents produced in a digital format into a
paper format. Rather than simply copying the electronic media to permit the plaintiffs’ lawyers
working on the case to search and review the document production on a computer screen, the
plaintiffs spewed the digital production onto paper and, then, copied the paper for review. This
approach both added unnecessary expense and greatly increased the number of hours required to
search and review the document production. In fact, the time records submitted include a large
number of hours, by multiple attorneys, spent reviewing the documents. Thus, the court must
disagree with the plaintiffs’ counsel’s assertion that ‘this case was a paradigm of efficient litigation,’
and give less weight than customary to the number of hours expended by plaintiffs’ counsel.”
� Fenster Family Patent Holdings, Inc. v. Siemens Med. Solutions USA, Inc., 2005 WL 2304190
(D.Del. Sept. 20, 2005). In a patent infringement suit, the plaintiffs renewed a motion to compel the
defendants to provide them with access to a corporate Intranet portal. The court had previously
denied the motion relying on the defendant’s representation that it would produce the requested
data in a searchable electronic format. In their renewed motion, the plaintiffs declared the
defendants did not follow through with this representation because they produced some of the
documents in hard copy format, requiring document-by-document review of over one million pages
without the benefit of electronic searching. Additionally, the plaintiffs claimed the defendants
produced other large batches of documents in a non-searchable electronic format. The plaintiffs
further alleged certain documents had not been produced, constituting new evidence in support of
the plaintiffs’ motion. In response, the defendants declared they had fulfilled their obligations under
the Federal Rules of Civil Procedure by producing older documents, available only on microfilm, in
the format in which they were maintained. The defendants also stated they would produce the
specific documents previously identified by the plaintiffs as non-searchable in "searchable form." In
denying the plaintiff’s motion, the court found the plaintiff failed to demonstrate “an intervening
change in controlling law, the availability of new evidence that was not available when the Court
issued its first Order, or the need to correct a clear error of law or fact to prevent a manifest
injustice.”
� TIG Ins. Co. v. Premier Parks, Inc., 2005 WL 468300 (Del. Super. Ct. Mar. 1, 2005). The
defendants sought information about other litigation in which the plaintiff was involved where
exposure was estimated to be worth more than $250,000. The plaintiff objected to the defendants’
request as “extremely burdensome,” arguing it would require the plaintiff to gather 50,000 computer
files scattered around the country. Attempting to form a compromise and limit the burden, the court
ordered the plaintiff to produce only discovery relating to class action suits during the last five
years. As it did not have the means to search the files electronically based on class action status,
the plaintiff began a manual review of its litigation database. After engaging in a lengthy review and
incurring significant expense, the plaintiff requested permission to search only the files containing
83

expenditures of more than $750,000. When the defendants refused to compromise, the plaintiff
offered to search for cases estimated to be worth more than $500,000. The defendants again
refused the offer and asked the plaintiff to search its entire database for the information. The
plaintiff denied the request and sought reconsideration of the court’s earlier order. In response, the
defendants argued the plaintiff should not be allowed to use “its inadequate computer system as an
excuse to avoid valid discovery obligations.” On rehearing, the court determined a substantial
burden was placed on the plaintiff and subsequently modified the original order to require review of
case files totaling more than $500,000 in expenditures.
� Beck v. Atlantic Coast PLC, 868 A.2d 840 (Del. Ch. 2005). The plaintiff brought a breach of
warranty and fraud class action against the defendants. In the complaint, the plaintiff accused the
defendants of employing deceptive marketing and sales techniques to sell software on the Internet.
Contrary to his representation in the complaint, the plaintiff himself never actually used or paid for
the product, although a consultant evaluated the product and determined it did not do what it
purported to do. Discovery revealed that the plaintiff, using the guise of an organization interested
in purchasing the software, corresponded with the defendants via e-mail and then posted the
information he learned on his personal Internet Web page. During discovery, the plaintiff withheld
much of the Web page’s content from the defendants. Meanwhile, the defendants discovered the
entire content of the page – which the plaintiff did not disclose – upon performing an Internet
search. The defendants moved for dismissal and sought attorney fees, stating the plaintiff and its
counsel acted frivolously and in bad faith. Finding the plaintiff’s behavior “inexcusable,” the court
dismissed the suit and ordered the plaintiff and his counsel to pay the defendants $25,000. The
court stated, “[w]ithout ensuring that [the plaintiff] and his counsel bear appropriate responsibility
for their inappropriate conduct by awarding a substantial, but fair, sanction of fees and costs
against them, this court would do a disservice not only to [the defendants] and other litigants in this
court, but also to those plaintiffs whose interests are well-served by the availability of class action
suits.”
� Smoot v. Comcast Cablevision, 2004 WL 2914287 (Del. Super. Ct. Nov. 16, 2004). The plaintiff
appealed the Unemployment Insurance Appeal Board’s decision finding she was terminated for
just cause by her employer for violating the company’s handbook prohibiting the use of
inappropriate and offensive language. The plaintiff had engaged in a four-hour instant message
conversation with two of her co-workers on her company laptop, a conversation that had included
numerous sexual references and allusions as well as racially derogatory remarks and instances of
profanity. The Board found the instant message transcript evidence sufficient to sustain a finding
the company had just cause for discharging the plaintiff. On appeal, the court affirmed the Board’s
decision noting “[t]he Board’s decision found that the 24-page transcript of the conversation from
the computer’s hard drive as well as evidence that [the plaintiff] signed an acknowledgment that
she had received access to the company’s handbook was "competent probative evidence"
sufficient for a finding for [the company].”
� Liafail, Inc. v. Learning 2000, Inc., 2002 WL 31954396 (D.Del. Dec. 23, 2002). The defendant
alleges that upon issuing its document requests, the plaintiff engaged in electronic data spoliation
including intentionally deleting computer files and damaging hardware. The court stated that the
plaintiff’s position on the whereabouts of the requested documents indicated questionable
discovery tactics. Nevertheless, because the court record was unclear as to what had been
produced, and what must still be produced, the court decided not to immediately sanction the
plaintiff. Rather, the court gave the plaintiff time to correct or clarify the record by producing the
requested documents which it has claimed as available. The court stated that should the plaintiff
84

choose not to heed the court’s order, the court would order sanctions in the form of an adverse
inference jury instruction.
� Tulip Computers Int’l v. Dell Computer Corp., 2002 WL 818061 (D.Del. Apr. 30, 2002). On the
plaintiff’s motion to compel in a patent infringement case, the court stated that “[T]he procedure
that Tulip has suggested for the discovery of e-mail documents seems fair, efficient, and
reasonable.” The court ordered the defendant to produce the hard disks of certain company
executives to the plaintiff’s electronic discovery expert for key word searching. After the expert
completes the key word search, the plaintiff will give the defendant a list of the e-mails that contain
those search terms. The defendant will then produce the e-mails to the plaintiff, subject to its own
review for privilege and confidentiality.
� Kaufman v. Kinko’s Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002). The court granted the
plaintiffs’ motion to compel the defendants’ production of certain e-mail messages retrievable from
the defendants backup system. The defendants’ argument that the burdens of the retrieval process
outweighed any evidentiary benefit that the plaintiffs would obtain from the documents was
unpersuasive. Instead, the court stated, “Upon installing a data storage system, it must be
assumed that at some point in the future one may need to retrieve the information previously
stored. That there may be deficiencies in the retrieval system…cannot be sufficient to defeat an
otherwise good faith request to examine the relevant information.”
� Wesley College v. Pitts, 1997 WL 557554 (D. Del. Aug. 11, 1997). The court found that the
defendant waived its work-product privilege when the e-mail was distributed to several third parties.
� IBM v. Comdisco, Inc., 1992 WL 52143 (Del. Super. Ct. Mar. 11, 1992). The court allowed
production of a portion of an e-mail message claimed to be privileged because a portion of the email
message was intended to be disclosed to persons outside the attorney-client privilege.
Because it relayed legal advice from IBM’s counsel, the other portion of the e-mail was found to be
privileged.
New Jersey
� Omogbehin v. Cino, 2012 WL 2335319 (D.N.J. June 20, 2012). In this race and national origin
discrimination case, the plaintiff sought spoliation sanctions for the defendants’ alleged failure to
preserve relevant e-mails. The plaintiff argued that numerous e-mails he believed were created
within the seven month preservation timeframe were not produced, further asserting that the
defendants intentionally destroyed or suppressed the production of relevant e-mails. Citing
declarations of the employees responsible for the production, the defendants contested that the
ESI at issue never existed and that all e-mails from the Lotus Notes system for the dates sought
were produced. The court noted that a party proving spoliation must show the appearance of actual
suppression or withholding of the evidence. Because the plaintiff failed to show that the alleged emails
“actually existed,” the court denied spoliation sanctions.
� Goldmark v. Mellina, A-5918-10T2 (N.J. Super. App. Div. June 18, 2012). In this contract dispute,
the defendants’ counsel contested a sanction levied against his firm by arguing that his failure to
preserve allegedly privileged e-mails fell short of sanctionable conduct. Specifically, the
defendants’ counsel argued that no case law supported the sanction because their conduct was
not deliberately improper. Citing Rule of Court 4:10-2(e)(1), the court held that after a party
determines that relevant material is privileged or protected from discovery, it must preserve that
information. Furthermore, the court found that the defendants’ duty to preserve was triggered when
85

their attorney logged the e-mails as privileged, if not earlier. Upholding the $5,502 award of
attorneys’ fees and costs, the court stated that to allow the defendant or his counsel to destroy or
carelessly lose the e-mails thereafter would make a “mockery” of the state’s discovery rules.
� I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL 6140658 (D.N.J. Dec. 9, 2011). In this breach of
contract litigation, the defendants appealed an order allowing the plaintiff to withhold millions of
files obtained in a search of unallocated data, claiming the magistrate judge abused discretion on
the matter. According to the parties’ stipulation, an expert conducted a 50-phrase keyword search
of the plaintiff’s computer networks and storage devices that was not limited to particular document
custodians, data sets, or relevant time periods. Accordingly, the search produced over 95 million
hits—64 million of which were in unallocated space. A magistrate judge found inadequate
relevance to justify the burdensome review of the files from the unallocated space and modified the
plaintiff’s production order to include only active data. Deferring to the magistrate judge’s
discretion, the district judge found that the parties should have "exercised greater diligence before
stipulating to such broad search terms," but nonetheless found it unreasonable to order the costly
production of 64 million documents bearing little likelihood of relevance or non-duplicative files.
� Katiroll Co., Inc. v. Kati Roll and Platters, Inc., 2011 WL 3583408 (D.N.J. Aug. 3, 2011). In this
trademark infringement litigation, the plaintiff sought spoliation sanctions citing the defendants’
alleged series of discovery abuses, including the failure to preserve Facebook pages in their
"original state." Citing the split within the Third Circuit regarding culpability, the court applied the
"best rule" in determining whether sanctions were warranted: "Where there is substantial prejudice
to the opposing party, negligence may be sufficient to warrant a spoliation inference. Where there
is minimal prejudice to the opposing party, intentional conduct is required." Applying this standard,
the court determined the sanctions would be unjust because the spoliation was in response to the
plaintiff’s request that the image be removed. However, the court determined the loss of the
Facebook data at issue was somewhat prejudicial and ordered an individual defendant to re-post
the previous profile picture to allow the plaintiff to print any posts it felt were relevant.
� United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010). In this federal criminal
prosecution, the defendants sought sanctions citing the Government’s failure to produce text
messages sent between a cooperating witness and FBI agents, who had deleted the messages
from their cell phones to free memory. According to its Corporate Policy Directive, the FBI retained
log server data and data on backup tapes for only 90 days and was unable to produce the text
messages despite keyword and manual searches. Before discussing the alleged spoliation, the
court deemed the messages discoverable statements under the Jencks Act. The court then found
no reasonable explanation as to why the Government delayed imposing a litigation hold until three
months after it began searching for the text messages, nor as to why only some messages were
deleted. Thus the court determined the Government violated its duty to preserve relevant data that
was in its control during an ongoing investigation specifically aimed at prosecution. Citing the
relative lack of criminal law in the Third Circuit regarding spoliation sanctions, the court relied on
civil case law – including Pension Committee – and held the missing evidence was prejudicial and
of “paramount importance.” Due to the absence of bad faith, the court issued a permissive adverse
inference instruction.
� Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010). In this racial
discrimination litigation, the plaintiffs appealed the magistrate judge’s discovery ruling. The
magistrate judge granted a protective order for the defendants’ backup tapes based on several
factors, including the $1.5 million cost of tape restoration and the lack of evidence regarding the
defendants’ culpability as to why the e-mails were now inaccessible. The plaintiffs argued the
86

magistrate judge improperly minimized the defendants’ failure to implement a litigation hold, which
necessitated an order to restore the data. After considering the Zubulake decisions and the Federal
Rules of Civil Procedure, the court found no support for the "prophylactic bright line" rule advocated
by the plaintiffs. Instead, the court adopted the approach by Magistrate Judge Facciola in Disability
Rights Council of Greater Washington v. Washington Metropolitan Transit, which concluded that a
party’s culpability is just one of seven factors that should be weighed. The court also stated it would
not order "over a million dollars worth of discovery" to be performed "on the off chance that it might
add to the five year’s worth of discovery already obtained, just because there is some risk that
relevant e-mails were not preserved." Finding no abuse of discretion, the court affirmed the
protective order.
� Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010). In this
employment discrimination litigation, the defendant appealed the Appellate Division’s ruling that
attorney-client privilege outweighs the defendant’s corporate Internet communications policy. The
plaintiff accessed her personal, password-protected Yahoo! account on her work-issued laptop to
send e-mails to her attorney, which the defendant then accessed, claiming its Internet use and
communications policy mandated conversion of e-mails into business records. Reviewing the
company policy, the New Jersey Supreme Court determined the plaintiff did not have adequate
notice that e-mails from her personal account were subject to company monitoring since the policy
did not address personal, web-based e-mail accounts. Based on this and the strong public policy
considerations behind protecting the attorney-client privilege, the court upheld the Appellate
Division’s ruling. The court further concluded that employers have no need to read the specific
contents of personal, privileged, attorney-client communications in order to enforce a corporate
policy. Finally, the court remanded to the trial court the decision of whether sanctions should be
imposed on the defendant’s counsel for reading the privileged e-mails without notifying the plaintiff
about them.
� United States v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009). In this cost
recovery action filed under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) of 1980, the defendant filed a motion to compel production, alleging the
plaintiff waived its privilege and work product objections. Subsequent to its production of
approximately 45,000 documents, the plaintiff identified 214 as inadvertently produced. The plaintiff
argued the joint discovery plan in place precluded a privilege waiver. Rejecting that argument, the
court noted that the plan did not excuse the parties from meeting the requirements of Federal Rule
of Evidence 502(b). Separating the documents into three different sets, the court conducted its
Rule 502 analysis. Regarding the first set, the court found the plaintiff’s production was inadvertent
and that the plaintiff took reasonable efforts to rectify the error after responding to the defendants’
letter describing the error within eight work days. However, the court found the plaintiff failed to
reasonably rectify the error with respect to the last two document sets, and thus held the privilege
was waived.
� Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009). In this discrimination
litigation, the plaintiffs sought production of the defendants’ two litigation hold letters. The plaintiffs
argued the letters were relevant to their examination of the defendants’ document production and
whether spoliation occurred. In opposition, the defendants claimed the plaintiffs failed to
demonstrate evidence of spoliation and thus the letters were protected from discovery. Noting that
litigation hold letters are in general privileged and not discoverable unless spoliation occurs, the
court found a preliminary showing of spoliation existed in this case. The court inferred that relevant
evidence was lost given the failure to timely ask a number of pertinent custodians to preserve
87

evidence in addition to the significant time lapse that occurred between the duty to preserve and
the issuance of the first litigation hold letter. Accordingly, the court granted the plaintiffs’ production
request, limiting it to those portions of the letters pertaining to preservation.
� Stengart v. Loving Care Agency, Inc., 2009 WL 1811064 (N.J. Super. A.D. June 26, 2009). In
this ongoing discrimination litigation, the plaintiff appealed the lower court’s denial of her motion to
require the defendant to return all e-mail copies sent by her to her attorneys on work-issued
laptops through her personal, web-based e-mail account. The defendant alleged its electronic
communications policy mandated the conversion of e-mails and other Internet use and
communication into company business records. The plaintiff maintained that the defendant had
never officially adopted the policy or enforced it. The court noted the lack of certainty about the
exact meaning and scope of the policy’s language created by multiple versions of the policy and
stated that any company policy must reasonably relate to a legitimate business interest. Balancing
the enforceability of the company’s policy with the delicacy of attorney-client privilege, the court
determined the policy must give way. Thus, the court reversed the lower court’s decision and
concluded the e-mails sent over the plaintiff’s personal Yahoo! account remained privilege
protected. The court also remanded the case to determine whether the defendant’s counsel should
be disqualified from further representation.
� Ford Motor Co. v. Edgewood Properties, Inc., 2009 WL 1416223 (D.N.J. May 19, 2009). In this
environmental litigation, the defendant moved for re-production in native format of the plaintiffs’
entire ESI production previously produced in TIFF format and for a keyword search by a forensic
expert to confirm the adequacy of the plaintiffs’ manual document collection process. The plaintiffs
had demanded native production in their initial document request and argued the keyword search
was appropriate to confirm the adequacy of the defendant’s collection, as certain documents were
noticeably absent from production. The court denied the defendant’s motion for re-production,
finding the defendant waived its objection to production format by failing to make a timely objection;
the defendant waited eight months to first object to the requested production format and an
additional two months before bringing the matter to the court’s attention. Turning to the second
motion, the court found that the defendant had not made a colorable showing that documents had
been withheld because of inadequate collection. The court accordingly held that it would not grant
the burdensome discovery requested based on "nefarious speculation" of missing documents this
"late in the game."
� Opperman v. Allstate New Jersey Ins. Co., 2008 WL 5071044 (D.N.J. Nov. 24, 2008). In this
class action lawsuit, the plaintiffs sought production of third-party owned proprietary software
licensed and used by the defendants. The plaintiffs claimed they needed unfettered access to the
software to determine how the defendants determine property loss adjustments and if the supply
prices were manipulated or altered. The defendant and third-party opposed this request, claiming
all relevant evidence was previously produced; less intrusive means were not exhausted; and
unfettered access was not necessary. Finding the software relevant and necessary to the plaintiffs’
claims, the magistrate judge ordered the defendant to produce the software in an accessible form.
Additionally, to circumvent the potential harm of allowing discovery of the third-party trade secret,
the court entered a Discovery Confidentiality Order, limiting access and use of the software.
� Arteria Prop., Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008). In
this litigation involving a long-term loan, the plaintiff sought an adverse inference based on the
alleged lack of production and spoliation of two types of documents: a highly relevant letter and
information relating to the defendants’ website as it existed at the time this dispute arose.
Determining the defendants were in control of the relevant missing letter, the court found sanctions
88

appropriate. The court refused to make a culpability determination, finding that an adverse
inference was warranted regardless of whether a negligence or bad faith standard applied.
Regarding the website, the court treated it as any other electronic file, finding the defendants had
the ultimate authority and control over it. Based on this willful destruction or withholding of
evidence, the court also imposed an adverse inference regarding the website, granting the
plaintiff’s motion in full.
� Wong v. Thomas, 2008 WL 4224923 (D.N.J. Sept. 10, 2008). In this wrongful termination
litigation, the plaintiff sought sanctions for spoliation of evidence. Previously, the plaintiff sought all
e-mail communications between the plaintiff and the defendants and claimed such information was
integral to her ability to corroborate and establish her claims. The defendants claimed all electronic
documents were destroyed as part of its routine practice of closing e-mail accounts and deleting
files from the office computers of departing employees. The defendant then employed outside
vendors to recover the sought after e-mail. After reviewing eighteen boxes of recovered e-mail, the
defendant was unable to find any information relevant to the present litigation. The court found the
defendants acted in good faith in their recovery and review efforts, but still considered whether
sanctions were appropriate. Finding plaintiff’s vague request for e-mails as a failure to identify the
possible information contained therein, the court determined that the plaintiff did not demonstrate
the relevancy and denied the plaintiff’s motion.
� Wachtel v. Health Net, Inc., 2007 WL 1101436 (D.N.J. Apr. 10, 2007). In this class action suit, the
defendants sought a stay of two orders pending resolution of a mandamus petition before the Third
Circuit Court of Appeals. Specifically, the defendants had been ordered multiple times over the last
few years to produce certain electronic documents. The defendants argued that the production of
the electronic data required them to restore and search through billions of e-mails by thousands of
employees at great cost. The court disagreed with the defendants and ordered production of the
documents. The court found that this was “yet another attempt by [the d]efendants to avoid
discovery obligations that they have been ordered to comply with for years.” The requested
documents were not exceptional, and the court found it hard to believe that the documents were
not stored in one central storage area. Furthermore, the defendants never objected to production of
the documents when initially ordered and never provided evidence to the court to prove the burden
of the search and retrieval effort.
� Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007).
During a discovery dispute in a patent infringement case, the plaintiff alleged that it inadvertently
produced over 500 privileged e-mails and moved for their return. During document review, the emails
were identified as privileged, deleted from the Lotus Notes DVD, and submitted to the
plaintiff’s outside e-discovery vendor for final production processing. Because of the nature of the
Lotus Notes application, the plaintiff claimed the privileged e-mails unknowingly remained in a
larger subfolder which the vendor processed and were ultimately produced to the defendant. In an
earlier decision on this matter, the magistrate judge ordered that the privileged documents be
returned because the plaintiff had not waived any privilege. The magistrate reasoned that the
privileged e-mails were embedded in metadata and that the privileged information was “not
apparent on the face of the documents.” Therefore, the magistrate found that the defendant should
have reasonably known that the retrieved e-mails were not intended for disclosure. The defendant
objected to the magistrate’s ruling and appealed to the district court judge. The district court judge
reviewed the magistrate’s decision de novo and found that the magistrate based his conclusion on
a misunderstanding of fact, because the magistrate ruled that the plaintiff was unable to detect the
error before production. However, in its briefings before the district judge, the plaintiff admitted that
89

the inadvertent production of privileged documents was, in fact, apparent on the face of the
documents because they had been Bates numbered and stamped as confidential. Since the
magistrate based his decision upon a critical misunderstanding of this fact, the district court judge
remanded the case to the magistrate for a reassessment of whether the plaintiff preserved the
privilege and was thus entitled to their return. In addition, the district judge evaluated whether the
plaintiff waived its privilege by producing 37 non-Lotus Notes documents that were marked as
“unreadable” during document review. Affirming the magistrate’s ruling that privilege had been
waived, the court stated “[T]urning over unintelligible or unreadable documents to an adversary
evidences a lack of reasonable precaution . . . .”
� Wachtel v. Health Net, Inc., 2006 WL 3538935 (D.N.J. Dec. 6, 2006). In a class action suit, the
plaintiffs sought sanctions, including default judgment, against the defendant for failure to retain,
search and produce e-mail and other electronic documents. Several discovery orders had been
issued over the last five years compelling the defendant to produce electronic records, with which
the defendant failed to comply. Eventually, approximately 20,000 previously undisclosed
documents were produced by the defendant after several years of discovery orders. The defendant
also failed to search backup tapes for e-mail and failed to properly preserve any other e-mail during
litigation. The defendant had an automated e-mail deletion program but failed to alter the program
or search for any deleted e-mail on backup tapes until three years into litigation. The court held that
it would not issue a default judgment as a sanction despite the defendant’s illicit bad faith in
discovery. However, the court allowed monetary penalties, adverse inferences, and payment of
plaintiff’s costs as sanctions.
� Durst v. FedEx Express, 2006 WL 1541027 (D.N.J. June 2, 2006). In an employment termination
dispute, the plaintiff filed a motion in limine, seeking an adverse inference jury instruction stating
the defendant had destroyed or failed to maintain relevant evidence that would have been
damaging to the defendant’s case. The plaintiff sought the spoliation inference after the defendant
had failed to produce key accident reports, vehicle inspection records and emails as demanded by
the plaintiff. In response, the defendant denied having agreed to provide the requested documents
and asserted the magistrate judge had never ordered production. Refusing to grant the plaintiff’s
motion, the district court observed that the plaintiff had never raised the issue during the discovery
conference, informed the judge, or brought a motion to compel production of the allegedly
destroyed documents. In addition, the district court noted that four essential factors are required for
a spoliation inference, “(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." The district court determined that the plaintiff had failed to demonstrate the
requested documents were relevant, in the defendant’s possession, or even existed.
� Kaufman v. SunGard Inv. Sys., 2006 WL 1307882 (D.N.J. May 10, 2006). In a case involving
breach of contract claims, the court affirmed the magistrate judge’s order declaring that certain email
exchanges between the plaintiffs and their counsel were discoverable and not protected by
attorney-client privilege. Following plaintiff’s termination of employment, the defendant recovered
deleted e-mail exchanges on two company–owned laptops. The court found that the plaintiffs
waived privilege claims as to emails sent prior to the defendant’s acquisition of the plaintiffs’
business because the plaintiffs had not taken steps to “protect or segregate” those emails from the
defendant’s systems. As to other emails sent and received after the acquisition, the court found
that because the plaintiffs had received notice of the defendant’s e-mail monitoring policy, the
90

plaintiffs waived any privilege claims by utilizing the defendant’s e-mail system to send and receive
those communications.
� Wachtel v. Guardian Life Ins. Co., 2006 WL 1286189 (D.N.J. May 8, 2006). In this opinion, the
court addressed plaintiff’s motion to compel the production of certain documents being withheld by
the defendants. While the defendants maintained that the documents were protected by attorneyclient
privilege, the plaintiff asserted that the documents were discoverable under the crime-fraud
exception. The court considered evidence that the defendants had used their counsel to delay
discovery and make false representations to the court, while failing to preserve relevant e-mail
evidence. The court found these facts sufficient to support a prima facie showing that in camera
review of the materials might establish whether the crime-fraud exception applied. The court also
upheld the magistrate judge’s adverse inference sanction regarding deleted emails, and
denounced the defendants use of deceptive discovery tactics and willful disregard for court orders.
Responding to the defendants’ appeal of the magistrate’s discovery order, the court observed,
“[h]ad candid disclosures to the [m]agistrate [j]udge occurred, an appropriate order could have
been tailored to deal with these issues and keep costs down. The huge costs now being
complained of could have been minimized by timely compliance when the e-mails were more
current. The defendants were ordered to produce emails stored on backup tapes as they had been
previously instructed to do by the magistrate.
� Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. 2005). On behalf of her minor daughter, the
plaintiff sued her husband’s employer after her husband used his work computer to send pictures
of the daughter to an Internet pornography site. Granting the employer’s motion for summary
judgment, the lower court determined the employer did not have a duty to monitor the employee’s
Internet activities. On appeal, the court reversed and declared the employer had a duty to use
reasonable care to prevent the employee from accessing child pornography sites on his work
computer. The appellate court noted the employer was on notice the employee was viewing child
pornography and the employer had the capability to monitor the employee’s activities on his work
computer. In addressing potential privacy concerns, the appellate court determined the employee
had no legitimate expectation of privacy that would prevent the employer from accessing the
computer to determine if he was using it to view adult or child pornography. The court held that if
the employer failed to exercise reasonable care – by failing to terminate the employee or by failing
to report his activities to law enforcement – the employer could be liable to a third party for resulting
harm. The court remanded the case for a summary judgment determination on the issues of
causation and harm.
� Commodity Futures Trading Com’n. v. Equity Fin. Group, LLC., 2005 WL 2205789 (D.N.J.
Sept. 9, 2005). The plaintiff sought a computer backup tape containing data from two desktop and
one laptop computers located in defendant Abernethy’s home office. Abernethy was an employee
of another named defendant, Sterling. The plaintiff alleged the tape was necessary because
relevant electronic evidence may have been altered or destroyed and the tape "may contain the
only remaining copy of that evidence." The plaintiff stated it needed the tape in order to compare
the files on the backup tape to the original files on the computers. Objecting to the production,
defendant Sterling argued the tape was a backup of a Sterling computer making it Sterling’s
property and not Abernethy’s property. Sterling also argued the plaintiff already had the documents
on the tape, the tape was not subject to a previously issued consent order, and the files on the tape
contained proprietary information that could not be produced. Rejecting these arguments, the court
ordered production of the tape, concluding the tape was Abernethy’s property and not Sterling’s
property. The court also refused to accept Sterling’s argument that the plaintiff had already
91

obtained copies of the files through a forensic request and could request any deleted files it wished
to have that existed on the tape.
� Lloyd v. United States, 2005 WL 2009890 (D.N.J. Aug. 16, 2005). The defendant appealed from
a conviction under a federal computer fraud statute, arguing, inter alia, the prosecution had
tampered with the evidence leading to his conviction. An investigation of the defendant’s former
employer’s network revealed that a string of computer commands, designated as a “Time Bomb,”
had been programmed to automatically delete massive amounts of the company’s data at a
predetermined time. Kroll Ontrack investigated hard drives damaged by the Time Bomb program.
On appeal, the defendant argued the government tampered with copies of the hard drives it
received back from Kroll Ontrack because the drives were not the same as those provided by the
Secret Service. Specifically, the defendant claimed different amounts of "zeroes" were inserted
onto the drives. The defendant also alleged his expert fully recovered the lost data once the zeroes
were removed. The defendant further argued four files were added onto copies of the drives from
Kroll Ontrack, one of which was deleted and no longer contained data and three that consisted of
resumes and correspondence documents. Rejecting the defendant’s arguments, the court upheld
the defendant’s conviction and found the defendant failed to show the discrepancy among the
copied drives was sufficient evidence to overcome the trial court’s determination. See also United
States v. Lloyd, 269 F.3d 228 (3d Cir. 2001).
� Getty Props. Corp. v. Raceway Petroleum, Inc., 2005 WL 1412134 (D.N.J. June 14, 2005). In a
case involving property contamination allegations, the plaintiff filed a motion for sanctions against
the defendant/third party plaintiff. Citing Zubulake V, the plaintiff requested an adverse inference
instruction and costs, arguing the defendant failed to create and preserve alarm history reports
contained in a computer system. The defendant argued the computer system did not automatically
generate printed reports and that these reports were not generated in the ordinary course of
business. The defendant further asserted that sanctions were unwarranted for failing to produce
records it never even possessed. The court distinguished this case from Zubulake, stating that
Zubulake “deal[t] with the active deletion of data as opposed to the failure to create data. [The
defendant’s] failure to create more reports than it used in the daily activities of its business is not
the kind of willful action that discovery sanctions are intended to redress.” Stating the defendant
was not responsible to produce records not kept within the normal course of business, the court
declined to sanction the plaintiff for failing to preserve the records.
� F&M Expressions Unlimited, Inc. v. O’Connell, No. C-240-04 (Sup. Ct. N.J. Sept. 10, 2004). In a
case involving allegations of stolen company confidential information, the court granted an order
allowing the plaintiff access to the defendants’ business and personal computers for mirror
imaging. The plaintiff’s expert accessed the defendant’s computers and discovered damaging emails
between the defendants and third parties. Based on this evidence, the plaintiff sought access
to the third parties’ personal home computers. The plaintiff had already examined the third parties’
business e-mail accounts, and the third parties had already searched their home computers for
relevant e-mails. The defendants objected to the request on the grounds of invasion of privacy and
redundancy. The plaintiff declared it could limit its investigation by using a keyword search or by
preparing a list of relevant documents and submitting them for the court to review in camera. The
court refused to allow the plaintiff access to the computers because such access would be an
invasion of privacy. However, the court indicated the plaintiff could attempt to retrieve the
information through more specific discovery requests.
� Mosaid Techs. Inc. v. Samsung Elecs. Co., 2004 WL 2550306 (D.N.J. July 7, 2004). In a case
involving a patent infringement claim, the plaintiff moved for discovery sanctions, alleging the
92

defendants failed to preserve and disclose discoverable e-mail evidence. Challenging the plaintiff’s
motion, the defendants pointed out that their own discovery request expressly included e-mails and
claimed the plaintiff did not specifically include e-mail in its definition of “document” during
discovery. The defendants also argued that the plaintiff did not demonstrate it was prejudiced as a
result of not receiving the e-mails. The court rejected the defendants’ arguments stating that the
defendants “knew, or should have known, those e-mails were discoverable, given their heavy
reliance on e-mails obtained from plaintiff during discovery, not to mention the obvious realities of
modern litigation…the fact that UnoU technical e-mails were preserved…demonstrates, at the
least, extremely reckless behavior.” In an order following the July opinion, the judge issued
$566,838 in sanctions against the defendants as well as an adverse inference instruction for
spoliation of e-mail evidence. Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595 (D.N.J.
2004). See also Mosaid Techs. Inc. v. Samsung Elecs. 2004 WL 2550309 (D.N.J. Oct. 1, 2004)
and Mosaid Techs. Inc. v. Samsung Elecs. 348 F.Supp.2d 332 (D.N.J. 2004) (both affirming
sanctions awards).
� In re Bristol-Myers Squibb Securities Litigation, 2002 WL 169201 (D.N.J. Feb. 4, 2002). The
court modified the plaintiff’s original discovery cost commitment where the defendants "dumped" an
extraordinary number of paper documents resulting in a prohibitive copying charge. The court also
denied the defendant’s motion for plaintiff’s one-half cost contribution for document scanning costs,
but instead required plaintiff to pay only for the nominal cost of copying compact discs. The court
reiterated the importance of a Rule 26(f) conference to discuss electronic discovery issues,
including the fair and economical allocation of costs.
� White v. White, 781 A.2d 85 (N.J. Super. Ct. Ch. Div. 2001). In a divorce action, the husband filed
a motion to suppress his e-mail that had been stored on the hard drive of the family computer. The
court held that the wife did not unlawfully access stored electronic communications in violation of
the New Jersey Wiretap Act and did not intrude on his seclusion by accessing those e-mails.
“Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed
indicated her husband was being unfaithful….Is rummaging through files in a computer hard drive
any different than rummaging through files in an unlocked file cabinet . . . ? Not really.”
� In re Prudential Ins. Co. Sale Practices Litig., 169 F.R.D. 598 (D.N.J. 1997). Life insurer’s
consistent pattern of failing to prevent unauthorized document destruction in violation of a court
order, in a suit alleging deceptive sales practices, warranted sanctions requiring payment of $1
million to court and payment of some plaintiff’s attorney fees and costs.
� Ciba-Geigy Corp. v. Sandoz, Ltd., 916 F. Supp. 404 (D.N.J. 1995). The defendants produced all
documents from database without conducting a privilege review. The court held that privilege is
waived where the disclosure is a result of “gross negligence.”
Pennsylvania
� Patel v. Havana Bar, Restaurant and Catering, 2011 WL 6029983 (E.D.Pa. Dec. 5, 2011). In this
discovery dispute, each party cross-motioned for sanctions citing discovery misconduct. At issue in
the litigation was whether the plaintiff fell or jumped from a two-story balcony, as well as how
intoxicated the plaintiff was at the time of injury. The plaintiff asserted that defendants spoliated
evidence when they failed to preserve security tapes before they were routinely erased three
weeks later. Conversely, the defendants contended that the plaintiff, through his sister-in-law,
"spoon-fed friendly witness testimony" by soliciting testimony via Facebook and e-mail—many of
which were allegedly "lost" when the defendant requested them from the plaintiff late in discovery.
93

Responding to the plaintiff’s claim, the court found that the defendant spoliated evidence by failing
to take reasonable measures to preserve the video and granted an adverse inference. Reviewing
the plaintiff’s conduct, the court took particular issue with the plaintiff concealing potential witness
testimony that was required by Rule 26(a)(1)(A) and further considered their "missing" testimony
spoliated. Thus, the court ordered an adverse inference against the plaintiff, while also ordering redeposition
of five witnesses and awarding fees and costs to the defendants for time and money
spent acquiring information they were entitled to at the outset of litigation.
� Gentex Corp. v. Sutter, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011). In this action alleging
violations of the Computer Fraud and Abuse Act, the plaintiff sought default judgment sanctions
alleging the defendants intentionally deleted relevant ESI by prematurely lifting a litigation hold,
erasing a home computer belonging to one of the defendants, delaying preservation of computers
and deleting files, defragmenting disks, and destroying server backup tapes, ghost images,
portable storage devices, e-mails and a file server. First, the court determined that genuine issues
of material fact existed as to whether one of the defendants should be sanctioned and excluded the
defendant from this opinion. Second, the court found two of the other defendants engaged in
spoliation and that sanctions were appropriate. The court considered several factors including fault,
prejudice and proportionality, and determined that default judgment was appropriate given the
defendants’ “unabashedly intentional destruction of relevant, irretrievable evidence” and egregious
conduct.
� In re Aspartame Antitrust Litig., 2011 WL 4793239 (E.D. Pa. Oct. 5, 2011). In this class action,
the plaintiffs objected to the defendants’ bill of costs, which included costs associated with creating
a litigation database, processing and hosting electronic data, conducting keyword and privilege
screens, making documents OCR searchable, extracting metadata, creating CDs and DVDs of
electronic documents, copying, scanning and other related work. In discussing the taxation of these
costs, the court noted that in cases of this complexity, “e-discovery [processes and technology]
saves costs overall by allowing discovery to be conducted in an efficient and cost-effective
manner.” Although the court taxed costs for the work described, it drew the line at advanced ediscovery
technology that exceeded “necessary keyword search and filtering functions” and related
“Tech Usage” fees, in addition to costs associated with Bates and confidentiality labeling, and
converting TIFF documents to PDFs. In sum, the court awarded total costs of $510,138.18 which
were split amongst the three defendants pursuant to the court’s analysis.
� Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011). In this personal
injury case, the defendants requested an in camera review of the plaintiff’s Facebook and
MySpace accounts, arguing the plaintiff’s claims of physical and psychological impairment made
relevant any evidence that documented the plaintiff’s social life, physical capabilities and emotional
state of mind. To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff
agreed that limited public information on his Facebook account was discoverable and provided the
password to the court (the plaintiff claimed he could no longer access his MySpace account). Upon
review, the court agreed to the relevance of a limited amount of photographs and postings that
reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered
production of this information. In a closing footnote, the court stated it was confused as to why
intervention was necessary since the parties agreed that at least some of the information was
relevant. The court further noted the plaintiff should have reviewed his own Facebook account for
potentially responsive information, only soliciting the court’s assistance if a dispute remained.
� Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011). In this
personal injury litigation, the defendant requested preservation and disclosure of the non-public
94

portions of the plaintiff’s Facebook and MySpace pages. Noting that recent photographs and
comments on the public portions of the plaintiff’s pages appeared to contradict claims of physical
and emotional distress, the defendant argued it should have access to relevant information in
areas designated as private. The plaintiff countered that allowing access to shielded information
would violate his reasonable expectation of privacy. Rejecting the plaintiff’s argument, the court
noted that no privilege exists in Pennsylvania for non-public social website information and the
"paramount ideal" of pursuing truth favors liberal discovery. Further, the court agreed with the
rationale in McMillen v. Hummingbird Speedway Inc. and cited Romano v. Steelcase, Inc., which
held that an individual who voluntarily posts pictures and information on social websites does so
with the intention of sharing, and thus cannot later claim any expectation of privacy, especially
because the privacy policies of Facebook and MySpace disclose that any information posted may
become publicly available at the user’s own risk. Finding a reasonable likelihood that additional
relevant information existed on the non-public portions, the court ordered the plaintiff to provide all
passwords and user names to the defendant, and preserve all existing information.
� Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620 (W.D. Pa. May 6, 2011).
In this antitrust litigation, the plaintiffs moved to appoint a special master and to review the taxation
of electronic discovery costs awarded to the defendants. Refusing to appoint a special master to
review the reasonableness of the e-discovery costs this late in litigation, the court remarked that its
"understanding that e-discovery has become a necessary and sometimes costly function of civil
litigation" was the only special expertise necessary. Turning to the clerk of court’s taxation of
electronic discovery costs – totaling $143,007.05 and $246,101.41 for the respective defendants –
the court considered the plaintiffs’ objection that the costs were not taxable pursuant to Title 28
U.S.C. § 1920. As a matter of first impression for the court, it reviewed the varying case law among
the jurisdictions but noted that since the section’s language was amended in 2008, "no court has
categorically excluded e-discovery costs" under § 1920. Finding that the costs paid to third party
vendors were necessary for highly technical services and not merely for the convenience of the
parties, the court held they were properly taxable to the plaintiffs.
� Susquehanna Commercial Fin. Inc. v. Vascular Res., Inc., 2010 WL 4973317 (M.D. Pa. Dec. 1,
2010). In this commercial lending dispute, the defendants requested the plaintiff supplement its
production, fully explain its discovery efforts and allow access to its ESI. The defendants
speculated that the plaintiff failed to produce “hundreds if not thousands of pages” and argued this
failure evidenced either an intentional disregard of discovery obligations or an inadequate effort to
locate and identify responsive materials. Unconvinced the plaintiff’s search of computers and
servers and production of e-mails was adequate, the court directed the plaintiff to undertake further
efforts to locate, identify and produce responsive documents. The court also found that an
agreement between prior counsel that stipulated all documents would be produced on a disc or in
hard copy could not control the defendants’ ability to discover ESI. Finally, remarking that
communication about discovery and production format that is crucial to this process appears to
have been compromised, the court ordered the parties to meet and confer to reach an agreeable
production schedule.
� Romero v. Allstate Ins. Co., 2010 WL 4138693 (E.D. Pa. Oct. 21, 2010). In this remanded
employment class action suit, the plaintiffs sought to compel responses to numerous document
requests, production of metadata, disclosure of the defendants’ search methodology and
certification of the defendants’ document retention policies. Following an order from the Third
Circuit Court of Appeals, the court granted the motion to compel responses to document requests,
noting the requests sought relevant and admissible information. Turning to the production of
95

metadata, the court referenced the Sedona Conference and multiple court decisions and found that
the defendants’ “blanket statement” of objections failed to show undue burden. As a result, the
court ordered production of metadata with respect to documents that have not already been
produced, finding the information will provide the plaintiffs with crucial information and permit them
to engage in a more meaningful search. The court then denied disclosure of the defendants’
search methodology, but ordered the parties to meet and confer to reach an agreement on search
terms, custodians, date ranges and other essential details. Finally, the court refused to order a
certification of the defendants’ document retention policies absent sufficient evidence of spoliation.
� McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson Sept. 9, 2010). In
this personal injury litigation, the defendants sought production of the user names, log-in names
and passwords granting access to the plaintiff’s Facebook and MySpace accounts. Having found
comments on the public portions of the plaintiff’s social media sites indicated the plaintiff
exaggerated his injuries, the defendants argued that private portions might similarly contain
impeaching content. Objecting, the plaintiff contended that communications shared among private
friends on social network sites are confidential and thus protected against disclosure. Equating the
plaintiff’s argument with a request for a new “social network site privilege,” the court expressed
concern that recognizing such a privilege would contravene the purpose and policy of
Pennsylvania’s broad discovery rules. Thus, finding no reasonable expectation of confidentiality
given the clear language contained on both sites regarding the possibility of disclosure, no
subjective or objective relational need for privilege outside of attorney-client communications and a
failure to outweigh the interests of justice, the court ordered the plaintiff to preserve existing
information and provide his Facebook and MySpace user names and passwords to the defendants’
counsel.
� Universal Delaware, Inc. v. Comdata Corp., 2010 WL 2330284 (E.D.Pa. June 4, 2010). In this
antitrust litigation, one of the defendants requested a protective order shielding itself and a nonparty
from complying with a subpoena served upon the non-party, arguing it was "harassing" and
an "unwarranted fishing expedition" that improperly sought production of irrelevant and proprietary
information. The defendant also argued the subpoena was unduly burdensome as it would require
collecting, reviewing and producing data from 38 total custodians who possessed approximately
1,017 gigabytes each. The court denied the defendant’s undue burden argument, citing the likely
overlap of custodians, existence of tools designed to reduce the burden of reviewing ESI, feasibility
of adding search terms, exaggerated page counts and the defendant’s failure to argue that ESI
was not reasonably accessible. The court also found the language of a prior governing protective
order sufficient to protect information disclosed, especially since the disclosures would be to the
plaintiffs and not the co-defendants who are the defendant’s competitors.
� Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL 2104639 (W.D.Pa. May 24, 2010). In this
FLSA collective action, the plaintiffs sought discovery and sanctions based on the defendants’
alleged incomplete production and excessive deadline extensions. Despite noting it was "not
entirely unsympathetic" to the defendants’ difficulties based on the complexity of the litigation, the
court found the time for "don’t worry, we’ll get it to you" had passed, especially given the original
discovery deadline of November 2009. The court was not impressed with the defendants’
statement that they produced "over 21,000 documents" and granted the plaintiffs’ production
requests where appropriate. The court ordered the parties to meet and confer to discuss the
production of ESI, consistent with its rulings that electronic files must be produced in a
"searchable" format and the defendants must supplement production by reproducing ESI in native
format, with metadata, seeking technical expertise and assistance when necessary. Finally, the
96

court denied sanctions, but issued the defendants a "wake-up call" to "tighten up their discovery
practices." The court emphatically directed opposing counsel to act reasonably and in good faith,
working through "disagreements amicably whenever possible" as the court "has neither the time
nor the resources to resolve every discovery agreement that surfaces in this or any other case."
� Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D.Pa. Mar 31, 2010). In this
discovery dispute, the plaintiffs sought third-party compliance to the subpoena requesting
production of responsive ESI, without requiring the plaintiffs to provide compensation for applicable
attorneys’ fees. According to the plaintiffs, the third party had an “interest in the outcome of the
litigation” and therefore was not entitled to reimbursements for production and review costs of
discovery material. The court determined that as a result of the potentially large costs of
production, the third party had met its burden of proof in showing that the ESI was not reasonably
accessible and that the information was in marginally accessible media form (backup tapes).
Based on the recommendations of an electronic evidence consultant, the court ordered the
requested information be imaged and produced for the plaintiffs in a separate searchable
database. Citing the seven-factor cost-shifting test set forth in Zubulake I, the court ordered the
database creation costs be evenly distributed between the plaintiffs and the third party based on
the inaccessible format of the information.
� Adhi v. Twp. of W. Pikeland, 2010 WL 1047894 (E.D.Pa. Mar. 16, 2010). In this property and
zoning litigation, the defendant sought enforcement of a pre-existing court order and production of
additional e-mails. The plaintiff contended that if additional e-mails ever existed, they were deleted
in the good faith ordinary course of business and therefore could not be produced. In response, the
defendant argued that the “mere deletion of an e-mail does not make it lost forever” and requested
retrieval of the ESI through the use of an e-discovery specialist. Relying on the plaintiff’s failure to
deny that additional e-mails may have existed, the court ordered the plaintiff to allow the
defendant’s e-discovery expert to inspect the plaintiff’s computers for responsive information.
Additionally, because the court further concluded there was no substantial justification for the
plaintiff’s discovery failure, the defendant was entitled reasonable expenses associated with filing
and attorney’s fees as a sanction.
� Phillips v. Potter, 2009 WL 1362049 (W.D.Pa. May 14, 2009). In this sexual discrimination case,
the plaintiff filed a motion for sanctions based on the defendant’s failure to preserve electronically
stored information; the defendant admitted that a litigation hold was not put into place after litigation
became foreseeable and that e-mails were destroyed by an automatic deletion system as a result.
The defendant argued that sanctions are nevertheless not appropriate because the e-mails
destroyed were not relevant. The court agreed with the defendant that there was no evidence of
destruction of relevant documents and refused to order sanctions arising out of "mere speculation"
that relevant documents were destroyed, noting also that there was no indication of any bad intent
on the part of the defendant.
� Hohider v. United Parcel Serv., Inc., 2009 WL 1163931 (W.D.Pa. Apr. 28, 2009). In this litigation,
the defendant filed an emergency motion to stay the court’s order requiring in camera review of
alleged work product documents withheld by the defendant. Noting it was "very troubled by
defendant’s efforts to delay or stop the court’s resolution" of the defendant’s potential preservation
failures, the court determined an in camera review was necessary. The court was also troubled by
the defendant’s request to the court of appeals to stay the special master’s investigative actions
and believed this action raised suspicions about the defendant’s motives. Accordingly, the court
denied the defendant’s motion and directed the special master to submit his report and
recommendation regarding the privilege assertions. The court also noted that an argument against
97

in camera review by a trial court was unprecedented because this review is often the only way to
determine whether documents are privileged.
� Kvitka v. Puffin Co., LLC, 2009 WL 385582 (M.D.Pa. Feb. 13, 2009). In this litigation, the plaintiffs
filed suit alleging fabricated e-mails wrongly led to an improper ban of its advertisements. In the
instant motion, the defendants sought sanctions alleging the plaintiffs intentionally destroyed
relevant evidence when discarding a laptop after receiving a preservation letter. Finding the
plaintiffs acted in bad faith by discarding the laptop with relevant e-mails and severely prejudiced
the defendants’ ability to defend against the plaintiffs’ claims, the court granted the defendants’
spoliation motion and dismissed the plaintiffs’ claims with prejudice.
� Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346 (E.D.Pa. Dec. 11, 2008). In this ongoing
trade secrets misappropriation litigation, the plaintiffs sought production of a privileged document
that the defendants previously “clawed back” pursuant to a voluntary clawback agreement. The
defendants opposed the request, arguing that the challenge provision in the clawback agreement
specifically called for written notice of plaintiffs’ objection within five business days of the receipt of
defendants’ written demand for the return of the erroneously produced document. Because
plaintiffs failed to follow the challenge provision of the clawback agreement, the defendants argued
the motion was untimely. Analyzing the clawback agreement, the court found the plaintiffs’ motion
to be untimely and declined to order the defendants to produce the document.
� Rhoads Indus., Inc. v. Bldg. Materials Corp. of America, 2008 WL 4916026 (E.D.Pa. Nov. 14,
2008). In this breach of contract litigation, the defendants sought an order determining attorneyclient
privilege to be waived by plaintiff’s production of over eight hundred allegedly privileged
documents. The defendants argued that the production was careless, the plaintiff delayed in
seeking return of the documents and the plaintiff failed to produce complete and accurate privilege
logs. The court applied the test of newly enacted Fed.R.Evid. 502, which weighs three factors in
determining whether an inadvertent disclosure should constitute a waiver: 1) whether the
disclosure was inadvertent, 2) whether the holder of the privilege took reasonable steps to prevent
disclosure and 3) whether the holder of the privilege took reasonable steps to rectify the error. The
court held that once the producing party has shown at least minimum compliance with the three
factors in Rule 502(b) but when reasonableness is still in dispute, the court should look to the
traditional five factor test set forth by Fidelity & Deposit Co. of Maryland v. McCulloch: 1)
reasonableness of precautions taken to prevent inadvertent disclosure; 2) number of inadvertent
disclosures; 3) extent of disclosure; 4) delay and measures taken to rectify disclosure; and 5)
whether overriding interests of justice would or would not be served by relieving the party of errors
to find evidence of an inadvertent waiver. Finding the first four factors to be in favor of the
defendants and the fifth factor to strongly favor the plaintiff, the court determined there was no
waiver of privilege of the remaining documents.
� Integrated Serv. Solutions, Inc. v. Rodman, 2008 WL 4791654 (E.D.Pa. Nov. 3, 2008). In this
ongoing litigation, the plaintiff sought production of responsive electronic data contained on
computers owned by a non-party. The parties to this dispute agreed to retain a vendor to perform a
search of the laptop in question, to determine whether it contained, or once contained, any
documents responsive to the subpoena. The plaintiff also sought the vendor report detailing the
inspection, claiming there was an understanding between the parties that such a report would be
provided. The non-party argued against production asserting the search terms were overbroad and
likely to reach competitive information that was irrelevant to the litigation at hand and that there
was no agreement to provide the vendor report. Accepting the non-party’s assertions of nonresponsiveness,
the court denied the plaintiff’s motion to compel. The court stated it would not
98

equire the non-party to allow the plaintiff, a competitor, to “thumb through an electronic file drawer”
to double-check document review for relevance. However, the court found evidence of an
understanding that the plaintiff would receive a written vendor report and allowed the plaintiff the
option to seek the report at its own expense.
� United States v. Crist, 2008 WL 4682806 (M.D.Pa. Oct. 22, 2008). In this criminal action, the
defendant filed a motion to suppress evidence recovered from his computer, claiming its search
was warrantless, in violation of his Fourth Amendment rights. The defendant did not consent to the
search of his computer; rather he reported it stolen upon learning that it was given away. However,
upon receipt, the forensic examiner hashed the drive then took a forensic image. Then, the
examiner hashed the image, later comparing the hash value to files known to contain pornographic
images. The court determined that subjecting the computer to a hash value analysis constituted a
search, reasoning that instead of the hard drive being analogous to an individual item, it constitutes
multiple items as it is comprised of many platters with multiple data storage units. The court
accordingly granted the defendant’s motion to suppress the evidence obtained from the forensic
search of his computer.
� Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 2008 WL
4291319 (Pa.Super. Sept. 22, 2008). In this breach of contract case, inter alia, the defendants
appealed the trial court’s order requiring the production of two of the defendants’ “broken”
computers. The defendants argued against production, claiming the computers may contain
privileged documents. In response the plaintiffs argued the defendants previously agreed to
produce the computers at trial. Disagreeing with the defendants, the court held the privilege was
waived as a result of the defendants’ prior agreement to produce the computers.
� Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D.Pa. July 21, 2008). In this civil
rights case, the plaintiffs requested production of e-mail stored on backup tapes. The defendants
objected, arguing the request was unduly burdensome and unlikely to produce relevant material. In
response to a previous court order, the defendant provided an estimate that the search’s cost
would be a minimum of $10,000. The court analyzed the factors laid out in Fed.R.Civ.P. 26(b)(2)
and cited three factors that weighed against requiring production: (1) the burden and expense of
the proposed discovery outweighed its likely benefit; (2) the needs of the case limit the usefulness
of the information sought as it could be accessed in a more cost-efficient and less burdensome
manner; and (3) the resources of the parties involved and the amount in controversy were relatively
small. The court also rejected the plaintiffs’ offer to have their own expert search the backup tapes
finding the request unduly burdensome, impractical and contrary to the spirit of the Federal Rules,
noting that privacy concerns would undoubtedly require the defendant to closely supervise the
plaintiff’s search thus creating unnecessary costs.
� Square D. Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D.Pa. July 15, 2008). In this intellectual
property litigation, the parties filed cross motions for sanctions based on the execution of a
previous forensic inspection of the defendant’s computer systems. The plaintiff requested a
forensic inspection of the defendant’s remaining computer systems, the removal of imaged data
from the defendants’ premises, and for a default judgment sanction. The defendant requested the
plaintiff be required to complete its forensic inspection on the defendant’s premises, that further
inspection of certain computers be prohibited, and sanctions for the plaintiff’s intentional disregard
for previous orders. Determining the defendant’s imposition of limitations to be untimely, the court
granted the plaintiff access to the defendant’s computer workstations. However, the court denied
the plaintiff’s motion for default judgment as the defendant’s conduct “falls just shy of conduct
befitting default judgment, i.e., ‘flagrant bad faith’ and ‘callous disregard.’” The court ordered the
99

defendant to bear all costs related to the forensic inspection, consistent with past orders and
warned that future “baseless barriers impeding the completion of discovery will be met with
sanctions” and cautioned that future discovery disputes may require the utilization of a special
master with costs borne by the parties.
� Race Tires Am., Inc., a Div. of Specialty Tires of Am., Inc. v. Hoosier Racing Tire Corp., 2008
WL 2487835 (W.D.Pa. June 16, 2008). In this antitrust litigation, the plaintiffs filed a motion to
compel seeking the completed production of paper documents and electronically stored information
(ESI). The defendants had been continually producing documents on a “rolling basis” and had not
specified a completion date. Addressing the plaintiffs’ motion, the court noted the defendants’
production was due four months prior and ordered completed production of all non-privileged
documents and responsive ESI within seven days. Noting this dispute was the fifth discovery
motion filed in this litigation, the court reminded both parties that discovery is supposed to occur
with minimal judicial intervention. The court also warned both parties sanctions would be imposed if
further “discovery shenanigans” or other discovery abuse were to occur.
� Mon River Towing, Inc. v. Industry Terminal and Salvage Co., 2008 WL 2412946 (W.D.Pa.
June 10, 2008). In this negligence litigation, the defendant filed a motion to compel production of
computer printouts and records. The plaintiff objected, arguing that the requested documents are
not kept in the ordinary course of business and that the Federal Rules of Civil Procedure do not
require the creation of documents for production. Analyzing Fed.R.Civ.P. 34(a)(1), the court found
that Rule 34’s translation requirement does not require a responding party to create responsive
material but does require the production of computer printouts, and granted the defendant’s motion
to compel. The court also strongly encouraged the parties to meet and confer to reach an
agreement in line with the court’s order.
� United States v. Bunty, 2008 WL 2371211 (E.D.Pa. June 10, 2008). In this unlawful images
criminal case, the defendant filed several motions including a motion to dismiss the case for
spoliation of evidence. The defendant argued the government destroyed important and potentially
exculpatory evidence in three ways: by connecting a seized flash drive to a forensically unsecure
environment prior to making a forensic copy, by returning two seized laptops without making
forensic copies and by viewing the contents of a floppy disk without first making a copy. The
government disputed the facts as presented by the defendant instead claiming that the devices in
question were preserved and detained for later examination by a forensic expert and that the
laptops were imaged by the expert. Agreeing with the government, the court found no spoliation
regarding the flash drive or laptops. Despite determining the “last accessed” date was altered after
the government opened the floppy disk, the court found the defendant failed to demonstrate the
government acted in bad faith or that the alteration prejudiced his case, and denied the motion to
dismiss based on spoliation.
� Binary Semantics Ltd. v. Minitab, Inc., 2008 WL 2020362 (M.D. Pa. May 5, 2008). In this trade
secrets litigation, the defendants filed an emergency motion for court intervention to allow the
defendants’ forensic expert to image the plaintiffs’ FTP and file servers, in addition to certain
employees’ computers and removed hard drives. The defendants claimed this imaging was
necessary to determine the integrity of previously produced ESI that contained questionable
metadata. The plaintiffs opposed the motion and argued the request was overly-broad and
intrusive. Agreeing in part with the plaintiffs, the court found the defendants’ request was largely
overly broad because an image of relevant folders would resolve the documents’ integrity issue.
The court permitted the defendants to image the relevant folders contained on the plaintiffs’ FTP
100

server. The court also granted the defendants’ unopposed request to image the removed hard
drives.
� Yeisley v. PA State Police, 2008 WL 906465 (M.D.Pa. March 31, 2008). In this civil rights
litigation, the plaintiff sought sanctions for untimely discovery disclosures and a lack of e-mail
production. Claiming the turnover in defense counsel attributed to discovery delays, the defendants
asserted any untimely production resulted from a desire to fully comply with discovery requests.
Ordering the re-depositions of select people at no cost to the plaintiff, the court refused to impose
further sanctions. However, the court ordered the defendants to promptly search and produce
electronic records, including e-mail, or further sanctions would be considered.
� Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D.Pa. Mar. 17, 2008). In this trade secret
misappropriation suit, the defendants objected to a magistrate judge’s order requiring disclosure of
forensically sound images of data storage devices without any scope or privilege filtering. The
plaintiffs sought production without limitation, claiming review of the entire record was necessary to
determine defendant’s compliance with an earlier order. Additionally, the plaintiffs asserted the
defendants waived privilege upon disclosure of the servers’ contents to a third party. Finding the
defendants satisfied an exception to the privilege waiver rule since the content disclosed to a third
party was necessary for informed legal advice, the court overruled a portion of the magistrate’s
order, and limited the production in scope and privilege.
� Bro-Tech Corp. v. Thermax, Inc., 2008 WL 356928 (E.D.Pa. Feb. 7, 2008). In this discovery
dispute, the plaintiffs moved to compel the defendants to produce forensically sound copies of
numerous electronic data storage devices that allegedly contained the plaintiffs’ proprietary
information. Per an earlier court order, the defendants were directed to return and then purge the
plaintiffs’ electronic files that were stored on its servers, hard drives and thumb drives. Agreeing
with the plaintiffs that an examination of the defendants’ hard drives and servers was necessary to
determine if a violation occurred, the court ordered the defendants to produce the forensic copies
to the plaintiffs’ attorneys on a “confidential-designated counsel” basis.
� United States v. Richardson, 2007 WL 2253566 (W.D.Pa. Aug. 3, 2007). In a suit alleging
possession of child pornography, the defendant motioned the court to suppress evidence obtained
from the search of his computer hard drives. The investigators gained entry to the defendant’s
home under a ruse, claiming they were merely searching for evidence of identity theft. In reality
they were investigating the attempted credit card purchase of access to an Internet site containing
child pornography from an IP address registered to the defendant at the defendant’s home. The
defendant offered his consent to image the hard drive of one computer, and allowed investigators
to confiscate the other. A forensic expert located numerous child pornography images on the
imaged hard drive and confiscated computer. The court held that failure to reveal the object of the
investigation was not a violation of the defendant’s fourth amendment rights and denied the
defendant’s motion to suppress.
� Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 2007 WL 2085358 (E.D.Pa.
July 20, 2007). In a suit alleging copyright infringement, inter alia, the plaintiff motioned the court to
sanction the defendant for spoliation of evidence. Prior, the plaintiff sued a party that was
represented by the defendant. In defending that suit, the defendant viewed archived screen shots
of the plaintiff’s former website, printing copies of each archived screenshot viewed and using the
images during the course of the underlying litigation. The defendant did not actively save electronic
copies any of the screenshots viewed. In the instant suit, the plaintiff claimed the defendant hacked
the archival website to gain access to these screen shots and had a duty to preserve the
information they viewed and printed. The plaintiff argued that failure to preserve the screen shots
101

that were temporarily stored in the cache files but not downloaded onto the defendant’s hard
drives, entitled it to a spoliation inference at trial. The court rejected the plaintiff’s argument and
accepted the defendant’s summary judgment motion on the issue, holding it impractical for the
defendant to have had the duty to preserve such evidence.
� Cenveo Corp. v. Slater, 2007 WL 442387 (E.D. Pa. Jan. 31, 2007). In a trade secrets
misappropriation case, the parties presented two differing approaches for how electronic data
contained on hard drives in the defendant’s possession would be produced to the plaintiff. The
plaintiff requested that the hard drives be completely imaged and given to a third-party expert to
search for relevant information. Under the plaintiff’s approach, the expert would sign a
confidentiality agreement to protect privileged information. The defendant argued, however, that
the parties agree upon search terms and the defendant will provide the search results from the
images of the hard drives. Agreeing with the plaintiff’s method, the court ordered a third-party
computer forensics expert to image and examine the hard drives. The expert will be chosen by the
plaintiff and the actual imaging will take place on the defendant’s premises under the supervision of
an expert chosen by the defendant. Furthermore, the court ordered the expert to provide the
defendant with a report of the documents recovered. The defendant must review the documents for
privileged material and thereafter produce relevant documents to the plaintiff.
� In Re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006). During
a grand jury investigation, the court reviewed objections to the grand jury’s subpoena requiring a
newspaper publisher to produce four computer workstations and two hard drives. The newspaper
eventually produced the four computer workstations pursuant to the subpoena but refused to
produce the two hard drives. The lower court held the newspaper in contempt and imposed a
$1,000 per day sanction for failure to comply with the subpoena. The newspaper filed an
emergency application for review of the grand jury’s subpoena with the state supreme court. The
newspaper argued the subpoena’s requirement for the hard drives was overly broad. It further
argued that production of hard drives is much like producing an entire file cabinet filled with files.
Furthermore, the newspaper stated such production would produce a “chilling effect” on many of
the newspaper’s confidential sources for news stories since their identities may be revealed during
the investigation. The state countered by asserting the only information desired was the internet
browsing history of several employees and assuring any confidential information would be
safeguarded from disclosure. In vacating the lower court’s sanctions for failure to comply, the state
supreme court held that the state’s “particular method of disclosure is unduly intrusive in the
circumstances presented.” The court agreed with the newspaper’s argument and further held that
entire “filing cabinets” cannot be extracted and held by the government under the guise of a grand
jury subpoena when the result could be the disclosure of confidential information vital to the
newspaper’s business.
� Paramount Pictures Corp. v. Davis, 234 F.R.D. 102 (E.D. Pa. 2005). Alleging the defendant
infringed upon its motion picture copyright, the plaintiff sought a permanent injunction, attorneys’
fees and costs, and money damages. After uncovering the defendant’s alleged activities by tracing
his Internet protocol address, the plaintiff was granted access to the defendant’s computer and
hired a Kroll Ontrack computer forensic expert to conduct an examination. The expert determined
that, after wiping all data off of his hard drive, the defendant reinstalled the operating system just
16 days after the defendant received notice of the lawsuit. As a result, it was impossible to
determine whether the motion picture or related software was on the computer prior to the
investigation. In defending his actions, the defendant claimed he wiped the drive in preparation for
selling it to another individual. The court declared: “This argument does not obviate his duty to
102

preserve the computer’s memory . . . His failure to preserve this evidence places the fault for its
destruction squarely upon Davis.” Although the court determined an adverse inference instruction
would be appropriate, it did not issue the instruction because the case was not being tried to a jury.
As an alternative, the plaintiff proposed the court grant summary judgment in favor of the plaintiff.
The court found such a remedy would be too severe and noted it would instead take the
defendant’s “willful destruction of evidence into consideration at the time of trial.”
� Rousseau v. Echosphere Corp., 2005 WL 2176839 (W.D. Pa. Aug. 30, 2005). In a suit arising
from unlawful termination allegations, the defendant sought attorney’s fees and costs from the
plaintiff’s counsel. The defendant claimed it had fired the plaintiff for intentionally using two different
social security numbers on his job application materials. However, the plaintiff argued this was
merely a mistake caused by mild adult dyslexia and memory impairing mental illnesses. During the
litigation, the defendant filed a Rule 37 sanctions motion for dismissal claiming the plaintiff
"abus[ed] the discovery process, perpetrat[ed] a fraud on this Court and attempt[ed] to conceal the
one document that would expose Plaintiff’s fraudulent conduct." To support its argument, the
defendant pointed to an e-mail produced by the plaintiff that undermined the plaintiff’s dyslexia and
mental illness argument. Although it did not grant the motion, the court allowed the defendant an
additional 60 days for conducting discovery about the belated e-mail production. Following the
order, the plaintiff admitted he intentionally used the two social security numbers, and the case was
dismissed with prejudice by stipulation of the parties. In addressing the issue of attorney’s fees and
costs, the court determined the plaintiff’s attorney committed “unreasonable and vexatious conduct
that multiplied the proceedings” because the attorney knew about the e-mail but continued filing
various motions and an appeal. Thus, the court required the plaintiff’s attorney to “personally
satisfy the excess costs, expenses and attorneys’ fees it reasonably incurred because of his
conduct.”
� In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005). The defendant appealed from an assault conviction,
asserting the trial court erred in admitting improperly authenticated computerized instant messages
into evidence. The defendant argued the messages should have been authenticated by either the
source Internet Service Provider or computer forensic expert testimony. Rejecting this argument,
the appellate court declared the circumstantial evidence properly rendered the instant messages
admissible. The court noted the defendant’s argument would require it to “create a whole new body
of law just to deal with e-mails or instant messages.” The court further stated it found “no
justification for constructing unique rules for admissibility of electronic communications such as
instant messages.” In this case, the instant messages were properly authenticated based on the
following factual circumstances: the defendant referred to himself by name, his testimony mirrored
some of the comments in the instant messages, and he referenced one of the instant messages in
a conversation with school authorities.
� United States v. Merck-Medco Managed Care, L.L.C., 2005 WL 273030 (E.D. Pa. Feb. 2, 2005).
Based on the defendants’ prior discovery conduct, the plaintiffs filed a motion to modify a case
management order, establish discovery deadlines, and appoint a special master or neutral
consultant. A month after the discovery deadline, the defendants completed their electronic
document production with the exception of documents withheld as potentially privileged, 13
additional boxes, and corrupted electronic data that was being restored. At that time, the plaintiffs
sent a letter to the defendants stating the “completed” document production was incomplete
because several major technical defects existed, including hard drive errors and files containing
questionable or missing data. The defendants denied knowledge of the defective document
production. The court found the “[d]efendants have been dilatory in their disclosure of these
103

defective files, costing [the plaintiffs] unnecessary time and expense. Consequently, the Court
admonishes [the defendants] for its discovery practices, and reminds [the defendants] of its
obligation to this Court to contact it when discovery issues arise.” The court determined the
defendants’ conduct had prejudiced the plaintiffs and granted the motion to amend the order,
noting that further violations may result in sanctions. Declining to appoint a special master, the
court stated the current magistrate was capable of resolving any technical discovery disputes but
declared the parties could hire a neutral technical consultant at their own expense.
� In re Plastics Additives Antitrust Litig., 2004 WL 2743591 (E.D. Pa. Nov. 29, 2004). The
plaintiffs filed a class action antitrust lawsuit alleging price fixing in violation of various federal
statutes. The plaintiffs offered a proposed scheduling order, requesting the defendants produce all
relevant data in an electronic format and provide technical assistance for understanding the data.
The defendants objected, arguing the proposed order was excessively burdensome and did not
place a similar burden on the plaintiffs. The court granted the plaintiffs’ proposed scheduling order
in part, finding that both parties’ data must be produced electronically “to the extent reasonably
feasible.” However, the court did not require the defendants to provide technical assistance to the
plaintiffs, stating “[u]nless otherwise agreed upon, interpretations of data produced through
discovery should be obtained through traditional discovery outlets and through the hiring of expert
witnesses.”
� In re Spring Ford Indus., Inc., 2004 WL 1291223 (Bankr. E.D. Pa. May 20, 2004). In a
commercial rent collection dispute, the debtor produced an e-mail from its attorney regarding
proposed amendments to the lease contract. The debtor’s counsel also indicated that it had other
related e-mails but that they were subject to the attorney-client privilege. In response, the creditor
argued that the debtor should be compelled to produce the e-mails because the privilege had been
waived when the debtor produced the original e-mail from its attorney. Determining that the
privilege had not been waived, the court declared that there was “no evidence that the document
was created in the course of rendering legal advice…[a]t best, the Disclosed E-mail is educational
in nature.” The court further stated that even had the disclosed e-mail been privileged, the privilege
would not necessarily be waived as to subsequent e-mails.
� Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.Pa. 2004).
The defendant sought a preservation order requiring the plaintiff to preserve documents and things,
including electronic documents. The plaintiff, in responding to the defendant’s motion, countered
with a preservation order request of its own, requiring the defendant to preserve and produce
documents. In addressing the need for these orders, the court focused on the medium in which the
evidence was stored. The court stated that “[if] the evidence is stored upon a computer floppy disk
or hard drive, finding physical space to store the evidence will not be as much of an issue … [but]
evidence stored within a computer hard drive may present a difficulty in that it may be
compromised or degraded as new information is added and pieces of old information are ‘deleted’
and subsequently written over by the computer.” In discussing when an order would be
appropriate, the court declared that timing is of the essence, particularly in cases where a party
does not know that electronic evidence needs to be preserved. Denying both preservation order
requests, the court determined that there was insufficient proof showing that evidence would be
lost or destroyed absent these orders.
� Koen v. Powell, 212 F.R.D. 283 (E.D. Pa. 2002). In a legal malpractice suit, the court held that the
attorney-client privilege and work product doctrine did not shield the defendants from turning over
e-mails relating to the threatened malpractice suit.
104

� Itzenson v. Hartford Life and Accident Ins. Co., 2000 WL 1507422 (E.D. Pa. Oct. 10, 2000). “It
is difficult to believe that in the computer era” that the defendant could not identify files and filter out
information based on specific categories.
� Storch v. IPCO Safety Prods. Co., 1997 WL 401589 (E.D. Pa. July 16, 1997). “This Court finds
that in this age of high-technology where much of our information is transmitted by computer and
computer disks, it is not unreasonable for the defendant to produce the information on computer
disk for the plaintiff.”
� United States v. Keystone Sanitation Co., 885 F. Supp. 672 (M.D. Pa. 1994). In complying with
the court’s discovery order, the defendants inadvertently disclosed e-mail messages that contained
potentially confidential communications. This inadvertent disclosure waived any attorney-client
privilege that may have protected portions of the e-mail.
� Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 1991 WL 111040 (E.D. Pa. June 17, 1991).
An unwieldy computerized record-keeping system, which requires heavy expenditures in money
and time to produce relevant records, is simply not an adequate excuse to frustrate discovery. The
plaintiffs were required to pay for copies of any documents on microfilm/microfiche which the
plaintiff requests, while the defendants bear the burden of searching and producing the documents.
� National Union Elec. Corp. v. Matsushita Elec. Ind. Co., 494 F. Supp. 1257 (E.D. Pa. 1980).
The defendant filed a motion to compel production of a computer tape containing the information
that the plaintiff previously produced in a hard copy. The court required the plaintiff to have
computer experts create a computer-readable tape containing data previously supplied to the
defendant in printed form.
Fourth Circuit – State and Federal Cases
� Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537 (4th Cir. July 2, 2004). On behalf of their daughter,
the plaintiffs filed an action in the Virgin Islands against a hotel chain, alleging that one of the
hotel’s employees had molested the plaintiffs’ daughter. In response, the defendants had a
subpoena issued in Virginia for the deposition of a nonparty corporation owned by the plaintiffs.
The subpoena also ordered the corporation to produce any relevant documents, including e-mails
relating to the action. After the plaintiffs did not respond to the subpoena or appear for the
deposition, the defendant sought to compel the corporation’s deposition and the document
production. The plaintiff moved for a protective order. Determining that the defendant’s discovery
requests were cumulative and duplicative, unduly burdensome, and harassing, the district court
granted the protective order to the plaintiffs’ company. On appeal, the appellate court affirmed the
district court’s decision noting that the “[p]laintiffs had already produced some 400 pages of emails…and
they remain under continuing obligation to supplement their earlier productions.”
� Columbia Communications v. Echostar, 2 Fed.Appx. 360 (4th Cir. 2001). In a contract dispute,
the court held that failure of the lessor to turn over certain computer databases during discovery did
not justify a judgment for the distributor or a new trial.
� United States v. Bowers, 920 F.2d 220 (4th Cir. 1990). Computer data consisting of IRS taxpayer
data compilations is admissible as official records.
North Carolina
� Wood v. Town of Warsaw, 2011 WL 6748797 (E.D.N.C. Dec. 22, 2011). In this employment
discrimination litigation, the defendant sought to modify a Fed.R.Civ.P. 45 subpoena seeking
105

inspection of a non-party former supervisor’s personal hard drive. Specifically, the defendant
argued that the subpoena was overbroad, unduly burdensome and not calculated to lead to the
discovery of admissible evidence. Before laying out its analysis, the court noted the standard for
quashing a Rule 45 subpoena, requiring consideration of relevance, the requesting party’s need,
and the potential hardships suffered by the party subject to the subpoena. Addressing the
defendant’s objections, the court found that the non-party’s connection to the plaintiff offered the
possibility of discovering some relevant evidence on his personal hard drive, especially in an age
“where it is increasingly common for work to be conducted outside the office through the use of
personal electronic devices.” Furthermore, the court found that the plaintiff’s willingness to
negotiate search terms and bear the cost of a search mitigated any undue burden. Based on these
facts, the court concluded that the plaintiff was entitled to search the non-party’s personal hard
drive through an expert with the proposed search terms.
� Kinetic Concepts, Inc. v. ConvaTec Inc., 2010 WL 1912245 (M.D.N.C. May 12, 2010). In this
patent infringement litigation, the defendants filed a motion to compel alleging the plaintiffs failed to
respond to several production requests and deficiently produced some documents. The plaintiffs
argued that they did not withhold or refuse to produce the relevant, responsive and non-privileged
documents sought. Reviewing the parties’ communications, the court determined that the plaintiffs
often responded to the defendants’ requests with boilerplate objections including the unilateral
claim that all relevant documents were produced pursuant to the requests. The plaintiffs also
delayed their responses, agreed to comply with requests at an unstated future time and abruptly
amended their reply, leading to the defendants’ confusion and suspicion. Citing the plaintiffs’
“pattern of apparently calculated ambiguity,” the court ordered the plaintiffs to produce all
responsive documents, except for the properly recorded privileged documents determined on a
good faith basis. The court further ordered the plaintiffs to make the original versions of certain
documents available for inspection.
� High Voltage Beverages, LLC. v. Coca-Cola Co., 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009).
In this trademark infringement litigation, the plaintiff filed a motion to compel 17 gigabytes of data,
which amounted to about 1.5 million pages. The defendant did not object to producing the
documents but argued that a review was unnecessary as it believed every document related to the
merits of the underlying action had already been produced. Applying Fed.R.Civ.P. 26(b)(2)(C)’s
proportionality standard, the court determined the plaintiff’s request would be unreasonably
duplicative of earlier efforts and outweighed its likely benefit because the plaintiff had ample
opportunity to obtain the information, which in all likelihood, it had already obtained. The court
further held that the defendant must extend to the plaintiff’s counsel the opportunity to search data
on the defendant’s computers at the defendant’s place of business.
� Eckhardt v. Bank of America Corp., 2008 WL 1995310 (W.D.N.C. May 6, 2008). In this disability
discrimination litigation, the plaintiff filed a motion for discovery sanctions and additional discovery.
The plaintiff alleged the defendant did not fully comply with a previous court order requiring the
defendant to identify the computers used by decision makers in the plaintiff’s employment
termination. The defendant claimed all documents of known locations were produced and the
relevancy of the documents of unknown locations had not been established. Finding relevant
documents were not produced, the court allowed the plaintiff to seek documents from the
defendant’s backup tapes of electronically stored material. However, the court did not find that the
defendant acted in bad faith, but rather commented that the discovery problem “highlights the
changing face of discovery in an electronic world.” The court ordered the defendant to pay costs
associated with making its current and former employee deponents available.
106

� Eckhardt v. Bank of America, 2008 WL 111219 (W.D.N.C. Jan. 9, 2008). In this wrongful
termination suit based on alleged disability discrimination, the plaintiff filed a motion to compel
responses to several interrogatories and document requests. The defendant objected to several of
the plaintiff’s requests claiming the requests did not lead to the production or discovery of relevant
evidence. Disagreeing with the defendant, the court ordered the defendant to certify that a
thorough search was conducted and outlining what responsive, but not readily accessible,
documents might be retained in archive form or backup media.
� Orrell v. Motorcarparts of America, Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007). In this
sexual harassment suit, the plaintiff sought damages alleging sexual harassment, gender
discrimination, hostile work environment and wrongful discharge based on receipt of inappropriate
e-mails from co-workers and customers. Alleging improper destruction of evidence and incomplete
compliance with discovery obligations, the defendant filed a motion to compel seeking production
of the plaintiff’s home and work computers and an order prohibiting further destruction of evidence.
The plaintiff argued that complying fully with all of the defendant’s requests would create an undue
burden. Agreeing with the defendant, the court determined that the burden to preserve evidence
was not eliminated due to the alleged crashing of the plaintiff’s home computer. The court found
the defendant’s requests to be “reasonably calculated to lead to the discovery of admissible
evidence”, and ordered the plaintiff to produce her home computer for forensic examination. The
court also ordered the plaintiff not to further destroy relevant evidence. Additionally, the court
warned the plaintiff that failure to comply may result in sanctions including dismissal of the case
with prejudice and payment of the defendant’s attorney’s fees.
� In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL 4208555 (E.D.N.C. Nov. 26,
2007). In this underlying investigation of allegedly fraudulent insurance practices arising from
damages caused by Hurricane Katrina, the plaintiffs served a subpoena on Robert Kochan,
president of the defendant corporation, seeking to image the laptop computer of two corporate
employees. Kochan’s attorney filed written electronic objections to the subpoena following close of
business the evening before the subpoena was to be executed. The next morning, having traveled
from Mississippi and New Mexico, the plaintiff’s counsel and computer forensic consultant arrived
at the defendant’s office in North Carolina to image the relevant hard drives. The defendant refused
to allow access to the requested information. The plaintiff moved the court for an order compelling
compliance with the subpoena and sought to hold Kochan and his attorney in contempt of court.
The plaintiff also sought prior and future travel expenses. The court found the defendant’s objection
to the subpoena timely as it was technically filed before the specified time for compliance and
denied the plaintiff’s request to hold the defendant in contempt. However, the court found that the
defendant improperly relied “on bald assertions that the production sought is impermissible” and
therefore granted the plaintiff’s motion to compel, ordering Kochan to comply with the subpoena by
5 p.m. on the day of the decision.
� Parkdale Am., LLC v. Travelers Cas. and Sur. Co. of Am., Inc., 2007 WL 4165247 (W.D.N.C.
Nov. 19, 2007). In this declaratory judgment action, the defendant’s insurance company sought
discovery of documents through several interrogatories and requests for production of documents.
The plaintiffs objected to each request asserting that the information prepared in anticipation of
litigation is protected work-product under Fed. R. Civ. P. 26(b)(3). The plaintiffs also contended that
production of electronically stored information would present undue burden and cost. The court
ultimately ordered production of e-mail asserting that it may include relevant and material evidence
and that the plaintiffs failed to meet their burden in establishing inaccessibility. Finding opinion
work-product to be more carefully protected, the court ordered production of all materials not
107

considered opinion work-product. Further, the court ordered production of information revealed to
or discussed in the presence of third parties as it does not fall under work-product protection.
� O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007). In this class
action suit, the plaintiffs alleged the defendant engaged in employment discrimination because they
are not females or minorities. Having addressed whether the plaintiffs had standing to represent a
class, the court determined the time ripe for the parties to begin precertification discovery. The
plaintiffs claimed they were entitled to broad discovery of electronic documents, including e-mail,
relating to all employees, in all positions, in every store owned by the defendant. The defendant
disagreed with this contention. The court held that the plaintiffs could not obtain discovery for every
person employed by the defendant, and limited the discovery to managers and officers at the
regional, district and national level. The court noted that although the precertification discovery was
limited, it was still very broad and the court was in “no way condoning or encouraging broad,
unduly burdensome, or irrelevant discovery requests.” The court instructed the parties to construct
a Rule 26(f) discovery plan. Anticipating the potential conflicts of discovering electronically stored
information (ESI), the court ordered the parties to follow the “Suggested Protocol for Discovery of
Electronically Stored Information” as set forth by the United States District Court for the District of
Maryland. The court noted that although these guidelines provide a comprehensive list of ESI
discovery issues, it was not meant to be an inflexible list. Moreover, the court set forth an extensive
list of issues to be addressed by the parties in their joint discovery plan.
� Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007). In a gender discrimination
suit, the defendant brought a motion for sanctions against the plaintiff for spoliation of evidence,
specifically seeking dismissal of the suit because the plaintiff disposed of her home computer after
filing an EEOC claim against the defendant. The plaintiff’s home computer contained evidence
relating to her lawsuit against the defendant. The plaintiff claimed that she disposed of her
computer after the hard drive crashed and was unable to be repaired by her brother. The court held
that sanctions were appropriate since the computer contained evidence directly related to the
plaintiff’s claims and her efforts to mitigate her damages by finding another job after leaving
defendant’s company. The court determined that she disposed of the computer with a “culpable
state of mind” and that an adverse inference jury instruction at trial was proper.
� Analog Devices Inc. v. Michalski, 2006 WL 3287382 (N.C. Super. Nov. 1, 2006). In a
misappropriation of trade secrets matter, the defendant compelled the court to order the production
of inaccessible e-mails from over 400 back-up tapes held by the plaintiff. The plaintiff objected
because the production would require an undue burden and cost and would not likely uncover any
probative e-mail evidence. The court examined five factors using a straightforward application of
North Carolina Rule 26. It also noted the “Guidelines from the Conference of Chief Justices” would
provide the proper legal guidance for e-discovery issues. The court analyzed and balanced the
following factors: (1) the burden and expense of production; (2) the needs of the case; (3) the
amount in controversy; (4) any limitations on the parties’ resources; and (5) the importance of the
issues at stake. The court found the potential for discovery of probative evidence was “too great to
deny Defendants’ motion” and the evidence central to the defendants’ case may be uncovered by
the inquiry. However, the court noted the discovery costs were unknown and reserved the right to
re-examine any cost-shifting issues until the final costs were determined by the plaintiff. The court
required the parties to equally split the costs of restoration. NOTE: This case is the companion
case to Bank of Amer. Corp. v. SR Int’l Bus. Ins. Co., 2006 WL 3093174 (N.C. Super. Nov. 1,
2006), which the court filed concurrently.
108

� Bank of Amer. Corp. v. SR Int’l Bus. Ins. Co., 2006 WL 3093174 (N.C. Super. Nov. 1, 2006).
The defendants sought deleted e-mails from 400 backup tapes of Marsh, Inc., a broker of the
plaintiff and non-party to the litigation. Marsh previously produced over 50,000 e-mail documents
for the litigation but the defendants argued all relevant e-mails may not have been produced.
Marsh argued, as a non-party, the defendant’s request would impose an undue burden and
expense. Marsh’s expert from Kroll Ontrack stated such recovery and organization could cost as
much as $1.4 million. The defendants argued Marsh may have only produced e-mails responsive
to the subpoena and none that related to the claims and defenses of the case. The court denied
the defendants’ motion because “such a low level of marginal utility does not justify imposing a
heavy burden on a nonparty … nonparties should not be penalized for having a backup system by
making them produce inaccessible backup data without good cause.” Additionally, the court found
no evidence that Marsh had failed to produce responsive documents or that the requested e-mails
would show anything contrary to the e-mails already produced. NOTE: The court listed this as the
companion case to Analog Devices Inc. v. Michalski, 2006 WL 3287382 (N.C. Super. Nov. 1,
2006), which was filed concurrently by the court.
� Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006). In a
copyright infringement case, the plaintiffs accused the defendant of unlawfully downloading and
distributing copyrighted materials through a peer-to-peer, online media distribution system. After
the defendant failed to provide electronic copies of her computer’s desktop and registry files in
response to a production request, the court ordered the defendant to bring the computer to an
evidentiary hearing. At the hearing, the court permitted the plaintiff’s forensic technician to make a
mirror image of the defendant’s computer in the court’s chambers. Issuing a protective order, the
court restricted the plaintiffs from using or disclosing any electronic information obtained from the
computer that was unrelated to the case. The court also reserved the right to issue Rule 37
sanctions against the defendant after having the opportunity to consider the defendant’s computer
skills and the reasonableness of her efforts to comply with discovery in light of them.
� Arndt v. First Union Nat’l Bank, 613 S.E.2d 274 (N.C. Ct. App. 2005). In a dispute involving a
contract made between the defendants and the plaintiff, the jury awarded the plaintiff over
$830,000 in damages, relying in part on a spoliation instruction. Although the plaintiff had
requested various e-mails and profit and loss statements relating to the allegations, the defendant
failed to preserve and produce these documents. As a result, the trial court had instructed the jury
that, “[e]vidence has been received that tends to show that certain profit and loss statements and
E-mails were in the exclusive possession of the defendant…and, [sic] have not been produced for
inspection….From this, you may infer, though you are not compelled to do so, that the profit and
loss statements and the E-mails would be damaging to the defendant.” On appeal, the defendants
argued, inter alia, that the instruction was unfairly prejudicial. The appellate court noted that
testimony from one of the defendants’ employees indicated the defendants were on notice early on
of the plaintiff’s intent to sue but failed to preserve the plaintiff’s e-mails or hard drive. The
employee further testified that no effort was made to save the hard drive even after receiving a
letter from the plaintiff’s counsel about the case. Based on this evidence, the appellate court
determined the trial court did not err in giving the spoliation instruction.
� Evans v. Evans, 610 S.E.2d 264 (N.C. Ct. App. 2005). In a domestic relations dispute, the
defendant contended the trial court erred in admitting sexually explicit e-mails. The defendant
argued the e-mails were illegally intercepted pursuant to a federal statute prohibiting the disclosure
or use of any electronic communication that was intercepted in violation of the Electronic
Communications Privacy Act (ECPA). The court rejected her argument, noting the ECPA
109

interceptions must occur contemporaneously with transmission. The court further held that the emails
did not fall within that requirement because they “were stored on, and recovered from, the
hard drive of the family computer” rather than intercepted at the time of transmission.
� Commissioner v. Ward, 580 S.E.2d 432 (N.C. App. 2003). In this matter, the plaintiffs and the
defendants engaged in a long and complex discovery battle relating to the protocols for discovery
of both paper and electronic documents stored off-site by the defendants. Upon the plaintiffs’ first
motion to compel, the court ordered the defendants to permit the plaintiffs to examine, review and
copy stored documents and make a good faith search for other documents, including all electronic
data on DAT tapes, for inspection and review by the plaintiffs. When the defendants failed to
cooperate, the plaintiffs sought a second motion to compel. Prior to the hearing on this second
motion, the parties entered into a consent order which included provisions allowing the plaintiffs to
examine, inspect and copy “all information stored in computers, computer hard drives, removable
electronic data storage media, diskettes, magnetic tapes, CD ROMs, zip discs and jazz discs” and
requiring the defendants to produce all backup data and describe in writing the process used to
access the data. Again the defendants failed to comply with the consent order in providing the
required electronic information. The plaintiffs then made its third motion to compel and sought
sanctions. Finding that the defendants had intentionally and willfully refused to comply with
discovery, the trial court sanctioned the defendants by ordering them to produce, at their cost,
copies of the backup tape data. The appellate court affirmed the sanctions.
� DeLoach v. Philip Morris Co., 206 F.R.D. 568 (M.D.N.C. 2002). The plaintiffs sought discovery
sanctions alleging that the defendant’s expert report relied on computerized transaction data that
was deliberately withheld from the plaintiffs during discovery. The discovery request at issue
sought "[a]ll summary documents (including electronic data) relating to your leaf tobacco bids,
purchases, or price paid, including but not limited to the entire Tobinet database in electronic form,
but excluding individual transaction documents such as purchase orders and invoices." The
plaintiffs were only provided the database data after the defendant’s expert report was issued (in
which the defendant’s expert relied heavily on this other computerized data). The court held that
the withholding of the data resulted in unfairness to the plaintiffs and allowed the plaintiffs to
respond to the report and provided no opportunity for the defendant to reply.
� Burroughs v. Barr Lab., Inc., 143 F.R.D. 611 (E.D.N.C. 1992), vacated in part on other grounds
40 F.3d 1223 (Fed. Cir. 1994). The court held that the attorney work product privilege applied to
printed results of computerized database searches.
South Carolina
� Uhlig LLC v. Shirley, 2011 WL 2728445 (D.S.C. July 13, 2011). In this discovery dispute, the
plaintiff moved to impose sanctions and modify the forensic examination protocol for the
defendants’ computers and peripheral devices. The parties had agreed to the protocol following
numerous interventions by a magistrate judge; however, disputes continued to arise after forensic
experts conducted searches and the plaintiffs sought to broaden the scope of discovery. Finding
the plaintiff presented sufficient evidence that the broader scope of e-discovery was warranted, the
court lifted the protocol’s date restrictions and agreed that running hash value comparisons
eliminated any need to limit search terms. Finally, the court declined to impose sanctions against
the defendants, who were simply opposing the plaintiffs’ efforts to modify and extend a previously
agreed upon discovery protocol.
110

� Morris v. Metals USA, 2011 WL 94559 (D.S.C. Jan. 11, 2011). In this personal injury litigation, the
plaintiff moved for sanctions including the exclusion of a witness and videotape from evidence.
Alleging a “trial by ambush,” the plaintiff argued the defendant failed to disclose the identity of a
witness (an investigator) and corresponding surveillance videotape until six months after receiving
the interrogatories and requests for production, and roughly one week prior to the discovery
deadline. The defendant argued production was not required as it intended to use the evidence
solely for impeachment purposes. Analyzing the evidence, the court found the tape could also
serve a substantive purpose as the video showed the plaintiff performing normal daily activities and
might contradict or diminish the plaintiff’s quality of life claims. Despite a lack of bad faith, the
defendant’s violation of Fed.R.Civ.P. 26(a) and (e) was “not substantially justified nor harmless”;
thus, the court prohibited the use of the investigator as a witness and the videotape as evidence at
trial, but declined to impose further sanctions.
� Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008). In this case, the plaintiff, an enemy
combatant in military custody, requested the court impose a preservation order to preserve
documents related to his detention and determine if spoliation occurred. The plaintiff claimed the
government destroyed relevant evidence, did not have a preservation policy and that a
preservation order was necessary to prevent further evidence destruction. The defendants claimed
they had issued several preservation directives calling for the retention of evidence pertaining to
the plaintiff and that the loss or destruction of certain records was inadvertent. Finding the
defendants’ efforts to be in good faith, the court determined the plaintiff failed to demonstrate that
there was significant risk relevant evidence would be destroyed absent a preservation order,
thereby denying the plaintiff’s motion.
� Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008). In this
breach of contract, inter alia, litigation, the plaintiffs claimed the former employee defendant stole
confidential information and used it to expand the business of his current employer. The plaintiff
thus sought production of the defendants’ business and personal computers for forensic inspection,
alleging the e-mails produced by the defendants were not accurate copies. The plaintiffs also
argued that electronic documents were modified after the defendants were put on notice of
litigation, noting that the defendants did not make any preservation efforts. Finding forensic
analysis appropriate, the court granted the motion to compel. The court established a detailed
procedure to govern the forensic examination and ordered the parties to share equally in the fees,
costs and expenses charged by the forensic expert.
� KnifeSource, LLC v. Wachovia Bank, N.A., 2007 WL 2326892 (D.S.C. Aug. 10, 2007). In a suit
alleging common law and UCC conversion, the plaintiff motioned the court to compel the
defendant’s production of all bank statements from a specified person who allegedly altered the
payee information on checks to deposit them in her personal account at the defendant’s bank. The
defendant claimed it could not comply with such request, arguing that it did not maintain copies of
the statements and therefore such an order would require it to create documents for the sole
purpose of complying with this discovery request. As the defendant merely claimed it did not
maintain physical copies of the requested information, not that it did not have the information, the
court held that it failed to demonstrate the information was not reasonably accessible. The court
ordered the defendant to comply with the request to the extent the information was maintained
electronically.
� Trammell v. Anderson Coll., 2006 WL 1997425 (D.S.C. July 17, 2006). In an employmenttermination
dispute, the defendant moved to quash a subpoena issued to a computer consultant
retained in “anticipation of litigation.” In turn, the plaintiff sought a motion to quash a subpoena
111

equesting “any and all electronic storage media including hard drives, zip drives, thumb drives,
CD’s, DVD’s, etc. from and pertaining to any computer including desk top computers and/or
laptops, used by [the plaintiff] from January 1, 2002 to the present.” Before terminating the plaintiff,
the defendant hired a computer consultant to analyze the plaintiff’s hard drive to determine the
authenticity of certain e-mails. Following this, the defendant retained a computer forensics expert,
Kroll Ontrack Inc., to create a forensic image of the hard drive, conduct a more thorough
investigation of the computer media, and store the hard drive with the defendant’s law firm for
preservation. Although the defendant withheld the computer consultant’s records, the defendant
provided the plaintiff with the more in-depth report by Kroll Ontrack, insisting the plaintiff conduct its
own forensic analysis if unsatisfied with the investigation. Arguing it had maintained strict chain-ofcustody
procedures, the defendant submitted affidavits stating “there has been no change in the
data or information on the hard drive from the time it was retrieved…to the present.” Finding the
plaintiffs failed to show evidence that information on the hard drive had been altered, the court
granted the defendant’s motion to quash and ruled the plaintiffs had not met their burden in
demonstrating substantial need for the computer consultant’s analysis or showing they would suffer
undue hardship in obtaining the relevant information through other means. The court continued by
granting the plaintiff’s motion to quash, noting a party cannot issue a subpoena to another party
under Rule 45, but should have requested production of the plaintiff’s personal computer pursuant
to Rule 34.
� QZO, Inc. v. Moyer, 594 S.E.2d 541 (S.C. Ct. App. 2004). A corporation alleged that the
defendant, a former officer and shareholder of the corporation, violated state trade secret laws by
planning to compete with the corporation. The corporation requested the defendant turn over a
computer, which allegedly contained evidence of the defendant’s plans to compete. The trial court
granted a temporary restraining order (TRO) directing the defendant to hand over the computer to
the corporation or to a neutral third party. The defendant waited until seven days after the TRO was
issued to deliver the computer to the corporation. After receiving the computer, the corporation
hired a computer expert to inspect and retrieve any potential evidence from the computer’s hard
drive. The expert discovered the hard drive had been reformatted a day before the defendant
delivered the computer to the corporation, which erased any evidence that may have been on the
computer. The corporation requested sanctions in the form of a default judgment against the
defendant for intentionally violating the TRO. The trial court granted the corporation’s motion for
sanctions and entered the default judgment in favor of the corporation. The defendant appealed
stating that the evidence was insufficient to support such severe sanctions. On appeal, the
appellate court affirmed the trial court’s judgment, determining that the sanctions were not too
severe.
West Virginia
� Hanson v. First Nat’l Bank, 2011 WL 5201430 (S.D.W. Va. Oct. 31, 2011).
In this case, the plaintiff sought production of a defendant-employee’s e-mails with his attorney.
The plaintiff contended that the employer’s data policy, which stated that employee e-mails were
not confidential and were subject to review, constituted a waiver of any existing attorney-client
privilege. The defendant, while conceding awareness of the policy, tried to show that he
nonetheless believed the e-mails were confidential by relying on a different section of the policy.
The relevant section provided that other employees should regard messages as confidential and
accessible only by the intended recipient. Noting that the defendant’s reliance was misplaced as it
112

did not address the employer’s ability to review the e-mail, the court held that the defendant’s
knowledge of the policy waived the attorney-client privilege.
� Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D.W.Va. May 18, 2010). In this
insurance claim dispute, the defendants argued the plaintiff waived privilege following the
inadvertent disclosure of privileged documents during discovery, including an alleged “smoking
gun” e-mail. The defendant claimed the plaintiff failed to take reasonable precautions to prevent
inadvertent disclosure, citing the nearly 980 attorney-client communications that were produced,
and argued the plaintiff failed the five-factor Victor Stanley test. In response, the plaintiff argued the
disclosure occurred due to an undetermined error in the vendor’s software. Despite citing
numerous steps the plaintiff undertook to prevent disclosure and the existence of a clawback
agreement, the court found the plaintiff failed to perform critical quality control sampling and
concluded the plaintiff did not take reasonable steps to prevent disclosure. As such, the efforts did
not satisfy Fed.R.Evid. 502(b) and privilege was waived. In making its decision, the court also
noted the e-mail was “a bell which cannot be unrung,” which influenced the defendants’ discovery
requests and deposition questions.
Maryland
� Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv-02662-MJG (D. Md. June 15, 2011). In
this ongoing intellectual property litigation, the court reviewed Magistrate Judge Grimm’s order
requiring the defendant to pay $1,049,850.04 in attorney fees and costs as a monetary sanction for
its egregious spoliation. The defendant objected to the amount of the award on the grounds that it
exceeded the standard set by the court because the cost tabulations included discovery conducted
before the spoliation could affect the plaintiff. Rejecting the defendant’s general objections that the
sanctions included fees and costs completely unrelated to the spoliation, the court also noted that
the defendant’s bad behavior began before the first set of depositions and impacted the discovery
process from that point forward, as Judge Grimm had previously concluded. Furthermore, the court
found the plaintiff’s counsel made a good faith effort to conservatively allocate the costs to the
spoliation. Finding the recommended award was only for those fees and costs reasonably flowing
from the defendants’ spoliation, the court adopted Judge Grimm’s order and directed the
defendants to pay the $571,440.12 balance of the sanction within 30 days.
� Griffin v. State, 2011 WL 1586683 (Md. Apr. 28, 2011). In this criminal case, the state’s highest
court granted the convicted defendant’s petition for a writ of certiorari to review the trial judge’s
decision (affirmed on appeal) to admit electronic evidence obtained from a MySpace profile. Noting
that the required level of authentication required for social networking site evidence was a question
of first impression, the court held that the potential for manipulation in this context required greater
scrutiny of the foundational authentication requirements than that of traditional records. Because
the authentication of key electronic evidence based upon a picture, birth date and residence
location alone provided an inadequate foundation, the court found the trial court committed
reversible error, overturned the conviction and remanded for a new trial. However, the court
suggested that testimony from the purported creator, a search of her computer or information
obtained directly from the social networking website could suffice to authenticate electronic
evidence.
� Océ N. Am., Inc. v. MCS Servs., Inc., 2011 WL 197976 (D. Md. Jan. 20, 2011). In this intellectual
property litigation, the plaintiff sought forensic images of flash (or thumb) drives alleged to contain
copies of its proprietary software. Pursuant to an agreement among the parties, a neutral third
113

party expert created the forensic images and subsequently destroyed the original drives. Opposing
the motion, the defendant claimed the plaintiff requested the drives themselves – not the forensic
images – and that the parties’ agreement limited the scope of e-discovery. Rejecting the
defendant’s arguments, the court noted that parties have a continuing obligation to supplement
discovery responses. Further, because the forensic images of the thumb drives contained the
exact same information as the original media, the images were discoverable. Finally, the court
found the agreement did not express a specific intention to limit discovery and found no compelling
reason to deny the plaintiff access to this important information.
� Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv-02662-MJG (D. Md. Jan. 24, 2011). In
this ongoing intellectual property litigation, the parties disputed the amount of reasonable attorneys’
fees and costs to be paid by the defendants as a sanction for intentional spoliation of evidence and
other egregious misconduct during discovery. The plaintiff sought $936,503.75 in attorneys’ fees
and $148,297.04 in costs, while the defendants previously were ordered to pay $337,796.37.
Noting that willful spoliation “taints the entire discovery and motions practice,” the court refused the
defendants’ “shotgun approach” to narrow the costs sought. Concluding that $901,553 was the
reasonable amount of the plaintiff’s attorneys’ fees, the court found that the “‘time and labor
required’ to address Defendants’ spoliation was commensurate with the magnitude of the spoliation
itself.” The court also awarded the proposed costs, including the expense of hiring a computer
forensic consultant. In total, the court ordered the defendants to pay $1,049,850.04, with the
balance of $712,053.67 due in 30 days.
� Huggins v. Prince George’s County, Maryland, 2010 WL 4484180 (D. Md. Nov. 9, 2010). In this
civil rights litigation, the plaintiff sought to modify a previously denied motion for spoliation
sanctions, alleging a key county administrator’s e-mail account had been deleted and purged in
violation of its preservation obligations. Reviewing the magistrate judge’s original findings, the court
agreed that the duty to preserve did not arise until a year after the administrator’s employment
ended and six months after his account was deleted in accordance with the county’s standard
operating procedure. Despite the fact that the administrator was a “key player” in the litigation, the
court affirmed the absence of a culpable state of mind as the e-mail account was deleted “pursuant
to a neutral policy” when no preservation duty existed. Finally, the court found that because the
administrator’s involvement was peripheral, the damage from losing his e-mails was “de minimis in
light of all available evidence” – a finding supported by the plaintiff’s failure to reference him in the
original action despite awareness of his role. Accordingly, the court denied the motion for
sanctions.
� Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv-02662-MJG (D. Md. Nov. 1, 2010). In
this intellectual property litigation, the defendants appealed Magistrate Judge Grimm’s order from
September 9, 2010 holding the defendant President in contempt of court and ordering a two-year
imprisonment unless and until attorney fees and costs were paid. Agreeing with Judge Grimm’s
recommendation, the court adopted the decision except as to the order for imprisonment. Declining
to address the possibility of referral for criminal prosecution at this time, the court found it
inappropriate to order incarceration for the possible future failure to comply with an as-yetundetermined
payment obligation. The court ordered the defendants to pay $337,796.37 by the
end of the week, constituting the minimum amount of sanctions imposed, and referred to Judge
Grimm the matter of determining any additional amount payable. In the event this payment was not
made, the defendants would be required to appear in court to show cause why they should not be
held in civil contempt for their failure to comply with the order, and additional failures may permit a
warrant for the defendant President’s arrest.
114

� Mezu v. Morgan State Univ., 2010 WL 4183680 (D. Md. Oct. 22, 2010). In this Family Leave and
Medical Act litigation, the parties filed multiple cross-motions including the plaintiff’s motions to
compel and extend discovery and the defendant’s motion for terminating sanctions. Finding that
counsel for both parties exhibited a “substantial disregard” of the federal and local rules and
guidelines, the court temporarily halted the filing of additional discovery motions, denied all pending
motions and set discovery guidelines going forward. Citing an affirmative duty to cooperate, the
court admonished counsel for filing a “barrage” of motions and countermotions, which
demonstrated counsels’ intent “to use this Court as a trampoline on which to exercise their mutual
animosity” in violation of Fed.R.Civ.P. 26(g)(1). In an effort to end the discovery “grudge match,”
the court suspended all discovery motion filings until he was convinced that discovery was
proceeding appropriately. To facilitate this process, both parties were ordered to submit a written
verification that they carefully read the Federal Rules of Civil Procedure, the Local Rules, the
Discovery Guidelines of the District of Maryland and the Mancia v. Mayflower Textile Services
opinion. The court also ordered the parties to engage in an in-person, recorded meet and confer
session to cooperatively resolve existing disputes and develop a joint discovery plan.
� Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3703696 (D. Md. Sept. 9, 2010). In this
intellectual property litigation, the plaintiff sought terminating and other sanctions arising out of the
defendants’ intentional spoliation of evidence and other litigation misconduct. The plaintiff identified
eight discrete preservation failures, including the president of the defendant company’s use of
wiping software, failure to implement a litigation hold and failure to preserve an external hard drive,
files and e-mails following the plaintiff’s demands and multiple court orders. Calling this a case of
the "gang that couldn’t spoliate straight," Judge Grimm remarked that through four years of
discovery, the defendant president had actual knowledge of his duty to preserve, yet delayed and
misrepresented the completeness of the ESI production and deleted, destroyed and otherwise
failed to preserve evidence. The Judge stated that these failures "collectively constitute the single
most egregious example of spoliation [that he has] encountered in any case … in nearly fourteen
years on the bench." Following a thorough discussion of preservation standards and spoliation
laws among the Circuits, including in Pension Committee and Rimkus Consulting Group, Judge
Grimm issued a default judgment for the copyright claim only and held that the defendant president
pervasively and willfully violated court orders in civil contempt of court, ordering him to be
imprisoned for up to two years, or until he paid the attorneys’ fees and costs – estimated to be a
"significant amount."
� Griffin v. State, 2010 WL 2105801 (Md.App. May 27, 2010). In this criminal case, the defendant
appealed his murder and handgun convictions, arguing the court erred in admitting a printed
MySpace page into evidence, as it was not properly authenticated and was prejudicial. Given that a
MySpace personal profile contains content supplied by the site’s individual users, the State
contended that the identifying information in the page’s content sufficiently linked the page to the
person because it included the person’s photograph, date of birth, references to the person’s
children and the defendant’s nickname. Agreeing with the State, the court held that even with
pseudonymous and anonymous profile names, individualized content on social networking sites
“may lend itself to authentication of a particular profile page as having been created by the person
depicted in it.” The court also denied the defendant’s argument regarding the prejudicial effect of
the evidence, citing the trial court’s redaction of irrelevant evidence from the profile and the limiting
instruction given to the jury.
� Goodman v. Praxair Servs., Inc., 2009 WL 1955805 (D. Md. July 7, 2009). In this breach of
contract dispute, the plaintiff, a pro se litigant, sought spoliation sanctions alleging the defendant
115

failed to issue litigation holds and preserve relevant evidence, destroyed employees’ computers
and failed to search disaster recovery tapes. The defendant argued a litigation hold was properly
issued, there was no duty to preserve employees’ computers, the plaintiff’s motion was untimely
and the plaintiff failed to provide proof regarding the disaster recovery tapes claim. Despite finding
the plaintiff brought his motion for spoliation more than five months after discovery’s conclusion,
the court denied the defendant’s argument that the motion was untimely because the dispositive
motions had not yet been ruled on. The court then determined that the duty to preserve arose
when the plaintiff sent a letter informing the defendant that he had consulted attorneys regarding
the matter. Next, the court held that the defendant failed to issue litigation holds to key players and,
as a result, three computers were discarded in violation of the preservation duty. The court
determined that, while the defendant did not act in bad faith, it acted willfully when it intentionally
destroyed the computers and e-mails. Finding only one of the destroyed computers contained
relevant evidence, the court issued an adverse jury instruction for the evidence contained on that
particular computer. Finally, the court allowed the plaintiff to compile a list of expenses incurred in
filing the instant motion, excluding attorney’s fees because the plaintiff was pro se.
� Williams v. Long, 2008 WL 4848362 (D.Md. Nov. 7, 2008). In this employment compensation
dispute, the plaintiffs filed for conditional class action certification and submitted several affidavits
and printed webpages from official websites, consisting of case search results and a copy of a
similar complaint in support of the motion. Citing Lorraine v. Markel Am. Ins. Co., Magistrate Judge
Paul W. Grimm stated that accepting electronically stored information as evidence implicates a
series of “evidentiary hurdles” that must be cleared, including relevancy and authenticity.
Magistrate Judge Grimm held that since the webpages were printed from government websites,
they were self-authenticating, “official publications,” and thus clear the authentication hurdle.
Finding the webpages authentic and relevant to the issue of class certification, the court turned to
the issue of hearsay. Finding that the requirements for the hearsay exception for public records
were met, the court granted the plaintiffs motion to conditionally certify the class.
� Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D.Md. Oct. 15, 2008). In this
collective employment action, the plaintiffs raised issues regarding numerous discovery and
supplemental interrogatory requests. The defendants objected to these requests with, “boilerplate,
non-particularized objections.” Frustrated with the party’s inability to approach discovery
responsibly, Chief Magistrate Judge Paul W. Grimm scheduled an in-court hearing to discuss the
discovery violations and issued this opinion to explain concerns and instruct counsel on how to
reach resolution. Judge Grimm stated that the failure to abide by Rule 26(g), requiring
particularized facts for a discovery objection, was one reason for the excessive costs of discovery.
He also stated that, “discovery must be initiated and responded to responsibly, in accordance with
the letter and spirit of the discovery rules, to achieve a proper purpose, and be proportional to what
is at issue in the litigation, and if it is not, the judge is expected to impose appropriate sanctions to
punish and deter.” Due to the lack of record establishing an estimated amount in controversy, the
court ordered the parties to meet and confer in good faith to: estimate a likely range of provable
damages to quantify a “discovery budge” that is proportional to what is at stake in the case, discuss
the additional discovery sought by the plaintiffs and attempt to reach an agreement, and provide
the court with a status report indentifying any unresolved issues.
� Pandora Jewelry, LLC v. Chamilia, LLC, 2008 WL 4533902 (D.Md. Sept. 30, 2008). In this
dispute alleging multiple violations of the Lanham Act, the plaintiff sought sanctions, asserting the
defendant engaged in discovery abuses and spoliation. The defendant claimed they were unable to
provide the communications at issue, possibly due to their e-mail retention policy, but claimed that
116

any such information was irrelevant. The defendant also argued the plaintiff was unable to
establish the elements of their claims and sought summary judgment. The court agreed with the
defendant and granted its motion for summary judgment, but also found the defendant abused the
discovery process by failing to timely or fully respond to the plaintiff’s production request and
deposition notice. Unwilling to ignore the defendant’s “stonewalling” of the discovery process, the
court imposed monetary sanctions by awarding the plaintiff reasonable costs associated with
bringing the motion at issue. However, the court was unwilling to impose spoliation sanctions as
the plaintiff was unable to offer concrete proof that any lost information would have been relevant
or supported its claims.
� Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008). In this
copyright infringement case, the plaintiff sought a ruling that 165 electronic attorney-client
privileged and work-product protected documents produced in discovery were discoverable. The
plaintiff claimed privilege was waived because the defendants failed to conduct a reasonable
privilege review prior to production. The defendants claimed the waiver of privilege was
inadvertent, since they conducted a reasonable search using seventy keyword search terms to
review potentially discoverable documents. Noting “all keyword searches are not created equal”,
the court used the intermediate test mentioned in Hopson v. Mayor of Baltimore balancing several
factors to determine whether the waiver of privilege was inadvertent. Determining the defendants
did not take reasonable precautions to prevent inadvertent disclosure, the court found the
defendants waived their privilege. Additionally, the court noted several measures could have
helped prevent this waiver, including the usage of a clawback (or other non-waiver) agreement the
defendants voluntarily abandoned and/or complying with the Sedona Conference Best Practices
for use of search and information retrieval.
Lorraine v. Markel Am. Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007). In this action, the
plaintiffs brought suit to enforce an arbitrator’s award determining that damages to their yacht were
the result of a lightning strike and motioned the court to award a judgment of $36,000. The
defendant’s insurer counterclaimed, seeking to enforce part of the arbitrator’s award which
concluded that damages were limited to $14,100. Both parties filed cross-motions for summary
judgment but each party failed to support their motions with admissible evidence as required under
the Rules of Evidence. Specifically, both parties offered copies of e-mail as parol evidence which
were attached as exhibits to the summary judgment motions and not authenticated properly. The
magistrate judge dismissed both parties’ summary judgment motions without prejudice to allow
resubmission with proper evidentiary support. The magistrate observed that unauthenticated emails
are a form of computer generated evidence that pose evidentiary issues. The magistrate
stated the admissibility of ESI as evidence is determined by “a collection of evidence rules that
present themselves like a series of hurdles to be cleared by the proponent of the evidence.” He
found there were “five distinct but interrelated evidentiary issues that govern whether electronic
evidence will be admitted into evidence.” The five issues may not apply to every exhibit, but the
magistrate held that each must be considered. The magistrate held that ESI must be 1) relevant, 2)
authentic, 3) not hearsay or admissible hearsay, 4) the “best evidence”, and 5) not unduly
prejudicial before it can be found to be admissible evidence. Regarding the five issues, the
magistrate found the parties’ e-mail exhibits were relevant to the suit. However, both parties failed
to authenticate the e-mail exhibits because they “simply attached the exhibits” and the “complete
absence of authentication stripped the exhibits of any evidentiary value because the Court could
not consider them as evidentiary facts.” Additionally, the magistrate found that the parties failed to
address the last three hurdles of admissibility. They did not resolve any potential hearsay issues
117

that were likely to arise, nor did they comply with the original writing requirement or demonstrate
the absence of unfair prejudice. After explaining the legal standard for each step of ESI
admissibility, the magistrate stated “it can be expected that electronic evidence will constitute
much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should
know how to get it right on the first try.”
� Quotient, Inc. v. Toon, 2005 WL 4006493 (Md. Cir. Ct. Dec. 23, 2005). In a breach of contract
suit, the plaintiff alleged that the defendant, while in plaintiff’s employ, provided a former employee
access to the plaintiff’s computer system so that the former employee could obtain trade secrets
and confidential information. In order to preserve potentially relevant email evidence on the
defendant’s personal computer, the plaintiff filed an emergency motion for expedited discovery.
The plaintiff offered to pay for a computer expert to make a mirror image of the defendant’s
computer and stipulated that the contents could be sealed until further court order. In granting the
emergency motion, the court found a “substantial probability” that relevant electronic evidence,
including e-mails and instant messages, “could be made less accessible to the parties merely by
the defendant’s normal course of computer use, regardless of his intentions and motive.” The court
observed, where “the unintentional destruction of relevant evidence should be halted when it can
be done so in a fashion that is minimally intrusive and where [the other party] is willing to bear the
full cost of the process.” Citing the Sedona Principles, the court granted the emergency order,
finding, in certain circumstances, preservation orders may aid the discovery process, by promoting
efficiency and by specifying the parties’ preservation obligations. The court requested that the
defendant’s lawyers screen the computer data for privacy, privilege, and relevancy issues before
disclosing the contents to the plaintiffs.
� Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D.Md. 2005). In an action
based on racial discrimination allegations, the plaintiffs requested hard copy and electronic records
and issued interrogatories with questions “specifically designed to discover the nature, extent, and
location of electronically stored records, the [d]efendants’ IT capabilities, the nature of archived
data, e-mail, and records retention policies.” Based on concerns about performing pre-production
privilege review, the defendant claimed undue burden and expense. Referencing the proposed
Federal Rules of Civil Procedure amendments, the court declared that both parties had a duty to
negotiate a reasonable discovery plan and present the plan to the court. The court asserted, “[t]he
days when the requesting party can expect to ‘get it all’ and the producing party to produce
whatever they feel like producing are long gone…electronic discovery is not played on a level field.
The plaintiff typically has relatively few electronically stored records, while the defendant often has
an immense volume of it. In such cases, it is incumbent upon the plaintiff to have reasonable
expectations as to what should be produced by the defendant.” The court ordered the parties to
meet and confer within 30 days about e-discovery matters, including discovery scope and issues
relating to privilege review. After that meeting, the court indicated it would conduct a follow-up
hearing to discuss those issues.
� Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D. Md. 2005). In an employment
discrimination case, the plaintiff filed a motion for sanctions against the defendants for failing to
preserve electronic documents and for spoliating e-mail evidence. Citing Zubulake, the court
addressed the defendants’ duty to preserve e-mails and other relevant documents. The evidence
showed the defendants were on notice of the lawsuit long before they halted their data destruction
policy. In fact, the defendants admitted they never issued a company-wide instruction regarding
suspension of their data destruction policy and they did not save the plaintiff’s e-mails relating to
the harassment incidents or his termination. Based on this evidence, the court granted the
118

plaintiff’s motion for sanctions and issued an adverse inference jury instruction relating to spoliation
of the e-mails. The court declared the defendants acted in bad faith by failing to suspend their email
and data destruction policy and by failing to preserve essential personnel documents in order
to comply with their preservation obligations. The court further stated, “Given [the defendants’]
status as a large public corporation with ample financial resources and personnel management
know-how, the court finds it indefensible that such basic personnel procedures and related
documentation were lacking.”
� MMI Prods., Inc. v. Long, 2005 WL 757073 (D.Md. Apr. 1, 2005), rev’d, 231 F.R.D. 215 (D.Md.
2005). Alleging a former employee misappropriated confidential company information, the plaintiff
hired a computer forensic expert to analyze the employee’s hard drive. The plaintiff’s expert
concluded, “there was an attempt to overwrite data through a selective restoration from previous
backup session or a reinstallation of Microsoft Windows 2000.” In defending the action, the
employee hired a Kroll Ontrack computer forensic expert to examine the plaintiff expert’s report.
The Kroll Ontrack expert discovered a Dell computer support Web site listing the laptop as having
been shipped to the plaintiff after the date the plaintiff’s expert concluded the restoration activity
might have taken place. The Kroll Ontrack expert also concluded any deletions or overwrites
resulted from normal processes, not efforts by a user to delete information. Finally, the Kroll
Ontrack expert noted the laptop had been imaged by the plaintiff’s expert after at least two
sessions of non-forensic access while the plaintiff’s lawyers had control of the laptop. A magistrate
judge proposed the plaintiff and its counsel pay Kroll Ontrack’s costs as a sanction for failing to
make reasonable inquiries into the reliability of their own expert’s report. Although the court found
no error with the magistrate’s factual findings, it declined to award costs and concluded attorneys
should not be sanctioned for deficiencies or errors in an expert’s report.
� Weaver v. Zenimax Media, Inc., 2004 WL 2755852 (Md. Cir. Ct. Sept. 3, 2004). An employer
brought a motion for sanctions against a former employee, claiming the employee’s egregious
discovery conduct warranted dismissal of the suit. The employee confessed under oath that he had
accessed, searched, printed, and reviewed e-mails from the computers of company executives
without permission, in an attempt to find information relevant to his personal interests. The court
evaluated five factors in determining if dismissal was warranted: (1) the employee’s willfulness,
wrongfulness and bad faith; (2) the relationship between the misconduct and the issues in the
case; (3) the amount of prejudice the employee’s actions caused the employer; (4) the promotion
and safeguarding of judicial administration versus the importance of resolving disputes on the
merits; and (5) the likelihood that a lesser sanctions would deter the behavior. After weighing these
factors, the court determined the employee “engaged in a systematic, calculated, and months-long
scheme to obtain an advantage in a litigation that he planned to file and pursue” by scanning and
printing the e-mails without authorization. The court granted the motion for sanctions and
dismissed the complaint.
� LeJeune v. Coin Acceptors, Inc., 849 A.2d 451 (Md. 2004). In a case involving the violation of a
state trade secrets act, an employer alleged that a former employee copied proprietary electronic
documents from his work laptop to a compact disc (CD), shortly before he went to work for a
competitor. The employee stated that, for the sake of simplicity and because he did not know how
to save individual files onto a CD, he had transferred his entire “My Documents” folder, which
contained personal files such as his wedding photographs, and inadvertently captured some of his
former employer’s confidential business documents. The employer’s computer forensics expert
refuted the employee’s claims, testifying that a file, which was not contained in the “My Documents”
folder, was also copied to the CD. The expert also determined that the employee had attempted to
119

hide the document transfer by deleting information about the downloads from the laptop. Based on
this evidence, the appellate court affirmed the lower court’s finding that the evidence supported a
finding of trade secret misappropriation.
� Attorney Grievance Comm’n of Maryland v. Potter, 844 A.2d 367 (Md. 2004). The court
considered a Petition for a Disciplinary Action filed by the Attorney Grievance Commission against
the defendant, an attorney, for violating the Maryland Rules of Professional Conduct. Upon
resigning from a law firm, the defendant took paper files pertaining to two clients of the firm stating
that he believed that the clients would choose to have the defendant continue to represent them.
Additionally, the defendant deleted the client files from the firm’s computer without authorization
from the firm. The computer records included all documents prepared by the defendant and the
firm’s secretaries relating to matters involving the clients. The Commission sought suspension of
the attorney’s license alleging that the defendant committed “a criminal act that reflects adversely
on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” The judge
appointed to hear the initial action held that the defendant did not violate the Code. However, the
court of appeals reversed, finding by “clear and convincing evidence” that the defendant’s conduct
in deleting the files violated the Rules of Professional Conduct. The court further noted,
“[n]otwithstanding the attorney’s motive, lawyers in this State may not delete computer records or
take client files…without authorization.” The court concluded that the defendant’s misconduct
warranted a 90 day suspension from the practice of law.
� Thompson v. United States, 219 F.R.D. 93 (D.Md. 2003). The plaintiffs served upon the
defendants a series of Rule 34 document production requests seeking electronic records and email.
When the defendants failed fully to produce these records, the plaintiffs filed a motion seeking
sanctions. The court issued Rule 37(b)(2) relief to the plaintiffs by ruling that the defendants could
not call certain witnesses unless they were able to demonstrate that there were no responsive email
records generated or received by the witness or, if such records did exist, that they had been
produced to the plaintiffs by a certain date. Long after the discovery cutoff deadline and the court’s
sanction order, the defendant announced that it had discovered 80,000 e-mail records, after having
repeatedly told the plaintiff and the court that e-mail records either did not exist or already had
been produced. The court revised its previous sanction order, (1) precluding the defendants from
introducing into evidence any of the 80,000 e-mails that were "discovered" at the last minute; (2)
ordering that counsel for the defendants were forbidden to use any of these e-mails to prepare any
of their witnesses for testimony at trial, and that at trial counsel for the defendants were forbidden
from attempting to refresh the recollection of any of their witnesses by using any of the undisclosed
e-mails; (3) ordering that the plaintiffs were permitted to use any of the 80,000 e-mails during their
case and in cross-examining any of the defendants witnesses; (4) ordering that, if the plaintiffs
incurred any additional expense and attorney’s fees in connection with reviewing the 80,000
records and analyzing them for possible use at trial, this could be recovered from the defendants
upon further motion to the court; and (5) ordering that if, at trial, the evidence revealed additional
information regarding the non-production of e-mail, the plaintiffs were free to make a motion to the
court that the failure to produce e-mail records as ordered by this court constituted a contempt of
court.
Virginia
� Global Aerospace, Inc. v. Landow Aviation, L.P., No. CL 61040 (Vir. Cir. Ct. April 23, 2012). In
this state-level consolidated case arising out of the collapse of three hangars during a snowstorm
120

at Dulles airport, the defendants filed a motion for a protective order approving the use of predictive
coding in processing and producing their own ESI. In their memorandum supporting the order, the
defendants claimed they had over 250 gigabytes of reviewable information, which they estimated
would cost over two million dollars for the 20,000 hours needed to manually review all of the data.
The defendants also included U.S. Magistrate Judge Andrew Peck’s February 24 order in Da Silva
Moore v. Publicis Groupe approving predictive coding as an exhibit to support their motion. In a
one-paragraph order written partially by hand, the Loudon County Circuit Judge granted the
motion, allowing the defendants to use predictive coding subject to any objections the plaintiffs
might raise following production.
� United States v. Universal Health Servs., Inc., 2011 WL 3426046 (W.D. Va. Aug. 5, 2011). In
this federal false claims litigation, the defendants requested production of e-mails contained on
backup tapes and the imposition of an adverse inference sanction alleging spoliation. Conceding
that records created since 2009 were accessible via their current exchange server, the plaintiffs
argued that producing e-mails pre-dating 2009 would be unduly burdensome as it would require
recreating the old Microsoft® Exchange server at an estimated cost of $100,000. The defendants
claimed the plaintiffs’ proffered method of retrieval represented only one option that happened to
be the most laborious and time-consuming. Instead, the defendants suggested the data could be
recovered in a cost-effective, timely manner by using readily available industry technology. Finding
the plaintiffs’ own negligence caused the undue burden by failing to issue a timely litigation hold,
and that the data was likely to be highly responsive, the court granted the motion and ordered the
government to produce the backup tapes to the defendants, with the costs subject to
reimbursement by the government.
� E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., 2011 WL 2966862 (E.D. Va. July 21,
2011). In this ongoing trade secrets litigation, the plaintiff sought sanctions alleging the defendant
spoliated evidence by deliberately destroying relevant ESI and engaged in prolonged efforts to
conceal misconduct. Offering a "no harm, no foul" defense, the defendant claimed that because
many of the deleted files were recovered, no spoliation occurred and the plaintiff suffered no
prejudice. Finding the defendant did not engage in a widespread effort to delete relevant
information, the court however determined the litigation hold notices were inadequate and,
according to forensic analysis, several key employees intentionally and in bad faith destroyed
approximately 12,836 e-mails and 4,975 electronic files. Declaring these deletions significant in
substance and number, the court imposed an adverse inference instruction and ordered payment
of attorney fees and costs incurred as a result of the spoliation.
� E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 2011 WL 1597528 (E.D. Va. Apr. 27,
2011). In this trade secrets litigation, the defendant sought spoliation sanctions alleging the plaintiff
deleted e-mail accounts and documents of four former employees containing evidence highly
probative to its defenses. In light of a parallel criminal investigation into the former employee’s
alleged misappropriation, the government instructed the plaintiff to keep the matter confidential.
Although the plaintiff’s initial litigation hold issued to 18 potential custodians was twice expanded as
the matter progressed, the defendant argued that critical information was lost due to the plaintiff’s
failure to incorporate employees likely to be relevant to the suit. Citing Victor Stanley, the court held
that the scope of a party’s duty to preserve is not absolute, but must only be reasonable and
proportional to the circumstances. The court found this standard did not require the plaintiff to
anticipate preserving evidence potentially relevant to possible defense theories fashioned by the
defendant. Accordingly, the court determined the plaintiff’s preservation efforts did not constitute
the willful spoliation required to grant an adverse inference instruction and denied the motion.
121

� Corinthian Mortgage Corp. v. Choicepoint Precision Mktg., LLC, 2009 WL 36606 (E.D.Va. Jan.
5, 2009). In this contract dispute, the prevailing defendant moved for attorneys’ fees, including fees
for document review and production. The defendant argued its time spent on discovery was
reasonable because: (1) more than 2.6 million document pages were reviewed in order to produce
1.2 million pages; (2) it took extra care to avoid spoliation; and (3) its review of the plaintiff’s
documents was hindered by the plaintiff’s disorganized production. The plaintiff argued the claimed
attorneys’ fees were excessive and that it produced documents electronically as they were
maintained in the course of business. Finding the time spent on discovery “excessively high,” the
court reduced the total fee awarded. The court noted that the plaintiff should not be charged for the
defendant’s inefficiencies in document review and production.
� Sprenger v. Rector and Bd. of Visitors of Va. Tech, 2008 WL 2465236 (W.D.Va. June 17,
2008). In this disability and civil rights litigation, the plaintiff filed a motion to quash a subpoena
issued by the defendants to a third party agency, seeking all electronically stored information on
various pieces of media utilized by her husband. Specifically, the defendants sought e-mail sent
between the plaintiff and her husband regarding her medical condition. The plaintiff argued the
subpoena was overbroad, burdensome and sought records protected by spousal privilege. The
defendants argued that any spousal privilege was obviated by the fact that both the plaintiff and her
husband were state agency employees and the state has both the right to monitor employee e-mail
and a written policy which provides employees should have no expectation of internet privacy. In
this case of first impression, the court considered persuasive precedent and determined the
defendants did not meet their burden of demonstrating a waiver of privilege after noting the
defendants had provided no evidence that the plaintiff or her husband were aware of the internet
usage policy, and thereby granted the plaintiff’s motion.
� In re Subpoena Duces Tecum to AOL, LLC, 2008 WL 1956266 (E.D.Va. April 18, 2008). In this
insurance fraud litigation, the defendant objected to the magistrate judge’s order that quashed its
subpoena. The subpoena sought production of documents from the non-party witnesses’ e-mail
accounts through AOL. The non-party witnesses claimed the subpoena violated the Electronic
Communications Privacy Act, imposed an undue burden, and sought e-mails protected by the
attorney-client privilege. Determining the statutory language of the Privacy Act does not allow AOL
to divulge the contents of the requested electronic communications, the court upheld the
magistrate judge’s order. Additionally, the court held the subpoena was overbroad and imposed an
undue burden under Fed.R.Civ.P. 45(c), since it requested all e-mails from a six week period
including private information unrelated to the litigation.
� De Technologies, Inc. v. Dell, Inc., 2006 WL 3500962 (W.D. Va. Dec. 4, 2006). In a patent
infringement suit, the plaintiff claimed the defendant’s production of documents was insufficient in
response to specific discovery requests and certain electronic documents produced in an online
document database should not be allowed as evidence at trial. The defendant used an online
database to produce over 500,000 electronic documents in a searchable, electronic format to the
plaintiff. The database was searchable by keyword but the database did not reference or identify
which documents were responsive to each discovery request. The plaintiff argued that Federal
Rule of Civil Procedure 34 required the production of documents as “kept in the ordinary course of
business” and that a searchable database did not meet this definition, requiring the plaintiff to
guess which documents would be used by the defendant in response to the plaintiff’s claims at
trial. The court agreed with the plaintiff and held the electronic documents were downloaded into a
specially created database and were not produced in a form consistent with the defendant’s
internal computer system. Furthermore, they found that the database did not organize the
122

documents in a manner that was responsive to plaintiff’s discovery requests and therefore could
not be used at trial as evidence by the defendant.
� Samsung Elecs. Co., Ltd. v. Rambus, Inc., 439 F.Supp.2d 524 (E.D. Va. 2006). In a patentinfringement
case, the court refused to award attorney fees against the defendant for the spoliation
of relevant evidence, finding the sanction inappropriate under either 35 U.S.C. § 285 or the court’s
inherent power. However, relying on substantial documentation of the defendant’s spoliation that
was developed through discovery in two other cases, Rambus v. Infineon and Hynix
Semiconductor, Inc., the court found the defendant implemented a document retention policy to
justify destroying relevant patent infringement claims when the defendant anticipated, or
reasonably should have anticipated, litigation with the plaintiff. The court found the defendant’s
vague litigation hold instruction to “not destroy relevant documents” did not satisfy preservation
obligations in light of several factors, including: the large volume of documents destroyed, the
extent and kind of evidence destroyed following the hold, the failure of the instruction to specify
which documents were relevant to litigation, and the fact that the defendant had maintained no
records of documents that were destroyed. In addition, the court offered guidance on how
companies can comply with their preservation duties by modifying document retention policies
already in existence. The court instructed companies to inform its officers and employees of a
pending litigation and identify for them the kinds of documents considered relevant, in addition to
collecting and segregating relevant documents. The court observed a company cannot “make a
document retention program an integral part of its litigation strategy and, pursuant thereto, target
for destruction documents that are discoverable in litigation.”
� Liggett v. Rumsfeld, 2005 WL 2099782 (E.D.Va. Aug. 29, 2005). In an action for employment
discrimination on the basis of race and for unlawful retaliation, the plaintiff sought, inter alia, an
adverse inference instruction for evidence spoliation. In response, the defendant filed a motion for
summary judgment on the grounds that a genuine issue of material fact did not exist. Specifically,
the plaintiff, a former information technology specialist with the Defense Logistics Agency (“DLA”),
claimed the DLA failed to preserve his computer hard drive. The DLA did not image the plaintiff’s
hard drive although it claimed the plaintiff had used the computer to view pornographic Web sites.
The court noted the DLA “should have preserved or ‘imaged’ the hard drive of [the plaintiff’s]
computer as evidence, however, DLA’s failure to do so does not in and of itself suggest fraud or
fabrication of evidence.” In addition, the court noted it was undisputed that the plaintiff’s activity
was brought to his supervisor’s attention in an unrelated matter. His supervisors neither instigated
the computer investigation nor examined the computer themselves. Thus, the court denied the
plaintiff’s request for an adverse inference instruction and granted summary judgment in favor of
the defendants. The court concluded the plaintiff did not raise a genuine issue of fact about
whether the government’s investigation of the misuse of his computer and subsequent failure to
preserve the computer hard drive was based on race or retaliation.
� Galaxy Computer Servs., Inc. v. Baker, 325 B.R. 544 (E.D. Va. 2005). A Chapter 11 debtor
brought an action against two of its former officers, who purchased a portion of the debtor’s assets,
and the parent company that purchased the assets. Interalia, the plaintiff, sought to introduce
testimony from a computer forensic expert to establish that the defendants deleted files from the
plaintiff’s computer. The expert analyzed nine of the plaintiff’s hard drives and prepared an expert
report detailing the deletion of the foreclosing bank’s directory, all files containing the word "Baker,”
from the plaintiff’s mail server and several other deletions. Seeking to have the testimony excluded,
the defendants argued that the testimony was irrelevant, the expert did not follow proper
procedures, and the expert was unqualified to offer opinions about altered or deleted data. The
123

defendants further argued the expert and its employer failed to follow their own internal chain of
custody procedures, making them unable to ensure the recovered data was accurate. Rejecting
the defendants’ arguments, the court declared the expert could testify based on his knowledge,
skill, experience, training and education. The court also declared the defendants could crossexamine
on any chain of custody issues.
� James v. Saks Fifth Avenue, 2005 WL 603131 (Va. Cir. Ct. Mar. 8, 2005). The plaintiff sought
injunctive relief and damages in a case involving allegations of intentional interference with
business and contractual relations, breach of fiduciary duty, conversion, and other charges. At trial,
a former employee – solicited to work for the defendant – testified that on two separate occasions
he and another one of the plaintiff’s top sales employees generated hard copies of their customers’
personal information stored on the plaintiff’s in-store computers. The employee testified this was
done during store business hours for the “express purpose of demonstrating to [the defendant] that
they had a large number of customers to bring with them.” This testimony was corroborated by
print-outs of the confidential lists containing handwritten notes and by the other employee
testimony. The court found it clear that the defendant knew the employees “planned to take the
confidential customer lists from [the plaintiff] and use them to solicit business for [the defendant],
and knowingly and actively encouraged and participated in this activity.” The court awarded over
$2 million in compensatory and statutory treble damages.
� Beck v. Shelton, 593 S.E.2d 195 (Va. Sup. Ct. 2004). The court held an e-mail exchange between
city council members was not a "meeting" subject to the provisions of a state Freedom of
Information Act (FOIA). The court equated e-mail communication to other forms of communication
not falling within the definition of a prohibited FOIA “meeting” (i.e. traditional letters sent by ordinary
mail, courier or facsimile). However, the court distinguished e-mail from communication taking
place in "chat rooms" or by "instant messaging." The court inferred the virtually simultaneous
nature of instant messaging may place it – unlike e-mail – within the prohibited “meeting” FOIA
definition.
� Hickman v. Virginia Commonwealth Univ., 2004 WL 435846 (Va. Cir. Ct. Mar. 5, 2004). The
defendant terminated the plaintiff, a secretary, from employment with the state university for the
“unauthorized removal of state records, state property, and the property of other persons and
breaches of confidentiality.” Without permission from the university president or anyone else, the
plaintiff forwarded e-mails that were addressed to the president to individuals outside of the
president’s office. The plaintiff argued her actions did not warrant termination because “one cannot
remove e-mail.” The court rejected the plaintiff’s argument asserting that “[w]hile it is true that the
original e-mails remained on the office computer after they were sent by the appellant to others,
copies of those e-mails were ‘removed’ when appellant forwarded them out of the office.”
Moreover, even if the e-mails were not technically “copied” or “removed,” the court declared that
the plaintiff breached confidentiality. As such, the court affirmed the hearing officer’s determination
that the defendant did not act inappropriately in terminating the plaintiff’s employment.
� Rambus, Inc. v. Infineon Techs. AG, 2004 WL 383590 (E.D.Va. Feb. 26, 2004), amended by,
220 F.R.D. 264 (E.D.Va. 2004)(subsequent determination by 222 F.R.D. 280) (E.D. Va. 2004)).
The defendant moved to compel the production of documents including those documents relating
to the plaintiff’s document retention policy. The defendant alleged that the plaintiff instituted a
document-purging program despite being on notice of impending litigation for the patents at issue.
In support of its allegations, the defendant pointed to internal e-mails that reflected the plaintiff’s
“Shred Day,” an event in which the plaintiff’s employees shredded about two million documents as
part of its document retention and destruction policy. At trial, the plaintiff did not dispute that it
124

“destroyed some documents because of their ‘discoverability’.” Additionally, the trial court found
that the plaintiff’s creation of its document retention policy clearly demonstrated that the plaintiff
was on notice that the defendant might be bringing patent infringement lawsuits. The plaintiff
argued that its true motive was not to destroy potentially discoverable information and that the
plaintiff was legitimately trying to reduce search and review costs. The court concluded that even if
the plaintiff “did not institute its document retention policy in bad faith, if it reasonably anticipated
litigation when it did so, it is guilty of spoliation.” The court further noted that “even if it was merely
instituting a valid purging program, even valid purging programs need to be put on hold when
litigation is ‘reasonably foreseeable’.” As such, the court granted the defendant’s motion and
ordered the plaintiff to immediately produce documents containing information about or relating to
the creation, preparation, or scope of the plaintiff’s document retention policy.
� Physicians Interactive v. Lathian Sys., Inc., 2003 WL 23018270 (E.D.Va. Dec. 5, 2003). The
plaintiff, the host of a medial website, contended that the defendant’s employee secretly hacked
into the plaintiff’s website and stole confidential customer lists and computer software code. The
plaintiff moved for a temporary restraining order, preliminary injunction, and limited expedited
discovery order. Specifically, the plaintiff requested permission to enter the defendant’s computer
server, work and home desktop and notebook computers, and any sites where the computers used
in the alleged attacks were located to secure a mirror image of the computer equipment containing
electronic data concerning the defendant’s alleged attack on the plaintiff’s website. The court found
that the plaintiff made a preliminary showing of an invasion of its computer system, unauthorized
copying of its customer list, and theft of its trade secrets. The court granted the plaintiff’s request
and directed that discovery must be done with the assistance of a computer forensic expert.
� Commonwealth v. Simone, 2003 WL 22994245 (Va. Cir. Ct. Nov. 12, 2003), rev’d, 2005 WL
588257 (Va. App. Ct. Mar. 15, 2005). The trial court determined that the defendant knowingly
possessed three sexually explicit images of juveniles found in the cache of his computer even
though the images could have appeared on the defendant’s computer screen as “pop-ups” for
websites other than ones intentionally accessed or manually downloaded by the defendant. A
computer forensic investigator recovered the sexually explicit images from the computer’s directory
cache, also known as temporary internet files. The investigator testified that when accessing a
website, a computer operator normally cannot stop these images from being placed in the cache;
however, images must actually appear on the computer screen before they are automatically
placed in the cache. The trial court determined the defendant exhibited knowing possession of the
three child pornography images contained in his computer’s cache/temporary Internet files. The
appellate court reversed, finding the defendant did not have sufficient dominion and control over
the computer to conclude he possessed the images contained on the computer on the date in
question.
� United States v. Moussaoui, 2003 WL 548699 (E.D.Va. Jan. 7, 2003). The defendant claims that
the government failed to provide him with information retrieved from various computers used by the
defendant. The court held that the government provided the defendant with sufficient information,
including: information about the authentication of the computer hard drives, confirmation that the
computer evidence had not been contaminated, the timing of the forensic examinations, and the
software used to restore a hard drive image. The court further stated that the Defense possessed
the computer hard drives at issue and had expert resources and subpoena power to conduct any
further investigation it deemed necessary.
� Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D.Va. 2001). Based on computer forensic
expert analysis, the court found that the defendant willfully and intentionally destroyed documents
125

that should have been produced during discovery. The court issued adverse inferences and
reimbursement of the plaintiff’s attorneys fees as damages for the spoliation. Trigon Ins. Co. v.
United States, 2002 WL 31864265 (E.D.Va. Dec. 17, 2002.). Despite objection by the defendant,
the court found the plaintiff’s fees and expenses (in the amount of $179,725.70) for hiring and
deposing computer forensics experts and briefing and adjudicating the issues related to the
spoliation warranted and reasonable.
� America Online, Inc. v. Anonymous, 542 S.E.2d 377 (Va. 2001). In a case of first impression, the
court refused to allow a corporation to seek information from AOL without revealing its identity.
� Adams v. Dan River Mills, Inc., 54 F.R.D. 220 (W.D. Va. 1972). In an employment discrimination
case, the court required the defendant to provide an electronic version of the printouts already
submitted to the plaintiff. “Because of the accuracy and inexpensiveness of producing the
requested documents in the case at bar, this court sees no reason why the defendant should not
be required to produce the computer cards or tapes and the W-2 print-outs to the plaintiffs.”
Fifth Circuit – State and Federal Cases
� Union Pump Co. v. Centrifugal Tech. Inc., 2010 WL 5186616 (C.A.5 (La.) Dec. 16, 2010). In this
intellectual property dispute, the plaintiff appealed the district court’s refusal to award attorney’s
fees as a sanction for the defendants’ spoliation of evidence. Responding to the plaintiff’s pre-trial
request for sanctions, the district court issued a permissive adverse inference instruction but
declined to rule further on sanctions until after the jury verdict. After the jury returned a verdict in
favor of the plaintiff in the amount of $2,125,559, the plaintiff requested all attorney’s fees and
costs totaling close to $1 million, which the district court ultimately declined to award. On appeal,
the court remarked that intentional spoliation “threatens the sanctity and spirit of the judicial
process,” but found no abuse of discretion in declining to issue sanctions. The court also noted the
plaintiff failed to renew its request for attorney’s fees as a spoliation sanction and affirmed the
district court’s judgment.
� In re: Vioxx Prods. Liab. Litig. 2006 WL 1726675 (5th Cir. May 26, 2006). In a product liability
litigation, the defendant sought interlocutory appeal and a writ of mandamus of the district court’s
ruling regarding the defendant’s attorney-client privilege claims. Out of more than 2,000,000
documents produced in response to the plaintiff’s discovery request, the defendant withheld
approximately 30,000, claiming attorney-client privilege. After conducting an in camera, documentby-document,
review of the 30,000 documents, the district court determined only 491 documents
were privileged and ordered the remainder be produced to the plaintiff. On appeal, the court only
examined the trial court’s review process, rather than the merit of the privilege claim on any single
document. The Fifth Circuit found the district court judge’s efforts commendable, but inadequate,
and determined that a continuation of the current review process without modification would
constitute an abuse of discretion. The Fifth Circuit granted the defendant’s motion for a reexamination
of 2,000 documents and instructed the defendant to supplement the privilege log and
offer assistance in easing the burden of review on the district court judge. The Fifth Circuit allowed
the district court discretion in determining whether further review of the documents would be
necessary.
� United States v. Vela, 673 F.2d 86 (5th Cir. 1982). The court admitted computerized telephone
bills under the Business Records exception where a telephone company employee laid the proper
foundation for the reliability of the telephone bills record-keeping process. In describing the
reliability of the computer generated documents, the court stated that the computerized reports
126

“would be even more reliable than . . . average business record(s) because they are not even
touched by the hand of man.”
Louisiana
� Yelton v. PHI, Inc., 2011 WL 6100445 (E.D.La. Dec. 7, 2011). In this dispute related to litigation
following a helicopter crash, the defendant who owned the helicopter cross-motioned the defendant
who manufactured the helicopter for product liability. With regard to discovery, the owners argued
that the manufacturer spoliated evidence by delaying a litigation hold to a key custodian until
relevant data on his laptop was deleted. Although the manufacturer initially issued a litigation hold
to several key custodians before the initial lawsuit was filed, they did not issue a hold to a staff
engineer, who was hired at the time of the accident to investigate the cause of the crash, until two
years later. During those two years, counsel for the manufacturer relied heavily on the staff
engineer’s report for the defense, and the laptop containing data from the investigation was
reformatted and resold before a hold was issued. The court found a "significant degree of
culpability" in the manufacturer’s conduct that prejudiced the owner of the helicopter’s defense.
Accordingly, the court granted the plaintiff’s motion, awarding monetary sanctions and ordering an
adverse inference against the defendant manufacturer.
� Who Dat Yat Chat, LLC v. Who Dat, Inc., 2011 WL 4575215 (E.D. La. Sept. 30, 2011). In this
trademark litigation, the defendants requested a finding of contempt and sought sanctions alleging
the plaintiff failed to comply with court discovery orders and altered response deadlines. Objecting,
the plaintiff claimed it did not act willfully or in bad faith, and that it was waiting for a written court
order before proceeding. Finding no good cause for the plaintiff’s noncompliance the court noted
the “glaring problem” that this was the plaintiff’s seventh attempt to fulfill its discovery obligations
and determined the plaintiff was in contempt. Although the court awarded the defendants with
attorney fees in connection with the subject motion, it refused to strike the plaintiff’s affirmative
defenses as requested by the defendants because other sanctions were available.
� Tango Transp., LLC v. Transp. Int’l Pool, Inc., 2009 WL 3254882 (W.D. La. Oct. 8, 2009). In this
contract dispute, the defendant sought monetary and adverse inference sanctions alleging that
after months of repeated requests for e-mail documents, the plaintiff failed to ask employees to
locate, preserve or produce e-mail documentation. The plaintiff placed a litigation hold on e-mail
accounts of some custodians; however, in-house counsel for the plaintiff admitted a litigation hold
was not placed on three key players until six months after the request. Citing the plaintiff’s failure to
issue litigation holds, the court determined sanctions were appropriate and awarded the defendant
almost $13,000 in attorneys’ fees and costs to serve as a deterrent against the plaintiff’s future
commission of similar discovery abuses. However, because the defendant failed to demonstrate
the destroyed e-mails would have supported its case, the court denied the adverse inference
request.
� Council of the City of New Orleans v. Washington, 2009 WL 1492869 (La. May 29, 2009). In
this litigation, the Supreme Court of Louisiana held that the Court of Appeal erred when it vacated
the preliminary injunction issued by the District Court since it considered a constitutional issue that
was not raised on appeal. Previously in Council of the City of New Orleans v. Washington, 2009
WL 1300747 (La. App.4 Cir. May 12, 2009), the Court of Appeal considered the defendant’s appeal
of the preliminary injunction preventing the defendant from disseminating e-mails. The plaintiff
argued the e-mails were not sanitized for privilege, that ethical rules require return of the
documents, and that the temporary nature of the injunction did not violate the defendant’s First
127

Amendment rights. Finding the injunction violated the defendant’s constitutional rights since the
records had already been released pursuant to a written public records request, the Court of
Appeal vacated the injunction. The court recognized that ethical and procedural violations would
likely be asserted against the defendant if the inadvertently privileged documents—by definition not
public records—were disseminated but found the constitutional issues overrode any ethical
concerns.
� S. Capitol Enterprises, Inc. v. Conseco Services., LLC, 2008 WL 4724427 (M.D.La. Oct. 24,
2008). In this ongoing electronic discovery dispute, the plaintiffs sought sanctions and/or additional
discovery orders claiming the defendants failed to comply with a previous discovery ruling. The
plaintiff claimed the defendant failed to produce 1,000 relevant documents, however the court
stated that the likely benefit in having more documents produced was outweighed by the burden
and expense associated with retrieving the evidence. The court noted that “perfection in document
production is not required,” and held that experts were allowed to estimate based on the data
already produced.
� Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D.La. Oct. 1, 2008). In this contract dispute, the
plaintiff moved to quash the defendant’s subpoenas duces tecum issued to two third-party
individuals demanding computer equipment for inspection. The plaintiff argued the subpoenas
were unwarranted, unduly burdensome and were a “fishing expedition.” The defendant disagreed
with the plaintiff, arguing the subpoenas were issued with good cause. Finding the first individual
sufficiently responded to a previous subpoena, the court granted the motion to quash. Regarding
the second individual, the court denied the motion to quash determining there was relevant
information on the requested computer. The court ordered the defendant to prepare a search
protocol for inspection of the individual’s computer that excluded privileged communications.
� In re Riverside Healthcare, Inc. v. Sysco Food Serv. of San Antonio, LP, 393 B.R. 422
(M.D.La. Sept. 11, 2008). In this bankruptcy case, the plaintiff sought an adverse inference
instruction based on the defendant’s deletion of relevant e-mail from its servers. Stating that bad
faith must be demonstrated to support an adverse inference, the court held that the plaintiff did not
prove that the defendant intentionally deleted any e-mail since it was deleted in accordance with
the defendant’s routine practice prior to litigation. The court also noted that the plaintiff’s failure to
pursue this evidence from other potentially available sources undermined its claim of unfair
prejudice and the demand for sanctions. Accordingly, the court denied the plaintiff’s motion.
� Sherman v. Harrah’s New Orleans Casino, 2008 WL 3914970 (E.D.La. Aug. 20, 2008). In this
litigation involving the settlement of a gambling debt, the defendants filed an objection to the
magistrate’s prior report and recommendation granting the plaintiff’s motion to compel and
awarding plaintiff attorney’s fees and expenses. The magistrate recommended the plaintiff be
awarded attorneys fees and costs associated with the filing of the second motion to compel and
three additional depositions made necessary due to the defendant’s failure to meet their discovery
obligations. The defendants objected to this recommendation, arguing that its discovery response
was substantially justified and the amount awarded for attorney’s fees was excessive and contrary
to Fed.R.Civ.P. 37(a)(5). Denying the defendants’ objection, the court approved the magistrate’s
report, agreeing that the defendant had abused the discovery process by repeatedly waiting until
the eve of deposition to provide hundreds of pages of responsive documents.
� Canon U.S.A., Inc. v. S.A.M., Inc., 2008 WL 2522087 (E.D.La. June 20, 2008). In this litigation
involving an alleged breach of a dealer agreement between the plaintiff distributer and the
defendant dealer, the plaintiff filed a motion to compel production and sought sanctions. The
plaintiff sought paper and electronic documents from the defendant’s server and argued the
128

defendant’s withholding of responsive documents and incomplete responses justified sanctions.
The defendant argued that either the documents did not exist due to the destruction caused by
Hurricanes Katrina and Rita, or that production would occur if the current searches yielded
responsive information. Finding the defendant’s responses to date to be insufficient as they
appeared to have been conducted “lackadaisically,” the court ordered the defendant to bear the
costs of employing a third-party computer forensic analyst to search its server and produce the
requested information. The court also granted sanctions in part, awarding costs to the plaintiff
incurred in issuing a third-party subpoena and in seeking insurance information.
� Thomas v. IEM, 2008 WL 695230 (M.D.La. Mar. 12, 2008). In this discrimination suit, the plaintiff
served a Fed.R.Civ.P. 45 subpoena on the defendant (her former employer), seeking production of
a complete electronic copy of the e-mail boxes of nine named individuals as they appeared on a
specified date. Rather than responding to the subpoena, the defendant served formal objections to
the plaintiff who then filed this motion to compel a response to the subpoena. The defendant
objected to the use of a Rule 45 subpoena on a party as well as the limited response time and
argued that the information sought was irrelevant, confidential, duplicative and unduly burdensome.
Agreeing with the defendant, the court denied the plaintiff’s motion as the information sought
constituted discovery within the meaning of Fed.R.Civ.P. 26 and 34 and the request was not limited
in time or subject matter.
� Marketfare Annunciation, LLC v. United Fire & Cas. Ins. Co., 2007 WL 3273440 (E.D.La. Nov.
5, 2007). In this lawsuit involving an insurance claim for damages resulting from Hurricane Katrina,
the plaintiffs sought monetary sanctions and an adverse jury instruction. Prior to the close of
discovery, the plaintiffs requested the defendants to produce relevant e-mails and implement a
litigation hold to preserve relevant electronic records. The plaintiffs then sought sanctions,
contending a failure by the defendants to establish a mandatory litigation hold to lead to the loss of
relevant electronic evidence and e-mails from relevant key players. Finding inadequacy in the
plaintiffs’ explanation for why this discovery matter was not pursued earlier, the court determined
that the plaintiffs should have moved to compel production prior to seeking sanctions.
Subsequently the court denied sanctions, as the plaintiffs had not demonstrated how the
defendants violated a court preservation order.
� Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 (E.D.La. Aug. 29, 2007). In this insurance
dispute, the defendants’ subpoenaed evidence from a third party, Rimkus Consulting Group, which
investigated their home for property damage following Hurricane Katrina. Rimkus motioned the
court to quash the subpoena and instead issue a protective order and argued for production in
paper to prevent any compromise in the authenticity or integrity of its engineering reports. The
court denied the motion as the files were stored electronically in the ordinary course of business
and the defendant requested an electronic production. The court further noted Rimkus failed to
provide evidence sufficient to meet its burden that the electronically stored information was not
reasonably accessible due to undue burden or cost. While recognizing Rimkus as a non-party
entitled them to protection from undue burden and expense, the court noted Rimkus must to show
that the requested electronic information would be unduly burdensome to produce. In applying Fed.
R. Civ. P. 45(d)(1)(D), the court refused to find the mere statement of an attorney sufficient
evidence to prove burden.
� In re Vioxx Prod. Liab. Litig., 2007 WL 2309877 (E.D.La. Aug. 14, 2007). In this multidistrict
product liability suit, Merck, the producer of the pain medication at issue in this dispute, claimed
attorney-client privilege on numerous electronic documents and refused to produce them.
Specifically, Merck produced over two million documents and claimed privilege as to approximately
129

thirty thousand, all of which the court reviewed individually in camera and made individual privilege
rulings. Appealing the court’s privilege rulings, Merck sought relief from the Fifth Circuit Court of
Appeals. The appeal was denied on jurisdictional grounds, but the Appeals Court did suggest the
lower court reexamine a subset of disputed documents, selected by Merck, pursuant to a different
review protocol. Subsequently, the court appointed a special master and a special counsel to
reexamine the subset of documents, promulgate substantive guidelines and issue a set of initial
recommendations regarding the documents claimed as privileged. Following Merck’s time to object
to the special master’s recommendations, the court entered the report into the record and
reproduced substantive portions of the special master’s report. The report was attentive to the
issues faced by corporations where their in-house legal department assists on numerous fronts
and that drug companies are heavily regulated by the food and drug administration when individual
privilege decisions were made for each document at issue. The court adopted the special master’s
review protocol and recommendations.
� Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007). In a claim involving an
employer suing a former employee under the Computer Fraud and Abuse Act for downloading
plaintiff’s proprietary information, the plaintiff compelled the defendant to produce hard drives from
a laptop that the defendant received from his new employer, as well as a hard drive from the
defendant’s home computer. The plaintiff argued the requested hard drives are likely sources of
evidence pertaining to defendant’s illegal downloading of information and data. The defendant
argued the requested hard drives were acquired two years after he started working for a competitor
and only contains information relevant to his new employment. The court held that the plaintiff was
entitled to the information, stating that the hard drives were the most likely places where the
defendant would have possibly transferred and stored the missing information. The court also
indicated that although the defendant obtained the requested hard drives two years after he left the
plaintiff’s employment, the defendant easily could have transferred information to newly acquired
hard drives and, thus, could be likely sources of evidence relevant to the plaintiff’s claims.
� Recinos-Recinos v. Express Forestry, Inc., 2006 WL 2349459 (E.D. La. Aug. 11, 2006). In a
class-action suit, plaintiffs filed a motion to compel for sanctions and for contempt against
defendants for withholding documents, misrepresenting their availability throughout the entire
litigation process, and for deliberate spoliation of evidence. Defendant claimed to have lost several
key requested documents stored in an electronic form due to Hurricane Katrina. Defendant claimed
to have lost these key documents because they were moved from the main Arkansas business
office to defendant’s Mississippi beach house on the Gulf of Mexico at the height of hurricane
season. The court found that even if this unwise move of key documents to a susceptible area was
not deliberate, it was, in the least, negligent and worthy of sanctions based on a failure to properly
preserve documents. The court also discovered that several key officers of the defendant company
lied during depositions and that the entire litigation was filled with defendant’s resistance towards
any discovery requests. The court chastised defendant, “To date, trial preparation has been
accomplished only through plaintiffs’ Herculean efforts bolstered by staccato motions to compel
and a corresponding series of orders compelling production of responsive documents and/or
information” because “[d]efendants have continually flouted the orders of this Court”. The court
imposed monetary sanctions in the form of attorneys’ fees plus expenses necessarily incurred.
� Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D. La. July 19, 2006). The
court awarded monetary sanctions against a defendant company for failing to preserve electronic
evidence. The court established that the defendant’s “litigation hold” came too late in the litigation
process because the company issued the “hold” policy after litigation had already started instead of
130

when it was reasonably anticipated. Furthermore, the court found that the scope of the “hold” was
not broad enough and did not prevent certain key employees from inadvertently discarding relevant
information. Although the defendant had a “litigation hold” policy in place, the court ruled that
defendant’s policy was not adequate enough to fulfill preservation requirements. Plaintiff motioned
the court to impose sanctions in the form of adverse jury instructions, but it declined to do so since
there was no evidence that the spoliation occurred with malice or bad faith. Instead, the court
issued monetary sanctions to compensate plaintiff for costs and fees related to discovering the
spoiled evidence.
� Griggs v. Harrah’s Casino, 929 So. 2d 204 (La. Ct. App. 2006). In a casino gaming dispute, the
defendants appealed the trial court’s decision as erroneous for relying on witness testimony rather
than forensic tests in ruling that the plaintiffs had won a slot machine jackpot. The defendants
offered the testimony of several experts who, after conducting a forensic examination of the
computer microprocessor of the slot machine, concluded that no jackpot had been won by the
plaintiffs. However, one of the defendant’s experts had made a pre-trial statement suggesting data
had been lost, casting his conclusions into doubt. The plaintiff’s expert did not conduct an
examination of the slot machine, but opined that the record of the win was stored in temporary
memory which was lost or corrupted when the casino technician powered the slot machine off and
on before a forensic examination could be conducted. The appellate court affirmed the trial court’s
decision, holding that there was sufficient eyewitness testimony to provide an adequate basis for
the verdict as well as admissions from defendant’s forensics experts to allow the jury to doubt their
testimony.
� BG Real Estate Servs., Inc. v. American Equity Ins. Co., 2005 WL 1309048 (E.D. La. May 18,
2005). In an insurance dispute, the plaintiffs sought production of a computer hard drive. The
defendants objected on the grounds that the request was overly broad and sought irrelevant
information that was unlikely to lead to admissible evidence. Finding for the defendants, the court
declined to order production of the entire drive. However, the court noted that Fed. R. Civ. P. 34(a)
includes relevant materials contained on a computer hard drive in its definition of "other data
compilations." The court further stated that “[i]f particular non-privileged items on the referenced
computer hard drive are responsive to other requests for production as to which defendants’
objections have not been sustained, those items must be ‘translated, if necessary, by the
respondent through detection devices into reasonably usable form’." The court noted that the
defendants could withhold materials it considered privileged and list them on a privilege logs for a
possible later discoverability determination.
� In re Vioxx Prods. Liab. Litig., 2005 WL 756742 (E.D.La. Feb 18, 2005). In a multi-district
litigation, the court ordered all parties to preserve evidence relevant to the litigation, including
relevant “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, checks 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.” In addition, the court ordered perseveration of “[i]nformation that serves to identify,
locate, or link such material, such as file inventories, file folders, indices, and metadata.” The court
131

noted the parties were obligated to take reasonable steps to preserve this information until the
parties formed a preservation plan agreement or the court ordered otherwise.
� EEOC v. E.I. dupont de Nemours & Co., 2004 WL 2347559 (E.D. La. Oct. 18, 2004). In a case
brought under the Americans with Disabilities Act, the Equal Employment Opportunity Commission
(EEOC) sought to admit a computer printout from the website of the U.S. Census Bureau. The
printout contained the image’s Internet domain address and the date on which it was printed. The
defendant objected to the admission, claiming that the printout was inherently untrustworthy.
Rejecting this, the court determined that the Bureau’s website was a reliable source and further
observed that “‘in an age where so much information is calculated, stored and displayed on a
computer, massive amounts of evidence would be inadmissible’ if the Court were to accept
DuPont’s characterization of all information on the Internet as inherently unreliable.” Pursuant to
Fed.R.Evid. 803(8), the court admitted the computer printout as a public records exception to the
hearsay rule.
� Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2358106 (E.D.La. Oct. 13, 2004). The plaintiff sought
to compel discovery from the defendant, including information pertaining to when the defendant
received a prescription for and distributed a certain drug. The defendant objected on the ground
that privacy laws protected the information and that the information would be too burdensome to
collect. The court determined that the request would only be unduly burdensome if the defendant
had to manually retrieve the data. In this case, the court found the data would be easily retrievable
because it could be produced from a computer system. The court ordered the defendant to
determine which information must be retrieved manually and which information could be produced
from a computer system. After receiving this information from the defendant, the court ordered the
defendant to produce all of the responsive data that could be produced without identifying patient
specific information. If the data had to be manually produced, the court ordered the parties to agree
upon a sampling process.
� Giardina v. Lockheed Martin Corp., 2003 WL 1338826 (E.D.La. Mar. 14, 2003). In an
employment discrimination suit, the plaintiff’s discovery requests sought a list of all “non-work
related Internet sites” accessed with sixteen different company computers. The defendant objected
to this request as overly broad and unduly burdensome as it would require creation of detailed and
lengthy reports that would take many hours to compile. The magistrate judge granted the plaintiff’s
motion to compel and awarded attorney fees and the district court affirmed.
� Murphy Oil USA v. Fluor Daniel, No. 2:99-cv-03564 (E.D. La. Dec. 3, 2002). This Order follows
the court’s decision in Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439 (E.D. La. Feb.
19, 2002) ordering the defendant to produce relevant e-mail communications archived on backup
tapes. In this motion to compel before the court, the plaintiff sought production of a particular e-mail
and argued that the defendant waived the attorney-client privilege by voluntarily producing the
contents of an e-mail. Two copies of the e-mail in question existed on the defendant’s backup
tapes: (1) the e-mail attached to a message from the mail system administrator stating that the
attached e-mail was not deliverable due to an error in the mail address and (2) a copy of the same
e-mail sent to the correct e-mail address. The defendant produced a privilege log identifying the
subject e-mail as an attorney-client communication, but at the same time inadvertently produced
the administrator e-mail and attachment. The court held that this inadvertent disclosure waived the
attorney-client privilege and granted the plaintiff’s motion to compel.
� Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 WL 246439 (E.D. La. Feb. 19, 2002). The court
used the eight-factor balancing test set forth in Rowe to determine operating protocols and the cost
shifting formula. It placed the burden on the producing party to elect one of two proposed protocols.
132

Mississippi
� PIC Grp., Inc. v. LandCoast Insulation, Inc., 2011 WL 2669144 (S.D. Miss. July 7, 2011). In this
commercial liability litigation, the court reviewed the recommendations of a special master
assigned to investigate alleged discovery abuses and provide a report on the plaintiff’s motion for
sanctions. In his report, the special master found the majority of the defendant’s conduct
constituted gross negligence, exemplified by the defendant failing to turn over e-mails it claimed
had been destroyed, but in actuality resided on an external hard drive directly connected to the email
server and clearly labeled "backups." Further, the defendant’s de facto in-house counsel
willfully ran a scrubbing program on his laptop just hours before the special master arrived to
inspect his files and no litigation hold or preservation plan was ever put in place. The special
master recommended sanctions covering the plaintiff’s additional expenses, to be paid directly by
the defendant and not indemnified by an insurer. The defendant argued that such sanctions were
too harsh given its relative lack of technical sophistication and the lack of prejudice to the plaintiff,
and challenged the court’s authority to sanction directly without the possibility of indemnification.
Setting aside all of these objections, the court adopted the special master’s recommendations and
ordered the plaintiff to tabulate its costs stemming from the discovery misconduct for the purpose
of assessing sanctions.
� Kermode v. Univ. of Miss. Med. Ctr., 2011 WL 2619096 (S.D. Miss. July 1, 2011). In this
wrongful termination litigation, the plaintiff sought default judgment for various discovery violations
and an evidentiary hearing regarding the alleged spoliation of relevant e-mails. Despite the
discovery violations alleged by the plaintiff, including the failure to preserve and produce relevant
e-mails, the court noted that procedural defects and the Rule 37(e) safe harbor provision barred
the imposition of sanctions as the e-mails were deleted as part of a routine system. Turning to the
request for an evidentiary hearing regarding alleged spoliation of relevant e-mails, the court found
that despite having nine months to develop the evidentiary record, the plaintiff had failed to present
evidence the e-mails actually existed, and that even if he had, did not sufficiently demonstrate the
presence of bad faith. Finally, the court dismissed the plaintiff’s belatedly proffered authenticity
challenge of e-mails produced in paper form, noting that the opportunity for such a motion had
passed.
� Larkin v. Trinity Lighting, Inc., 2011 WL 1496248 (S.D. Miss. Apr. 20, 2011). In this employment
litigation, the defendant requested payment from the plaintiff (a former employee) for an estimated
$8,000 to $10,000 in deleted data restoration costs. Alleging the deleted data contained
information relevant to its counterclaims, the defendant argued the plaintiff had actual knowledge
that he was not to delete files from company-issued computer equipment before returning it
following termination of his employment. However, the plaintiff contended the files were not deleted
in anticipation of the lawsuit because he had no knowledge the negotiations would fail and had
consulted counsel solely to negotiate severance pay. In addition, the plaintiff argued he had no
other way of removing his personal information from the computers in order to return the property
to the defendant and that the documents were already in the defendant’s possession. Finding it
was "far from clear" whether the plaintiff deleted the files in bad faith, the defendant suffered
prejudice and the information to be retrieved would provide any substantial benefit, the court
denied the motion and concluded the defendant could recover the apparently retrievable
information at its own cost if it chose to do so.
133

� Maggette v. BL Dev. Corp., 2010 WL 3522798 (N.D. Miss. Sept. 2, 2010). In this wrongful death
litigation, the defendants sought to avoid dispositive sanctions for discovery misconduct by arguing
mere negligence. Finding the defendants continually stonewalled discovery in bad faith over a
period of many months, the court noted the defendants obstructed the process and were willing to
write off minor discovery sanctions. The court determined the defendants undertook “sham efforts”
as they could not “describe the databases searched, the search terms, methods or parameters
used…or provide any expert information confirming that there are no documents, electronically
stored information or other [responsive] information.” Nor could they explain numerous production
discrepancies or alterations and deletions of documents. The court found it “quite difficult … to
accept that a multi-billion dollar corporation facing very high-stakes litigation was unable–for close
to five years–to uncover its own documents at its own facilities when the special master” located
the information in five to seven minutes. Finding the defendants engaged in lies and misconduct
despite escalating warnings, the court imposed dispositive sanctions.
� Gaddis v. Smith & Nephew, Inc., 2008 WL 2415183 (S.D. Miss. June 11, 2008). In this product
liability litigation, the defendants filed a motion to dismiss claiming the plaintiff failed to comply with
the deadline for court ordered initial disclosures. After the plaintiff failed to make initial disclosures
despite a second order and extended deadline, the defendants sent a letter in an attempt to
resolve the discovery dispute under Fed.R.Civ.P. 37. Finding the plaintiff completely failed to
comply with any discovery requirements and respond to the motion to dismiss, the court dismissed
the plaintiff’s case without prejudice for failure to meet discovery obligations and comply with court
orders.
� Great Am. Ins. Co. of New York v. Lowry Development, LLC, 2007 WL 4268776 (S.D. Miss.
Nov. 30, 2007). In this contract dispute, the plaintiff sought sanctions for spoliation of evidence,
claiming the defendant willfully destroyed relevant electronic evidence which it had a duty to
preserve. During his first deposition, the defendant testified that his computer crashed during a
lightning storm and, was left with the computer repair service as it was unable to be repaired. The
computer technician later testified that the computer was repaired and returned to the defendant.
During his second deposition, the defendant offered no explanation for the contradiction but stated
that the computer failed again after its return from the computer repair service, at which point he
threw it away. As the plaintiff was able to establish the disposal of potentially relevant documents
after the litigation began, the court determined that the plaintiff proved willful spoliation by clear and
convincing evidence. The court held the appropriate sanction was to reduce the plaintiff’s burden of
proof on the issue of mutual mistake from clear and convincing evidence to a preponderance of the
evidence.
� Butler v. Kmart Corp., 2007 WL 2406982 (N.D.Miss. Aug. 20, 2007). In this case, the plaintiff
motioned the court to order the defendant to comply with earlier discovery requests and argued
that defendant’s mere attempt to locate documents did not sufficiently discharge its discovery
obligations. The defendant produced affidavits attesting to its search efforts for documents at the
relevant locations and lack of results, but mentioned very little about whether it conducted searches
of its computer systems. The court ordered the defendant to produce responsive ESI or
demonstrate unsuccessful diligent searching. The plaintiff also sought open access to the
defendant’s home office databases, but the court denied the motion based on the lack of evidence
of improper action.
� Kearley v. Mississippi, 843 So.2d 66 (Miss. Ct. App. 2002). A criminal defendant was convicted
of sexual battery and appealed on several issues including proper authentication of e-mails which
134

he allegedly sent to the victim. The appellate court held that the victim’s testimony that she had
received and printed the e-mails on her computer was sufficient authentication under the rules of
evidence, and the court upheld the conviction.
� Harveston v. State, 798 So.2d 638 (Miss. Ct. App. 2001). In a criminal burglary prosecution, the
court refused to allow in computer database print-outs under the State’s business records
exception to the hearsay rule. The court held that the State failed to meet its burden because
“[T]here was no evidence offered as to the means by which the information…was compiled. The
only testimony came from an investigating officer who limited his testimony to the fact that law
enforcement officers routinely make use of such information. [However, t]he reliability of the
information in ‘business records’ is determined by the competence of the compiler of the
information and not the extent of the consumer’s reliance on information received from another
source.”
Texas
� Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. Feb 8, 2012). In this appeal of a murder
conviction, the defendant alleged that various postings from two MySpace accounts registered
under the defendant’s e-mail address were inadmissible because the State could not establish that
he was the author. Extending the basic rationale used to authenticate e-mails, chat room
dialogues and text messages, the court looked at whether the MySpace postings were sufficiently
linked “such that a reasonable juror could have found that they were created and maintained” by
the defendant. The State pointed to the substance of the postings—which made reference to the
deceased, the defendant’s gang, the shooting, the State’s key witness and further contained
numerous photos of the defendant’s unique tattoos—in an attempt to meet this threshold. Affirming
the lower court’s decision, the court found that this circumstantial evidence, taken as a whole,
sufficiently established that the MySpace pages were created and maintained by the defendant.
� Gaalla v. Citizens Medical Ctr., 2011 WL 2115670 (S.D. Tex. May 27, 2011). In this discovery
dispute, the plaintiffs sought sanctions, alleging the defendants failed to preserve backup tapes,
take timely snapshots of relevant e-mail accounts and deleted e-mails. Citing Zubulake, the court
noted that the duty to preserve generally does not extend to inaccessible backup tapes and
declined to impose sanctions finding the plaintiffs failed to demonstrate any applicable exception to
this general rule. Further, the plaintiffs failed to present evidence of bad faith, a prerequisite to
severe sanctions in the Fifth Circuit. On the contrary, the court determined the defendants took
reasonable preservation steps by issuing a timely litigation hold, taking multiple "snapshots" of
relevant e-mail accounts and preserving available backup tapes. The court ordered the defendants
to institute a "journaling process" to continue preserving all relevant e-mail accounts indefinitely in
addition to the available backup tapes, which the plaintiffs’ forensic expert was given access to
search. Finally, the court ordered the parties to reach a preservation agreement going forward.
� In re Royce Homes, LP, 2011 WL 873428 (Bkrtcy. S.D. Tex. Mar. 11, 2011). In this bankruptcy
litigation, the trustee sought production of documents that a key employee of the debtor company
claimed as privileged. Despite using his work computer and company e-mail account for personal
matters, the employee argued that he did not waive attorney-client privilege and maintained that
only necessary third parties were privy to his communications. Rejecting this argument, the court
focused on the debtor company’s Electronic Communications Policy. The policy stated that nothing
contained on any company electronic system would be considered private and permitted limited
personal communications "with the understanding that personal communications may be
135

accessed, viewed, read or retrieved by a company manager or employee" but that "Employees are
NOT to disseminate any confidential information over the company’s system." Finding the policy
explicitly and straightforwardly banned confidential communications, the court rendered evidence
of actual enforcement irrelevant. Noting the policy was memorialized in the employee handbook,
the court also determined that actual or direct notification to employees was not required and that it
was unreasonable for the employee to believe his e-mails would remain confidential. Finding
insufficient evidence that privilege applied or was waived, the court ordered production of the
communications listed in the employee’s privilege log.
� Green v. Blitz U.S.A., Inc., 2011 WL 806011 (E.D. Tex. Mar. 1, 2011). In this products liability
litigation, the plaintiff sought to re-open the case and requested sanctions alleging the defendant
systematically destroyed evidence, failed to produce relevant documents and committed other
discovery violations in bad faith. The plaintiff’s counsel uncovered the unproduced documents
nearly a year after trial while conducting discovery in a related matter. Analyzing the dispute, the
court determined the e-mails that were not produced, were extremely valuable and prejudiced the
plaintiff. The court found the defendant’s discovery efforts were unreasonable, as the defendant
placed a single employee who was admittedly "as computer literate —illiterate as they get" in
charge. Moreover, the defendant did not conduct a search of electronic data, failed to institute a
litigation hold, instructed employees numerous times to routinely delete information and rotated its
backup tapes repeatedly, which resulted in permanently deleting data. Although the court declined
to re-open the case, it ordered the defendant to pay $250,000 in civil contempt sanctions.
Additionally, the court imposed a "purging" sanction of $500,000, extinguishable if the defendant
furnished a copy of the order to every plaintiff in every lawsuit proceeding against it for the past two
years. Finally, the court ordered the defendant to file a copy of the order with its first pleading or
filing in all new lawsuits for the next five years.
� In re Howard K. Stern, 2010 WL 3365856 (Tex.App.-Hous. (1 Dist.) Aug. 25, 2010). In this
defamation suit, the defendant petitioned for a writ of mandamus seeking to vacate the trial court’s
discovery orders and the appointment of a special master. The defendant argued the trial court
abused its discretion by ordering overbroad discovery, assigning a special master to conduct a
forensic examination of his hard drive despite no
evidence of discovery noncompliance and authorizing the forensic examination as it exceeded the
scope of discovery relevant to establish personal jurisdiction. Upon review of the record, the court
found the motion to compel production of the defendant’s hard drive and e-mail communications
between 39 individuals was excessive and amounted to "an impermissible ‘fishing expedition.’" The
court further rejected the appointment of a special master who had "virtually free reign to plumb"
the defendant’s hard drive, and which the trial court had authorized based solely on the plaintiff’s
allegations that the defendant was noncompliant. Finding a clear abuse of discretion, the court
granted the petition and vacated the discovery order.
� In re Art Harris, 2010 WL 1612205 (Tex.App. Apr. 22, 2010). In this defamation litigation, the
defendant filed a petition for writ of mandamus requesting withdrawal of the trial court’s discovery
orders. The defendant argued that the trial court abused its discretion by compelling production of
electronic media for forensic examination, by refusing to apply applicable state rules regarding
treatment of privileged documents and privilege logs, and by appointing a special master.
Addressing the defendant’s arguments, the court found the trial court acted arbitrarily and without
considering the Texas Rules of Civil Procedure by compelling discovery from the defendant without
requiring identification of specific requests, by failing to hold a hearing on the defendant’s
protective order motion, by failing to consider whether privilege applied and in ordering production
136

absent a motion to compel. The court also found that the trial court erred by ordering the defendant
to produce his hard drives contrary to the provisions of Rule 196.4 as discussed in In re Weekley
Homes. Finally, the court noted that e-discovery is a “common component of modern litigation” and
does not by presence alone require a special master. Since the case did not require specialized
knowledge, the trial court also abused its discretion by appointing a special master.
� Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D.Tex. Feb. 19, 2010). In
this employment agreement dispute, the plaintiff sought sanctions, costs and attorneys’ fees, and a
finding of contempt, alleging the defendants intentionally spoliated evidence and failed to produce
requested discovery. Before addressing the parties’ specific arguments, the court noted that
“spoliation of evidence – particularly of electronically stored information – has assumed a level of
importance in litigation that raises grave concerns” and “distract[s] from the merits of a case, add[s]
costs to discovery, and delay[s] resolution.” Moving to the case specifics, the court found the
defendants intentionally lost, altered and deleted e-mails, and sent the case back to the jury with a
permissive adverse inference instruction. The court also awarded the plaintiff attorneys’ fees and
costs incurred in the spoliation investigation. Notably, the court distinguished the recent Pension
Committee ruling from the Southern District of New York, finding the differences between circuits in
relation to culpability of parties limited the applicability of the approach taken in Pension
Committee. The court identified an additional distinction in regard to the burden of proof in relation
to relevance and prejudice of spoliated evidence.
� MRT, Inc. v. Vounckx, 2009 WL 3491165 (Tex.App.-Dallas, Oct. 30, 2009). In this civil litigation
case, the plaintiffs appealed from a jury verdict in favor of the defendants, arguing they were
entitled to a new trial because the defendants failed to comply with discovery obligations and
misrepresented the steps taken to search and produce backup tapes (some of which were
destroyed). The defendants argued the plaintiffs failed to make a specific request for the backup
tapes as required by Texas Rules of Civil Procedure 196.4. Citing In re Weekley Homes, L.P. and
the specificity requirement of Rule 196.4, the court disregarded the plaintiffs’ contentions and
affirmed the lower court’s judgment. The court noted Rule 196.4’s purpose was to ensure the clear
understanding by both parties of ESI requests and reiterated the duties of both parties to share
pertinent information regarding electronic storage systems prior to e-discovery requests, which did
not occur in this case. Finally, the court concluded that the plaintiffs failed to demonstrate that the
defendants knew, or should have known, that the destroyed tapes contained relevant information,
and they therefore were not entitled to spoliation instructions because the defendants did not have
a duty to preserve the backup tapes in question.
� In re Weekly Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009). In this breach of contract
litigation, the defendant petitioned the Texas Supreme Court for writ of mandamus of a trial court
order that directed the defendant to provide four employees’ hard drives to the plaintiff’s forensic
experts to image, copy and search for deleted e-mails. The defendant argued that the plaintiff
failed to comply with Texas Rules of Civil Procedure 196.4 which governs production requests for
electronic data. Applying Rule 196.4, the court found the trial court did not abuse its discretion
regarding the deleted e-mails request even though the plaintiff failed to satisfy the rule’s specificity
requirement since it became "abundantly clear" that this information was sought and no prejudice
was suffered by the defendant. Turning to the imaging and forensic examination dispute, the court
relied on the Federal Rules of Civil Procedure and case law since there are no express guidelines
contained within Rule 196.4. Through this analysis, the court determined that the trial court abused
its discretion since the search of the employees’ hard drives was highly intrusive and unjustifiable.
The court granted the writ of mandamus and remanded the case advising the trial court to be
137

mindful of protecting sensitive information by utilizing the least intrusive means necessary to facility
e-discovery.
� Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D.Tex. Feb. 19, 2009).
In this patent infringement litigation, the court considered whether the defendant should be ordered
to perform the OCR process on TIFF formatted documents prior to production. The defendant
estimated the total cost of OCR to exceed $200,000 and argued for cost-shifting. The plaintiff
argued that the defendant’s estimate was unsupported and the cost would be closer to three cents
per page. Agreeing with the plaintiff, the court ordered the defendant to perform the OCR process.
The court determined OCR was not unreasonable or burdensome as it was likely to “streamline the
discovery process” and reduce the chance either party would hide relevant information in “a
mountain of difficult-to-search documents.” Focusing on the potential relevancy of the information
sought, the court found the seven Zubulake cost-shifting factors did not favor cost shifting.
� Gateway Senior Hous., Ltd. V. MMA Fin., Inc., 2008 WL 5142152 (E.D. Tex. Dec. 4, 2008). In
this contract litigation, the plaintiffs moved for a determination of privilege waiver and sought
sanctions, alleging the defendants withheld relevant information. The plaintiffs argued that privilege
with regard to inadvertently produced e-mails was waived because the defendants failed to list
them in a privilege log, and that sanctions were appropriate because two key hard drives were
never produced. Conversely, the defendants argued that everything requested was produced and
that privilege was timely asserted after notice of the disclosure. Finding the defendants failed to
carry the burden of proving privilege and unreasonably delayed in disclosing the existence of the
alleged privilege documents, the court held the attorney-client privilege was waived. Regarding
sanctions, the court granted a discretionary adverse inference that the missing hard drives
contained information unfavorable to the defendants evidenced by its failure to produce them along
with reasonable expenses and attorneys fees associated with bringing the current motion.
� Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D.Tex. Aug.
8, 2008). In this racketeering litigation, the plaintiff filed an objection to the magistrate judge’s order
that recommended monetary sanctions and a jury instruction allowing for the consideration of
spoliation. Previously the defendants moved for sanctions and contempt against the plaintiff and
two counter-defendants, alleging they failed to preserve hard drives as instructed by a preservation
order. An independent forensic expert reviewed the two counter-defendants’ hard drive images for
relevant documents and determined the first hard drive was actually a damaged DVD that
contained only active files, excluding unallocated space. When examining an additional drive, the
forensic expert noted it was wiped using “Window Washer,” which intentionally deleted large
quantities of data. Based on this willful spoliation, the magistrate judge recommended monetary
sanctions as well as an adverse jury instruction on the remaining counterclaim. After conducting a
de novo review, the court overruled the plaintiff’s objection and adopted the magistrate judge’s
order in full.
� United States v. General Maritime Mgmt., 2008 WL 2810594 (S.D.Tex. July 21, 2008). In this
criminal prosecution, the government’s material witness filed a motion to assert attorney-client
privilege and for reconsideration of the court’s previous order to disclose a mirror image of the
witness’ computer hard drive. The witness previously provided the government with voluntary
consent to search and create a forensically sound image of his computer’s hard drive. Subsequent
to this search, the government provided the defendants with all material relevant to this case. The
defendants argued for disclosure of the imaged hard drive claiming the witness’ voluntary consent
waived the attorney-client privilege. Agreeing with the defendants, the court held that the voluntary
138

disclosure of the hard drive to the government resulted in waiver of any attorney-client privilege
and ordered the government to produce the mirror image in its entirety.
� Texas v. City of Frisco, 2008 WL 828055 (E.D.Tex. Mar. 27, 2008). In this case, the State of
Texas sought a declaratory judgment and protection from a litigation hold request previously sent
by the City of Frisco seeking preservation of all electronic data related to a potential environmental
litigation. The defendant filed a motion to dismiss, arguing that the plaintiff was seeking an advisory
opinion concerning the proper method of preservation without pleading all necessary elements of a
viable claim. Agreeing with the defendant and dismissing the case, the court determined the issues
were not yet ripe and encouraged both parties to make a good faith effort in preservation and
production of documents in the absence of court intervention.
� Equity Analytics, LLC v. Lundin, 2008 WL 615528 (D.D.C. Mar. 7, 2008). In this suit, the plaintiff
claimed the defendant, a former employee, illegally accessed electronically stored information after
being terminated. The parties agreed a computer forensics examination was necessary to analyze
the defendant’s computer, but could not reach agreement on how the examination should
progress. To protect his privacy, the defendant sought to restrict the search by keywords and file
type, but the plaintiff argued such would be under inclusive. Recognizing that the effectiveness of a
particular search methodology requires expert testimony, Magistrate Judge Facciola required the
plaintiff to submit an affidavit from its examiner explaining, inter alia, the limitation of the proposed
search, how the search is to be conducted, whether a mirror image would be a perfect copy and
whether there would be some reason to preserve the drive once imaged.
� Xpel Tech. Corp. v. Am. Filter Film Distrib., 2008 WL 744837 (W.D.Tex. Mar. 17, 2008). In this
copyright infringement claim, the plaintiff filed a motion for expedited computer forensic imaging of
various electronic media. Finding the plaintiff had demonstrated good cause under Fed.R.Civ.P.
26(d), the court ordered the defendant to produce computers, servers and other electronic storage
devices for bit-for-bit imaging by a specified forensic examiner. The court also ordered
authentication of the images via comparison of their MD5 hash values to the originals.
� Diabetes Ctr. of Am. v. Healthpia Am., Inc., 2008 WL 336382 (S.D.Tex. Feb. 5, 2008). In this
breach of contract case, both parties moved for sanctions, alleging spoliation and discovery
abuses. The plaintiff’s motion sought a spoliation jury instruction alleging the defendant failed to
backup e-mails which were subsequently lost when the defendants’ laptops were stolen. The
plaintiff also sought monetary sanctions for alleged discovery abuses, alleging the defendants’
withholding of documents caused the plaintiff’s attorney to incur unnecessary travel expenses. The
defendants sought a spoliation jury instruction and alleged the plaintiff failed to preserve and
produce requested copies of critical e-mails. Additionally, the defendants sought monetary
sanctions alleging the plaintiff failed to notify the defendants that evidence had been lost prior to
flying an employee to the site to inspect it. The court determined there was an absence of bad faith
and denied both requests for sanctions. The court further denied both parties’ requests for
monetary sanctions finding both parties produced discovery in an “incomplete or lax manner” on
certain occasions.
� In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007). In this real estate litigation, the
defendants sought a writ of mandamus to set aside a discovery order requiring them to produce
office hard drives for imaging by a computer forensic expert in an effort to locate two particular
documents. The defendants objected to the discovery order, arguing it was overbroad and would
lead to the disclosure of privileged and confidential information. The court looked to federal and
state courts for guidance on the general process of hard drive mirror imaging for discovery.
Disagreeing with the defendants, the court found the order was not overbroad, as the defendants
139

were granted a right of first refusal in determining whether information obtained was relevant to the
two documents at issue. Further, the court found there were adequate safeguards against
disclosure of privileged information as the defendant was able to review for privilege prior to
production.
� Escobar v. City of Houston, 2007 WL 2900581 (S.D.Tex. Sept. 29, 2007). In this wrongful death
proceeding, the plaintiff sought an adverse inference sanction for the defendant’s alleged
destruction of electronic communications following notice of the claim. The defendant argued that
the officer involved in the shooting death of the 14 year-old plaintiff did not have an e-mail address
and therefore the likelihood of finding any relevant information was nonexistent. The defendant
also claimed the 90 day automatic e-mail deletion policy would have deleted anything relevant prior
to the two years it took the plaintiff to seek electronic communications. Citing Fed.R.Civ.P. 37(f),
the court denied the motion, finding no evidence that relevant e-mails were destroyed in bad faith
in the routine operation of the police department’s computer system.
� Mugworld, Inc. v. G.G. Marck & Assoc., Inc. 2007 WL 1745606 (E.D.Tex. June 15, 2007). In a
suit alleging breach of contract, the defendant motioned the court to issue a protective order to
designate an inadvertently produced email as confidential. The defendant claimed the email
contained trade secret information regarding a list of chemicals used in the manufacture of a
product. The defendant produced the email in January 2006, and the email was used by the
plaintiff in a deposition of the defendant’s president in October 2006 without objection. Several
months later, in February 2007, the defendant sought to designate the document as confidential.
The court denied the defendant’s motion and held that even if the document had contained trade
secret information the defendant waived any grounds for protection due to its delay in seeking
protection.
� Anadarko Petroleum Corp. v. Davis, 2006 WL 3837518 (S.D. Tex. Dec. 28, 2006). In a
misappropriation of trade secrets case, the plaintiff alleged the defendant stole confidential and
proprietary electronic information when he left the plaintiff’s company to work for a competitor. The
defendant admitted to taking information from the company on his personal laptop. When the
plaintiff sent him a preservation letter asking not to destroy the information, the defendant, under
advice from his attorney, transferred all of the data on his laptop onto a USB drive and deleted all
of the plaintiff’s data from his hard drive. The plaintiff believed that not all information was
transferred and some relevant information was deleted. A computer forensics investigation of the
defendant’s computer showed that he only produced around 1GB of information on the USB drive
when around 7GB of information was downloaded. The plaintiff asked the court for sanctions
based on spoliation of evidence. It argued the defendant deliberately destroyed evidence when he
was under a preservation obligation. The defendant argued he only produced less electronic
evidence on the USB drive because he deleted any duplicate documents found during the transfer
and only did so for the convenience of the plaintiff. Nevertheless, the defendant agreed to a
forensic examination of his computers to discover if any relevant evidence was deleted. The court
ruled there was not enough evidence to demonstrate the defendant destroyed records in bad faith.
It noted that there was no bad faith destruction because the files were copied to a USB drive to be
given to the plaintiff and not completely destroyed as in most spoliation sanction cases. Despite
this ruling, the court ordered the plaintiff to supplement its motion for sanctions once the forensic
investigation is complete. If the investigation reveals that the defendant failed to copy relevant
documents to the USB drive for the plaintiff’s review, then sanctions may be appropriate.
� Williams, Cohen & Gray, Inc. v. CPS Group, Inc., 2006 WL 3316783 (S.D. Tex. Nov. 14, 2006).
On a motion to compel, the plaintiff requested production of documents from the defendant relating
140

to all payment histories of accounts the defendant had with the plaintiff. The defendant objected to
producing hard copies of these documents because of the volume involved. The court noted that
electronic production should be discussed between the parties and used since there was no
evidence that such production “would not be ‘reasonably accessible’ electronically, or that
gathering and copying the information electronically will cause ‘undue burden’” on the defendant.
The court also cited the proposed changes to Federal Rules of Civil Procedure 26(b)(2) and stated
that electronic production costs would be borne by the defendant.
� Arista Records v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006). In a copyright
infringement case involving the illegal downloading of music from the internet, the plaintiff motioned
the court to award default judgment against the defendant for deletion of key computer records.
The defendant was required to produce her computer for inspection two times to determine if
songs had illegally been downloaded from the internet. However, once the defendant eventually
produced her computer, a computer forensics expert determined that wiping software was run
shortly before and after production was ordered. The defendant argued that she merely ran a
defragmentation program which comes installed on most computers and is run automatically.
However, the plaintiff argues that the defragmentation was performed at key moments in the
litigation and was not indicative of a program running a monthly or weekly scan. The court held that
the timeliness of the data deletion was consistent with intent to destroy. The defendant argued
sanctions should be sufficient to prevent the destruction of any more evidence in the case.
However, the court found no other relevant evidence existed that the defendant could destroy.
Therefore, the court held that only an order for default judgment would be fair since key evidence
was missing and without it, only piecemeal evidence would remain which greatly prejudiced the
plaintiff in presenting its case.
� MGE UPS Systems v. Fakouri Electrical Engineering, Inc., 2006 WL 680513 (N.D. Tex. March
14, 2006). The defendants filed a motion to strike the plaintiff’s expert testimony, claiming that the
expert had contaminated and destroyed electronic evidence by using improper forensic
methodology. The defendant’s expert contended that the plaintiff’s expert had made a number of
errors in conducting an examination of six impounded laptop computers, specifically: (1) used a
methodology that deleted 71 files on the computers; (2) used a methodology that contaminated
and altered the date and time stamps on 8,803 files on the computers; (3) did not use sanitized
floppy disks to boot the computers or to copy data from the computers; (4) performed multiple
forced shutdowns on the computers that may have created a number of cross-linked files found on
the computers; (5) used improper ghosting procedures to image the computers’ hard drives and
only obtained part of the data on the computers; and (6) used computers without wiped hard drives
during the ghosting procedure. Although the court found evidence that some files were deleted or
altered, the court accepted the plaintiff expert’s explanations that he had excluded the
compromised electronic data in reaching his conclusions. The court denied the defendant’s motion,
finding that the expert’s qualifications and explanations of his methodology in conducting a forensic
examination of the laptop computers “were sufficiently reliable and that he applied the principles
and methods reliably.” The court also refused the defendant’s motion to limit the subject area of
plaintiff’s expert, holding that FRE Rule 702 and Daubert principles would be inconsistent with
attempting “to parse these computer issues and the experts allowed to discuss them into very
narrow specialties.”
� Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL 1544621 (W.D. Tex. May 31, 2006). In a
patent infringement action, the plaintiff sought an order compelling the defendant’s witness to
testify about communications in relation to an email inadvertently produced during discovery. Filing
141

a counter motion, the defendant claimed that the email was protected by attorney-client privilege
and demanded return of the document. The court denied the defendant’s counter motion, finding
the privilege had been waived after the defendant had repeatedly failed to take steps in securing
the return of the email after first learning that the document had been inadvertently disclosed.
Noting that the plaintiff had deposed one of the defendant’s witnesses about the substance of the
email without objection from the defendant in July of 2004, the court chided the defendant’s
counsel for failing to assert a claim of attorney-client privilege at the deposition. The court observed
that the substance of the email should have placed the defendant on notice that it had produced a
document containing privileged communications seeking legal advice. The email contained
attachments specifically labeled “Confidential-Attorney’s Eyes Only” and was addressed to a law
firm. Not until February of 2005, when the email was introduced again at another deposition did the
defendant assert attorney-client privilege. Still, the defendant waited three months to petition the
court for return of the document and only after the plaintiff refused to return the email and brought a
motion to compel further testimony. The court determined that the plaintiff was entitled to keep the
email and demand further testimony in relation to it.
� Vela v. Wagner & Brown, Ltd., 2006 WL 1004476 (Tex. App. Apr. 19, 2006) substituted opinion
and aff’d by 203 S.W.3d 37 (Tex. App. 2006). Asserting a cross-appeal in an oil and gas case, the
appellee challenged an award of $75,000 in monetary sanctions for spoliation of computer data
and discovery abuse. The appellee argued, inter alia, it did not have a duty to preserve the
computer data at issue, the data was not intentionally or negligently destroyed, and the appellants
were not prejudiced by the absence of the data. During discovery, the appellee had failed to
produce its testifying expert’s underlying computer data work product. The appellee claimed the
data had been stored on the expert’s computer, which had been inadvertently upgraded and
replaced by the expert’s employer and was no longer available. The appellant sought to exclude
the expert’s testimony as a sanction for spoliation of the computer data. The trial court permitted
the expert to testify but ordered the appellee to re-create the expert’s calculations and provide the
computer data to the appellants. When the appellee again failed to produce the data, the trial court
awarded sanctions. On appeal, the appellate court affirmed the sanctions award stating, “the trial
court’s order meets both parts of the test for a ‘just’ sanction based on both a pattern of discovery
abuse by [the appellee] and its failure to preserve and produce [the expert’s] computer data.”
� In re BP Prods., N. Am, Inc., 2006 WL 648816 (Tex. Ct. App. Mar. 13, 2006) Defendant BP
Products North America, Inc. filed a petition for a writ of mandamus complaining that the trial judge
had abused her discretion in signing an order on February 6, 2006 compelling BP to produce by
March 17, 2006 “all e-data derived from backup tapes and maintained on computer hard drives
under BP’s control” that were responsive to plaintiff’s steering committee request. The Texas
appellate court, which had previously denied BP’s motion for emergency relief requesting a stay of
the order, denied the petition.
� Tantivy Communications, Inc. v. Lucent Techs. Inc., 2005 WL 2860976 (E.D.Tex. Nov. 1,
2005.) In a patent infringement case, the plaintiff sought to exclude evidence based on the
defendant’s “hide the ball” discovery abuse. During discovery, the plaintiff had sought documents
and data compilations including documents contained on the defendant’s Internet Web site,
relating to interoperability testing for the products at issue. The defendant had represented
repeatedly it was unaware of any such documents. However one of the defendant’s employees
revealed at a later deposition, pursuant to the defendant’s document destruction practices, paper
documents were shredded and electronic documents were deleted that included interoperability
contracts and test plans. Citing Zubulake, the court stated, “[the defendant] and its counsel are well
142

aware that a party in litigation must suspend its routine document retention/destruction policy and
establish a ‘litigation hold’ to ensure the preservation of relevant documents.” The court further
declared it would not allow “lawyers or their clients to lay behind the log and disregard their
discovery obligations.” As a result, the court stated it would issue an appropriate remedy for both
the defendant and its counsel after considering all the evidence.
� Fowler v. Bell Helicopter Textron, Inc., 2005 WL 548076 (N.D. Tex. Mar. 9, 2005). The plaintiff
filed suit against the defendant claiming copyright infringement, breach of contract, and trade
secret theft. The plaintiff claimed he wrote a computer software program prior to his employment
with the defendant and was promised compensation for the program by the defendant. The
defendant failed to pay and developed a similar program after the plaintiff terminated his
employment. The defendant claimed the plaintiff wrote the program during his employment,
counterclaimed with similar allegations, and sought a declaratory judgment and partial summary
judgment. Contending summary judgment was inappropriate, the plaintiff argued that date and time
stamps on floppy discs containing the code proved he created the program prior to working for the
defendant. The plaintiff presented a computer forensic expert’s affidavit that indicated it would have
been an “enormous task” to change the date and time stamps associated with the files on the
floppy discs. The defendant offered an opinion by another expert who stated it would be “relatively
easy to doctor the time and date stamps on the floppy discs containing [the plaintiff’s] original
code.” Declining to grant the defendant’s motion for summary judgment, the court found a genuine
issue of material fact existed and declared, “[a]ny determination as to which expert to
believe…belongs to the jury.”
� Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217 (Tex. App. 2005). The
plaintiff sought injunctive relief and damages against the defendants for misappropriating trade
secrets obtained while working for the plaintiff. The trial court awarded more than $200,000 in
actual and exemplary damages and entered a permanent injunction in favor of the plaintiff. As
entered by the trial court, the injunction banned the defendants from “[r]emoving or destroying any
files, or copies of files, including but not limited to [the defendants’] computer or computer files.” On
appeal, the defendants argued the injunction was overbroad because it prohibited them from
engaging in lawful “routine” document destruction of records or files unrelated to the plaintiff or the
litigation. The appellate court agreed and modified the injunction to forbid the defendants from
“[r]emoving or destroying any files, or copies of files, including but not limited to Defendants’
computer or computer files, relating to [the plaintiff].”
� In re Estate of Steed, 152 S.W.3d 797 (Tex. Ct. App. 2004). In a case involving a will contest, the
sons of the deceased filed an application to probate a 2001 computer-generated will. The
deceased’s widow filed a conflicting application to probate a 1998 holographic will. At trial, the jury
determined the deceased never executed the computer-generated will and the deceased did not
execute the holographic will with testamentary intent. On cross-appeal, the sons argued the
computer-generated will – found on the deceased’s computer after his death – was properly
executed as a matter of law and the jury’s decision went against the great weight of the evidence.
At trial, the widow’s expert had suggested someone could have easily manipulated the create date
of the computer-generated will, making it unreliable. The appellate court noted, however, that the
widow’s expert was not a computer expert and had not actually examined the deceased’s
computer. Moreover, the testimony from the widow’s expert conflicted with testimony given by the
sons’ expert – who had actually examined the computer. The sons’ computer expert testified that
any manipulation of the create date would have been easily detectable. The sons’ expert further
testified he found no evidence of manipulation. Based on this and other testimony, the court
143

eversed and remanded, stating the jury’s decision was “clearly wrong and unjust” and contradicted
the great weight of the evidence.
� BASF Fina Petrochemicals Ltd. Partnership v. H.B. Zachry Co., 168 S.W.3d 867 (Tex. Ct. App.
2004). In a breach of contract action, the defendants subpoenaed electronic data from a non-party.
The non-party responded by producing 30,000 e-mails and attachments, 70 megabytes of e-mail
data, 8,000 spreadsheets, and hard copy documents. The non-party requested legal fees and
costs from the defendants for collecting, reviewing and producing this data based on a state statute
requiring a party to reimburse a non-party for reasonable production costs. The non-party argued
the costs and attorneys’ fees were an “undue burden or expense” they suffered as a result of
responding to the defendants’ subpoena. The trial court awarded the non-party production costs
but denied attorneys’ fees, on the grounds that the statute excluded attorney fee awards. On
appeal, the appellate court affirmed and held the statute did not include attorney’s fees as part of
production costs and the attorneys’ fees were not an “undue burden or expense,” absent a showing
that the requesting party did not take “reasonable steps” to limit the scope of discovery.
� Propath Services, LLP v. Ameripath, Inc., 2004 WL 2389214 (N.D.Tex. Oct. 21, 2004). Alleging
the defendants violated a non-compete employment contract, the plaintiffs sought a preliminary
injunction against the defendants. The court had previously issued a temporary restraining order
prohibiting the defendants from using confidential information, deleting relevant e-mails or
documents, and accessing the plaintiffs’ e-mail system. Among the items at issue were electronic
marketing materials and a confidential client list. The defendant argued that the marketing
materials – including PowerPoint slides – were not confidential since they were presented in public
settings. While the court concluded that the PowerPoint presentations were not confidential, it
nonetheless prohibited the defendants from having unrestricted access based on the plaintiffs’ right
to protect their proprietary data. The court ordered the defendants to refrain from using any
PowerPoint slides produced or modified during the defendants’ employment. Regarding the
confidential client list, the court found that one of the defendants accessed the client list while
simultaneously burning CDs and sending e-mails that may have contained confidential information.
Based on these findings, the court ordered the defendants to refrain from deleting or modifying any
documents, e-mails or computer drives that contained information about the plaintiff’s business.
The court further ordered the defendants to separate these materials from the rest of their files and
to store them in a confidential file.
� Positive Software Solutions, Inc. v. New Century Mortgage Corp., 337 F.Supp.2d 862
(N.D.Tex. 2004). In a copyright infringement suit, the plaintiff filed a contempt motion against the
defendants for violating a preliminary injunction and protective order. In response, the defendants
also moved for a contempt motion and sought to affirm an arbitration award in their favor. In
reference to the protective order, the defendants represented they would cease using and destroy
all copies of the plaintiff’s proprietary software. Defense counsel asserted that it would keep
backup tapes and forensic copies of the software in a temperature-controlled, secure facility.
Despite the order, however, the defendants continued to use the software and inadvertently
produced a document to the plaintiff detailing their analysis of the database schema of the
software. The defendants also restored seven or eight backup forensic copies of the software to
use during its unauthorized analysis. The court noted that the protective order did not specifically
address the defendants’ conduct because the defendants had represented such prohibition would
be unnecessary. The court stated that the defendant “thus created a loophole, and then covertly
took advantage of it.” The court held “with considerable reluctance” that the protective order was
144

not clear enough to warrant enforcement by contempt and declined to hold either party in
contempt.
� Massimo v. State, 144 S.W.3d 210 (Tex. Ct. App. 2004). Challenging a misdemeanor conviction
for harassment by electronic communication, the defendant argued, among other things, that the
trial court erred by not granting her a continuance. Specifically, the defendant argued she was
entitled to a continuance because she did not receive e-mails, relied upon by the prosecution, until
the day of trial. Defense counsel further argued that it needed the e-mails in order to have an
expert evaluate their source before trial. Denying the defendant’s motion, the trial court noted
copies of the e-mails were available three days before trial and defense counsel should have
picked up the copies at the District Attorney’s office. On appeal, the appellate court also indicated
that counsel should not have waited 17 days before the trial to file discovery and inspection of
evidence motions and that counsel could have hired an expert even if the e-mails were unavailable
for review. In affirming the trial court’s decision, the appellate court declared, “the failure to obtain
an expert or to obtain the e-mails until the eve of trial can hardly be the fault of the State…[the
defendant] was at least partially, if not totally, responsible for their last-minute production.”
� Multitechnology Servs. v. Verizon Southwest, 2004 WL 1553480 (N.D. Tex. July 12, 2004). In a
discovery dispute relating to the allocation of costs for responding to interrogatories, the defendant
sought a protective order declaring that it would cost $60,000 to produce the requested
information, which was in electronic format. A magistrate judge ordered the plaintiff to pay half of
the costs. In response to the order, the plaintiff argued that it was requesting only “accessible
data,” making cost-shifting inappropriate in this case under the Zubulake seven-factor test. Finding
cost-shifting was fair, the magistrate asserted that “requiring the parties to evenly shoulder the
expense is the most effective resolution because it balances the benefit of the discovery for [the
plaintiff] and provides [the defendant] with incentive to manage the costs it incurs in answering [the
plaintiff’s] interrogatories.” The magistrate further classified the expenses as court costs that the
prevailing party could recover. See also Multitechnology Servs. v. Verizon Southwest, No. 4:02-
CV-702-Y (N.D. Tex. July 19, 2004) (affirming the magistrate judge’s decision).
� In re Lowe’s Cos., Inc., 2004 WL 1092374 (Tex. App. May 18, 2004). In a personal injury lawsuit,
the trial court granted the plaintiff’s motion for an order compelling production of the defendant’s
computer database. Specifically, the trial court ordered the defendant to bring or have access to a
computer at the defendant’s deposition that could search, sort, and print any database information
that the plaintiff’s counsel might request. The defendant objected to the order claiming that the
request was overbroad and argued that producing the entire database electronically would give the
plaintiff unfettered access to privileged or irrelevant information. Ruling in favor of the defendant,
the appellate court declared that “requests for information that are not reasonably tailored as to
time, place, or subject matter amount to impermissible ‘fishing expeditions’.” Finding the discovery
order overbroad, the appellate court issued a writ of mandamus, vacating the portion of the order
that required production of the database.
� Cisco Sys., Inc. v. Alcatel USA, Inc., 301 F. Supp.2d 599 (E.D. Tex. 2004). The plaintiff sued the
defendant, a competitor, for antitrust violations, and the defendant counterclaimed declaring that it
owned the allegedly misappropriated property. The plaintiff moved to dismiss the counterclaim on
res judicata principles given that the defendant’s allegations were the subject of a prior litigation
that had been dismissed by the trial judge. In response, the defendant argued that the plaintiff’s
late production of volumes of electronic data contained on back up tapes prevented the defendant
from bringing its claim in the first lawsuit. Rejecting this argument, the court concurred with the trial
judge in the first case and gave the defendant “no allowances for having sat on the information” for
145

nine months after it was finally made available to the defendant. As such, the court dismissed the
defendant’s counterclaim on the grounds that it was barred by res judicata.
� Kupper v. State, 2004 WL 60768 (Tex. App. Jan. 14, 2004). The defendant appealed his sexual
assault conviction, challenging the admissibility of e-mail messages retrieved from the defendant’s
deleted files on his work computer and an e-mail message and a photograph retrieved from the
temporary internet files on his work computer. At trial, a police detective trained in computer
forensics testified that she imaged the defendant’s home and work computers and engaged in a
computer forensic investigation to locate the evidence in question against the defendant. The
appellate court rejected the defendant’s arguments and concluded that the police detective’s
testimony established that the appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with the circumstances, authenticated the computer
evidence. The court further determined that there was no evidence raising chain of custody issues.
� Positive Software Solutions v. New Century Mortgage Corp., 259 F. Supp. 2d 561 (N.D.Tex.
2003). To ensure no other potentially relevant information was deleted, the court ordered the
defendants to preserve all backups and images of servers and personal computers that contain or
contained files at issue. The court further ordered the defendant to refrain from deleting any such
files still resident on any servers or personal computers and to preserve all backups or images.
Finding the scope substantially overbroad, the court denied the plaintiff’s motion to compel imaging
"of all of defendants’ media potentially containing any of the software and electronic evidence
relevant to the claims in this suit" and "all images of [defendants’] computer storage facilities,
drives, and servers taken to date.”
� In re CI Host, Inc., 92 S.W.3d 514 (Tex. 2002). Customers brought a breach of contract class
action against the company hosting their web services. During discovery, the trial court ordered the
defendant to preserve and produce computer backup tapes containing potentially relevant
evidence. The defendant objected that the request was overbroad, demanded confidential
information, and was in violation of the federal Electronic Communications Privacy Act. The
appellate court held that in light of the defendant’s failure to produce evidence supporting its
objections as required by Texas Rule of Civil Procedure 193.4(a), the trial court did not abuse its
discretion in ordering the contents of the tapes to be produced.
� Taylor v. State, 93 S.W.3d 487 (Tex. App. 2002). On appeal, the defendant argued that the trial
court’s refusal to order the State to provide him with a complete copy of the hard drive in question
as “material physical evidence” for inspection requires reversal. Likening the situation to a drug
case in which the defendant has the right to have the contraband reviewed by an independent
expert, the appellate court stated, “mere inspection of the images … is not the same as an
inspection of the drive itself (or an exact copy thereof). It is certainly not the same as an
independent forensic examination of the contents of the hard drive by an expert.”
� Harris v. WHMC, Inc., 2002 WL 1821989 (Tx. Ct. App. Aug. 8, 2002). In a medical malpractice
suit, the plaintiff appealed the trial court’s exclusion from evidence certain e-mail correspondence
based on privilege. The trial court ruled that the plaintiff could use the e-mails at trial for
impeachment purposes, but the e-mails themselves would not be admitted. The appellate court
concluded that even if the trial court erred in excluding the e-mails, it was harmless error and did
not cause an improper judgment.
� Broderick v. State, 35 S.W.3d 67 (Tex. App. 2000). In child sex abuse prosecution, the court
affirmed the trial court’s admission of a duplicate of the defendant’s hard drive, in place of the
original. The court concluded that the state’s best evidence rule did not preclude admission
146

ecause the computer expert testified that the copy of the hard drive exactly duplicated the
contents of the hard drive.
� St. Clair v. Johnny’s Oyster & Shrimp, 76 F. Supp. 2d 773 (S.D. Tex. 1999). “[A]ny evidence
procured off the Internet is adequate for almost nothing, even under the most liberal interpretation
of the hearsay exception.”
� Smith v. Texaco, Inc., 951 F. Supp. 109, (E.D. Tex 1997), rev’d on other grounds, 263 F.3d 394
(5th Cir. 2001). Modifying the original state court TRO in a race discrimination case, the court
permitted the moving of certain documents in the ordinary and usual course of business and the
deletion of electronic records in the ordinary and usual course of business, provided that hard copy
records be made and kept.
� American Banker Ins. Co. v. Caruth, 786 S.W.2d 427 (Tex. Ct. App. 1990). Courts can impose
sanctions on parties that fail to comply with electronic discovery requests.
� Pearl Brewing Co. v. Joseph Schiltz Brewing Co., 415 F. Supp. 1122 (S.D. Tex. 1976). In an
antitrust action, the court allowed the defendant to inspect and copy the computer programs and
systems documentation at issue and to depose the plaintiff’s computer experts as to the creation of
the systems.
Sixth Circuit – State and Federal Cases
� Grange Mut. Cas. Co. v. Mack, 2008 WL 744723 (6th Cir. Mar. 17, 2008). In this suit alleging
fraud, the defendant appealed a default judgment and liability award of damages plus attorney’s
costs and fees, arguing abuse of judicial discretion. The defendant purposely delayed discovery,
ignored court discovery deadlines and orders to compel, instructed employees to ignore court
orders and ignored a serious warning from the district judge relating to his continued discovery
misconduct. Based on the defendant’s willful bad faith and the resulting prejudice suffered by the
plaintiffs, the court affirmed the default judgment, “[B]oth to punish the defendant for his egregious
conduct and to deter other litigants who might be tempted to make a mockery of the discovery
process.”
� First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993). “In order to justify
proceeding ex parte…the applicant must do more than assert that the adverse party would dispose
of evidence if given notice.” Instead, the party must demonstrate that the adverse party has a
“history of disposing of evidence or violating court orders…”
Kentucky
� GATX Corp. v. Appalachian Fuels, LLC, 2010 WL 5067688 (E.D. Ky. Dec. 7, 2010). In this
litigation regarding an alleged breach of two leases, the defendant argued the plaintiff intentionally
produced hundreds of documents protected by privilege which resulted in a subject matter waiver
under Fed.R.Evid. 502. Upon review of over 200 produced documents, the court determined that
roughly 25 e-mail communications contained privileged material. In disagreeing with the plaintiff’s
claim that these documents were inadvertently produced, the court found that the plaintiff did not
demonstrate the steps it took to comply with 502(b) as it failed to identify which document(s) it
sought the return of. Noting that attorney-client privilege waiver does not automatically lead to
subject matter waiver, the court found that the relatively low number of privileged documents
produced did not necessarily warrant a finding that the disclosure was intentional. Further, the
court noted that subject matter waiver exists only in cases where a party deliberately discloses
147

privileged information in an attempt to gain a tactical advantage and, because the plaintiff did not
use privilege as both a “shield and a sword,” subject matter waiver did not extend to documents
withheld in the privilege log.
� Mohrmeyer v. Wal-Mart Stores E., L.P., 2009 WL 4166996 (E.D. Ky. Nov. 20, 2009). In this "slip
and fall" personal injury action, the plaintiff sought sanctions against the defendant based on
alleged spoliation of certain materials including surveillance video and a restroom maintenance log.
The defendant argued the log was destroyed in the routine course of business long before it was
made aware of the possibility of litigation. Relying on Fed.R.Civ.P. 37(e), the court found imposing
sanctions on the defendant would be inappropriate because the evidence was destroyed as a
result of routine, good-faith records management practices long before the defendant received any
notice of the likelihood of litigation. Thus, the court denied the plaintiff’s motion for sanctions and
admonished the plaintiff’s lack of inquiry of relevant facts prior to seeking such serious sanctions.
� KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky. July 22, 2009). In this copyright
infringement action, the plaintiff moved for sanctions in the form of a default judgment or, in the
alternative, an adverse inference instruction for spoliation. The court found that an October 2005
phone call from the plaintiff and the November 2005 filing of a complaint were both notice of
litigation, and that the defendant subsequently failed to preserve potentially discoverable e-mails by
continuing to delete and overwrite data even after the receipt of a preservation letter. The court
held that the defendant’s deletion of data and failure to implement a litigation hold fell beyond the
scope of the routine, good faith operation of an electronic information system and constituted
spoliation. Finding that an adverse inference instruction would redress the spoliation, the court
granted the motion for adverse inference sanctions but denied awarding default judgment.
� In re Classicstar Mare Lease Litig., 2009 WL 260954 (E.D.Ky. Feb. 2, 2009). In this litigation, the
defendant moved for a protective order after the plaintiffs sought reproduction of financial
documents in native format. Previously, the defendant produced 273,000 pages in TIFF format and
claimed that reproduction in native format would be extremely difficult and burdensome as some
information would need to be redacted and older data could be corrupted. The defendant also
argued the first production was in a “reasonably usable format” in compliance with Fed.R.Civ.P
34(b). However, the plaintiffs argued native format would save them “hundreds of hours” and make
the data much more usable as it was complex information and extremely reliant on the reporting
features within the software. Citing an exchange between the parties in which the defendant
agreed to produce material in native format if the plaintiff purchased the software needed to review
the documents, the court ordered the defendant to reproduce the data in native format. The court
shifted the reasonable cost of copying and delivering the second production to the plaintiff as the
defendant had complied with its obligations during the first production.
� Static Control Components, Inc. v. Lexmark Int’l, Inc., 2006 WL 897218 (E.D. Ky. Apr. 5, 2006).
In a patent infringement case, the plaintiff sought production of a copy of a database and offered to
bear the burden of extracting relevant data. The defendant claimed it had already produced
relevant data from after November of 2004 and had given the plaintiff an opportunity to inspect the
database for relevant information pre-dating November 2004. Additionally, the defendant explained
it could not produce relevant records prior to November 2004 as that information was not text
searchable and it required software that was no longer available. The magistrate ordered the
defendant to produce the pre-November 2004 database to the plaintiff in a “reasonably usable
form” stating, “The Federal Rules do not permit [the defendant] to hide behind its peculiar computer
system as an excuse for not producing this information to [the plaintiff].” However, finding the
148

database contained proprietary information, the magistrate required the plaintiff to designate any
extracted data as “Outside Counsel Only” information.
� Williams v. Du Pont, 119 F.R.D. 648 (W.D. Ky. 1987). The discovering party must bear costs of
data production and reimburse responding party for a portion of its expense in assembling the
database.
Michigan
� Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. Jan. 2012). In this slip and
fall case, the defendants sought a court order granting it access to the plaintiff’s entire Facebook
account. Citing McMillen v. Hummingbird Speedway, Inc. and Romano v. Steelcase, Inc., the
defendants asserted that nonpublic Facebook postings are generally not protected by any privacy
privilege. Next, the defendants attempted to show that the private portions sought were reasonably
calculated to lead to admissible evidence. The defendants argued that publicly available photos of
the plaintiff standing at a birthday party in Florida—while holding a small dog—were inconsistent
with her claims of inability to work and enjoy life. While the court agreed with defendants that there
is no such thing as a social media privilege, it noted that the defendant “does not have a
generalized right to rummage at will through information that Plaintiff has limited from public view.”
Distinguishing McMillen and Romano, the court ruled that the defendant’s preliminary showing was
not enough to show any inconsistency with the plaintiff’s damage claims.
� Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., 2011 WL 1002835 (E.D. Mich. Feb. 17,
2011). In this discovery dispute, the plaintiff moved for a protective order in response to the
defendant’s informal request for additional information. Having produced more than 1.79 million
pages of documents during discovery, along with 84,000 pages of documents from its non-party
Japanese parent company, the plaintiff argued the order was necessary to prevent producing its
record retention policies and data map, and conducting broad system-wide searches along with
searches of systems not readily accessible. Although the court agreed the backup systems were
not readily accessible, it found that the defendant had not requested this information or the systemwide
searches. Instead, the defendant requested the plaintiff’s backup policies, tracking records,
requests for restores and confirmation that relevant data sources of 41 employees had been
searched. Regarding the data map, the court noted that counsel must be knowledgeable about
their client’s computer systems and ESI at the onset of litigation pursuant to Fed.R.Civ.P.
26(a)(1)(ii); thus, producing this information should not be an undue burden. Accordingly, the court
denied the protective order.
� Whited v. Motorists Mut. Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010). In this litigation
involving claims for insurance benefits, the defendants moved for dismissal of the plaintiff’s claims
and for summary judgment on multiple counterclaims alleging, inter alia, fraud and unjust
enrichment. During the “acrimonious” discovery process, substantial allegations that some
documents were falsified led the court to order the plaintiff to surrender all computers for forensic
examination. Although the court warned the plaintiff that her conduct was perilously close to
willfulness and bad faith and forbade anyone from using the computers, the forensic examination
revealed evidence of extensive tampering including the replacement of a hard drive, deletion of
1,300 files and backdating of dozens of documents. Upon review of this evidence, the court found
the plaintiff’s inherently suspect explanations strained credulity and undermined her claims of good
faith. Noting that the intentional deletion of files alone was sufficient to support a finding of
149

willfulness and bad faith, the court found this case justified the extreme sanctions and granted
dismissal with prejudice.
� Laethem Equip. Co., v. Deere & Co., 2009 WL 3064663 (E.D. Mich. Sept. 21, 2009). In this
ongoing breach of contract dispute, the court adopted the magistrate judge’s report that
recommended denial of the defendant’s motion for sanctions and additional discovery of trial
witnesses. The defendant sought sanctions, arguing the plaintiff failed to produce relevant ESI and
privilege logs before depositions were taken. The plaintiff denied the defendant’s allegations,
arguing the motion for sanctions was intended to "divert attention from [defendant’s] misconduct."
Noting that this motion was a further example of how discovery is now a "black hole" that has the
power to "annihilate the case itself," the magistrate judge recommended denial of the defendant’s
motion, finding the defendant failed to establish its defenses had been "materially prejudiced." The
report further found the defendant failed to demonstrate that it was unable to obtain information it
had a right to seek during depositions, but recommended the court allow an additional opportunity
to depose trial witness not already deposed.
� Sungjin Fo-Ma, Inc. v. Chainworks, Inc., 2009 WL 2022308 (E.D.Mich. July 8, 2009). In this
contract dispute, the defendant moved to compel responses to interrogatories. In regard to several
of the disputed interrogatories, the plaintiff had produced English and nontranslated Korean
language documents under Fed.R.Civ.P. 33, which provides the option to produce business
records in response to an interrogatory provided the burden of ascertaining the answer will be
substantially the same for either party. The court held that the plaintiff’s failure to specify which of
the disclosed documents are responsive to which interrogatories does not satisfy Rule 33’s
specificity requirement. Moreover, the court held that the burden of ascertaining the answers to the
interrogatories was not substantially similar for the parties, noting that the plaintiff can readily refer
to its documents—which it should be familiar with—and extract the information necessary to
provide an English language answer to the defendant’s interrogatories while the translation burden
would be great on the defendant.
� Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 (E.D. Mich. June 17,
2009). In this contract dispute, the defendant moved to compel the plaintiff to organize the data it
produced into the 28 specific categories of the document production request. The plaintiff had
produced more than 270,000 pages of documents in the order that they were found on the hard
drive of each document custodian along with two indices to aid in interpreting and sorting the
documents. The defendant asserted that the plaintiff’s production required it to manually open and
review each file and that the plaintiff had given each file “innocuous” names in order to frustrate the
defendant’s review. Finding the plaintiff had produced the documents as they were kept in the
ordinary course of business, the court determined there was no indication that the documents or
file names were modified by the plaintiff. Accordingly, the court found the plaintiff’s production
satisfied Fed.R.Civ.P. 34 and denied the defendant’s motion, noting that to require more would
impose an unfair burden on the producing party.
� Technical Sales Associates, Inc. v. Ohio Star Forge Co., 2009 U.S. Dist. (E.D.Mich. May 1,
2009). In this sales contract dispute, a third-party forensic examination corporation sought
attorneys’ fees and costs for its defense against an unsuccessful motion for contempt filed by the
defendant. The defendant had moved for contempt arguing that the third party’s disclosure of
findings of spoliation to the plaintiff directly, without noticing the defendant, was a violation of the
stipulated order. The court ruled that the third party had not violated the stipulated order because
the order dealt narrowly with the discovery of actual data and did not govern the discovery of
wrongdoing. The court, however, determined that the third party was not "free from taint" and
150

should have provided the substance of the report to the defendant. The court further noted that all
the parties had behaved poorly by engaging in "procedural wrangling" during discovery, resulting in
an electronic discovery dispute that "has become the sideshow which eclipses the circus." The
court ordered the third party to submit its billing records but reserved decision on the motion until
the end of the case consistent with the determination of the sanctions motion.
� Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. Apr. 14, 2009). In
this patent litigation, the defendants moved for a hearing on sanctions for spoliation alleging the
plaintiffs intentionally or recklessly destroyed backup tapes. Opposing the motion, the plaintiffs
denied misconduct claiming they preserved electronic records pursuant to their standard operating
procedures but admitted they did not halt all backup tape recycling. Thus, the court determined that
potentially relevant evidence was destroyed after the duty to preserve arose. However, the court
also determined the backup tapes were inaccessible and there is no duty to preserve inaccessible
backup tapes beyond a company’s normal retention period unless the Zubulake exception applies.
The Zubulake exception requires the preservation of backup tapes containing documents of "key
players" if the information is not otherwise available. Zubulake v. UBS Warburg, LLC, 220 F.R.D.
212 (S.D.N.Y. 2003). The court granted the defendants’ motion and ordered a hearing to determine
whether the Zubulake exception applies and, if so, whether the plaintiffs acted with the requisite
culpability and whether the spoliated evidence was relevant.
� Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL 728520 (E.D.Mich. Mar. 19,
2009). In this sales commission dispute, the plaintiff sought sanctions alleging evidence destruction
and the defendant filed a motion for contempt arguing the plaintiff violated a computer forensic
examination order by breaching its confidentiality provisions. The motions were premised on a
forensic examination of the defendant’s computer which revealed the deletion of approximately
70,000 files. Denying the defendant’s motion for contempt, the court found that the stipulated order
protected the "discovery of actual data, not the absence of data." (Emphasis in original.)
Addressing the plaintiff’s motion, the court outlined a timeline of events to determine when the duty
to preserve arose. Based on this timeline, the court concluded that the timing of the destruction
appeared "more than coincidental" since it occurred at about the same time the forensic
examination was requested. The court granted the plaintiff’s motion in part by determining
monetary sanctions for the cost of the forensic examination appeared to be appropriate, but
postponed a final determination as to the amount of sanctions and a potential adverse jury
instruction until trial when the substantive harm caused by the defendant is known.
� Laethem Equipment Co. v. Deer and Co., 2008 WL 4997932 (E.D.Mich. Nov. 21, 2008). In this
ongoing breach of contract dispute, inter alia, the defendant sought production of electronically
stored information (ESI) and an order establishing waiver of the attorney-client privilege based on
plaintiffs’ alleged discovery misconduct. The defendant argued that the plaintiffs withheld relevant
e-mails, were untruthful in past discovery responses and waived privilege by inadvertently
disclosing two disks. Opposing the motion, the plaintiffs argued they had properly responded to
each of the defendant’s requests and that additional production would be an undue burden. As
jurisdiction was based on diversity of citizenship and absent objection from either party, the court
analyzed the privilege waiver issue under new Fed.R.Evid. 502(b). The rule establishes that
disclosure does not operate as a waiver if: (1) the disclosure was inadvertent, (2) reasonable steps
were taken to prevent disclosure and (3) reasonable steps were taken to rectify the error. Finding
each of these criteria satisfied, the court held that privilege was not waived. The court noted that
Fed.R.Evid. analysis does not take into consideration alleged discovery abuses, focusing instead
on the disclosure of the privileged information itself.
151

� Michigan v. Raar, 2008 WL 4228349 (Mich.App. Sept. 16, 2008). In this criminal prosecution, the
defendant appealed his jury trial convictions, including a conviction for using the Internet or
computer system to engage in criminally prohibited communications. The defendant argued the
trial court improperly permitted the government’s expert witness to offer opinions on computer
activity. At trial, the defendant objected to the expert witness’ computer forensics qualifications, but
did not specifically identify a basis for objection. Overruling the objection, the trial court noted the
expert witness had: over 800 hours of training in computer forensics; three years of experience
working in state police computer forensics lab; was a certified member of the International
Association of Computer Specialists; and had performed over 100 computer forensic examinations.
This court held that the trial court did not abuse its discretion in relying on the forensic expert’s
testimony and its determination that the witness had “sufficient ‘knowledge, skill, experience,
training, or education’ in the field of computer forensics.”
� Laethem Equip. Co. v. Deere & Co., 2008 WL 4056359 (E.D.Mich. Aug. 26, 2008). In this breach
of contract and tortious interference with business relationships, inter alia, dispute, the defendant
objected to the magistrate judge’s recommendation that the defendant’s motion to dismiss the
complaint be denied. Seeking dismissal, the defendant alleged irreparable harm due to the plaintiff
intentionally withholding two disks containing electronically stored information and failing to provide
a privilege log despite asserting privilege. Countering, the plaintiff argued the existence of the disks
was disclosed in 2005 and that the defense counsel abused the plaintiff’s inadvertently produced
privileged documents by using them as exhibits. Weighing the factors considered when
determining whether to dismiss a case under either Fed.R.Civ.P 37(b) or 41(b), the magistrate
judge found dismissal to be an inappropriate sanction for the discovery misconduct, citing lack of
bad faith and the availability of less dramatic sanctions. The court adopted the magistrate judge’s
report and recommendation and referred the issue of the appropriateness of alternative sanctions
back to the magistrate judge.
� Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008). In this ongoing wrongful
death action, the court previously determined text messages of certain city employees were
potentially discoverable and established a protocol under which two designated magistrate judges
would make the initial determination as to their discoverability. In this current dispute, the
defendants sought to prevent discovery from going forward, arguing that the court’s previous order
violated the Stored Communications Act (“SCA”), claiming it wholly precludes the production of
electronic communications stored by a non-party service provider in civil litigation. Rejecting the
defendants’ reading of the SCA, the court held that possession for purposes of requiring production
includes control over the information, which defendants maintained through its contractual
relationship with the non-party service provider. However, the court was willing to modify the
means of production - holding that the third party subpoena was unnecessary and instead the court
ordered the plaintiff to file a Fed.R.Civ.P. 34 production request. See also Flagg v. City of Detroit,
2008 WL 787061 (E.D.Mich. Mar. 20, 2008).
� Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E.D.Mich. July 7, 2008). In this
antitrust litigation, the defendant requested an order under Fed.R.Civ.P. 26(c) requiring the
plaintiffs to share its third party vendor e-discovery costs for discovery already completed. The
defendant supported their motion with several arguments, including: that the Federal Rules of Civil
Procedure do not envision a ruling on cost shifting early in the case; that a previously stipulated
order reserved the unrestricted right for the parties to later seek a cost-shifting order; and that costshifting
is not restricted to “inaccessible data.” Disagreeing with the defendant’s arguments, the
court denied the order. The court stated the Federal Rules “plainly contemplate that a motion for
152

protective relief (including cost shifting) is to be brought before the court in advance of the undue
burden, cost or expense from which protection is sought.” The court reasoned any other
interpretation would offend “common sense” since the rule must be interpreted as a “means of
avoiding undue burden or cost, rather than simply distributing it.”
� Acker v. Workhorse Sales Corp., 2008 WL 1902034 (E.D.Mich. April 28, 2008). In this suit, the
plaintiff objected to the Magistrate’s Order requiring the plaintiff to pay the defendant’s costs and
attorneys’ fees incurred in the previous motion to compel. The plaintiff claimed the promised
disclosure was provided and argued the delay was attributable to the defendant’s failure to give
adequate production format directions. Rejecting the plaintiff’s numerous justifications for the
discovery delay, the court overruled the objection determining the Magistrate’s award of costs and
attorneys’ fees was not erroneous or unreasonable.
� Flagg v. City of Detroit, 2008 WL 787061 (E.D.Mich. Mar. 20, 2008). In this suit, the plaintiff
sought production of text messages to support his claim that the defendants’ lax investigation
prevented the filing of a wrongful death lawsuit. After determining that certain text messages were
discoverable, the court set forth a detailed set of parameters for the review and production of the
text messages. The defendant was ordered to provide the third party service provider with names
and related PIN numbers for the relevant individuals, thereby allowing the service provider to
willingly produce the text messages to the court under seal for privilege review. Due to the time
consuming nature of this task, the court appointed two magistrate judges to collect and review the
text messages and make the initial determination as to discoverability.
� Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D.Mich. Feb. 15, 2008). In this class action
suit claiming the defendants withheld overtime pay, the plaintiffs filed a motion for relief from a
computer forensic expert’s invoice, claiming that while they originally agreed to pay the expert’s
fees, the defendants unilaterally modified the agreed upon screening process. The parties
previously agreed upon the search terms and exclusionary terms to be utilized in the search
process and the expert was given direction to work under the direction and control of the defense
counsel for instruction, not the plaintiffs’ counsel. Upon discovering the defendants made
numerous unauthorized revisions to the filtering process resulting in additional computer forensic
expert costs, the plaintiffs sought relief. Determining the additional costs to be unauthorized, the
court ordered the defendants to pay all costs other than those associated with the original
agreement.
� Simon Prop. Group, Inc. v. Taubman Ctr., Inc., 2008 WL 205250 (E.D.Mich. Jan. 24, 2008). In
this suit involving securities and tort claims, the defendant contested the enforcement of third-party
subpoenas. The defendant argued that compliance with the subpoenas would be unduly
burdensome and expensive since the search terms provided by the plaintiffs resulted in the
identification of over 250,000 files. The defendant claimed it would take three full-time employees
four weeks to determine the responsiveness of those documents. The plaintiffs offered to narrow
the scope of the search by time period, search terms and perhaps even limit the number of servers
to be searched. The court granted the plaintiffs’ motion to enforce the subpoenas, holding the
requests were not unduly burdensome as discovery of electronic files are common place in
business litigation.
� Arista Records, LLC v. Does 1-4, 2007 WL 4178641 (W.D. Mich. Nov. 20, 2007). In this copyright
infringement suit, the plaintiff requested leave to subpoena a third party internet service provider
(ISP) to supply contact information for the four “Doe” defendants, who allegedly downloaded and
distributed hundreds of music files illegally. In reaching its decision, the court considered the
pending amendment to Fed. R. Civ. P. 26(d)(1) (which became effective December 1, 2007) that
153

would allow for discovery prior to the Rule 26 hearing upon a showing of good cause. The court
found that the plaintiff established good cause based on the allegation of a prima facia claim of
copyright infringement, the limited period of time the ISP retained activity logs, the narrow tailoring
of the request and the necessity of the information to the case. The court therefore allowed the
plaintiff to take immediate discovery by serving a subpoena on the ISP.
� Michigan First Credit Union v. Cumis Ins. Soc’y, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16,
2007). In this suit, the plaintiff sought sanctions based on the defendant’s alleged failure to comply
with a previous court order pertaining to production of ESI. The plaintiff claimed the defendant’s
production contained no metadata and was not in native format as requested. The defendant
claimed that the information was not stored in a way that allowed for easy retrieval of metadata, if
any metadata even existed. Because the previous court order did not address the issue of
metadata or native files, the court held that the defendant’s failure to produce that information did
not violate the order. Further, agreeing with the defendant’s argument that production of metadata
would be overly burdensome, the court concluded that no evidentiary value would be gained from
the metadata to warrant imposing the significant burden on the defendant.
� Pipefitters Local No. 636 Pension Fund v. Mercer Human Resource Consulting, Inc., 2007
WL 2080365 (E.D.Mich. July 19, 2007). On the plaintiffs’ objection to the Magistrate’s previously
issued scheduling order in which the defendants were required to produce requested discovery to
the plaintiffs and the plaintiffs were to bear the cost of restoring or locating electronic data, the
district court considered amending the scheduling order. The district court stated that Rule
26(b)(2)(B) of the Federal Rules of Civil Procedure requires the producing party to show
inaccessibility before the requesting party can then establish good cause and the court may
consider shifting costs. Because the Magistrate issued the cost shifting provision without any
motions from the parties, it was not apparent that the Magistrate engaged in the proper analysis
before shifting the cost of discovery to the plaintiffs. The court therefore granted the plaintiffs’
motion to strike the cost shifting order.
� Thielen v. Buongiorno USA, Inc., 2007 WL 465680 (W.D. Mich. Feb. 8, 2007). In a claim where
the plaintiff brought an action against the defendant arguing violation of the Telephone Consumer
Protection Act of by sending text messages to plaintiff’s cell phone without his permission, the
defendant filed a motion to compel the production of the plaintiff’s computer. The defendant claims
that in order to activate the automated text message service, a person must either text message
the defendant’s company or access their website to provide a telephone number. The defendant
seeks information contained on the plaintiff’s computer to refute claims that the text messages
were sent without his permission. The plaintiff argues against producing his computer, stating that
privileged information not related to the case may be disclosed. The court found that the plaintiff
failed to respond to the discovery request for the computer within the discovery deadline, thereby
foreclosing any objections to the request. However, notwithstanding the untimely objection, the
court held that it must “take steps to satisfy the discovery request without the result being a
wholesale rummaging through plaintiff’s filing cabinet.” Therefore, the court granted the motion and
ordered the plaintiff to produce his computer for inspection. The court also ordered a computer
forensics expert to image the computer and to provide the full report to the plaintiff first so that he
may address any privileged documents before disclosure to the defendant.
� PML N. Am., LLC. v. Hartford Underwriters Ins. Co., 2006 WL 3759914 (E.D. Mich. Dec. 20,
2006). In this fraud case, the plaintiff filed for default judgment sanctions against one of the
defendants for failure to preserve electronic evidence and bad faith destruction of documents. The
defendant failed to produce a USB drive and backup servers and produced a badly damaged hard
154

drive from a vital computer in the case. The damaged hard drive showed evidence that the
computer casing had been opened and the hard drive removed with a screwdriver. A computer
forensic expert testified that the computer had been tampered with and that because of the
tampering no electronic data could be harvested from the key piece of evidence. The plaintiff
argued that such failure to produce the information and the badly damaged hard drive was evident
of willful, bad faith spoliation. The defendant did not produce any logical explanation for the
damaged computer or the lack of production of the thumb drive and backup servers. The court
agreed with the plaintiff’s argument and found evidence that the hard drive belonging to the
defendant was tampered with before production. The court held that the hard drive was proof of the
defendant’s willful and intentional destruction of evidence and that default judgment was proper
since all parties were substantially prejudiced. Furthermore, the court ordered the defendant to pay
all attorney’s fees and costs.
� Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. Sept. 28, 2006).
The plaintiff sought sanctions against the defendant for bad faith destruction of relevant documents
and e-mails. The defendant in this case was a competitor of the plaintiff in the sporting goods
business. The defendant hired a former employee of the plaintiff after he voluntarily ended his
employment with the plaintiff. When the employee left the company, he forwarded several
confidential documents from the plaintiff’s company e-mail account directly to his personal Yahoo!
account. A computer forensics expert determined the employee opened the documents on his
home computer, and several of the confidential documents were also found on a computer issued
to the employee from his new employer. Upon the filing of the plaintiff’s lawsuit, the employee
cancelled his Yahoo! e-mail account, thereby causing all e-mails stored on the account to be
destroyed and unrecoverable. The plaintiff motioned the court to issue sanctions in the form of
dismissal for bad faith destruction of key documents after litigation commenced. The defendant
argued no knowledge of the stolen trade secrets from the plaintiff and alleged the employee
transferred and deleted the files on his own. The court found the employee destroyed wrongfully
obtained records when he cancelled his personal e-mail account with Yahoo!. The court did not
find enough evidence to prove the defendant willfully and in bad faith supervised or instructed the
destruction of the trade secrets. However, the court did find the defendant negligent in its failure to
preserve relevant evidence from its employee. The negligence by the defendant did not warrant a
dismissal of the case as the plaintiff urged, but the court ruled a negative inference may be allowed
at trial because it “should have done more to detect and preserve relevant data under [the
employee’s] control.”
� Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006). In a
claim brought by a law student under a state Persons With Disability Act, the plaintiff sought to
examine the defendant’s computer system with her computer forensics expert. The plaintiff claimed
her poor scores on final tests were attributed to faulty software provided by the law school to assist
the plaintiff with her vision disability while taking tests. The plaintiff originally sought the production
of several work orders from the law school relating to the software but the school changed
computer systems and during the switch some documents were deemed unrecoverable. The
plaintiff argued the defendant used the system changeover as an excuse not to produce relevant
documents. The defendant argued it already produced every work order they were able to recover
and the other work orders could not be retrieved from the old computer system. The court found for
the defendant, stating “[t]his court is therefore loathe to sanction intrusive examination of an
opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be
withholding discoverable information.”
155

� ACS Consultant Co., Inc. v. Williams, 2006 WL 897559 (E.D. Mich. Apr. 6, 2006). The plaintiff
sought a temporary restraining order and a preliminary injunction enjoining the defendants, former
employees of the plaintiff, from violating the terms of employment agreements. Granting the
plaintiff’s motion, the court noted that the defendants failed to return company-issued materials and
electronic media and that the defendants provided third parties with trade secrets and confidential
information. In issuing the order, the court enjoined the defendants “from taking any action to
delete, destroy, damage or ‘wipe clean’ any computer hard drive, including…[company-issued]
laptops and Blackberrys, containing [the plaintiff’s] confidential information or evidence relevant to
this case.” The court also required the defendants to return all of the plaintiff’s property, including
laptops, Blackberries and “other data kept in any form or media.”
� Powerhouse Marks, L.L.C. v. Chi Hsin Impex, Inc., 2006 WL 83477 (E.D. Mich. Jan. 12, 2006).
In response to the plaintiffs’ interrogatories, the defendants produced 1,771 pages of Batesstamped
documents from a database. Claiming this production was “indecipherable” and failed to
adequately answer their interrogatories, the plaintiffs moved to compel complete production of the
database information. In resolving the matter, the court stated the raw data would be more easily
used in conjunction with its corresponding database. The court further determined the defendants
were in the best position to accurately interpret and explain the information. Thus, the court
ordered the defendants to produce the data in a “more usable form”, noting the Federal Rule
Advisory Committee notes specified a party may be ordered to produce information to aid in
interpreting and explaining the data even when the electronic information does not exist in the
format requested.
� DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22,
2005). In a breach of contract claim relating to the defendant’s NASCAR team, the plaintiff sought
sanctions against the defendant for destroying relevant e-mails. In defending its actions, the
defendant claimed its computer system was set up to delete both internal and external e-mails
automatically, unless affirmative efforts were taken to preserve them. As a result of the automated
deletion, internal e-mails from key custodians were “irretrievably lost.” One key individual testified
he was never instructed to preserve relevant communications, even after the lawsuit commenced.
In considering whether sanctions were justified, a magistrate judge declared “[s]uch normal
procedures for destruction of documents must . . . be suspended when a party is on notice that
they may be relevant to litigation, and the failure to make an adequate search of such documents
before their destruction may be evidence of bad faith.” Although ultimately finding the defendant’s
actions amounted to negligent spoliation and did not show evidence of bad faith, the magistrate
found sanctions would be appropriate and recommended the trial court issue an adverse inference
instruction and an order allowing the plaintiff to present evidence of the spoliation.
� Holt v. Northwestern Mut. Life Ins. Co., 2005 WL 3262420 (W.D.Mich. Nov. 30, 2005). The
plaintiff, an emergency room physician, alleged the defendant, an insurance company, failed to
produce an e-mail that contained an investigative report relating to an insurance dispute. The
plaintiff requested an adverse inference instruction as a sanction for the alleged non-production. At
a hearing, one of the defendant’s employees testified that if the e-mail had contained substantive
information, a copy would have been placed in the claim file and produced during discovery. The
employee further testified it would have been unusual for substantive information to be sent in an
e-mail as such information was typically attached in a memorandum and merely transmitted by email.
Thus, the defendant argued the e-mail was merely an “envelope” for the substantive report –
which was already previously produced to the plaintiff – and not subject to the discovery request.
Citing Zubulake, the court agreed with the defendant and stated, “[A] corporation is not required to
156

preserve ‘every shred of paper, every e-mail or electronic document, and every backup tape’
because to require such would ‘cripple large corporations . . . that are almost always involved in
litigation’.” The court found the e-mail was merely an “e-mail envelope” and contained no
substantive information. Additionally, the court declared that even if the non-production was
improper, the plaintiff failed to demonstrate the e-mail would have been favorable to the plaintiff.
� People v. Schilke, 2005 WL 1027039 (Mich. Ct. App. May 3, 2005). The defendant appealed a
conviction for unauthorized access to her former employer’s computer. The defendant argued the
trial court should not have admitted evidence relating to the employer’s cost of repairing the
network and the amount of lost revenue arising out of the company’s inability to conduct business
due to the unavailability of the network. On appeal, the court determined the evidence was properly
admitted because it was relevant in determining the amount of damage the company sustained as
a result of the defendant’s actions. The evidence further rebutted the defendant’s assertion that her
actions “should have been easily correctable, and should not have caused very much damage.”
� Nartron Corp. v. General Motors Corp., 2005 WL 26991 (Mich. Ct. App. Jan. 6, 2005). In a case
involving a breach of contract claim, the plaintiff appealed the trial court’s decision granting costs,
sanctions for discovery abuse, and prejudgment interest in favor of the defendant. The trial court
determined the plaintiff’s failure to produce a database in response to the defendant’s discovery
request “tainted, corrupted, or permeated all of the discovery in the case.” On appeal, the plaintiff
argued the trial court’s finding was unsupported by the evidence and clearly erroneous since it had
produced more than 61,000 pages of documentation and the defendant did not assert those
documents were fraudulent. Rejecting this contention, the appellate court observed the plaintiff did
not attempt to refute the trial court’s finding by demonstrating its conduct regarding the database
did not “taint, corrupt, or permeate all the discovery.” The appellate court affirmed the trial court’s
order in part and awarded the defendant attorney fees, costs and expert witness fees. The
appellate court declined to award prejudgment interest, deciding that the state statute referring to
prejudgment interest did not apply to monetary sanction awards.
� Compuware Corp. v. Moody’s Investors Servs., Inc., 2004 WL 2931401 (E.D.Mich. Dec. 15,
2004). The defendant requested clarification of a discovery order and asked the court to order the
plaintiff to sort through a “catalog of ‘tens of millions’ of documents” to separate the relevant from
non-relevant documents. The defendant’s original request had called for “[a]ll documents produced
by [the defendant] to IBM in any litigation.” The plaintiff contended it had satisfied this request by
offering to provide the defendant with a $40,000 set of portable computer disks containing all of the
documents produced to IBM in litigation. Reviewing the matter, the court noted the parties’ inability
to agree upon discovery matters “highlight[ed] attempts by both sides to needlessly delay and
complicate discovery.” Despite this, the court stated it would not order the plaintiff to produce fewer
documents than the defendant initially demanded. As such, the court denied the defendant’s
requests to narrow the catalog of data to documents relevant in this litigation.
� United States v. Alexander, 2004 WL 2095701 (E.D.Mich. Sept. 14, 2004). In a criminal
proceeding, the government seized the defendant’s computer to search for evidence that the
defendant unlawfully transferred obscene pictures over the Internet. After the seizure, the
defendant requested that the government provide him with a mirror image of his computer hard
drive to allow his computer forensic expert to examine the drive for potential evidence. In an
affidavit, the forensic expert declared he planned to form an opinion, based upon his examination
of the hard drive, as to whether the defendant knowingly received the obscene images. The expert
stated that a mirror image was necessary so he could perform his analysis in his own laboratory,
using his own computer forensic software and hardware, which might be difficult to transport to
157

another location. The government objected, declaring the defense forensic expert could review the
mirror image only under its supervision. Determining the hard drive could contain relevant dates,
times, and circumstances surrounding the receipt of the pictures, the court ordered the government
to produce the mirror image.
� Superior Consultant Co. v. Bailey, 2000 WL 1279161 (E.D. Mich. Aug. 22, 2000). The court
ordered the defendant to create and produce for the plaintiff a backup file of the defendant’s laptop
computer, and a backup file of any personal computer hard-drive to which the defendant had
access.
� In re Dow Corning Corp., 250 B.R. 298 (Bankr. E.D. Mich. 2000). Federal Government did not
satisfy its obligation to make medical records stored in computer databases available to Debtor,
where Government directed Debtor to warehouses around the world where the information was
stored.
� In re Air Crash Disaster at Detroit Metro, 130 F.R.D. 634 (E.D. Mich. 1989). In litigation brought
after a passenger jet crash, the court ordered the aircraft manufacturer to provide relevant flight
simulation data on computer-readable nine-track magnetic tape even though the aircraft
manufacturer had already provided the data in hard copy print-outs. Because material did not
currently exist on magnetic tape, the requesting party (the airline) was required to pay all
reasonable and necessary costs associated with manufacture of tape.
Ohio
� In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 2012 WL 203493
(S.D. Ohio Jan. 24, 2012). In this products liability litigation, the court addressed the plaintiffs’
stipulation proposal that the defendant’s production of ESI be in native format together with
associated metadata. The defendant argued that production in native format “invites significant
control risks in that such documents can be altered after production . . . and cannot be Bates
numbered,” thus incurring significant monitoring costs. Instead, the defendant offered to produce
documents in PDF or TIFF format, and to produce specific documents in native format only after
the plaintiffs showed relevance. Pursuant to Fed.R.Civ.P. 34(b)(1)(C), the court determined that the
plaintiffs may specify production form, regardless of relevance, unless the defendant demonstrated
undue burden. Given the relatively small amount of ESI at issue, the court ruled that the
defendant’s concerns did not demonstrate undue burden. Therefore, the court granted the
plaintiffs’ motion and ordered the defendant to follow plaintiffs’ production request when made. The
plaintiffs additionally moved that each party identify a “Designated ESI Liaison” to respond to
requests. Denying that motion, the court concluded that if and when ESI production is required, the
parties shall appoint an “e-discovery coordinator” pursuant to the Default Standard for Discovery of
[ESI] adopted by this and other U.S. district courts, but that “[t]he ultimate responsibility for
complying with e-discovery requests rests on the parties.”
� United States v. Warshak, 2010 WL 5071766 (C.A.6 (Ohio) Dec. 14, 2010). In this criminal case,
the defendants appealed their numerous convictions for fraud claiming the government violated the
Fourth Amendment prohibition against unreasonable search and seizures by obtaining private emails
without a warrant. The defendants also argued that the government turned over immense
quantities of discovery in a disorganized and unsearchable format, that the government violated its
Brady obligations by producing “gargantuan ‘haystacks’ of discovery” and that the district court
erroneously denied a 90-day continuance to allow the defendants to finish sifting through the
“mountains of discovery.” Addressing the Fourth Amendment concerns, the court first found the
158

defendant plainly manifested an expectation that his e-mails would remain private given the
sensitive and “sometimes damning substance” of the e-mails, viewing it as highly unlikely the
defendant expected the e-mails to be made public as people “seldom unfurl their dirty laundry in
plain view.” Next, the court determined that it would defy common sense to treat e-mails differently
than more traditional forms of communication and found that neither the possibility nor the right of
access by the Internet Service Provider (ISP) is decisive to the issue of privacy expectations.
Based on these conclusions, the court held the government may not compel an ISP to turn over emails
without obtaining a warrant first. However, the court ultimately found the government relied in
good faith on the Stored Communications Act in obtaining the e-mails and determined the
exclusionary rule does not apply. Turning to the “prodigious” volume of discovery that consisted of
millions of pages, the court disagreed with the defendants’ arguments, noting in particular that
Fed.R.Crim.P. 16 is silent on what form discovery must take.
� State v. Rivera, 2010 WL 339811 (Ohio App. 12 Dist. Feb. 1, 2010). In this action involving the
Stored Communications Act (SCA), the defendant appealed his conviction, arguing text and picture
messages obtained from his cell phone provider should have been suppressed. The defendant
also argued the trial court erred in not denying the SCA as unconstitutional. Denying the
defendant’s argument regarding the constitutionality of the SCA, the court found the detective
violated the SCA by not providing notice to the defendant as required. However, the SCA does not
include exclusion as a remedy, and thus the exclusionary rule was inapplicable. Addressing the
suppression argument, the court deferred to the trial court’s determination of probable cause and
found that based on the facts and circumstances, there was a substantial probability that evidence
of criminal activity would have been found through other locations and media. Thus, the court
denied the defendant’s appeal and affirmed the trial court’s ruling.
� Enquip Tech. Group, Inc. v. Tycon Technoglass, S.R.L., 2010 WL 53151 (Ohio App. 2 Dist.
Jan. 8, 2010). In this complex international business litigation, the defendants appealed an order of
the trial court that held the European Union Data Protection Directive 95/46/EC (“Directive”) did not
limit discovery. The defendants argued that the trial court’s ruling was a clear error, and that the
exception provided in Article 26(1)(d), which permits the transfer of data when necessary to
establish, exercise or defend legal claims, was inapplicable. In response, the plaintiffs claimed that
the defendants failed to meet the burden required to obtain a protective order because no effort
was made to demonstrate the relevance of the Directive to any of the plaintiffs’ specific discovery
requests. Agreeing with the plaintiffs, the appellate court affirmed the trial court’s ruling. In support
of its opinion, the appellate court cited the trial court’s reasoning that the defendants subjected
themselves to Ohio law by doing business there and that no reason existed to preclude response
to discovery requests under the Ohio Rules of Civil Procedure.
� Cornwell v. N. Ohio Surgical Ctr., Ltd., 2009 WL 5174172 (Ohio App. 6 Dist. Dec. 31, 2009). In
this wrongful death litigation, the defendants appealed the trial court’s ruling allowing the plaintiff’s
forensic expert to create a mirror image of the defendants’ hard drives. The defendants asserted
such intrusive access was not authorized under Fed.R.Civ.P. 34 and would violate prohibitions
against the disclosure of confidential medical information. In affirming the trial court’s order, the
appellate court dismissed the confidentiality argument, relying on testimony of the plaintiff’s expert
explaining that viewing confidential information was not necessary to the forensic imaging process.
The court also discarded the defendants’ Rule 34 argument, noting that the circumstances
surrounding the case gave rise to an inference of improper conduct on part of the defendants. In
further support of the trial court’s decision, the court noted the direct relationship between the
159

plaintiff’s claims and the hard drives and said the specific protocol and search terms established by
the trial court made the defendants’ arguments meritless.
� Bennett v. Martin, II, 2009 WL 4048111 (Ohio App. 10 Dist. Nov. 24, 2009). In this employment
dispute, the defendants appealed the trial court’s judgment requiring production of forensic copies
of their computer hard drives to the plaintiff. The trial court concluded that the forensic imaging was
a reasonable solution “given defendants’ consistent intransigence to providing discovery materials.”
On appeal, the court noted privacy and confidentiality concerns must be weighed, but the "scales
tip in favor" of compelling forensic imaging when the requesting party can demonstrate discovery
failures or discrepancies. The court found the defendants engaged in outright defiance of court
orders and "adopted a lackadaisical and dilatory approach to providing discovery." Based on the
defendants’ misrepresentations, willful disregard of discovery rules and history of noncompliance
with court-ordered discovery requests, the court determined the trial court did not abuse its
discretion in ordering production of forensic copies.
� Reckley v. City of Springfield, Ohio, 2008 WL 5234356 (S.D.Ohio Dec. 12, 2008). In this
employment litigation, the defendant produced five e-mails of which it later claimed were protected
by the attorney-client privilege and inadvertently produced. Therefore the defendant sought return
of the e-mails and plaintiff argued that the production waived the privilege. Applying Fed.R.Evid.
502(b), the court held that privilege was not waived. The court noted that at least some of the
inadvertently disclosed e-mails were labeled “attorney-client privileged” and that the defendant took
prompt steps to claim privilege and seek return of the e-mails after they were disclosed. The court
also noted that the disclosure took place in the context of electronically stored information; a
context particularly intended to be addressed by Rule 502.
� State ex. rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 2008 WL 5157733 (Ohio
Dec. 9, 2008). In this litigation, the plaintiff filed an action seeking a writ of mandamus to compel
the defendant to recover the content of requested e-mails that had been deleted. The plaintiff
argued that a public office has an obligation to maintain certain records, such as the records at
issue here, and make them available for inspection and copying under the Public Records Act.
Finding substantial gaps in the responsive e-mails provided by the defendant, the court determined
that a reasonable inference was raised that at one time, additional responsive e-mails were deleted
in violation of the defendant’s document retention schedule. Additionally, through an affidavit of a
computer expert specializing in forensic data-recovery services, the plaintiff established that there
was some likelihood that the recovery of the deleted e-mails would be successful. Therefore, the
court also concluded the defendant should be required to attempt to restore deleted e-mails. The
court ordered the defendant to bear the expense of the forensic analysis but stated that the
“recovery efforts need only be reasonable, not Herculean.”
� Superior Prod. P’ship v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D. Ohio Dec.
2, 2008). In this predatory pricing case, the plaintiff sought production of electronic documents in
native format that were previously produced in hard copy. The defendants opposed native
production, arguing their computer system did not maintain metadata and therefore no purpose
would be served in native production. Citing Fed.R.Civ.P. 26’s preference for native format
production, the court ordered the defendants to produce the documents natively, finding benefit in
the ease at which electronic documents can be stored and manipulated during the litigation
process.
� Moore v. Abbott Lab., 2008 WL 4981400 (S.D.Ohio Nov. 19, 2008). In this employment
discrimination case, the plaintiff filed a motion to compel discovery, seeking documents
unrestricted by time frame, geographic area or number or type of job applicants. The defendant
160

argued that it previously produced 14,000 pages of documents, that further review of e-mail would
cost $300,000 and that it should not have to spend additional time and money to produce nonrelevant
documents. Agreeing with the defendant, the court found plaintiff’s discovery requests,
“extraordinarily overbroad.” The court stated that, “mere speculation about relevance,” is not
enough to order production of requested documents. Accordingly, the court denied the plaintiff’s
motion.
� Ross v. Abercrombie & Fitch, Co., 2008 WL 4758678 (S.D.Ohio Oct. 27, 2008). In this securities
litigation, the plaintiff requested the court to order the defendant to produce an additional 95,000
documents “hit” by a revised keyword search. The plaintiff argued these documents would most
likely have been produced had the defendant understood the list of “Search Term Revisions”
supplied by the plaintiff to be supplemental rather than replacing the plaintiff’s previous list of
search terms. The defendant argued it should not have to spend the time and resources to review
and produce the additional documents under the revised search terms since the requested
documents would likely be irrelevant and because it previously produced over one million pages of
documents. Determining the plaintiff failed to meet its burden and show that the documents’ likely
relevance outweighed the review and production costs, the court denied the plaintiff’s motion.
� Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859
(N.D.Ohio July 7, 2008). In this breach of contract suit, the plaintiff sought summary judgment on
its spoliation claim. The plaintiff alleged that the defendant engaged in spoliation of electronic
evidence by failing to issue a litigation hold, thereby neglecting to retain relevant evidence as well
as the destruction of relevant hard drive data. The plaintiff argued this failure resulted in the
destruction of potentially relevant data, in addition to destruction of evidence contained on
computer hard drives. The court found no direct evidence that the defendant deleted data with an
intent to avoid disclosure to the plaintiff. Determining a genuine dispute of material fact to exist
regarding intent with each aspect of the plaintiff’s spoliation claim, the court denied the plaintiff’s
motion.
� Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D.Ohio April 28, 2008). In this case
involving an alleged violation under the Ohio Consumer Sales Practices Act, the court ordered a
protocol for viewing the information contained on the plaintiff’s home and office computers. In
considering the protocol, the court identified three categories of information contained on the
plaintiff’s hard drives: confidential personal information, attorney-client privileged information, and
information relating to e-mail and website advertisements. The court ordered the plaintiff’s
computer forensics expert to mirror image the hard drives, removing information deemed personal
and confidential that could not lead to the discovery of relevant information. Additionally, the court
ordered the defendant’s computer forensics expert to meet with the plaintiff to identify for deletion
information that is irrelevant and create a privilege log of any relevant information which is
privileged. Finally, the court ordered both parties to share the costs associated with their chosen
computer forensics expert.
� Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., 2008 WL 668267
(N.D.Ohio Mar. 11, 2008). In this suit alleging breach of a settlement agreement, the plaintiff
sought to amend the complaint to include a claim for spoliation following two years of discovery.
The plaintiff alleged the defendant knowingly destroyed relevant evidence – specifically the
defendant replaced employees’ hard drives days before the plaintiff could make forensic images of
those drives. The defendant argued that a spoliation claim would be futile and cause undue
prejudice. Applying state law for spoliation and appropriate sanctions, the court granted the
plaintiff’s motion and allowed the plaintiff to add a claim of spoliation.
161

� Kelly v. Montgomery Lynch & Assoc., 2007 WL 4412572 (N.D.Ohio Dec. 13, 2007). In this
lawsuit, the plaintiff filed a motion to compel discovery necessary to support a motion for class
certification. The defendant claimed the discovery request was unduly burdensome because the
filing system was not maintained in a searchable format. Finding the defendant did not make a
reasonable inquiry into the discovery request apart from claiming an undue burden, the court
ordered the defendant to comply with the plaintiff’s narrowly tailored discovery request.
Additionally, the court strongly advised the parties to make a sincere attempt at cooperation in the
discovery process. The court further warned the defendant that a failure to comply will result in the
consideration of sanctions.
� United States v. Warshak, 2007 WL 2417407 (S.D.Ohio Aug. 21, 2007). In this criminal matter,
the defendants moved to bar the government from using evidence allegedly obtained in violation of
the attorney-client privilege doctrine. While the government asserted its case was not based on
privileged information, the defendants questioned the government’s apparent decision to segregate
the computers of three in-house attorneys without comprehensively screening other computers for
privileged materials. The defendants also raised concerns with regard to the amount of time a U.S.
postal inspector possessed certain computers containing privileged information. Finding the
defendants’ questions to be well-founded, the court held there were temporal and substantive gaps
that could only be resolved by sworn testimony and ordered an evidentiary hearing to ascertain the
extent to which the government relied on privileged materials to obtain the evidence it intended to
use at trial.
� State of Ohio v. Rivas, 2007 Ohio App. LEXIS 3299 (Ohio.App. July 13, 2007). In a suit where the
defendant challenged his conviction for importuning and attempted unlawful sexual conduct with a
minor, the defendant challenged the trial court’s denial of his request to obtain a copy of the police
department’s hard drive where records of online chats were stored. The defendant argued he was
entitled to review of the transcripts and should not be required to rely on the representations of the
adverse party. The state argued that its interest in safeguarding the details of other investigations
contained on the hard drive outweighed the defendant’s request to have access to the hard drive.
The trial court agreed with the state, but the appellate court reversed that holding, requiring the
state to allow the defendant a reasonable means of verifying the accuracy and completeness of the
transcript to meet the requirements of the right to a fair trial and the right of an accused to confront
the evidence against him. The court suggested the trial court conduct an in camera review to verify
the transcript.
� Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D.Ohio June 12, 2007). In this
case, the plaintiff requested the court enter a discovery order, allowing its computer forensic expert
to search the defendant’s computer systems, network servers, databases and backup tapes for the
last nine years. The plaintiff also sought to compel the re-production of ESI previously produced in
hard copy form and the production of deleted documents. The defendant argued the request for a
forensic examination was not authorized as a matter of course by the Fed. R. Civ. P. amendments
in 2006 and that its production was proper since the plaintiff’s requests made no such production
format specification. The defendant further argued the deleted information sought by the plaintiff
was inaccessible and not relevant. The court found the plaintiff’s request for an intrusive
examination of its opponent’s computer systems was based on mere suspicion that the defendant
may be withholding discoverable information and denied the request. On the production format and
request for deleted documents discovery issues, the court ordered the parties to further meet and
confer.
162

� United States v. Premera Blue Cross, 2007 WL 852080 (S.D. Ohio Mar. 16, 2007). In a case
brought under the False Claims Act, the plaintiff subpoenaed e-mails from an accounting services
provider for the defendant, a non-party to the suit. The non-party produced some e-mail records;
however, the plaintiff claimed that the production was incomplete and compelled the court to order
the non-party to produce all of the sought after e-mail records. The non-party argued that it would
be unduly burdensome and costly to retrieve and produce the e-mails at issue. Inferring that the
non-party had already retrieved all of the e-mails based on a statement contained in its briefing of
the issue, the court held that the non-party had already assumed the costs of retrieval and should
produce the sought after e-mails, with the plaintiff responsible for the costs of production.
� May v. Pilot Travel Centers LLC, 2006 WL 3827511 (S.D. Ohio Dec. 28, 2006). In a wrongful
termination case, the plaintiff moved for spoliation sanctions against the defendant for failing to
produce and preserve relevant evidence. The defendant failed to produce electronic documents
such as e-mail, invoices, and payroll records which were central to the plaintiff’s case. The
defendant claimed not to have the information but eventually produced some, but not all, of the
requested records after the motion for sanctions was filed. The defendant argued that the plaintiff
provided no proof that it destroyed evidence and the sanctions should be denied. The defendant
also argued that it did not have a duty to supplement discovery disclosures because the plaintiff did
not request supplementation during the discovery period. Not satisfied with the defendant’s
arguments, the court concluded that sanctions were appropriate. The defendant’s production of
some of the records shortly after the motion was filed was evidence of the defendant’s bad faith.
Additionally, the burden to prove no destruction occurred was on the defendant since it was in
control of the evidence at issue and the burden should not shift to plaintiff.
� Flexsys Americas, LP v. Kuhmo Tire U.S.A., Inc., 2006 WL 3526794 (N.D. Ohio Dec. 6, 2006).
In a patent infringement suit, the defendants brought a motion to compel the plaintiff to produce
electronic documents. The defendants claimed the plaintiff only provided and searched for
documents related to one individual. The defendants argued they were entitled to search all
documents created by every employee within plaintiff’s company. The plaintiff responded it had
produced all documents at issue and that a company-wide search would be costly and could not
occur before the discovery deadline. The court found the parties had not come to any agreement
regarding the scope of e-discovery according to the new guidelines set forth in the amended
Federal Rules of Civil Procedure. As a compromise in this discovery dispute, the court ordered the
plaintiff to produce all electronic documents from 10 individuals of the defendant’s choosing.
� Exact Software N. Am., Inc. v. Infocon, Inc., 2006 WL 3499992 (N.D. Ohio Dec. 5, 2006). In a
collection action by the plaintiff, the defendant sought sanctions for the plaintiff’s failure to produce
and preserve electronic evidence. The defendant argued the plaintiff completely failed to produce
adequate reasons for the non-production of electronic documents. Additionally, the defendant
argued the plaintiff deleted electronic documents before and after litigation started. The plaintiff
failed to respond to the allegations of deliberate spoliation. The court ruled sanctions and default
were likely against the plaintiff since it completely failed to produce any adequate excuse as to why
electronic evidence was not produced or preserved. However, the court ruled it could not issue a
default judgment because it was unclear who was at fault for the discovery mishaps. The court
found that it could not ascertain whether the discovery misconduct was due to willfulness or bad
faith on the part of the plaintiff, its counsel, or both, and set a hearing at which the plaintiff would
have an opportunity to show cause why it should not be sanctioned.
� JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2006 WL 3803152 (S.D. Ohio Nov. 14, 2006). In a
claim under the UCC, the plaintiff filed a motion for sanctions and a motion to compel discovery.
163

The defendant failed to properly answer an interrogatory question that directly related to its motion
for of dismissal based on the defendant’s lack of jurisdiction. The defendant claimed the plaintiff
lacked jurisdiction and the plaintiff asked for information in discovery to support that contention.
Throughout the litigation the defendant failed to answer the interrogatory and failed to give
information regarding its research of the issue during multiple depositions. The plaintiff argued that
it was only in search of information from the defendant’s electronic database of client names to
determine their residency and whether the clients were in fact within the plaintiff’s jurisdiction. The
defendant asserted that it lacked knowledge of the information and could not produce the
evidence. It also claimed that it would research the issue and during a subsequent deposition, a
key defense witness stated he forgot the research results and would supplement the plaintiff later.
However, he never did. The court ordered the defendant to produce their electronic database of
clients to the plaintiff and noted that the defendant “has engaged in exactly the type of
gamesmanship which is expressly prohibited by the Federal Rules of Civil Procedure and
universally condemned by the applicable case law.” The court also ordered the defendant to pay
the plaintiff’s attorney’s fees and costs.
� Marwaha v. SBC Global Services, Inc., 2006 WL 2882854 (N.D. Ohio Oct. 6, 2006). In an
employment discrimination suit, the plaintiff motioned the court to sanction the defendant for failure
to produce a particular e-mail during discovery. The plaintiff attempted to negotiate with the
defendant about the production of an e-mail not originally demanded by the plaintiff in initial
discovery requests. The plaintiff stated they would not file a motion to compel the production of the
relevant e-mail if the defendant stipulated to certain facts, which would be proven by the e-mail.
The defendant did not stipulate to the agreement and the plaintiff brought a motion for sanctions
based on the defendant’s failure to follow thorough with the “informal agreement.” The court ruled
there was no evidence the defendant agreed to the informal agreement and even if they had
agreed, the court stated they “cannot be called upon to police such ambiguous agreements.” The
court also stated the request for the e-mail was beyond the scope of the plaintiff’s discovery
requests, and it could not be compelled for production.
� King Lincoln Bronzeville Neighborhood Assoc. v. Blackwell, 448 F.Supp.2d 876 (S.D. Ohio
2006). In an action to prevent voting discrimination, the plaintiff brought sued to determine if voting
in the state of Ohio was racially discriminated against during the 2004 election. The plaintiff claims
a disproportionate number of black voting districts in Ohio were provided with a smaller number of
balloting machines compared to the more predominately white districts during the 2004 presidential
elections. The plaintiff seeks fairer voting procedures during the upcoming 2008 national elections.
The court ordered that all 88 county election boards preserve all ballots from the 2004 election in
any form they are contained, including electronic form. The court noted that it has the power to
issue sanctions in the form of contempt and otherwise for any third-party that fails to preserve any
ballots in their paper or electronic form.
� O’Brien v. Ed Donnelly Enters., 2006 WL 2583327 (S.D. Ohio Sept. 5, 2006). In a wage and hour
claim against a former employer, the employee plaintiffs sought sanctions against the defendant
employer for deliberately destroying discoverable documents. Plaintiffs argued that defendant
“destroyed … records with a culpable state of mind.” The documents in question were time card
records printed out routinely and backed-up on defendant’s in-house server. Defendants
acknowledged that, while they intended to keep all time card records, they were not able to locate
the records for a small fraction of the days for which the plaintiffs requested documents.
Defendants stated that they did not realize until after the lawsuit was filed, that the records were
missing. Defendants contended that, the records “were created [and the electronic information
164

overwritten] well before th[is] lawsuit was filed.” The court denied plaintiffs’ motion for sanctions
finding that the destruction or loss of evidence occurred before defendant had notice of the
litigation and there was no evidence of intentional destruction. Moreover, the court ruled that
“plaintiffs’ perception of the deficiencies of defendants’ electronic record-keeping [was] simply
irrelevant.”
� Yancey v. Gen. Motors Corp., 2006 WL 2045894 (N.D. Ohio July 20, 2006). In a disparate
treatment employment claim, defendant requested that the court exclude certain employee’s hard
drives and e-mails from the definition of “documents” as it related to a magistrate’s discovery order.
Additionally, the defendant argued that although production of the hard drives may generate some
relevant documents, a large amount of data on the hard drive was irrelevant and likely to be barred
under certain privileges. In refusing to exclude the terms from the definition of discovery
“documents”, the court agreed with plaintiffs that the term “encompassed computer hardware,
software, e-mails and ‘computer forensics.’” Further, the court decided that to mitigate any possible
disclosure of privileged information, the defendant must produce a confidentiality log of all possible
documents from the hard drive. Lastly, since “the removal of the hard drives is not an undue
expense for a large corporation such as GM”, the court ordered that they alone bear the costs of
production to plaintiff.
� Kemper Mortgage, Inc. v. Russell, No. 3:06-cv-042 (S.D. Ohio Apr. 18, 2006). The plaintiff
requested instructions on implementing a litigation hold for electronic evidence and demanded cost
shifting for expenses related to the litigation hold. The plaintiff’s computer forensic expert advised
the plaintiff to effect a litigation hold by mirror imaging its server and laptops, which would cost
approximately $4,000, an amount the plaintiff contended the defendant should pay. Denying the
plaintiff’s requests, the court noted the defendant had not imaged the plaintiff’s computers because
of the costs involved and the defendant had not yet made a demand on the plaintiff for a litigation
hold. The court declared, “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.”
� Electrolux Home Prods., Inc. v. Whitesell Corp., 2006 WL 355453 (S.D. Ohio Feb. 15, 2006).
The respondents, a non-party subpoenaed by the defendant, petitioned for a certificate of
interlocutory appeal and sought to stay enforcement of a magistrate’s order allowing the defendant
to conduct a forensic review of the respondents’ computer systems. The reviewing magistrate
found the issue was not ripe for appeal and the respondents waived any appeal rights by failing to
raise the issue in their initial appeal. The court declared the enforcement orders took “every
measure to protect” the respondents because the defendant was bearing discovery costs and
discovery was to be conducted on an “attorneys-eyes-only” basis. The court also noted the
attorney-client privilege was not compromised because the respondents’ counsel would have
access to the master data and an opportunity to create a privilege log. The reviewing magistrate
stated, “Respondents have complained throughout this proceeding of the burden being imposed on
them. Instead of lessening that burden by cooperating in discovery, they have fought a Stalingrad
defense costing untold thousands of dollars in attorney fees and providing increased evidence that
they have something to hide.”
� In re OM Group Sec. Litig., 226 F.R.D. 579 (N.D. Ohio 2005). In a shareholder litigation suit, the
plaintiff sought to compel production of e-mails and spreadsheets listed on a privilege log relating
to a committee’s investigation of corporate inventory problems. The defendants asserted that some
165

of the e-mails and spreadsheets were protected by the work-product doctrine and other e-mails
were protected by the attorney-client privilege. The court declined to find any of the documents
protected by the work-product doctrine, finding they were not prepared in “anticipation of litigation.”
Addressing the attorney-client privilege documents, the court found the defendants had waived the
attorney-client privilege only to the documents prepared on or before the date on which the
committee presented its findings relating to the ongoing investigation.
� State v. Morris, 2005 WL 356801 (Ohio Ct. App. Feb. 16, 2005). The defendant appealed
convictions relating to pandering sexually-oriented matter involving minors. The defendant’s son
testified he called the police after finding pornographic images of minors in the recycle bin of his
computer, which the defendant had previously used. During a forensic analysis of the computer, a
computer forensic expert mirror imaged the hard drive. Before returning the computer, the expert
overwrote the hard drive, erasing all data on the drive. At trial, the state presented the mirror image
copy as evidence. The expert testified it was standard protocol not to run tests on the original hard
drive in order to prevent corrupting the evidence and stated the mirror image was an exact copy of
the original hard drive. The expert further noted he wiped the hard drive because it was corrupt and
repeatedly accessing and testing the drive would have rendered it useless. On appeal, the
defendant argued he was denied an opportunity to examine the original hard drive to see if it
contained exculpatory evidence. The court declared state evidentiary rules permit admission of
duplicates and noted the expert had testified that the copy was an exact copy of the original hard
drive. The court upheld the convictions, finding the defendant failed to specifically argue what type
of exculpatory evidence may have been lost during the copying procedure and the original was not
destroyed in bad faith.
� In re Telxon Corp. Sec. Litig., 2004 WL 3192729 (N.D. Ohio July 2, 2004). In a case involving
alleged violations of the Securities and Exchange Act, the SEC requested documents from an
accounting firm relating to its financial audit of the corporation being investigated. The corporation
sought sanctions against the accounting firm, claiming the accounting firm committed fraud,
misrepresentation, and breach of contract in relation to the corporation’s financial statements. The
corporation argued the accounting firm failed to produce all relevant documents and databases and
versions of relevant documents and databases and to promptly protect the documents from
alteration. They also claimed the accounting firm produced hard copy documents in versions
different from the electronic versions and failed to produce certain e-mails, metadata and other
documents. In reviewing the matter, the magistrate judge, in a recently unsealed opinion, found the
absence of the e-mails suggested spoliation after the accounting firm was on notice to preserve
those documents. The magistrate also declared the accounting firm had to have known multiple
database versions existed and the hard copy production failed to capture relevant components –
such as metadata – of the database. The magistrate recommended default judgment in favor of the
corporation, declaring “[n]o reasonable person could believe that PwC’s production…to
Telxon…was a ‘good faith’ production.” The court further stated “[b]ecause PwC’s conduct has
made it impossible to try this case with any confidence in the justice of the outcome, PwC should
bear the burden created by its conduct.”
� Hollingsworth v. Time Warner Cable, 812 N.E.2d 976 (Ohio App. 2004). In an employment
discrimination lawsuit, a former employee alleged that she was wrongfully discharged and sought
unemployment benefits. In response to the employee’s request for benefits, the defendant
produced an e-mail at the benefits hearing. The e-mail, which was from the company’s human
resources vice president to legal counsel, stated the reasons for the employee’s termination. After
the e-mail was produced at the hearing, the employee requested production of any other related
166

documents for use in her wrongful discharge claim. Stating that the e-mail was privileged and had
been produced unintentionally, the defendant moved for a protective order. The trial court granted
the protective order and instructed the employee to return the e-mail. The appellate court reversed
stating that the company waived any privilege claims when it “voluntarily divulged” the e-mail.
� Hildreth Mfg. v. Semco, Inc., 785 N.E.2d 774 (Ohio Ct. App. 2003). The appellate court found no
basis for the defendant’s motion for contempt for spoliation of computer evidence. The court found
that even though the plaintiff failed to preserve data contained on the computer hard drives at
issue, there was not a reasonable possibility that the hard drives contained evidence that would
have been favorable to the defendant’s claims.
� State v. Cook, 2002 WL 31045293 (Ohio Ct. App. Sept. 13, 2002). The defendant appealed his
conviction for possessing nude images of minors, claiming in part that the trial court erred in
admitting materials, over the defendant’s objection, that were generated from a "mirror image" of
the defendant’s hard drive. After a detailed discussion of the mirror imaging process, the
authenticity of the data taken from the image, and the possibility for tampering, the appellate court
found that the trial court properly admitted the evidence.
� Zonaras v. General Motors Corp., 1996 WL 1671236 (S.D. Ohio Oct. 17, 1996). In this case, the
plaintiffs sought to compel discovery of data compiled concerning different crash test dummy tests.
In response, the defendant GMC asserted that it produced data tracings and backup materials for
all but eleven of these tests, and objects to production of the remaining tests “as unduly
burdensome and expensive.” After balancing the elements outlined in Rule 26(b)(2)(iii), the court
ordered the defendant GMC to produce data tracings and backup materials of the eleven tests
where the benefits of the discovery outweighed the expense of production. Because admissibility of
the electronic evidence was still undecided, the court ordered the plaintiffs to pay half the
production costs.
� Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio C.P. 1996). The court
ordered discovery of certain documents from the defendant’s database. The judge stated that the
defendant cannot avoid discovery simply because their own record keeping scheme makes
discovery burdensome. The court ordered the defendant to pay costs of the discovery.
� City of Cleveland v. Cleveland Electric Illuminating Co., 538 F. Supp. 1257 (N.D. Ohio 1980).
In an antitrust suit brought by a city against an electric utility, the court ordered the electric utility
was entitled to pretrial production by the city of computer data and calculations underlying
conclusions contained in reports of certain experts the city intended to call as witnesses.
Tennessee
� Lubber v. Optari LLC, 2012 WL 899631 (M.D. Tenn. Mar. 15, 2012). In this “latest volley of
discovery disputes,” Magistrate Judge Joe Brown addressed the defendants’ motion for a
protective order, or in the alternative, cost shifting under Fed.R.Civ.P. 26(b)(2)(C)(iii). The
defendants argued that a purportedly effective settlement agreement limited discovery to a small
window that began to run when the plaintiff filed for bankruptcy, and that requiring production
before this time period would be too expensive. Simultaneously seeking a motion to compel on
nine different topics (including information before the defendant’s bankruptcy filing date), the
plaintiff attacked the agreement and argued that production before the time period was warranted,
as it was relevant to their claims after the filing date. Reviewing the arguments, Judge Brown
believed that both parties were leveraging the American “producer pays” rule to “bludgeon” their
opposition with substantial discovery costs. Declaring that the documents sought were likely only of
167

marginal relevance, the court denied the protective order but mandated the parties to share equally
in any further discovery costs.
� Nacco Materials Handling Grp., Inc. v. Lilly Co., 2011 WL 5986649 (W.D.Tenn. Nov. 16, 2011).
In litigation arising from the defendant’s repeated illegal access to the plaintiff’s "secure dealer"
website, the plaintiff sought sanctions for the defendant’s discovery misconduct. After preliminary
forensic analysis of 35 of the defendant’s computers, the plaintiff discovered that the defendant did
not issue a company-wide litigation hold and left collection up to individual employees absent
managerial oversight. Additionally, the plaintiff found that the Rule 30(b)(6) deponent produced by
the defendant did not review any of the particular files in question and was improperly prepared for
deposition. Finding the defendant ‘s "woefully inadequate" preservation and collection methods
negligent at minimum, the court found sanctions appropriate, but limited them due to plaintiff’s
failure to substantiate the amount of prejudice suffered from the defendant’s misconduct. As such,
the court awarded monetary sanctions related to the cost of the previous forensic examination,
additional imaging of company computers and reasonable fees and costs the plaintiff incurred in
the motion.
� United States v. Carell, 2011 WL 2078023 (M.D. Tenn. May 26, 2011). In this False Claims Act
litigation involving alleged improper Medicare billing, both parties requested additional discovery.
The government asserted that during more than fourteen months of discovery, the defendants
failed to produce a single electronic document and neglected to implement a litigation hold.
Determining the government’s timeline was too broad and the defendants’ too narrow, the court
established a relevant timeline to be three years after the sale in question and two years after the
defendants’ possessed an e-mail system, and ordered the defendants to conduct and certify an
adequate search for responsive documents. Declining to rule on the defendants’ alleged failure to
preserve absent a motion for sanctions, the court turned to the defendants’ request for 37 e-mails
(or e-mail strings) withheld by the government as work product and ordered the government to
submit the e-mails for an in camera review.
� Barnes v. CUS Nashville, LLC, 2010 WL 2265668 (M.D. Tenn. June 3, 2010). In this slip and fall
tort action, the defendant moved to compel ESI and for a trial continuance to resolve the protracted
arguments between parties regarding the plaintiff’s and witnesses’ Facebook photos and e-mails.
The magistrate judge found that the defendant’s mishandling of a Facebook subpoena caused a
major delay in discovery, while also noting that "[c]ooperation on the part of both parties could have
prevented this delay." To resolve this discovery issue expeditiously, the magistrate judge stated he
was willing to create a Facebook account. If the witnesses would accept the judge as a Facebook
"friend" "for the sole purpose of reviewing photographs and related comments in camera," he would
"promptly review and disseminate any relevant information to the parties" and then close the
account. Additionally, the judge reviewed submitted materials from the plaintiff’s Facebook account
and deemed one message, seven pictures and the accompanying metadata relevant to the case.
Ultimately, the judge granted the continuance but denied the motion to compel ESI for lack of
jurisdiction.
� John B. v. Goetz, 2008 WL 2520487 (Tenn. June 26, 2008). In this class action litigation, the
defendants filed a petition for mandamus seeking relief from two discovery orders issued by the
district court which ordered the state defendant to allow the plaintiffs’ computer expert to examine
and forensically image and examine the computer systems of 50 key defendant custodians,
including privately owned computers, in order to determine if information was removed, impaired or
compromised, and to ensure preservation. The court granted the defendants’ petition in part,
setting aside the portion of the order that required forensic imaging of hard drives and other
168

devices that contain relevant electronically stored information. The court held the imaging of the
media primarily for the purpose of preservation was an abuse of discretion, citing the fact that the
record “lacks any evidence that defendants have intentionally destroyed relevant ESI” and noting
the significant privacy and confidentiality concerns raised by the order.
� John B. v. Goetz, 2007 WL 3012808 (M.D.Tenn. Oct. 10, 2007). In this discovery dispute, the
court granted the plaintiffs’ motion to compel and ordered the defendants to provide complete
responses to the plaintiffs’ ESI requests, including all metadata and deleted information for any of
the defendants’ key custodians. Additionally, the court ordered the defendants to file certifications
regarding whether ESI was removed from any state computer or personal computer provided by
the state. Any managed care contractors (MCCs) were ordered to respond to ESI requests and if
production was found inadequate, the plaintiffs were allowed to renew their motion to compel
further production. Addressing the plaintiffs’ spoliation concerns, the court allowed the plaintiffs’
ESI expert to oversee the defendants’ production and inspect whether any changes were made to
the defendants’ computer(s). Finally, the court ordered the defendants to respond as to why they
should not be required to pay all production costs and attorney fees as provided in the order.
� Univ. of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007). In a case where
the plaintiff alleged that the defendants misappropriated the plaintiff’s rights to medical scanning
technology, the defendants moved the court to sanction the plaintiff for spoliation of evidence by
excluding the testimony of the plaintiff’s proposed experts. The defendants alleged that the experts
and plaintiff’s counsel destroyed copies of e-mails and draft expert reports, to which they were
entitled. The experts stated that they did not retain e-mail from the plaintiff’s counsel because they
were instructed not to do so by the plaintiff’s counsel. The experts stated that they did not have the
prior draft expert reports because they only worked from one copy. The court rejected the
defendants’ argument and denied the request for sanctions. It ruled that although a draft an expert
report may be discoverable under the Federal Rules of Civil Procedure, an expert need not
preserve the drafts until the need to retain exists. Here, the experts and the plaintiff’s counsel were
not under an obligation to preserve the reports until the defendants subpoenaed records from the
experts. Since the draft reports were destroyed prior to the creation of any obligation to retain, the
court held that the destruction of the draft reports was “not done intentionally, fraudulently, and with
‘a desire to suppress the truth,’ and therefore, [was] not sanctionable.” However, the court did hold
that it was improper for the plaintiff’s counsel to have instructed or otherwise suggested to the
experts that all e-mails be destroyed, as they were the subject of multiple discovery requests. The
plaintiff’s counsel apologized for the error, and the court did not issue sanctions.
� Inventory Locator Serv., LLC v. Partsbase, Inc., 2005 WL 2179185 (W.D.Tenn. Sept. 6, 2005).
The plaintiff alleged the defendant unlawfully accessed the plaintiff’s computerized database, and
the defendant counterclaimed arguing similar conduct on the part of the plaintiff. In support of its
counterclaims, the defendant offered "Web server logs," purporting to record various unlawful
entries into the defendant’s computer system from an internet protocol ("IP") address assigned to
the plaintiff. The plaintiff sought, inter alia, to exclude the evidence, arguing the logs were
"incredible on their face," appeared to have been altered, had been moved and deleted, and were
inadmissible hearsay. As evidence that the logs were altered or fabricated, the plaintiff noted a
"cookie anomaly." When a user from a specific IP address logs onto the defendant’s Web site, a
“cookie” containing information such as the IP address from which the user was logging in, would
be created and recorded alongside the entry in the server logs. According to the plaintiff, none of
the cookies corresponded with the entries allegedly coming from its IP address. In response, the
defendant submitted the affidavit from a technology services company president who explained the
169

“cookie anomaly” as a technical glitch not confined to entries from the plaintiff’s IP address.
Weighing this evidence, the court determined evidence exclusion was not warranted as “[a]bsent
more detailed evidence or expert testimony” it could not determine if the “cookie anomaly”
undermined the authenticity of the defendant’s log records.
� State v. Butler, 2005 WL 735080 (Tenn. Crim. App. Mar. 30, 2005). In a case involving child
pornography allegations, the state appealed from an order requiring it to provide the defendant with
a copy of the defendant’s hard drive, along with copies of the alleged child pornography that
formed the basis for the state’s case. The state argued that it could not allow defense counsel to
take a copy of the computer hard drive because a state sexual exploitation statute did not contain
any exemption for defense counsel to be given child pornography. The state also declared that it
would accommodate counsel and its computer experts by allowing them to examine a mirror image
copy of the hard drive while it remained in the state’s custody. On appeal, the court affirmed the
trial court’s order, holding that the defendant was entitled to a copy of the hard drive. The court
further noted that providing the alleged pornographic evidence to defense counsel under a court
protective order did not violate the state’s “sexual exploitation of a minor” statutes.
� Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550 (W.D.Tenn. 2003). In a trade
secret violation suit, the defendant moved for the production of approximately 996 network backup
tapes and argued that the plaintiff should bear production costs. The defendant also requested that
the court appoint a special master to aid in the discovery process. The plaintiff objected to the
defendant’s requests stating that the request was “unduly burdensome because extracting the data
from the backup tapes and reviewing it for relevance and privilege will be astronomically costly.”
The parties did not dispute the relevance of the electronic data at issue. Agreeing that producing
the backup data as a whole would be burdensome on the plaintiff, the court applied the Rowe 8
factor cost-shifting test to determine burden and cost. Finding that the majority of the factors
favored shifting a portion of discovery costs to the defendant, the court outlined a detailed
discovery protocol. Pursuant to Fed.R.Civ.P. 53(b), the court appointed a special master to
oversee discovery and to review the data. The court also ordered the plaintiff’s vendor to “search
the extracted data using the keywords identified in Appendix A to this order or otherwise agreed
upon by the parties or directed by the special master” and to “produce to [the defendant] a
complete list of the files identified by the backup tape restoration keyword search.”
� Delozier v. First Nat’l Bank of Gatlinburg, 109 F.R.D. 161 (E.D. Tenn. 1986). “A court will not
shift the burden of discovery onto the discovering party where the costliness of the discovery
procedure involved is entirely a product of the defendant’s record-keeping scheme over which the
plaintiff has no control.”
Seventh Circuit – State and Federal Cases
� Heraeus Kulzer, GMBH v. Biomet, Inc., Nos. 09-2858, 10-2639 (7th Cir. Jan. 24, 2011). In this
foreign trade secrets litigation, the plaintiff appealed the district court’s denial of its request for
discovery in U.S. federal district court pursuant to 28 U.S.C. § 1782. Noting that discovery in the
federal court system is broader than in most foreign countries, the court listed several potential
abuses that could warrant a denial – including, inter alia, harassing the opposing party, “swamping
a foreign court with fruits of American discovery” and gaining an arbitrary advantage through the
lack of reciprocity in access to broad U.S. discovery. The court determined the defendant failed to
demonstrate any such abuses, finding it was not “seeking to circumvent German law” and
successfully demonstrated a need for extensive discovery for aid in its foreign lawsuit. Next,
170

asserting that the Federal Rules of Civil Procedure apply with respect to foreign discovery, the
court found the defendant failed to demonstrate undue burden and refused to cooperate or
negotiate directly with the plaintiff to modify the scope of discovery. Accordingly, the court reversed
and remanded for consideration of the discovery request under federal discovery rules.
� United States v. Kimoto, 588 F.3d 464 (7th Cir. Dec. 2, 2009). In this criminal case, the defendant
appealed his conviction, arguing that the government had destroyed or withheld exculpatory
evidence and failed to provide forensic copies of hard drives, which resulted in a Brady violation.
Specifically, the defendant claimed the government did not provide e-mails that he claimed would
demonstrate the existence of a conspiracy between a witness and another party. The government
rebutted these claims, asserting that copies of all electronic evidence reviewed and all original
evidence to be used at trial was provided to the defendant. In affirming the conviction, the court
determined there was no Brady violation. To support its ruling, the court noted that no destruction
or spoliation on behalf of the government existed, there was a material lack of proof that certain
alleged evidence was missing, and the defendant failed to make a request for forensic copies until
immediately prior to trial.
� Kathrein v. McGrath, Fed.Appx. 858 (7th Cir. Feb. 7, 2006). In a case involving a defamation
action, the plaintiff was ordered to stop posting pornographic material on a Web site and to stop
creating redirections from that site to other pornographic Web sites. Suspecting the plaintiff violated
the order, the allegedly defamed individual sought to hold the plaintiff in contempt. The plaintiff
admitted he inserted a command that would redirect users of the Web site, but stated the
programmed redirection would occur only after a three hundred billion second delay. Doubting the
delay feature existed, the individual sought and received an order permitting immediate inspection
of the plaintiff’s computer. A computer forensic expert inspected the computer and concluded the
computer he was given was not the one used as the server for the Web site. Admitting he switched
computers, the plaintiff claimed he left the old computer outside his office and did not know who
took it. The court awarded the individual the costs of the expert’s wasted investigation. The plaintiff
then filed a lawsuit against the expert (cited above) claiming the expert drafted a fraudulent bill and
violated federal statutes by performing an inspection beyond the scope of his authority. The expert
sought dismissal of the suit. The trial court dismissed, ordering the plaintiff to pay more than
$20,000 to the expert for his attorneys’ fees in defending a frivolous lawsuit. On appeal, the court
concluded dismissal was warranted because the plaintiff lacked standing to challenge the
fraudulent bill. Because the appellate court’s reason for dismissal differed from the trial court’s
reason for dismissal, the appellate court vacated the sanctions award and remanded the case for
re-evaluation.
� Minnesota Mining & Mfg. v. Pribyl., 259 F.3d 587 (7th Cir. 2001). The plaintiff brought suit
against three former employees for misappropriation of trade secrets. The appellate court affirmed
the trial court’s negative inference instruction to the jury where the one defendant committed
spoliation of evidence by downloading six gigabytes of music onto his laptop, which destroyed
many files sought by the plaintiff, the night before the defendant was to turn over his computer
pursuant to the discovery request. However, the fact that hard drive space was destroyed on one
defendant’s computer did not relieve the plaintiff from proving the elements of its claims.
� Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1997). The plaintiff sought hard copies of over
200,000 e-mails, since its system was unable to read the defendant’s electronic files. The appellate
court affirmed the district court’s ruling that a more reasonable accommodation was (1) some
combination of downloading the data from the tapes to conventional computer disks or a computer
hard-drive, (2) loaning the plaintiff a copy of the necessary software, or (3) offering the plaintiff on-
171

site access to its own system. If all of those options failed, the court ordered that the parties would
each bear half the cost of the copying the 200,000 e-mails.
� Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382-83 (7th Cir. 1993). Affirmed trial court’s
decision to sanction insurer and enter default judgment (counterclaim) against insurer when it failed
to comply with discovery order requesting raw data from database. Data from a computer said to
be “documents” within the meaning of FRCP 34.
Illinois
� Last Atlantis Capital, LLC v. AGS Specialist Partners, 2011 WL 6097769 (N.D. Ill. Dec. 5,
2011). In this securities fraud litigation, the plaintiffs requested that the defendants share the costs
of obtaining data from a third party. To support their contention that cost-sharing was appropriate,
the plaintiffs cited Sedona Conference commentary and several court opinions advocating that
parties “address” cost-sharing. In opposition, the defendants asserted that neither reason nor
precedent required them to share the cost of plaintiffs’ discovery requests. Denying the plaintiffs’
request, the court held that both the Sedona Conference and case law failed to support the notion
that a non-requesting, opposing party should be required to aid the requesting party in funding its
efforts to obtain third-party ESI. In particular, the court stated that the plaintiffs’ reliance upon
Sedona Conference commentary “is especially curious, as it is almost entirely irrelevant to the
instant matter.” Further, the court pointed to the idea that the Sedona Conference’s only reference
to cost-sharing between two parties is merely a best practices suggestion that the parties meet and
confer to address cost-sharing in their initial Rule 26(f) conference. The court concluded that the
plaintiffs’ reference did not mandate that the defendants share the costs for evidence that the
plaintiffs needed to prove their case.
� Oleksy v. General Electric Co., 2011 WL 4626015 (N.D. Ill. Oct. 3, 2011).
In this patent infringement case, the defendant requested reconsideration of a prior court order that
compelled production of litigation hold documents. The defendant contended that at the time it
deleted the data at issue, the relevance of the data was unforeseeable due to the allegedly
countless ways by which future damages in an infringement case could be calculated. Noting that
the scope of preservation is broader than the defendant assumed, the court reasoned that as soon
as the defendant knew of the infringement claim, the "well-known" factors for an infringement
damage calculation put the defendant on notice of issues that could be relevant to damages.
Because the defendant failed to specifically state why the relevance of the particular data was
unforeseeable in light of these factors, the court denied the defendant’s motion for reconsideration.
� IWOI, LLC v. Monaco Coach Corp., 2011 WL 2038714 (N.D. Ill. May 24, 2011). In this breach of
warranty and consumer fraud litigation, the plaintiff sought sanctions for the defendants’ failure to
produce a highly relevant e-mail that was discovered during a court-authorized search at the
plaintiff’s expense. The plaintiff alleged this e-mail was deliberately withheld under an improper
extension of privilege, and accordingly sought to shift the entire cost of the search – $15,069 – onto
the defendants. The defendants argued that their employees were unable to discover the e-mail
despite a diligent search, the e-mail was not reasonably accessible and the request did not
encompass the e-mail in question as required by Principle 2.01 of the Seventh Circuit Electronic
Discovery Pilot Program. Citing forensic expert testimony that “a simple word search . . . would
have uncovered the e-mail,” the court noted that it is the responding party’s obligation to ensure
relevant documents are produced and determined the plaintiff’s discovery requests fairly
encompassed the e-mail. Although the plaintiff suffered no prejudice, the court held there was “no
172

excuse” for the obvious discovery violation and ordered the defendants to pay half the costs of the
search. The court also admonished both parties, remarking that their unwillingness to cooperate or
compromise was “more responsible for the dispute…than any one action taken by either party.”
� Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., 2011 WL 1897213 (N.D. Ill. May 17, 2011). In this
professional negligence and breach of contract litigation, the plaintiff sought to shift the expense of
retaining a third party vendor to filter, cull and process 166 gigabytes of data that cost nearly
$91,000. The defendants argued that the information was not inaccessible and that the plaintiff
could have first sought to narrow the requests. Finding the information was not reasonably
accessible as it was kept on backup tapes, the court considered numerous cost-shifting factors and
determined that these factors mattered less than the plaintiff’s reliance on the defendants’ repeated
indications that they would consider sharing costs. Commending the plaintiff for its efforts to
negotiate discovery prior to seeking court intervention, the court mandated that the parties split the
costs of e-discovery, but required both defendants to pay only a quarter of the cost each because
there was no “meeting of the minds” on the actual agreement.
� Sara Lee Corp. v. Kraft Foods Inc., 2011 WL 1311900 (N.D. Ill. Apr. 1, 2011). In this false
advertising litigation, the plaintiff sought to compel deposition testimony and disclosure of
documents from the defendants’ expert. Responding, the defendants argued that pursuant to their
choice-of-law agreement, the plaintiff sought materials beyond the scope of expert discovery.
Applying amended Fed.R.Civ.P. 26 relating to expert disclosures and discovery, the court
determined the communications at issue did not contain facts, data or assumptions provided by the
party’s attorney and therefore did not fall under the testifying expert rubric. Further, the court found
the materials received work product protection as they were communications between the expert
and defense counsel. Denying the plaintiff’s motion, the court also noted the plaintiff was able to
obtain the information by other means and had already retained its own expert.
� Rosenthal Collins Grp., LLC v. Trading Tech. Int’l Inc., 2011 WL 722467 (N.D. Ill. Feb. 23,
2011). In this patent litigation, the defendant sought monetary sanctions and a default judgment
claiming significant and sustained discovery misconduct. After an admission that the plaintiff’s
consultant and expert witness had fabricated critical evidence, the trial court granted the
defendant’s motion for attorney fees and additional discovery. However, the plaintiff did not comply
with the discovery order for another year, until after two additional court orders by two separate
judges. Although the plaintiff adamantly denied the allegations that virtually every piece of media
ordered to be produced was wiped, altered or destroyed, the court determined the defendant’s
contentions were supported by forensic analysis. Finding that the last modified dates for critical
evidence were backdated and otherwise modified, and that seven zip disks, three USB thumb
drives and two computers had been wiped or reformatted in "bad faith and with willful disregard for
the rules of discovery" and court orders, the court imposed a default judgment, dismissed the
plaintiff’s complaint with prejudice and ordered $1,000,000 in sanctions for its egregious conduct.
The court also ordered the plaintiff’s counsel to pay all costs and attorney fees for their part in the
misconduct.
� Carlock v. Williamson, 2011 WL 308608 (C.D. Ill. Jan. 27, 2011). In this civil rights litigation, the
defendants sought to seal or strike the plaintiff’s motion for sanctions for the defendants’ alleged
spoliation of ESI. The defendants asserted that a litigation hold spreadsheet and an e-mail were
inadvertently produced, and without these documents, the plaintiff’s motion for sanctions was
baseless. The plaintiff claimed any privilege was waived because it had been given “unfettered
access” to the defendants’ server. Addressing the litigation hold spreadsheet, the court determined
it was an ordinary business record not protected by work product doctrine and was discoverable
173

ased on the virtual absence of ESI produced by the defendants, which constituted a threshold
showing that they failed to preserve documents. However, the court held the spreadsheet must be
properly redacted and allowed the plaintiff to refile once the redaction was completed. Next, the
court conducted a Rule 502 analysis and found that the defendants took reasonable steps to
prevent and rectify disclosure of the privileged e-mail communication by obtaining and relying on a
protective order, and engaging in several meet and confer sessions. Finding no waiver of privilege,
the court granted the defendants’ emergency motion to strike.
� DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010). In this ongoing employment contract
litigation, the defendants moved to compel the non-party former employer’s compliance with a
subpoena for ESI. Arguing that an order to search additional custodians and backup tapes along
with the application of supplementary search terms would likely yield “a needle in a giant haystack
search” that would lead to undue burden and expense, the non-party refused compliance unless
costs were shifted to the defendants. Noting it was immersed in a discovery dispute that likely
could have been avoided by the exercise of cooperation and compromise among counsel, the
court ordered limited additional keyword searches and tailored searches of certain data custodians.
Finding that neither party approached production “with a spirit of cooperation or efficiency,” the
court ordered the parties to share cost responsibility for any future electronic production, except the
costs related to searching the non-party’s former CEO’s data as he employed a policy of
immediately deleting e-mails to avoid production during discovery.
� Tamburo v. Dworkin, 2010 WL 4867346 (N.D. Ill. Nov. 17, 2010). In this business tort litigation,
the defendants moved to stay discovery pending adjudication of their motion to dismiss.
Recognizing that a "garden-variety motion to dismiss" does not ordinarily warrant a stay of
discovery – which would delay resolution of the already six year-old lawsuit – the court
nevertheless noted that the Fed.R.Civ.P. 26 proportionality test allows limits on discovery if the
burden outweighs the benefit. Accordingly, the court ordered the parties to meet and confer to
prepare a phased discovery schedule and familiarize themselves with the court’s Case
Management Procedures, the Seventh Circuit’s Electronic Discovery Pilot Program’s Principles
Relating to the Discovery of Electronically Stored Information and the Sedona Conference®
Cooperation Proclamation. In developing the schedule, the court ordered that the initial phase
would only consist of written discovery on named parties and advised the parties to focus on
completing initial disclosures first, then concentrate and prioritize efforts on the most viable claims
and least expensive and burdensome discovery procedures going forward.
� Kmart Corp. v. Footstar, Inc., 2010 WL 4512337 (N.D. Ill. Nov. 2, 2010). In this insurance
indemnification litigation, the defendants sought sanctions and a protective order regarding
inadvertently produced privileged documents. Conducting the privilege analysis using Fed.R.Evid.
502, the court found that the documents at issue were privileged and inadvertently produced but
determined that the defendants failed to take reasonable steps to prevent disclosure or seek their
return in a timely manner. The court found that the number of privileged documents was small
relative to the total production (less than 3% of the 4,500 materials produced), and a large
percentage of the documents were easily identifiable as non-privileged as they were public court
documents, leaving only a fraction that would have demanded more extensive review.
Furthermore, the defendants did not employ “software used to prevent disclosure, [or] any sort of
records management system” to screen the documents. The defendants’ efforts to rectify the error
were also insufficient, as they failed to retrieve them until twelve days after their discovery at a
deposition. Based on this analysis, the court denied the protective order and determined the
174

defendants were not entitled to reclaw the material. The court also denied sanctions, finding the
plaintiff made no misrepresentations regarding the privileged documents.
� Alford v. Rents, 2010 WL 4222922 (S.D. Ill. Oct. 20, 2010). In this employment discrimination
litigation, the court reviewed the magistrate judge’s recommendation advocating sanctions against
both defendants’ counsels individually for discovery misconduct. Upon review of the record, the
court found substantial and repeated violations of both the Federal Rules of Civil Procedure and
the Illinois Rules of Professional Conduct based on the filing of over 14 discovery-related motions,
incessant “accusation-laced, uncivil correspondence,” the need for judicial supervision of
depositions and the appointment of a special master to decide discovery disputes. In light of
counsels’ “scorched-earth approach to discovery” in which the attorneys “embarked upon a course
entailing a conscious effort to maximize litigation and to make certain [it] was as time-consuming,
difficult, unpleasant, and expensive as possible,” the court adopted the magistrate judge’s
recommendation and held the two attorneys personally liable for sanctions in the amount of $3,750
each, to be paid without reimbursement from the law firms or clients.
� DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010). In this breach of contract litigation,
the defendants objected to the plaintiff’s assertion of attorney-client privilege and work product with
regard to nine e-mails and attachments. The plaintiff argued he exercised due diligence in
asserting and maintaining privilege in advance of litigation and throughout the discovery process,
while the defendants contended the plaintiff waived privilege and failed to provide sufficient
information to determine whether the communications were privileged or protected. Addressing the
six e-mails sent via the plaintiff’s person e-mail address, the court found they were likely pulled
from the company server and added to the external hard drive that was given to the defendants’
counsel. Referencing Fed.R.Evid. 502(d), the court noted that the Stipulated Protective Order
protected the inadvertent production of privileged material and thus found that privilege was not
waived. Turning to the three e-mails sent by the plaintiff to his attorney via the work e-mail address,
the court determined that the employer believed privilege was not waived by communicating using
work e-mail addresses on work-issued computers. Thus, privilege was not waived with respect to
these three e-mails.
� Peal v. Lee, 2010 WL 3001338 (Ill. App. 1 Dist. July 30, 2010). In this defamation action, the
plaintiff appealed the circuit court’s dismissal with prejudice following his failure to comply with
discovery requests and intentional destruction of evidence. On appeal, the court affirmed the circuit
court’s order based on review of testimony from the defendants’ computer forensic expert that
indicated the plaintiff obtained a new hard drive and “used seven different data ‘wiping’ programs to
permanently delete data” from his personal computer just days prior to its surrender. Forensic
investigation of the personal computer also indicated the plaintiff failed to produce as many as five
external storage devices that may have contained discoverable information. In affirming the order’s
severity, the court berated the plaintiff for seeking “to cover up his electronic tracks by subterfuge”
and making an argument of “pure pettifoggery” on appeal, characterizing his actions as “the
personification of bad faith” and a “deliberate, contumacious and unwarranted disregard of the
court’s authority.” Finally, the court denied the defendant’s request for monetary sanctions finding
dismissal an adequately severe sanction.
� Chapman v. Gen. Bd. of Pension and Health Benefits of the United Methodist Church, Inc.,
2010 WL 2679961 (N.D. Ill. July 6, 2010). In this litigation arising from claimed violations of the
Americans with Disabilities Act, the plaintiff sought punitive sanctions for discovery noncompliance
alleging the defendant engaged in a “flagrant violation of both the letter and the spirit of Discovery
rules” by unreasonably delaying production of electronic copies and accompanying metadata of
175

equested documents previously produced in a hard copy. Denying the request for sanctions, the
court affirmed the defendant’s argument that no duty existed to also produce electronic copies
when the initial request merely sought “documents” – making no mention of digital information.
Instead the court stated the fact that the defendant “ultimately agreed to do so and did is the
occasion not for sanctions, but for some measure of commendation.” After disposing of the motion,
the court further admonished the plaintiff for prematurely seeking sanctions under Fed.R.Civ.P. 37
in a brief that lacked analysis, was devoid of supporting case law and asked for documents
“concededly obtained without any court intervention.”
� Jones v. Bremen High Sch. Dist. 228, 2010 WL 2106640 (N.D.Ill. May 25, 2010). In this
employment discrimination litigation, the plaintiff sought sanctions alleging the defendant failed to
preserve relevant documents and intentionally concealed its document retention policy to hide its
lack of compliance. Detailing the defendant’s preservation efforts, the court found it “undisputed”
that the defendant failed to place a litigation hold in effect when it learned the plaintiff filed charges
in October 2007. Instead, the defendant directed just three employees – whose conduct was in
question in the lawsuit – to search through their e-mail and cull out relevant documents without
supervision of outside counsel. Notably, all employees in the district could permanently delete emails
by “double-deleting” them from their computers, and the e-mails would then be automatically
erased from the backup system in thirty days. Despite finding that the defendant “clearly breached
its duty to preserve relevant documents,” the court determined the actions were not willful and
declined to impose an adverse inference instruction. However, the court found the defendant’s
behavior grossly negligent, and precluded the defendant from arguing that an absence of
discriminatory statements evidenced that no such statements were made and allowed for
additional depositions at cost to the defendant.
� OCE N. Am., Inc. v. Brazeau, 2010 U.S. Dist. LEXIS 25523 (N.D.Ill. Mar. 18, 2010). In this trade
secrets litigation, the plaintiff objected to the magistrate judge’s recommendation that denied an
adverse inference sanction for the defendants’ admitted failure to preserve instant messages.
Recognizing that no dispute existed as to whether the defendants used the instant-messaging
system and failed to save messages until after the suit was filed, the court determined that the
defendants breached the duty to preserve. However, the court denied an adverse inference
sanction finding an absence of evidence that the defendants acted with “willfulness, bad faith or
fault.” The court further concluded that even if there had been evidence of the defendants’
culpability, the plaintiff failed to prove prejudice as a result of the spoliation since the missing
messages did not contain the “smoking gun” regarding the misappropriation claim.
� Mintel Int’l Group, Ltd. v. Neergheen, 2010 WL 145786 (N.D.Ill. Jan. 12, 2010). In this
employment litigation, the plaintiff sought sanctions up to and including default judgment based on
the defendant’s alleged spoliation. The plaintiff argued that the defendant failed to preserve the
hard drive of a company-issued laptop by using programs on the computer to destroy metadata
and overwrite files. The defendant, whose use of the computer consisted of turning on the
computer, accessing the Internet and allowing an automated defragmentation program to run,
claimed his actions were not prohibited and did not result in the destruction of relevant evidence.
Relying on expert testimony, the court found that any programs on the laptop that would have
destroyed metadata, such as antivirus software, were not user initiated. The court held that the
defendant’s destruction of any evidence was unintentional, resulting from typical computer use
“rather than a pattern that is easily recognized by forensic experts as spoliation.” (Emphasis in
original.) Thus, the court found sanctions were not warranted and denied the plaintiff’s motion.
176

� Whitlow v. Martin, 2009 WL 33381013 (C.D. Ill. Oct. 15, 2009). In this employment dispute, the
plaintiff subpoenaed a non-party seeking production of electronic information relevant to the
defendants’ employment practices. The non-party’s numerous objections to the subpoena included
that the requests were not reasonably likely to lead to the discovery of admissible evidence, could
be obtained from more convenient sources, sought not reasonably accessible documents, and
were overly broad and unduly burdensome. The non-party claimed complying with the subpoena
would cost hundreds of thousands of dollars and would take more than two years to complete
because several Microsoft® Exchange Servers and 200 to 300 file servers located across the state
would have to be searched. Acknowledging the non-party status as a significant factor in
determining whether a subpoena presents an undue burden, the court applied a relative hardship
test to determine if the burden outweighed the value of the produced material. After considering
such factors as relevance, need and particularity, the court, while slightly modifying the production
requirements, ordered the non-party’s compliance with the plaintiff’s subpoena.
� Coburn Group, LLC v. Whitecap Advisors LLC, 2009 WL 2424079 (N.D. Ill. Aug. 7, 2009). In
this breach of an oral contract dispute, the defendant requested the return of a half-page long email
the defendant claimed was protected work product. In opposition, the plaintiff made several
arguments including that the e-mail was not protected and that, if it was, the inadvertent production
waived protection. After determining the e-mail constituted work product, the court considered the
waiver issue under Fed.R.Evid. 502. The court interpreted the "inadvertent disclosure" portion of
Rule 502 as asking whether the party intentionally produced a privileged or work product protected
document and found the defendant did not intend to produce the e-mail. Next, the court considered
prior case law regarding what constituted "reasonable steps" to prevent an inadvertent disclosure.
The court discussed the defendant’s thoroughly documented review process and noted that in this
case only three documents slipped through the review of 72,000 document pages. Finding that
Rule 502 would have no purpose if the inadvertent production of a single privileged document
deemed the document review process unreasonable, the court granted the defendant’s motion and
ordered the plaintiff to return all copies of the e-mail.
� United States v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009). In this unlawful materials
prosecution, the Government subpoenaed the Internet service provider (ISP) seeking the contents
of electronic communications, including previously opened or sent e-mail that belonged to the
defendant. After the ISP failed to produce e-mails that had been stored for fewer than 181 days,
the Government moved to compel production of the e-mails’ content. The ISP argued the
information sought required a warrant. Analyzing the issue using the Stored Communications Act
(SCA), the court determined the ISP must comply with the Government’s subpoena if the e-mails
are held or maintained solely to provide the customer storage or computer processing services.
The court also determined that previously opened e-mails stored by the ISP for web-based e-mail
systems—as distinguished from other e-mail systems—are not in "electronic storage," which is
defined by the Wiretap Act as storage incidental to electronic transmission and for the purposes of
backup protection of the e-mail. Based on this finding, the court ordered the ISP to comply fully
with the Government’s subpoena.
� Plunk v. Village of Elwood, IL, 2009 WL 1444436 (N.D.Ill. May 20, 2009). In this civil rights
action, both parties filed a "slew of pretrial motions." The defendants argued the court should bar
the plaintiffs’ expert from testifying unless discovery was re-opened. The plaintiffs requested an
examination of the defendants’ computer system by their expert to determine if any deleted ESI
was backed up. The plaintiffs also sought default judgment sanctions based on the defendants’
destruction of an audio recording, failure to preserve data on computers and hard drives, and
177

failure to back up relevant ESI. Addressing the defendants’ motion, the court found the defendants’
discovery failures and withdrawn expert statement that certain hard drives were not wiped clean
necessitated testimony from the plaintiffs’ expert, and thus allowed a short deposition from the
plaintiffs’ expert at cost to the defendants as a "fair discovery sanction for defendants’ failure to
follow the rules." Turning to the plaintiffs’ motions, the court denied the examination request as
expensive and futile. Regarding sanctions, the court rejected the defendants’ arguments that
evidence erasure was inadvertent and found the defendants breached their preservation
obligations. The court determined an adverse inference sanction was appropriate, using the
plaintiffs’ expert’s identification of e-mail chains suggesting relevant documents were destroyed
accidentally or intentionally as partial justification.
� Mintel Int’l Group, Ltd. v. Neergheen, 2009 WL 1033357 (N.D.Ill. Apr. 17, 2009). In this ongoing
misappropriation of trade secrets litigation, both parties offered testimony from qualified computer
forensics and electronic discovery experts. The defendant sought exclusion of the plaintiff’s expert
from testifying, alleging the expert failed to meet the appropriate standards, and requested
exclusion of evidence regarding spoliation allegations claiming the evidence was irrelevant and
prejudicial. The plaintiff objected to the magistrate judge’s order denying production of a mirror
image from a third party. Granting the defendant’s motion to exclude in part, the court ordered
preclusion of the expert’s legal conclusions regarding whether the defendant’s conduct constituted
spoliation, but otherwise allowed testimony. The court noted the expert must be able to technically
explain the conclusion reached regarding whether the defendant used a "defrag" program and not
simply speculate "to please the side that hired him." Turning to the spoliation issue, the court
denied the defendant’s motion, concluding the experts’ views on whether evidence was deleted
would be "extremely helpful given the complexity of the electronic evidence issues." Finally, the
court upheld the magistrate judge’s recommendation to deny production of the third party’s mirror
image given the magistrate judge’s previous analysis of the conflicting expert testimony and
evidence presented by the plaintiff.
� Heriot v. Byrne, 2009 WL 742769 (N.D.Ill. Mar. 20, 2009). In this copyright dispute over the madefor-television
documentary, The Secret, the defendants and plaintiffs both sought production of
documents. The defendants sought sequestered documents that had been inadvertently produced
as a result of mistakes made by the plaintiffs’ vendor, arguing the plaintiffs’ counsel was "asleep at
the switch" by not re-examining the documents received from the vendor. Applying Fed.R.Evid.
502, the court held privilege of certain documents was not waived, finding the plaintiffs took
reasonable procedures to prevent inadvertent disclosure and promptly notified the defendants of
the disclosure. The court also determined that no duty to re-review exists since it would be against
the spirit of Rule 502. Turning to the plaintiffs’ motion (which sought production of 132 documents
identified in a privilege log), the court reserved its ruling on privilege protection. The court noted
that the documents presented were a "befuddling assemblage" and that the party asserting
privilege is responsible to organize the documents in a manner that enables efficient review.
Accordingly, the court ordered the defendants to submit an amended privilege log and a revised
compilation of documents after they are organized chronologically.
� Mintel Int’l Group, Ltd. v. Neergheen, 2009 WL 249227 (N.D.Ill. Feb. 3, 2009). In this trade
secrets and computer fraud litigation, the plaintiff sought a reconsideration of the court’s previous
ruling denying the plaintiff’s fifth request for a mirror image of a third party’s computers. The plaintiff
alleged the defendant illegally e-mailed the plaintiff’s documents to his personal e-mail account
before leaving the company. The plaintiff filed this motion based upon “newly discovered evidence”
from a forensic analysis of two USB drives produced by the defendant that contained proprietary
178

documents belonging to the plaintiff. Two experts – one each for the plaintiff and third party –
analyzed the evidence and presented conflicting testimony regarding whether data was destroyed.
In this “battle of the experts,” the court determined that the plaintiff did not establish that a wiping
program was utilized given the testimony of the third party’s expert, which provided a reasonable
alternative. Based on the court’s unwillingness to violate the privacy interests of the third party, the
court denied the plaintiff’s motion to reconsider.
� GSI Group, Inc. v. Sukup Mfg. Co., 2008 WL 3849695 (C.D.Ill. Aug. 18, 2008). In this intellectual
property litigation, the defendant filed an objection to the magistrate judge’s report and
recommendation, denying the defendant’s motions to dismiss, or in the alternative to compel
production of e-mails. The magistrate cited the lack of clear evidence of willfulness or bad faith by
the plaintiff and the defendant’s failure to present sufficient evidence why further production was
necessary. However, based on the defendant’s good faith attempt to resolve this dispute prior to
bringing it before the court, the magistrate recommended the plaintiff pay the defendant’s
reasonable expenses incurred in bringing the motion to compel. Denying the defendant’s objection,
the court approved the recommendation in full, denying defendant’s motion to dismiss the
complaint and instead ordered the plaintiff to pay reasonable expenses, including attorney’s fees.
� United States v. Kimoto, 2008 WL 2003187 (S.D. Ill. May 8, 2008). In this post-conspiracy
conviction hearing, the defendant filed a motion to dismiss alleging that the government either
failed to provide, or destroyed, digital forensic evidence and relevant e-mail. Specifically, the
defendant claimed approximately 2500 e-mail were missing and further electronic evidence was
intentionally withheld. The government argued that open file discovery was allowed from the
beginning, making “every scrap” of electronic evidence available. Finding the defendant failed to
prove the government acted in bad faith, failed to show the exculpatory value of the evidence was
apparent, and failed to show the evidence could not have been obtained by other reasonably
available means, the court denied the defendant’s motion.
� Peterson v. Union Pacific R.R. Co., 2008 WL 1930453 (C.D. Ill. May 1, 2008). In this wrongful
death litigation, the plaintiffs filed a motion to compel additional discovery and sought sanctions.
The plaintiffs sought additional depositions, alleging that the defendant concealed data or engaged
in spoliation of three potential sources of electronic data. Determining that no discovery abuse
existed, the court found that the plaintiffs failed to diligently pursue the requested information.
Additionally, the court found that additional discovery was not needed at this stage of litigation. The
court ordered the plaintiffs to show why their motion to compel was substantially justified in
response to the defendant’s request for fees associated with opposing the motion.
� Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 902957 (N.D.Ill. April 2,
2008). In this trademark and copyright infringement litigation, the defendant sought production of a
document in its native format with metadata. Arguing against production, the plaintiff asserted the
document in question was previously produced in both .PDF format and in paper format. Finding
no previous specific production format request, the court determined the plaintiff had the option to
produce the document in the form in which it is ordinarily maintained, or in a reasonably usable
form. Additionally, the court stated the defendant “was the master of its production requests [and] it
must be satisfied with what it asked for” – as the original request did not include metadata.
� Autotech Technologies, Ltd. v. Automationdirect.com, Inc., 2008 WL 783301 (N.D.Ill. Mar. 25,
2008). In this trademark infringement litigation, the defendant moved for sanctions claiming
inadequate discovery production due to missing information. Finding the plaintiff complied with the
defendant’s discovery request, the court declined to issue sanctions. The court further ordered the
parties to meet to resolve how the specific information sought by the defendant may be obtained,
179

with the defendant bearing the costs unless able to demonstrate the information should have been
produced by the original search.
� Muro v. Target Corp., 2007 WL 3254463 (N.D.Ill. Nov. 2, 2007). In this suit, the plaintiff alleged
the defendants sent unsolicited credit cards in the mail which violated the Truth in Lending Act and
sought class-action certification. Several discovery disputes ensued, involving questions regarding
the discoverability of the defendants’ litigation hold notices and adequacy of the defendants’
privilege log. The court upheld the magistrate judge’s finding that the defendants’ litigation hold
notice was protected by the work-product doctrine. Relying upon Upjohn Co. v. United States, 449
U.S. 383 (1981), the court found that Fed. R. Civ. P. 26(b)(5)(A) does not require privilege logs to
separate entries of multiple e-mails within the same string and that a single e-mail of a forwarded
chain to counsel is protected by the attorney-client privilege. However, the court found serious
defects in the defendants’ privilege log because it failed to identify all of the recipients of some
messages and the plaintiff was unable to assess whether recipients fell within the sphere of
corporate privilege. The log also used “sometimes-cryptic job titles to explain the recipients of emails,”
which made it difficult to assess the applicability of privilege. The court allowed the
defendants ten days to submit a revised privilege log addressing the above defects so the court
could perform an in camera review and determine privilege protection.
� APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D.Ill. Oct. 12, 2007). The plaintiff
in this case brought suit against a former employee for trade secret misappropriation and breach of
contract. Days after receiving the complaint, the defendant discarded his computer, resulting in the
plaintiff moving for default judgment, sanctions and attorney’s fees. Relying on its inherent power
and Fed.R.Civ.P. 37, the court refused to enter default judgment but affirmed the plaintiff’s motion
for sanctions, finding the defendant acted in bad faith. The court also ordered the defendant to pay
reasonable attorneys fees and costs associated with the plaintiff’s motion, third party discovery
required due to the computer destruction, and retention of the computer expert.
� Modern Eng’g, Inc. v. Peterson, 2007 WL 2680563 (C.D.Ill, July 16, 2007). In this employment
contract dispute, the plaintiff alleged the defendant e-mailed sensitive information to the plaintiff’s
largest competitor in an attempt to gain employment with that competitor. The plaintiff sought
production of all electronic communications sent by the defendant to certain third parties and the
defendant objected, arguing they did not belong to him and were in the possession of his current
employer. The court held that the defendant was not obligated to produce documents in the care,
custody or control of his employer, but ordered him to produce responsive documents that were in
his own care, custody or control, regardless of the ownership of those documents.
� In re Kmart Corp., 2007 WL 2198309 (Bkrtcy.N.D.Ill. July 31, 2007). In a Chapter 11 bankruptcy
proceeding, Global Property Services, Inc. (Global) filed an administrative claim against the debtor,
Kmart Corporation, for breach of contract and tortuous misconduct. Shortly thereafter, Global
issued its first discovery requests and sought assurances that all responsive documents would be
preserved and produced. After months of struggling to obtain responsive documents from Kmart,
Global motioned the court to sanction Kmart for spoliation and violation of a previous production
order. Kmart filed a response to the motion, noting that there was no contention Kmart had
destroyed documents intentionally or in bad faith and that Global had failed to identify any “trigger
date” for Kmart’s duty to preserve evidence. The court applied a three step analysis requiring
culpability, an obligation to preserve, and that the other party suffered prejudice as a result before
ordering sanctions. The court reasoned that where the duty to preserve information is well known
and the party fails to do so, they will be charged with a higher culpability. The court held that even
though Kmart had a duty to preserve the relevant electronically stored information as of the date of
180

the filing of the claim, its failure to do so was with mere fault, not willfulness or bad faith, and
therefore refused severe spoliation sanctions. Finding a small element of prejudice, the court
required Kmart to pay a portion of Global’s attorney’s fees and costs associated with drafting and
presenting the motion.
� Ridge Chrysler Jeep, LLC v. Daimler Chrysler Servs., 2006 WL 2808158 (N.D. Ill. Sept. 6,
2006). A court dismissed with prejudice plaintiffs’ racial discrimination claims when it found that
plaintiffs consistently lied in affidavits and deposition testimony regarding the location of evidence,
including electronic evidence, found on computer hard drives and backup tapes. The court also
found that plaintiffs failed to properly preserve relevant financial records found on these computers
and backup tapes. In dismissing the plaintiffs’ claims because monetary sanctions would “not
suffice to repair the harm inflicted on this case and on the judicial system as a whole”, it declared:
“[t]hese are not the actions of truth-seeking individuals intent on having their day in court, but
rather, sleight of hand tactics of manipulators seeking to use the federal court system to their own
advantage.”
� Lewis v. Sch. Dist. #70, 2006 WL 2506465 (S.D. Ill. Aug. 25, 2006). In a wrongful termination
claim, the plaintiff filed a motion to compel defendant to produce requested e-mails in a searchable
electronic form rather than in the already provided hard-copy form. Plaintiff argued that modern
technology should allow the defendant to produce any requested e-mails in electronic form which
could be searched for key words by plaintiff. The court stated that it “does not doubt that modern
technology would lessen the burden of searching for relevant e-mails, but the search would
undoubtedly not be perfect.” The court held that the defendant made a reasonable attempt to
produce the requested e-mails and that “plaintiff has been provided with more materials than she is
rightfully entitled to.” Plaintiff also argued that the defendant “should have altered their usual
document retention practices . . . because they anticipated litigation.” The court noted that plaintiff
relied upon “case law from the Southern District of New York” (presumably the Zubulake line of
cases) and firmly noted that such caselaw “is not controlling on this Court.”
� Krumwiede v. Brighton Assocs., L.L.C., 2006 WL 1308629 (N.D. Ill. May 8, 2006). In an
employment lawsuit, the defendants sought a default judgment against the plaintiff for destroying
relevant computer data. The plaintiff insisted that the data had not been intentionally destroyed,
arguing that the files “probably” still existed on the defendants’ laptop with only minimal alterations
in the files’ metadata fields. However, a neutral computer forensic expert analyzed the laptop and
concluded that the combination of a “court order violation, deliberate movement of file data,
admitted deletion activities, multiple use of defrag, use of ZIP file to conceal or transport [the
defendants’] data, [and use of] multiple USB devices . . . [establishes that] [the plaintiff] did intend
to destroy evidence and did intend to conceal the existence and/or movement of data.” Issuing a
default judgment against the plaintiff, the court found the plaintiff had continued to delete, modify
and access thousands of files despite knowing the laptop was subject to a litigation hold. The court
declared, “[this] will send a strong message to other litigants, who scheme to abuse the discovery
process and lie to the Court, that this behavior will not be tolerated and will be severely
sanctioned.” See Krumwiede v. Brighton Assoc., 2006 WL 2714609 (N.D. Ill. Sept. 20, 2006)
(ordering plaintiff to immediately pay the $111,000 in production costs).
� Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005 (N.D. Ill. Mar. 8,
2006). In a case involving a patent infringement claim, the plaintiff sought to compel native file
production of compact discs, floppy discs and DVDs. Despite the plaintiff’s protests, the defendants
converted responsive electronic information to TIFF images, downloaded the images onto CDs and
delivered the CDs to the plaintiff. The defendants argued they satisfied their Fed.R.Civ.P. 34
181

discovery obligations by producing the documents in TIFF format. Objecting, the plaintiff asserted
the TIFF production lacked clarity, color and metadata, made it difficult to determine which pages
were part of one document, lacked clear indications as to which documents were stored together,
and made quick and efficient searching impossible. Although the defendants asserted they
converted the documents to TIFF format in order to add Bates numbers, the court found this
argument unpersuasive. The court granted the plaintiff’s motion, noting the TIFF production did
“not contain all of the relevant, non-privileged information,” lacked metadata, e-mail attachments
and recipients, and were not produced in the “usual course of business.”
� In re Old Banc One Shareholders Sec. Litig., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005). The
plaintiffs sought default judgment or an adverse inference instruction based on the defendant’s
failure to preserve relevant documents relating to underlying data, calculations and drafts of
relevant documents. Specifically, the plaintiffs argued that the defendant’s document retention
policy allowed for destruction of these essential documents and data. Despite being unable to
locate and produce many of these documents, the defendant claimed it had met its preservation
obligations. In evaluating the defendant’s document retention handling, the court noted the
defendant was not obligated to preserve “every scrap of paper.” The court, however, stated the
defendant should have implemented a comprehensive document retention policy to ensure
relevant documents were retained and should have distributed that policy to its employees. The
court found the defendant did not comply with these requirements and determined the appropriate
remedy was precluding the defendant from cross-examining the plaintiffs’ financial expert at trial.
� Experian Info. Solutions, Inc. v. I-Centrix, L.L.C., No. 04 C 4437 (N.D. Ill. July 21, 2005).
Claiming breach of contract and misappropriation of trade secrets, the plaintiffs filed suit against
the defendant, a former employee, and his new company, formed after he stopped working for the
plaintiffs. During discovery, the plaintiffs sought to obtain mirror images of the defendant’s
computers. The defendant argued the request was overbroad, would capture proprietary
information, and would hinder the defendant’s business operations. Alternatively, in the event the
court decided the mirror images were discoverable, the defendant proposed that it use the
standards set forth in Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000).
In mySimon, an independent expert created and examined a mirror image of the defendant’s hard
drive and then submitted potentially relevant documents to the defendants. The plaintiffs argued
the method was too narrow as it would not allow them to evaluate “relevant contextual data” and
“metadata” found in the mirror image. The court adopted a modified version of the mySimon
framework, adding a provision to facilitate the recovery of metadata specified in a list generated by
the plaintiffs. The court ordered “an independent expert [to] review the bitstream copy for
contextual information and metadata that falls within the scope of this list, as well as for documents
relevant to Plaintiff’s discovery requests.”
� People v. Downin, 828 N.E.2d 341 (Ill. App. Ct. 2005). The defendant appealed a conviction for
aggravated criminal sexual abuse, arguing that the trial court erred in admitting e-mails containing
admissions of guilt. Specifically, the defendant contended the e-mails were not properly
authenticated, making them inadmissible for lack of proper foundation. He further stated that
without any evidence of an Internet provider address linking the e-mail to himself, there was no
way to verify that the victim did not falsify the e-mails. The appellate court found the trial court did
not abuse its discretion and concluded that the victim’s testimony and other circumstantial
evidence sufficiently established authenticity of the e-mails.
� Liebert Corp. v. Mazur, 827 N.E.2d 909 (Ill. Ct. App. 2005). The plaintiffs sought to enjoin several
of its former employees from allegedly using electronic “e-commerce” Web sites – containing
182

confidential customer lists, quotations and price books – in a new, competing business. One of the
defendants admitted that he downloaded price books from the company’s server to his laptop on
the day he resigned. The plaintiffs hired a computer forensic expert to examine the laptop, and the
expert discovered confidential files were accessed, downloaded and placed in a Zip file. The expert
also determined a new Zip folder – containing quote histories and budgets – was created and
subsequently copied from the hard drive to a CD-Rom on the same day the defendant was served
with the plaintiffs’ complaint and preliminary injunction motion. During the copy, the computer
automatically placed the files in a “CD burning folder”, a folder most computer users are not aware
exists. During the next few days, in a “mass wave of deletion,” over 12,000 files were deleted from
the defendant’s computer. The laptop’s application log, which tracks programs like the CD-Rom
burning program, was also deleted four days after the complaint was served. Despite this
evidence, the trial court denied the plaintiff’s motion for a preliminary injunction, finding insufficient
evidence existed to prove any of the defendants used the price books before they were destroyed.
On appeal, the court reversed the decision, determining the trial court abused its discretion, and
ordered the trial court to grant a reasonable preliminary injunction. The appellate court noted,
“[b]ecause [the defendant] destroyed this crucial piece of evidence [the application log], we
presume it would have showed he successfully copied the price books on a CD.”
� DirecTV, Inc. v. Borow, 2005 WL 43261 (N.D.Ill. Jan. 6, 2005). The plaintiff brought a motion for
summary judgment, claiming the defendant used the plaintiff’s satellite television signal without
authorization and then spoliated evidence of the unauthorized use. The court had previously
awarded sanctions against the defendant for deliberately destroying evidence by using “Evidence
Eliminator,” a software wiping utility program, to erase electronic evidence requested by the
plaintiff. The plaintiff’s computer forensic expert examined the computer and recovered some of the
deleted files, including programs used by satellite pirates to intercept the plaintiff’s encrypted signal
and files listing the name of piracy websites the defendant visited. Other files were permanently
deleted. The defendant argued “somebody else” was responsible for these actions, even though he
declared the computer remained in his exclusive possession. Granting the plaintiff’s summary
judgment motion, the court noted, “[t]he fact that [the defendant] deleted certain files on his
computer only five weeks after the start of this litigation creates an inference that he destroyed
evidence that would have been harmful to his defense.”
� Peter Rosenbaum Photography Corp. v. Otto Doosan Mail Order Ltd., 2004 WL 2973822
(N.D.Ill. Nov. 30, 2004). Claiming the defendants violated a limited publication agreement, the
plaintiffs subpoenaed relevant electronic documents. The defendants refused to comply with the
subpoena claiming undue burden and expense. The plaintiffs brought a motion to compel
document production. In response, defense counsel advised the court that the automatic stay
provision under bankruptcy law did not subject a debtor to civil discovery unless a bankruptcy court
lifts the automatic stay. Based on this representation, the court gave the plaintiffs leave to withdraw
their motion to show cause. Filing in bankruptcy court, the plaintiffs moved a second time to compel
the document production. The plaintiffs also sought sanctions against defense counsel for her
“unsupported verbal representations” regarding the automatic stay provision. Noting the
defendants’ non-compliance argument was unsupported by case law and the plaintiffs had
attempted to minimize compliance costs, the bankruptcy court granted the plaintiff’s motion to
compel the electronic documents. The bankruptcy court also granted the motion for monetary
sanctions against defense counsel, declaring “[t]here is a not so fine line…between zealous
advocacy and intentional misrepresentation of the facts of this case.”
183

� Telewizja Polska USA, Inc., v. Echostar Satellite Corp., 2004 WL 2367740 (N.D.Ill. Oct. 15,
2004). In a case involving a sales contract dispute, the plaintiff brought a series of preliminary
motions requesting exclusion of evidence, including that of an archived website. The plaintiff
argued that the website should be excluded because it constituted double hearsay. Rejecting this
argument, the court determined that the images and text on the website were not “statements” as
defined in the hearsay rule. Even if they were statements, the court concluded they would fall
within the party-opponent admission exclusion. The plaintiff also claimed the website was not
properly authenticated. Acknowledging that the “Internet Archive is a relatively new source for
archiving websites,” the court nonetheless determined that the website satisfied the threshold
requirement of evidentiary reliability under Fed.R.Evid. 901 and indicated the plaintiff was free to
argue the issue of reliability in front of the jury.
� Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D.Ill. 2004). In a class action sexual
harassment lawsuit, the plaintiff requested the defendant bear the costs of searching 94 backup
tapes for relevant e-mails. The plaintiff based its argument on a sample search of three backup
tapes, purportedly containing a large number of relevant documents. The defendant disputed the
volume of relevant documents recovered and asserted it should not be responsible for the costs
since only a small number of the recovered documents contained relevant data. In conducting its
sampling analysis, the plaintiff retained Kroll Ontrack to retrieve relevant e-mails from three tapes,
conduct keyword searches, and load the results into an online review tool. Kroll Ontrack discovered
8,660 documents relating to eight search terms provided by the plaintiff. In analyzing who should
bear the costs, the court adopted the seven-factor Zubulake test and added an eighth factor, which
required the court to weigh “the importance of the requested discovery in resolving the issues at
stake in the litigation.” Balancing these eight factors, the court determined cost-shifting was
appropriate and ordered the plaintiff to pay 75 percent of the costs of restoring the backup tapes,
searching the data, and transferring it to the online review tool.
� Sondker v. Philips Electronics North America, 2004 WL 1687016 (N.D. Ill. July 27, 2004). In a
partial motion for summary judgment, the defendant sought to strike two of the plaintiff’s exhibits,
submitted by the plaintiff as evidence in favor of denying the motion. The defendant argued the
plaintiff should be not allowed to use the exhibits, which were hard copies of e-mail attachments,
because the plaintiffs did not produce the exhibits during discovery. Contending the defendant
should have tried to solve the dispute before filing its motion to strike, the plaintiff maintained the
defendant was not entitled to relief pursuant to Fed. R. Civ. P. 37(a)(2) and Local Rule 37.2. Both
rules require a “good faith” attempt to confer with an opposing party who is not meeting disclosure
requests. Attempting to show it met these requirements, the defendant produced a letter it sent to
the plaintiff, which requested production of any attachments to e-mails being used as evidence.
Determining the defendant’s letter did not certify it had attempted a good faith contact, the court
denied the defendant’s motion to strike.
� Zenith Elec. Corp. v. WH-TV Broad. Corp., 2004 WL 1631676 (N.D. Ill. July 19, 2004). In a
breach of contract action, the plaintiff and the defendant filed separate motions to vacate litigation
costs awarded against them pursuant to a federal statute. The costs, which related to the
production of electronic documents by third-party defendants, involved the printing of electronic
documents, as well as other e-discovery costs. The court denied the award of costs for printing the
documents, noting that printing was a convenience and the documents could have been produced
in their original electronic form. The court also refused to award expenses for the e-discovery
costs, stating such costs were not recoverable under a federal statute. One component of the ediscovery
costs related to 19 disks containing files that were originally printed by the third-party
184

defendants at a cost of more than $100,000. After this paper production, the defendant requested
these same documents be produced electronically because the printed copies lacked metadata
and the electronic files could be more easily searched. The district court granted the request. The
third-party defendants then hired a consultant to categorize the disks and redact privileged
documents, incurring an additional $182,595.47 in costs. The court declined to award any of the
costs relating to the 19 disks.
� Portis v. City of Chicago, 2004 WL 1535854 (N.D. Ill. July 7, 2004). In response to a federal civil
rights class action lawsuit, the city moved to compel discovery of a document database prepared
by the plaintiffs’ attorneys. The city had previously rejected the plaintiff’s proposal to work jointly on
assembling the costly and time-consuming database containing arrest reports deemed relevant to
the lawsuit. In response to the city’s motion, the plaintiffs, who had spent more than $90,000 to
compile the database, claimed that the database was protected as attorney work product. Although
the court agreed that the database contained attorney work product, it determined the database
was neither selective nor revealing enough to constitute opinion work product. The court further
declared the city had a “substantial need for the information” and “the amount of time and money
the City would have to expend to compile a similar database from scratch warrants a finding of
undue hardship.” As such, the court granted the city’s motion to compel the database as long as
the city reimbursed the plaintiffs for half of the costs associated with compiling the database. See
also Portis v. City of Chicago, 347 F.Supp.2d 573 (N.D. Ill. 2004) (The court calculated database
expenses based on the number of hours spent creating the database multiplied by hourly billing
rates).
� Tempco Elec. Heater Corp. v. Temperature Eng’g Co. 2004 WL 1254134 (N.D.Ill. Jun. 3, 2004),
vacated and rev’d in part, Case No. 02 C 3572 (Jun. 29, 2004). In response to the plaintiff’s claims
of trademark infringement, breach of contract, and misappropriation of trade secrets, the defendant
moved for partial summary judgment arguing that the plaintiff presented no evidence to support its
claims. In support of its motion, the defendant submitted findings by a computer company, who
inspected the defendant’s computers and determined that no remnants of the plaintiff’s confidential
database existed on the defendant’s computers. Arguing that the court should deny the summary
judgment motion, the plaintiff declared that the computer company had performed a minimal
inspection and that a more complete computer forensic investigation might have revealed evidence
of the database. The court granted the defendant’s partial summary judgment motion declaring that
the plaintiff “has the burden of proof, and therefore the responsibility to conduct a thorough
investigation. [The plaintiff] cannot simply sit back and complain about the inadequacy and/or bias
of [the defendant’s] inspection efforts.” The plaintiff appealed this decision claiming testimony from
one of the defendant’s employees revealed the defendant did not remove all copies of a computer
program at issue from its computers as it claimed it did. Finding this established enough evidence
to overcome summary judgment, the court vacated and reversed its original summary judgment
finding.
� In re 3817 W. West End, First Floor Chicago, Illinois 60621, 2004 WL 1380272 (N.D. Ill. May
27, 2004). In a case involving tax fraud, the government asked the court for permission to seize
and search a home computer hard drive and disks for evidence. Although the court authorized
seizure of the computer, it conditioned the search upon the government submitting a search
protocol, outlining the search methods that it would use in order to ensure that irrelevant, private
documents were excluded from the investigation. The government objected to the court’s order
asserting that the court could not regulate the manner in which the computer was searched. In a
subsequent ex parte proceeding, the court rejected the government’s claim, declaring that a
185

magistrate judge can require the government to set forth computer search protocol in order to
ensure constitutionally protected privacy rights. The court concluded that the search protocol was
necessary “in the context of computer searches, where the volume of intermingled documents may
be substantial and there are tools to focus those searches that are unavailable for searches of hard
copy documents.”
� YCA, LLC v. Berry, 2004 WL 1093385 (N.D.Ill. May 7, 2004). In a case involving the alleged
breach of a restrictive covenant, the defendant requested that the court sanction the plaintiff by
striking its computer expert’s testimony and findings. Although the defendant’s original deposition
indicated that a search of his computer was unnecessary, he later admitted that relevant
documents may have existed on his computer. In response to the defendant’s late admission, the
plaintiff hired a computer forensic expert, who retrieved deleted documents from the defendant’s
computer. The defendant contended that his case was unfairly prejudiced because the plaintiff
failed to disclose its computer expert in responding to the defendant’s document production
requests. The plaintiff asserted that the defendant’s late admission justified its delay in disclosing
the expert. The court declined to sanction the plaintiff stating that had the defendant “wished to
avoid ‘unfair surprise’ concerning his legal strategy…perhaps he should have followed the spirit of
the discovery rules and informed YCA [earlier] that his YCA computer might contain relevant
documents.”
� United States v. Segal, 313 F.Supp.2d 774 (N.D.Ill. 2004). In a criminal investigation, the
government seized over 200 boxes of documents and several personal computers and back-up
tapes belonging to the defendants. The defendants moved for the return of all seized attorneyclient
privileged communications and to bar the government from using these communications for
any purpose. In addition, the defendants claimed the government failed to adhere to Department of
Justice guidelines, which required a meaningful screening process to insure that it did not review
privileged electronic communications. Conversely, the government claimed it endeavored to create
an efficient document review system by using search programs to identify documents relating to
particular search terms rather than browsing all of the hard drives in its possession. In ruling, the
court stated that “[t]he government’s sloppy handling of Defendants’ electronic information should
not be condoned, but it is not of sufficient magnitude to violate Defendants’ due process rights and
thus warrant the ‘strong medicine’ of evidence suppression.” Although it refused to authorize the
suppression of derivative evidence, the court ordered the government not to review any of the
documents contained in the defendants’ privilege log or to introduce any of those documents at trial
without a court determination that those documents were not privileged.
� Aero Prods. Int’l v. Intex Rec. Corp., 2004 WL 417193 (N.D. Ill. Jan. 30, 2004). In a patent
infringement suit, the plaintiffs moved for production of documents relating to the development of
the products in question. When the plaintiffs uncovered that the defendant had been deleting all of
its e-mails every 30 days since the initiation of the suit, the court entered a protective order
requiring the defendant to make a full and complete effort to recover any and all deleted electronic
documents, including e-mail. The order also stated that the plaintiffs could petition for the
appointment of a computer forensics expert to assist in recovering electronic data, and that the
plaintiffs could request that the defendant bear the costs of the expert. Responding to the order,
the defendant produced 45 pages of documents and an expert report that described the
defendant’s efforts to recover the deleted e-mails. Although the plaintiffs found these submissions
unacceptable, they did not file a petition seeking the appointment of a neutral computer forensics
expert. In denying the motion, the court declared that the plaintiffs, as was their right pursuant to
the protective order, should have filed a petition seeking the appointment of a computer forensics
186

expert. The court also held that an award of sanctions would be unjust because plaintiffs waited
more than seven months before filing the discovery motion.
� Wiginton v. Ellis, 2003 WL 22439865 (N.D.Ill. Oct. 27, 2003). Two days after filing a sexual
harassment class action suit, the plaintiff’s counsel sent the defendant a preservation letter
requesting that all electronic materials and records relevant to the lawsuit be retained. Upon receipt
of this letter, the defendant sent one e-mail to its employees requiring preservation of all
documents relating to the plaintiff. The defendant continued to follow its normal document retention
and destruction policies until several months later when the court entered a preservation order. Email
system backup tapes were destroyed and former employees’ hard drives (including the
plaintiff’s former supervisor) were not saved. The plaintiff sought a motion for spoliation sanctions.
The court found that the defendant had the duty to preserve relevant electronic documents that
were likely to be the subject of discovery requests, had knowledge of this duty, and willfully and
intentionally did not fulfill this duty. Despite this, the court denied the plaintiff’s motion for sanctions,
stating that the extent of the lost electronic documents was not known. The court stated that the
backup data that was preserved and produced by the defendant may perhaps give some insight
into what was destroyed. If the plaintiff’s expert is able to discover relevant documents on the
backup tapes, then the plaintiff will be allowed to renew its motion for sanctions.
� Kucala Enters. Ltd. v. Auto Wax Co., 2003 WL 22433095 (N.D.Ill. Oct. 27, 2003). After
conducting an evidentiary hearing, the magistrate judge in the patent infringement suit Kucala
Enters. Ltd. v. Auto Wax Co., 2003 WL 21230605 (N.D.Ill. May 27, 2003), recommended that the
plaintiff’s claims be dismissed and that attorneys’ fees and expenses attributable to the motion for
sanctions be granted against the plaintiff for destroying computer evidence. The federal district
judge rejected the magistrate’s recommendation that the plaintiff’s claims be dismissed with
prejudice. The magistrate did so despite the fact that the plaintiff used computer software called
"Evidence Eliminator" to delete files the night before a scheduled discovery inspection. The district
judge stated that the interest of justice would be best served by adjudicating the claim and
counterclaim at issue. The court upheld the magistrate’s recommendation that the plaintiff bear the
expenses flowing from the discovery misconduct. See also Kucala Enters. Ltd. v. Auto Wax Co,
2004 WL 742252 (N.D.Ill. Apr. 6, 2004) (Court awarded $93,125.74 in sanctions for the plaintiff’s
discovery misconduct and ordered the parties to provide full responses to outstanding discovery
but denied the defendant’s motion for a permanent injunction).
� Computer Assocs. Int’l, Inc. v. Quest Software, Inc., 2003 WL 21277129 (N.D.Ill. June 3, 2002).
The plaintiff brought a copyright infringement and trade secret misappropriation suit against six of
the defendant’s employees arising from improper use of some of plaintiff’s software source code.
The plaintiff asked the defendants to make specific work and home computer hard drives available
for electronic imaging so that the plaintiff could search for and reconstruct deleted files that would
be otherwise undiscoverable. The defendants argued that the drives contained privileged
information relating directly to this litigation and worked with a computer consultant to remove the
privileged information from the images and indicate where the removed information was located.
The defendants filed a motion to require the plaintiff to pay for the computer consultation that was
necessary to prepare the drives for disclosure. After seeking advice from the Rowe 8-factor cost
shifting test, the court determined that the defendants’ costs were analogous to the review of
documents for privileged information and should not be shifted to the requesting party.
� Lakewood Eng’g v. Lasko Prod., 2003 WL 1220254 (N.D.Ill. Mar. 14, 2003). In a patent
infringement suit, the plaintiff produced e-mail and other electronic documents after the close of the
discovery period. The court found that while the plaintiff did not engage in a good faith effort to
187

produce all requested discovery in a timely manner, the cost to the defendant was minimal and
therefore refused to issue sanctions. To the extent that it had not already done so, the plaintiff was
ordered to produce all e-mails generated or received by the inventor relating to the patent at issue.
� In re Amsted Indus., 2002 WL 31844956 (N.D.Ill. Dec. 17, 2002). In a suit by plaintiff employees
against their employer for breach of fiduciary duty and other wrongs stemming from a hostile
takeover with use of employee stock assets, the court considered the plaintiffs’ various discovery
motions, including a motion compelling the defendants to retrieve e-mail and documents generated
on or after January 1, 1997. In response to the plaintiffs’ discovery requests, the defendants limited
its investigation to word searches of its backup tapes and only produced relevant documents
generated after January 1, 1999. The production did not include e-mail. The plaintiffs argued that
the defendants’ search of electronic documents was inadequate, and that the defendants should
have actually searched the hard drive of each individual defendant and each person having access
to relevant information. The court ordered the defendant to re-search their backup tapes under a
broader subject matter and time period. The court also indicated they should search the in-box,
saved, and sent folders of any relevant individual’s e-mail in the same manner. The court
determined the additional searches were not so burdensome or expensive as to require a limiting
of the requests.
� Eolas Technologies Inc. v. Microsoft Corp., 2002 WL 31375531 (N.D.Ill. Oct. 18, 2002). In a
patent infringement suit against Microsoft, the parties engaged in extensive motion practice, both
on dispositive summary judgment issues and on various discovery issues. With regard to one
discovery motion aimed at obtaining information which the defendant alleged was outside the
scope of the issues in the case, the court restricted discovery to spreadsheet data regarding
licenses, revenue and profitability of “accused server versions of Windows 2000 and Windows NT
4.0 operating system software with Internet Explorer.” With regard to another discovery motion,
addressing whether certain e-mail messages in a chain of messages must be produced, the court
ordered the defendant to produce certain e-mails to and from one key individual so that the court
could analyze the documents in camera and then make a determination as to whether the plaintiff
is entitled to receive them in an unredacted form.
� Williams v. Saint-Gobain Corp., 2002 WL 1477618 (W.D.N.Y. June 28, 2002). In an employment
discrimination suit, the court refused to issue sanctions or attorney’s fees stemming from myriad
discovery disputes. Despite an earlier assertion that no further responsive documents could be
located, the defendant produced e-mails obtained from an executive’s computer five days before
trial. The court found no evidence of any bad faith as to the withholding or destruction of the emails
and issued the parties an extended time period to complete discovery. The court ordered
each party to bear its own discovery costs.
� Byers v. Illinois State Police, 2002 WL 1264004 (N.D. Ill. June 3, 2002). In an employment
discrimination suit, the plaintiffs sought an order compelling the defendants to produce archived emails.
The court stated, “Based on the cost of the proposed search and the plaintiffs’ failure to
establish that the search will likely uncover relevant information, the court concludes that the
plaintiffs are entitled to the archived e-mails only if they are willing to pay for part of the cost of
production….Requiring the plaintiffs to pay part of the cost of producing the e-mails will provide
them with an incentive to focus their requests.” The court granted the motion to the extent that the
plaintiffs bear the cost of licensing the archived e-mail software while the defendants continue to
bear the expense of review for responsive, privileged, and confidential documents.
� Stallings-Daniel v. Northern Trust Co., 2002 WL 385566 (N.D. Ill. Mar. 12, 2002). In an
employment discrimination action, the plaintiff moved for reconsideration of the court’s denial of
188

electronic discovery of the defendant’s e-mail system. The court, in denying the plaintiff’s motion
for reconsideration, determined that the plaintiff presented no new information that justified an
intrusive electronic investigation.
� RKI, Inc. v. Grimes, 177 F. Supp. 2d 859 (N.D. Ill. 2001). In a trade secret misappropriation action
against the plaintiff’s former employee, the court found that the defendant defragmented his home
computer in an effort to prevent the plaintiff from learning that he had deleted confidential
information and software. The court ordered the defendant to pay $100,000 in compensatory
damages, $150,000 in punitive damages, attorneys’ fees, and court costs.
� McNally Tunneling v. City of Evanston, 2001 WL 1568879 (N.D. Ill. Dec. 10, 2001). In a dispute
between a construction contractor and the City of Evanston, the court denied Evanston wide-scale
access to both hard-copy and electronic versions of McNally’s computer files where Evanston’s
need for both sets of documents was not fully briefed to the court. However, where McNally’s hardcopy
productions were incomplete, the court ordered McNally to supplement the hard-copy
versions with its computer files to ensure that it has produced all of the relevant information.
� Danis v. USN Communications, 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000). The court found that
the defendant failed to properly preserve information on the computer database. The court allowed
the trial judge to inform jury that some of the gaps in the case were caused by the defendant’s
failure to turn over computer tapes and documents. The court fined the CEO of the defendant
company $10,000 for failing to properly preserve such electronic information, but denied the
plaintiff’s motion for default judgment.
� Illinois Tool Works, Inc. v. Metro Mark Prod. Ltd., 43 F. Supp. 2d 951 (N.D. Ill. 1999). In an
unfair competition case, the court ordered the defendant to produce for inspection its computer
after the plaintiff showed that the defendant had been less than forthcoming in producing hard
copies of requested documents. The court further issued sanctions, in the form reasonable
attorney’s fees and costs, for the failure to comply with the discovery orders.
� Chidichimo v. University of Chicago Press, 681 N.E.2d 107 (Ill. App. Ct. 1997). Some
jurisdictions recognize a tort action for negligent spoliation of evidence.
� In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 360526 (N.D. Ill. June 15,
1995). The court found that expense of retrieving electronic data was mainly due to the defendant’s
own record-keeping scheme. As such, the court required the defendant to produce its responsive,
computer-stored e-mail at its own expense, subject to some limitations. The court also instructed
the plaintiffs to narrow the scope of their request. The parties were encouraged by the court to
confer regarding scope of requests for e-mails.
� Murlas Living Trust v. Mobil Oil Corp., 1995 WL 124186 (N.D. Ill. Mar. 20, 1995). The court
refused to require the defendant to undergo intrusive or burdensome discovery for its electronic
files where the burden is not justified by the relevance of the evidence likely to be discovered.
� Leeson v. State Farm Mut. Ins. Co., 546 N.E.2d 782 (Ill. App. Ct. 1989). Appellate Court held that
the defendant’s claims were justified on grounds of oppressiveness, and therefore; the trial court
abused its discretion in entering default sanctions for the defendant’s failure to comply with the
discovery order. Such production would have been overly burdensome where compliance would
have required the defendant to create a computer program to find the records and at least 15
minutes for an analyst to look through each of the 2,100 claims.
Indiana
189

� Annex Books, Inc. v. City of Indianapolis, 2012 WL 892170 (S.D.Ind. Mar. 14, 2012). In this
discovery dispute, the defendant sought to compel the plaintiffs’ bookkeeping data in a reasonably
usable format. Although the plaintiffs hired two forensics experts, spent over $9,000 in services,
and purchased QuickBooks Pro, they were unable to convert their data (ordinarily maintained on
Platinum) into a format compatible with the defendant’s bookkeeping program (QuickBooks).
Applying Fed.R.Civ.P. 34(a) and the corresponding advisory committee notes, the court recognized
that while Rule 34(a) requires a responding party to take steps in order to translate information into
a “reasonably usable form,” sometimes the form by which ESI is ordinarily maintained may not be
reasonably usable by all parties—especially when dealing with legacy data like the case at hand. In
determining whether to require production, the court reasoned the appropriate analysis required
weighing the benefit of the evidence against the burden of translation pursuant to Fed.R.Civ.P.
26(b)(2)(C). While the court found that the bookkeeping information was likely “relevant” and
“important,” it found the plaintiffs had made a good faith effort to translate the ESI and need not act
further. Finding that the defendant had established good cause for the ESI at hand, the court
further held that if the defendant wished to proceed attempting to import the data, they could do so
on their own dime.
� Promote Innovation LLC v. Roche Diagnostics Corp., 2011 WL 3490005 (S.D. Ind. Aug. 9,
2011). In this qui tam action, the plaintiff objected to the defendant’s request for taxation of ediscovery
costs pursuant to 28 U.S.C. § 1920, arguing the costs were not allowable and,
alternatively, that they should be exempted as a qui tam relator. Dismissing the plaintiff’s first
contention that the defendant did not inform them of search terms used, the court held the plaintiff
did not provide evidence demonstrating the search terms were improper or unnecessary. Next, the
court rejected the plaintiff’s allegation that the defendant’s ESI management techniques including
data restriction, custodian filtration, de-duplication and repairing corrupted documents and
database errors, were implemented for the defendant’s own convenience and therefore fell outside
the scope of taxable costs. Instead, the court determined that if the defendant had not used these
efficient processes, the costs may have been significantly greater. Noting that precedent supported
the taxation of e-discovery costs under § 1920 and provided no exception for qui tam relators, the
court granted the Bill of Costs in the amount of $10,040.09.
� Haraburda v. Arcelor Mittal USA, Inc., 2011 WL 2600756 (N.D. Ind. June 28, 2011). In this
employment discrimination suit, the plaintiff requested the court order the defendant to preserve email
evidence, claiming the defendant previously deleted e-mails from the plaintiff’s account
without her permission and refused to issue a litigation hold prior to the Fed.R.Civ.P. 26(f) meet
and confer. The defendant argued the plaintiff’s request was premature as Rule 26(d)(1) prohibits a
party from seeking discovery before the Rule 26(f) conference. Disagreeing with the defendant’s
argument, the court noted Rule 26(d)(1) prohibits requesting production – not compelling
preservation – and stated that ruling to the contrary would leave a party with knowledge of an intent
to destroy evidence without a remedy. Accordingly, the court found the plaintiff could suffer
measurable prejudice based on the suit’s heavy reliance on e-mails if evidence was destroyed and
ordered the defendant to implement a litigation hold.
� Sofaer Global Hedge Fund v. Brightpoint, Inc., 2010 WL 4701419 (S.D. Ind. Nov. 12, 2010). In
this corporate litigation, the defendants sought to compel production to which the plaintiff objected
claiming that producing documents from the French corporation’s possession would violate French
law, that some of the sought-after documents do not exist and that it should not be required to
search for documents in files other than those in possession of its principal. Addressing these
arguments, the court found the documents belonging to the wholly-owned French subsidiary to be
190

within the plaintiff’s control and cited the lack of arguments given regarding the potential violation of
French law in ordering their production. Next, the court determined that the search of the principal’s
files – by the principal himself – was not thorough based on “the paucity of documents” found and
ordered the plaintiff to search electronic and paper files of additional employees. Addressing the
issue of sanctions, the court held that “the scant amount” of documents acquired through the
plaintiff’s search process, the inability to locate highly relevant and responsive documents and the
overall resistance to discovery, “should have alerted counsel that a more substantial effort must be
made to search for and locate responsive documents,” and awarded partial attorney fees
accordingly.
� Meridian Fin. Advisors LTD v. Pence, 2010 WL 2772840 (S.D. Ind. July 12, 2010). In this
business litigation, the defendants sought dismissal sanctions alleging one of the plaintiffs engaged
in deceptive discovery practices, which included withholding 250,000 “secret e-mails” obtained
from the defendants’ hard drives, and working with a co-defendant and a former employee of the
defendants to gather privileged information. The plaintiff argued it did not disclose the e-mails’
existence until formal requests were made to “lock the Defendants into sworn testimony” and that
adequate disclosures were made via the indications it possessed “e-mails, documents and
corporate minutes.” Dismissing these arguments, the court determined the plaintiff’s actions
violated Fed.R.Civ.P. 26. The court also held the plaintiff violated attorney-client privilege by failing
to disclose to the defendants that it had seen potentially privileged e-mails and accessed personal
communications. Finding dismissal an inappropriate sanction given the lack of prejudice suffered
by the defendants, the court ordered the plaintiff to pay all attorneys’ fees and costs and precluded
the plaintiff’s use of the ESI.
� St. Paul Fire & Marine Ins. Co. v. Schilli Transp. Servs., Inc., 2010 WL 2629485 (N.D.Ind. June
28, 2010). In this insurance litigation, the plaintiff requested production of physical and electronic
evidence arguing the defendant - a corporation dissolved since 2003 - was required to "continue its
corporate existence" to the extent necessary to resolve any pending litigation. The defendant
claimed that a more limited discovery form was appropriate given its dissolved status and that the
request was unduly burdensome as it would require "hundreds of hours." Finding the defendant
"failed to demonstrate any substantially justifiable reason for withholding discovery," the court
granted production and ordered the defendant to pay the fees and costs associated with the
motion.
� Cmty. Bank v. Progressive Cas. Ins. Co., 2010 WL 1435368 (S.D.Ind. Apr. 8, 2010). In this
insurance litigation, the plaintiff requested a protective order to prevent the defendant’s use of
privileged material and work product inadvertently disclosed by a non-party as evidence in a
summary judgment motion. Although the plaintiff had previously returned privileged documents
inadvertently sent to the defendant on numerous occasions, the court found the defendant’s
assurances that it would afford the plaintiff the same courtesy were “too amorphous to be binding.”
The use of the word “courtesy” instead of “agreement” in the parties’ communications
demonstrated that the expected reciprocal conduct was moral in nature, not a legal right, and the
communications did not reference applicability to non-parties. Citing Fed.R.Evid. 502(b), the court
also found the plaintiff took no reasonable precautions to prevent the disclosure since no
supervision of the non-party’s production occurred. However, the court determined the defendant
violated Fed.R.Civ.P. 26(b)(5) by using the privileged exhibits in its summary judgment motion prior
to resolution of the dispute. Based on this behavior, the court ordered the defendant to pay onehalf
of the plaintiff’s fees and costs associated with the motion and prohibited use of the exhibits as
substantive evidence.
191

� Lawson v. Sun Microsystems, Inc., 2010 WL 503054 (S.D.Ind. Feb. 8, 2010). In this discovery
dispute, the plaintiff’s former counsel (two attorneys from a law firm) objected to the magistrate
judge’s recommendation that they be sanctioned $13,625 for failure to read e-mails from the
plaintiff that divulged discovery misconduct, claiming no bad faith or willful misconduct occurred.
During review, the plaintiff accessed password-protected files produced by the defendant and sent
e-mails to counsel referencing these actions. Recognizing the attorneys’ failure to read or react to
the plaintiff’s e-mails and adequately supervise the plaintiff’s behavior during the discovery phase
amounted to carelessness, the court nonetheless concluded “careless conduct does not equate to
‘wanton’ conduct” and found the recommendation for sanctions against the plaintiff’s counsel
unsupported. The court further concluded the defendant was not harmed as a result of the
plaintiff’s actions, since the password-protected documents contained information that could have
been obtained through other discovery means.
� 1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., No. 1:05-CV-1670 (S.D. Ind. June 5,
2009). In this environmental litigation, the plaintiff requested default judgment sanctions alleging
that the defendant purposefully withheld responsive documents and that the witnesses lied or
misrepresented material truths. The defendant argued that it relied on its attorneys for discovery
advice and therefore any error was the attorneys’ responsibility. The defendant’s attorneys claimed
the defendant failed to provide accurate and complete information, and that once potential attorney
misconduct was discovered, the firm took prompt steps to remove the offending attorneys.
Determining the case was “replete with examples of violations of discovery rules” that contributed
to the lengthy litigation, the court noted that the defendant “made a mockery of the discovery
process and [has] subjected the truth to ridicule.” In addition, the court stated that the defendant
could “not hide behind [its] own failure to organize its records then rely upon its lawyer to straighten
up its mess.” The court also found the defendant’s attorneys had enough “knowledge of its client’s
apparent disregard” for the Federal Rules of Civil Procedure and thus must be held accountable.
Accordingly, the court granted the plaintiff’s motion for default judgment sanctions and ordered the
defendant and its attorneys each pay one-half of the plaintiff’s reasonable attorneys’ fees and
costs.
� Alcon Mfg., Ltd. v. Apotex Inc., 2008 WL 5070465 (S.D.Ind. Nov. 26, 2008). In this patent
infringement lawsuit, the plaintiffs argued the defendants should delete or return an inadvertently
produced electronic document containing privileged information and that the document should be
stricken from the expert report pursuant to a stipulated protective order. The defendants argued
that the plaintiffs waived privilege when they failed to object to the document’s introduction during
two previous depositions. Finding the plaintiffs had complied with the protective order by asserting
privilege within days of discovering the inadvertent production, the court ordered the defendants to
delete or return the privileged document and to redact any references to it.
� Containment Technologies Group v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL
4545310 (S.D.Ind. Oct. 10, 2008). In this defamation case, the defendants moved to compel
production of documents containing trade secrets, and the plaintiff moved for a protective order.
The parties began negotiating a proposed protective order, but could not agree to specific terms.
The defendants argued that a protective order was unnecessary and that the “confidential”
designation should only apply to those portions or pages that are confidential, while the plaintiff
wanted to designate the entire document as confidential. Requiring higher scrutiny for a
confidential designation for documents filed under seal as opposed to those produced during
discovery, the court allowed the plaintiff to designate entire documents as confidential if done so in
good faith.
192

� Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008).
In this litigation alleging breach of contract, the plaintiff filed a motion to compel protective order
compliance and for sanctions, claiming the defendant’s production abused the protective order.
The defendant produced 75,000 pages worth of e-mail based on search terms supplied by the
plaintiff and designated every document for attorney eyes only. Finding the defendants sufficiently
complied with the protective order, the court determined if the plaintiff wanted a more selective
designation of the documents it should have drafted the protective order more clearly. Additionally,
the court determined the plaintiff had “no entity to blame except itself” for providing an expansive
search request that returned a voluminous amount of documents. However, the court left open a
challenge by the plaintiffs to the appropriateness of the “attorney eyes only” designation after the
documents have been examined. Finally, the court rejected the plaintiff’s request for production in
hard copy form, finding the defendant’s production of e-mails on a disc adequate under
Fed.R.Civ.P. 34. The court also warned both parties that a special master may be used, funded by
the wrongful party, if this type of dispute continues.
� Guy Chem. Co. v. Romaco AG, 2007 WL 1521468 (N.D.Ind. May 22, 2007). In a suit alleging
breach of contract, the defendant motioned the court for a third party subpoena, seeking
information establishing the extent of the plaintiff’s damages. Upon receipt of the subpoena, the
third party estimated the cost of production at approximately $7,000 since all documents were
stored electronically. The third party did not object to producing the material, but requested that the
defendant pay the production costs. The defendant argued the third party was unreasonable by
requiring payment before they would produce. The court held that while the defendant established
good cause for the materials, they had to pay the costs of production. The court reasoned, “[N]ot
only is it fundamentally unfair for non-parties to bear the significant litigations costs of others, but
also if this Court were to allow litigating parties like [the defendant] to impose such a burden on
non-parties, then the likelihood of cooperation by non-parties in the future would be placed in
jeopardy.” The court determined a third party may have to bear its own costs of production when
they are de minimis, but the burden of proof is placed on the requesting party to show that the
costs are de minimis.
� Bitler Investment Venture II, LLC v. Marathon Ashland Petro., LLC, 2007 WL 465444 (N.D.
Ind. Feb. 7, 2007). In a case regarding breach of contract claims, inter alia, the defendant filed a
motion to compel the production of e-mails sent to the plaintiff’s damages assessment expert prior
to the issuance of an expert report. The e-mails in question were communications between the
plaintiff’s attorney and the plaintiff. The plaintiff’s attorney forwarded these e-mails to the expert
prior to his final report. The plaintiff argued the e-mails were protected by the attorney-client and
work-product privileges. The plaintiff also argued the e-mails “had nothing to do” with the expert’s
opinion. The defendant argued it had a right to discover any information used by the expert which
he based his opinion on for trial. The court, in granting the defendant’s motion, noted that although
the attorney-client privilege may apply in this situation, the e-mails were disclosed to a third-party,
destroying any privileges. The work-product privilege also did not apply because the e-mails were
intentionally forwarded from the plaintiff’s attorney to the expert. Furthermore, the court conducted
an in camera review of the e-mails and determined that they were relevant and must be produced.
� Ball v. Versar, Inc., 2005 WL 4881102 (S.D. Ind. Sept. 23, 2005). In a contract dispute involving a
trust fund, the defendant filed several motions to compel the e-mail of the two plaintiff trustees. One
trustee preserved all relevant e-mail, but one trustee deleted some e-mail after litigation
commenced. The trustee’s e-mail relevant to the litigation was stored on his personal home
computer and his work-issued computer. The defendant argues that the trustee’s home and work-
193

owned computers should be produced and the plaintiff sanctioned for the deliberate spoliation of email
evidence. The plaintiff argues the trustee did not destroy the e-mail in bad faith because he
did not know he was supposed to preserve the e-mail. The court ruled the trustee’s deletion of the
e-mail was not justifiable and permitted the defendant to examine all computers used in the
trustee’s home for an eight-year period and of all work-owned computers used by him during the
same time. Although the court declined to issue any severe sanctions, it did awards costs to the
defendant.
� Tracy v. Financial Ins. Mgmt Corp., 2005 WL 2100261 (S.D.Ind. Aug. 22, 2005). In an action
alleging violations of the Americans with Disabilities Act and Employee Retirement Income Security
Act, the plaintiff sought sanctions pursuant to Fed. R. Civ. P. 37 for the defendant’s late e-mail
production. Citing Zubulake, the plaintiff argued the defendant “hindered and prejudiced the
discovery process when it produced requested e-mails in the eleventh hour of discovery and after
intrastate deposition of key witnesses had commenced.” In response, the defendant claimed any
late e-mail production was inadvertent, an unforeseen result of two physical upgrades to its
computer systems, and did not prejudice the plaintiff’s case. The defendant further argued
Zubulake did not apply as no evidence showed the defendant failed to preserve or retain relevant
evidence. Although the court agreed Zubulake did not apply, it determined the defendant did not
have a substantial justification for the late production. The court awarded sanctions in part stating,
“Presumably, the [d]efendant was aware of the physical upgrades to its own computer system and
was in a position to know, or should have known, that responsive electronic data may have been
stored elsewhere than in the new system.” The court also permitted the plaintiff to re-depose the
defendant’s key witnesses concerning the production of certain documents and ordered the
defendant to bear such costs.
� Bryant v. Aventis Pharmaceuticals, Inc., 2002 WL 31427434 (S.D. Ind. Oct. 21, 2002). The
Indiana court mentioned without further comment that e-mails were recovered from the plaintiff’s
computer after her termination, confirming the general discoverability of e-mail evidence. The court
considered the content of these e-mails in granting summary judgment in favor of the defendant.
� Long v. Anderson Univ., 204 F.R.D. 129 (S.D.Ind. Oct. 30, 2001). The court found that the
attorney-client privilege applied to electronic mail sent from a Univ. human resources director to the
dean of students regarding a conversation with counsel and his legal advice in a Civil Rights action
against the Univ..
� Simon Property Group v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000). On the plaintiff’s
motion to compel in a trademark case, the court held that the plaintiff was entitled to attempt to
recover deleted computer files from computers used by the defendant’s employees. The court
required that protective measures be taken, including the plaintiff’s appointment of an expert who
would serve as an officer of the court and turn over the recovered information to the defendant’s
counsel for appropriate review.
Wisconsin
� Thermal Design, Inc. v. Guardian Bldg. Prod., Inc., 2011 WL 1527025 (E.D. Wis. Apr. 20, 2011).
In this discovery dispute, the plaintiff sought discovery of all archived e-mail accounts and shared
network drives without restriction as to custodian or individual. Having already produced over 1.46
million pages of ESI (91 gigabytes) at a cost of $600,000, the defendants argued the additional
discovery – estimated to cost $2.5 million for filtering, search and review – was not reasonably
accessible. Finding the plaintiff made virtually no effort to justify the additional discovery beyond
194

citing the defendants’ considerable resources, the court refused to tolerate "fishing expeditions"
simply because the party could afford to comply and denied the plaintiff’s motion.
� Wisconsin v. Huggett, No. 2009AP1684-CR (Wis.Ct.App. Apr. 6, 2010). In this criminal case, the
State of Wisconsin appealed an order dismissing, with prejudice, an intentional homicide charge
against the defendant. On the night of the homicide, sheriff’s deputies seized two cell phones,
which contained threatening voicemails from the victim directed at the defendant and his girlfriend.
Upon defense counsel’s formal request to preserve all messages, the State admitted it had not
preserved the voicemails. Finding it reasonable the defendant would expect the State to preserve
the voicemail recordings, the court determined this expectation made the State “responsible for
ensuring that it occurred.” The failure to preserve the voicemail evidence violated the defendant’s
due process rights. Recognizing that it would be fundamentally unfair to induce reliance and then
place preservation responsibility on the defendant, the court affirmed the case dismissal since the
voicemails would be central to a jury’s application of self-defense and the defense of others
standard.
� Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 WL 3347101 (E.D. Wis. Oct. 15,
2009). In this discovery dispute, the plaintiff requested production of the defendants’ "computers
and other electronic storage devices" for computer forensics analysis. The defendants argued that
the plaintiff failed to demonstrate the need for a sequestering of all of the defendants’ electronic
devices. Denying the plaintiff’s motion, the court found the plaintiff failed to justify the need for the
forensic mapping of the defendants’ entire computer system. However, the court acknowledged the
need for the defendants to develop an organized system for the preservation and production of
relevant ESI. The defendants’ "click through" process to search e-mails "did not meet the level of
diligence required for a fair discovery process." The court noted that the primary motivation for its
decision was the failure of both parties to advance alternatives for discovery methods and stated
that it expected the parties to develop a meaningful ESI discovery plan.
� Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. June 10, 2009). In
this dispute involving an alleged breach of an oral agreement, the plaintiff sought access to five
DVDs containing the defendant’s e-mails and other ESI that pertained to three specified search
terms from the five-year period in which the parties did business and beyond. The defendant
argued that the DVDs contained privileged material and that the costs were unduly burdensome
given the narrow issues remaining. The plaintiff countered that the cost of attorney review for
privileged material could be diminished through a “claw back” policy and the use of targeted
keyword searches. Denying the plaintiff’s request, the court determined production would be
unduly burdensome as it would contain approximately 650,000 to 975,000 pages of material
responsive to the plaintiff’s search terms. However, the court ordered the defendant to conduct a
search of the DVDs using terms reasonably likely to locate relevant information in response to the
plaintiff’s previous production request. Finally, the court denied the plaintiff’s request for native
format production upholding the agreement reached at the Fed.R.Civ.P. 26(f) conference that
allowed the defendant to choose the format depending on cost-effectiveness, because metadata
was not material to the dispute.
� Henderson v. U.S. Bank, 2009 WL 1152019 (E.D.Wis. Apr. 29, 2009). In this confidential
information misappropriation suit, the defendant sought production of electronic devices from the
counter-defendant. The counter-defendant objected to providing direct access to their electronic
devices and argued the defendant’s request was the equivalent of requesting all of their filing
cabinets. Finding the defendant’s request for direct access premature as the counter-defendant
had not had the opportunity to search their electronic devices, the court denied the motion to
195

compel; however, the court ordered the counter-defendant to perform a search and disclose all
responsive documents.
� Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D.Wis. Oct. 24, 2008). In this
contract litigation, inter alia, the defendant filed a motion to compel the discovery of the plaintiff’s
source code, claiming such information was essential to the defendant’s counterclaim. The
defendant argued the source code was the only evidence that may have revealed the quality of the
product the plaintiff produced under the contract. The plaintiff argued against production of the
source code, claiming undue burden in that it would cost $300,000 and take 5,000 hours. Due to
the defendant’s willingness to employ outside consultants to review the code for relevant
information, thereby reducing cost, the court ordered its production finding the potential value of the
source code outweighed the burden.
� Maxpower Corp. v. Abraham, 2008 WL 1925138 (W.D.Wis. April 29, 2008). In this litigation
against former employees, the plaintiffs sought a preliminary injunction requiring the defendants to
return information allegedly deleted from the plaintiffs’ servers, in addition to spoliation sanctions.
The plaintiffs’ computer forensics expert examined the defendants’ laptops, finding evidence of
hard drive wiping software and of “text strings” referring to information about outdated products.
The defendants argued the deletions of information from their laptops were done for maintenance
purposes and complied with company policy. Finding the plaintiffs’ computer forensic evidence
insufficient and ambiguous, the court denied the motion for preliminary injunctive relief.
Additionally, the court denied the plaintiffs’ motion for sanctions finding insufficient evidence to
support the argument that wiping the hard drive constituted deliberate spoliation.
� State ex rel. Gehl v. Connors, 2007 WL 3024436 (Wis.Ct.App. Oct. 18, 2007). In this dispute over
the production of public records, the petitioner appealed the circuit court’s decision to deny his
petition seeking e-mail communications under the public records law. The petitioner claimed county
government officials improperly denied his request per the public records law and wrongfully failed
to retain responsive e-mails. The petitioner additionally requested the search of approximately 150
backup tapes and more than thirty employees’ computer hard drives for over 20 keywords.
Affirming the circuit court’s decision, the court found the petitioner’s request to be overbroad and
overly burdensome, finding that the right to inspect public records is not absolute. The court noted
that the request virtually sought every e-mail passed between all employees of the county named
in the request over a two-year period. In addition, the court stated that the search terms chosen by
the petitioner were broad on their face as to require the production of records relating to virtually all
county zoning matters over a two-year period.
� Haka v. Lincoln County, 2007 U.S. Dist. LEXIS 64480 (W.D.Wis. Aug. 29, 2007). In this wrongful
termination suit, the defendants motioned the court for a protective order to limit their discovery
obligations. The plaintiff sought all documents, notes, memos, emails and metadata from all
officials, board members and officers regarding the reorganization of the Lincoln County Child
Support Agency. Documents responsive to this request, which existed on two external hard drives
containing about four terabytes of data extracted from computer servers, accounted for
approximately 500 billion typewritten pages. The parties’ attempts to limit the production based on
keyword searching were unsuccessful as they could not agree on which words to use. The court
considered the Zubulake factors as well as the Advisory Committee Notes to Rule 26(b)(2) and
found that although the issues were important, the potential damages were low and the cost of
production was disproportionate. The court granted the defendants’ motion in part by ordering the
plaintiff to determine the keywords to be used and the parties to split the cost of the search 50/50.
The defendants were required to pay for the cost of the privilege and relevance review.
196

� Kasten v. Doral Dental USA, LLC, 2007 WL 1791226 (Wis. June 22, 2007). In a suit by a nonmanaging
member of a limited liability company seeking to review company records, the district
court held email was neither a record nor a company document. The district court determined that
email was just a communication like a telephone call, not a document or record. The plaintiff
appealed this distinction, and the Wisconsin Supreme Court reversed.
� WIREdata, Inc. v. Village of Sussex, 2007 WL 10110 (Wis. Ct. App. Jan. 3, 2007). In a dispute
over a request for public property records under state law, the plaintiff filed a motion compelling the
defendant to produce native files from a public record. The defendant produced a PDF version of
the requested public record according to a decision from the lower court, but the plaintiff required
native data from the document not found on a PDF and filed this motion. The plaintiff argued that
the native format of the public record database was owned by the public, and the defendant could
not deny access to it. The defendant argued that it would be unduly burdensome and costly to
produce the document. It also argued the information sought by the plaintiff was information
physically entered into the computer system by the defendant’s employees and not subject to
public disclosure. The court held in favor of the plaintiff since the defendant, as a public entity, did
not create the document in PDF form and should produce it as viewed by the defendant. Therefore,
the court held that the plaintiff had a right to “access to this database for purposes of examination
and copying of the source data” and thereby ordered the defendant to grant the plaintiff access to
its original information.
� Liturgical Pubs., Inc. v. Karides, 715 N.W.2d 240 (Wis. App. 2006). In an appeal from a
judgment dismissing unfair competition and computer theft claims, the appellant claimed the trial
court erred in granting summary judgment in favor of the respondents. In granting summary
judgment, the trial court found the appellant had failed to present any evidence establishing that
the respondents, former employees of the appellant, had stolen computer data. During discovery,
the trial court ordered mirror images of the respondents’ computers, limiting inspection of the
images to a hash value search. The trial court also appointed a referee to assist in the process.
When no hash value matches were found, the appellant requested a second inspection to search
for specified words, evidence of reformatting, wiping or deleting files, and other computer activity.
As the first inspection had yielded nothing, the trial court ruled further discovery would be
unreasonable. In affirming the trial court’s decision, the appellate court concluded the trial court
“acted within the scope of its discretion in denying [the appellant’s] additional request, which
essentially amounted to a fishing expedition.”
� Hagemeyer North American, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594 (E.D.Wis.
2004). In a discovery dispute involving two corporations, the plaintiff moved to compel the
defendant to conduct and bear the costs of electronically searching backup tapes already produced
by the defendant. The plaintiff also sought to compel production of e-mail contained on additional
backup tapes not produced to the plaintiff. In response, the defendant argued it would be costly
and time-consuming to produce the additional backup tape e-mail and to search the alreadyproduced
backup tapes. The court determined that the plaintiff failed to establish additional
relevant backup tape data existed and, as a result, denied the plaintiff’s motion to compel
additional documents. In assessing whether cost-shifting for the backup tapes already produced
was warranted, the court adopted the Zubulake seven-factor cost-shifting analysis. The court
approved the sampling approach conducted in Zubulake and ordered the defendant to recover
responsive data from any five backup tapes of the plaintiff’s choosing. The court would then assess
whether the cost of recovering e-mails from the remaining backup tapes would be proportionate to
the likely benefit.
197

� In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004). In a suit involving the criminal
investigation of state legislators and caucuses, the trial court issued a subpoena ordering the
Legislative Technology Service Bureau (LTSB) to produce backup tapes for 54 government
servers or, as an alternative, to produce extracted documents for certain individuals. The trial court
defined documents to include electronic files, e-mails, recycle bins, temporary Internet files, and
image files. On appeal, the LTSB objected to the subpoena asserting, among other things, that the
trial judge abused his discretion by issuing an overly broad and unreasonable order. The
Wisconsin Supreme Court determined that the subpoena was overbroad because it compelled
production of computer data from an entire branch of government rather than requesting specific
topics, document types, or time periods. In quashing the subpoena, the court stated that “[b]ecause
the records sought are computer records, a key word search would not have been too difficult to
incorporate in the subpoena.” See also In re John Doe Proceeding, 689 N.W.2d 908 (Wis. 2004)
(Denying motion for reconsideration).
� Northern Crossarm Co. v. Chemical Specialties, Inc., 2004 WL 635606 (W.D.Wis. Mar. 3,
2004). The plaintiff sought to compel production of 65,000 pages of e-mail in electronic form,
claiming that Rule 34(a) of the Federal Rules of Civil Procedure requires that the defendant put
electronic information into a reasonably usable electronic format. The defendant, who had already
produced the documents in paper form, objected to the request, claiming that compliance with
plaintiff’s request would be “unfairly time consuming and expensive.” Holding that the plaintiff had
misinterpreted Rule 34, the court refused to grant the plaintiff relief. The court stated that “neither
the letter nor the spirit of Rule 34 mandates that a party is entitled to production in its preferred
format.” Instead, producing electronic information in a format that “mimics” the electronic format is
sufficient. The court also added that when a party “specifically requests the production of electronic
information in a specific electronic format, then the respondent cannot simply ignore the request: it
must comply, compromise, or seek court protection.” Because the plaintiff did not explicitly request
production in an electronic form at the time the request was made, the court did not require the
defendant to re-produce the e-mail in an electronic form.
� Milwaukee Police Assoc. v. Jones, 615 N.W.2d 190 (Wis. Ct. App. 2000). In considering the
provisions of the state’s open records laws, the court concluded that the city’s production of an
analog tape was insufficient when a digital version existed. The court stated, “A potent open
records law must remain open to technological advances so that its statutory terms remain true to
the law’s intent.”
Eighth Circuit – State and Federal Cases
� Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. Apr. 24, 2007). In a suit arising from
a vehicle collision, the defendants appealed the district court’s decision not to issue spoliation
sanctions against the plaintiff. The electronic evidence at issue was contained in an electronic
recording device connected to the plaintiff’s vehicle which stored information about the vehicle at
the time of collision. After the collision, the plaintiff sent the device to the engine manufacturer who
erased the electronic data contained on the device. The defendants argued that the duty to
preserve the electronic data existed because litigation was likely to occur. The defendants also
argued that discovery sanctions should have been issued since the plaintiff not only destroyed the
data but notified the defendants of the data’s existence only three months before trial in its
interrogatory answers. The appellate court upheld the district court’s refusal to issue spoliation
sanctions, stating that the ultimate focus in imposing sanctions for spoliation is the intentional
198

destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation. The
court found that there was no proof that the plaintiff aimed to suppress the discoverable evidence.
As to the discovery violations, the court found that the district court’s refusal was also proper since
the plaintiff’s discovery answers were responsive and the defendants were not prejudiced by the
untimely disclosure of the data’s existence.
� United States v. Ray, 428 F.3d 1172 (8th Cir. 2005). The defendant appealed an extortion
conviction relating to an attempt to extort $2.5 million from a company by sending e-mails
threatening to exploit a breach in the company’s computer security. Arguing insufficiency of the
evidence, the defendant contended the government had not established who actually sent the emails.
During the government’s investigation, a computer forensic expert had examined the
defendant’s hard drive and found three threatening e-mails and other incriminating evidence. The
expert testified the e-mails and documents were created by someone typing on the computer. The
expert also stated that someone had logged onto the Internet from the computer using the screen
name and password used to send the e-mails. Further, the expert found no evidence of remote
access or hacking into the computer. Based on this evidence, as well as the defendant’s admission
he logged onto his computer and the Internet several times a day, the appellate court upheld the
conviction.
� United States v. Bach, 310 F.3d 1063 (8th Cir. 2002). In a criminal prosecution for possession of
child pornography, Yahoo! technicians retrieved, pursuant to a search warrant, all information from
the defendant’s e-mail account. The lower court ruled that the seizure of the e-mails by Yahoo! was
unlawful because police were not present when the defendant’s e-mail account was searched.
Reversing the lower court’s opinion, the appellate court held that Yahoo!’s search of the
defendant’s e-mails without a police officer present was reasonable under the Fourth Amendment
and did not violate the defendant’s privacy rights.
Arkansas
� Helmert v. Butterball, LLC, 2010 WL 2179180 (E.D.Ark. May 27, 2010). In this employment
litigation, the plaintiffs alleged the defendant’s production response was inadequate based on its
failure to conduct a meaningful search of electronic information. The defendant argued the
plaintiffs’ request was overbroad, addressed information that was not reasonably accessible and
would require privilege determinations. Addressing one of the four search term categories, the
court determined it was narrowly tailored except for the terms that would require an electronic
search of e-mails for “one term within the same sentence as another term,” since the plaintiff
offered no evidence that the search could be performed electronically. The court found the second
category of terms to be duplicative and unnecessary, but held the third and fourth term categories
were appropriately constructed. Next, the court narrowed the custodian list to include only the
employees who were likely to possess relevant information and denied the proposed search of
backup tapes, finding the information not reasonably accessible. The court also ordered a search
of hard drives, laptops and personal e-mail accounts of two custodians for the identified search
terms. Finally, the court denied the defendant’s request for cost-shifting as it had not ordered the
restoration and search of backup tapes.
� B & B Hardware, Inc. v. Fastenal Co., 2011 WL 2115546 (E.D. Ark. May 25, 2011). In this
discovery dispute, the plaintiff sought to compel production and requested a hearing to determine
what the defendant had done to meet its obligation to produce responsive ESI, forensically image
hard drives and conduct a search of 1,182 backup tapes (estimated to cost $84,854,704.90).
199

Characterizing the plaintiff’s motion as peremptory, the court determined the plaintiff failed to abide
by Local Rule 7.2(g) of the U.S. District Court for the Eastern District of Arkansas which requires
attorneys to confer in good faith before filing a motion to compel. Further, the court noted the
defendant produced approximately 31,000 documents within the response period, thus fulfilling its
production obligations. Admonishing the plaintiff’s actions, the court declined to compel discovery
or grant a hearing. Regarding the issues of forensic imaging and backup tapes, the court found the
defendant sufficiently raised objections on the grounds of undue burden and scope, denied the
motion and warned the parties to “act less like armed combatants and more like highly skilled
professionals” going forward.
� Cooney v. Beverly Enter., Inc. No. CV 2003-1049-3 (Ark. Cir. Ct. June 15, 2005). In a class
action lawsuit, the plaintiffs filed a motion for contempt and for sanctions due to the defendants’
discovery practices. The court declared the defendants in contempt of an earlier discovery order
and ordered the defendants to pay $25,000 in plaintiffs’ attorney fees. Additionally, the court
ordered the defendants to comply with the previous discovery order, which included producing
electronic data and e-mails. The court also declared that the plaintiffs could have “some access” to
the defendants’ computer in order to ensure compliance with the discovery orders. Moreover, the
court noted that it “has not ruled out the possibility of other sanctions…[and] will be watching
closely the Defendants’ efforts to comply with discovery.”
� Concord Boat v. Brunswick Corp., 1996 WL 33347247 (E.D.Ark. Dec. 23, 1996). The plaintiffs
contend that the defendant’s search for and production of relevant information was insufficient
because it failed to review all computer documents and e-mail. The plaintiffs filed motions to
compel discovery of electronic information and to prevent further destruction of documents. The
defendant asserted that the search was reasonable and submitted that the plaintiffs’ demands
were overly broad and unduly burdensome. The court ordered the parties to have a meeting with
counsel and computer experts for both sides, conducting a good faith discussion to see whether
agreement can be reached on a procedure to further search the defendant’s e-mail, the choice of
an expert, the procedure for specifying the expert’s responsibilities, and allocation of the costs. The
court also ordered the defendant to produce a detailed description of the defendant’s electronically
stored information.
� Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., 2011 WL 4499259 (N.D. Iowa Sept. 27,
2011). In this discovery dispute, the plaintiffs sought a default judgment alleging the defendants
willfully destroyed ESI. Previously, the defendants produced “seven computers/laptops, ten
internal/external hard drives, and twenty-three compact discs” to the plaintiffs’ expert for inspection
and copying. Following the forensic examination, the plaintiffs’ expert identified that four external
media devices and three drives were not produced for imaging, and noted that numerous
documents, orphan files and e-mails had been deleted or were missing. Citing the defendants’
status as a “small company” who is “unsophisticated in the requirements of litigation and
preservation of documents,” the court denied the default judgment request. Further supporting the
court’s finding was the lack of bad faith present and the inability to prove the deleted documents
were likely to be helpful to the plaintiffs’ claims.
� Rattray v. Woodbury County, Iowa, 2010 WL 5437255 (N.D. Iowa Dec. 27, 2010). In this Fourth
Amendment unreasonable strip search case, the plaintiff sought sanctions pertaining to the
defendants’ destruction of video evidence. The plaintiff argued her threats of litigation during the
Iowa
200

incident, her attorney’s letter complaining about her treatment and a court order to preserve the
video recording all put the police department on notice of imminent litigation such that they should
have preserved the entire recording. Objecting, the defendants asserted that preserving only part
of the recording complied with routine procedure, the plaintiff failed to demonstrate prejudice from
the loss, the uncopied segment would have been automatically overwritten by the time the
defendants received notice to preserve it and they did not act in bad faith. Finding sufficient
evidence to constitute a fact question, the court ordered the question of bad faith be submitted to
the jury and included a permissive adverse inference instruction.
� MHC Investment Comp. v. Racom Corp., 209 F.R.D. 431 (S.D. Iowa 2002). The Iowa court
mentioned without further comment that e-mails were made available during discovery confirming
the general discoverability of e-mail evidence.
Minnesota
� Escamilla v. SMS Holdings Corp., 2011 WL 5025254 (D. Minn. Oct. 21, 2011).
In this sexual battery and harassment litigation, the defendants—a former employer and
supervisor—objected to a magistrate judge’s order to produce a personal laptop for forensic
review, search backup tapes for deleted e-mails and pay the associated costs. Specifically,
defendants object that reinstalling the operating system on the supervisor’s personal computer at a
technician’s recommendation was not done intentionally or in bad faith and that the court
compelled discovery based solely on a forensics expert’s "speculation" that reinstallation was done
to "hide or destroy relevant information." Additionally, the defendants argued that the court did not
properly conduct a proportionality analysis by considering the prejudice suffered by the plaintiff.
Finally, the defendants argued that data on the employer’s backup tapes was not reasonably
accessible and would constitute an undue burden. The court overruled the objections related to the
personal laptop, finding the timing of the reinstallation—which was done two weeks after the
plaintiff’s motion to compel—highly suspect and further noted that the prejudice suffered could only
be determined by allowing a forensics expert to review the laptop. With regard to searching
employer’s backup tapes, the court overruled the defendants’ objection, finding that the cost
estimate from a single vendor was "wildly overstated" and further found that increased costs were
a result of the defendants failure to preserve data at the outset of litigation. However, the court
found that searching the backup tapes for deleted data was technically impossible and ordered the
defendants to search the backup tapes only for live data.
� In re Hecker, 2010 WL 654151 (Bkrtcy.D.Minn. Feb. 23, 2010). In this ancillary bankruptcy
proceeding, the plaintiff requested default judgment sanctions, alleging the defendant repeatedly
failed to produce privilege logs and responsive ESI, and engaged in offensive discovery despite
court orders prohibiting those actions. The defendant argued he was unable to produce large
amounts of the requested ESI since the documents were located on his computers and servers
that were in government custody. First, the court noted that the majority of information requested
remained in the defendant’s possession, since the government made forensic images of the data.
Next, the court detailed the “shocking” behavior of the defendant and his counsel throughout the
discovery process, which included belated and incomplete productions, violation of court orders,
and delivery of an external hard drive containing 1.1 million scrambled files and folders. Based on
this behavior, the court determined the defendant acted in bad faith and willfully abused the
discovery process. Due to the court’s certainty that no court order would secure the defendant’s
201

cooperation, the plaintiff’s motion for a default judgment sanction was granted and $83,070,987 of
the plaintiff’s judgment against the defendant was not dischargeable.
� Cenveo Corp. v. S. Graphic Sys., 2009 WL 4042898 (D. Minn. Nov. 18, 2009). In this discovery
dispute, the defendants filed an amended motion to compel disclosure following the plaintiff’s
failure to produce electronic files in native format. The plaintiff argued that its production of the
documents in PDF format fulfilled Fed.R.Civ.P. 34(b)’s "reasonably usable" requirement because
the defendants failed to define "native format." Citing numerous cases, the court found that "native
format" is not an ambiguous term. Although some native format production requests may be
"overbroad and unduly burdensome," the responding party must object and specify the alternative
form it intends to use. Because the plaintiff failed to make an objection, the court granted the
defendants’ motion and ordered the plaintiff to reproduce electronic documents in native form.
� In re Zurn Pex Plumbing Prods. Liab. Litig., 2009 WL 1606653 (D. Minn. June 5, 2009). In this
property damage litigation, the plaintiffs requested a search using 26 keywords of the e-mail
accounts belonging to the defendants’ employees who had received litigation hold notices, and
also requested a search of two shared drives and DVDs. The defendants argued that the
information was not necessary for the plaintiffs’ class certification and that the requested
production would be overly broad and costly as it would consist of nearly 27 million pages, take
approximately 17 weeks and cost $1,150,000 to process. Using its own calculation, the court
determined the production would consist of roughly 3.6 million pages and found the defendants’
attorney’s affidavit regarding burden unpersuasive. The court did recognize the high burden
imposed by the proposed search terms and limited the search to 14 specific terms based on the
likelihood they would produce relevant information. The court allowed the parties to decide on a
different set of search terms and reserved the defendant’s right to renew its objection if the
production proved to be too costly or overly burdensome.
� Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 4230806 (D.Minn. Nov.
29, 2007). In this claim alleging inter alia, breach of contract, the plaintiff, a commercial tenant,
brought suit against the defendant landlords. Following the issuance of the magistrate judge’s
discovery order, both parties filed objections. The plaintiff objected to the magistrate judge’s order
as it required production of an alternative database prepared for another litigation. The defendants
objected to the magistrate judge’s order to the extent that it denied the defendants’ motion to
compel the plaintiff to fulfill its discovery obligations. After conducting a Fed. R. Civ. P. 26(b) and
Zubulake analysis, the court found that the high costs associated with restoring the database did
not allow the previous discovery database to be reasonably accessible. In response, the
defendants claimed that the plaintiff should have been on notice of potential production and thus
had a duty to preserve the database due to this pending litigation. Disagreeing with the defendants’
objection, the court found the database to be relevant in any potential litigation and that specific
discovery requests did not exist to create an obligation to maintain the database. The court then
conducted a good cause analysis using seven factors as required by Fed. R. Civ. P. 26(b)(2)(B) to
determine if discovery using the database should be permitted. Despite the defendants’ concerns,
the court found that the absence of specific arguments to connect the concerns to the magistrate
judge’s discovery order could not constitute sufficient good cause to order restoration of the
database.
� State v. Wells, 2007 WL 2769686 (Minn.App. September 25, 2007). In this criminal case, the
defendant was charged with illegal dissemination and possession of child pornography and
motioned the court to compel the state to provide copies of all electronic information and a forensic
copy of his seized computer hard drive. The district court denied the motion and certified the
202

question to this court to determine whether the state is required to produce such information in a
child pornography case. The defendant argued withholding the information sought violated his right
to effective assistance of counsel and due process of law, but the court did not agree. Noting that
under federal law the state is prohibited from producing child pornography to a defendant and that
child pornography is contraband, the court affirmed the trial court’s decision.
� Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 333987 (D. Minn. Feb.
1, 2007). In a discovery dispute, the defendants appealed to the district court judge the magistrate
judge’s order which required them to produce certain electronic evidence on back-up tapes. The
defendants argued that the production of back-up tapes would be time and cost prohibitive and
thus would be unable to meet the discovery deadline. The defendants argued that technological
constraints beyond their control rendered compliance with the deadline impossible. The magistrate
judge determined that defendants had not met their burden to establish that the information sought
was not reasonably accessible because of undue burden or cost. The magistrate found that the
defendants offered “no proof, aside from conclusory statements, about the cost to obtain
documents from electronic archives” and that those concerns “cannot shield the defendants from
discovery.” The district court judge upheld the magistrate’s denial of the deadline extension
because the magistrate’s ruling was neither clearly erroneous nor contrary to law. The district court
judge held that discovery deadline modification might be warranted if compliance with the deadline
is in fact technologically impossible. However, the district court judge chose to follow the decisions
of the magistrate judge because the magistrate judge’s prior decisions regarding electronic
discovery disputes were “thorough and well-reasoned.”
� Roberts v. Canadian Pacific R.R. Ltd., 2007 WL 118901 (D. Minn. Jan. 11, 2007). In a claim
relating to a train derailment accident, the plaintiff filed a motion to compel the production of an
expert report from the defendant. During the state court proceeding, one of the defendant’s
witnesses admitted to deleting a damaging e-mail. Subsequent to that admission, the defendant
hired a computer forensics expert to determine if any e-mail had been destroyed and lost as
evidence. The plaintiff now files for production of the expert’s report in this federal action. The
defendant argues that federal law will preempt the plaintiff’s claim and, therefore, any spoliated
evidence is irrelevant to the plaintiff’s case. However, the court disagreed with the defendant’s
argument that there is “no harm, no foul” by the destroyed e-mail. The court held that it “must
insure that any ‘tradition’ of destroying derailment-related documents be discovered and brought to
an end.” The court’s order stated that the plaintiff would be able to conduct limited discovery of the
expert’s report by deposing the expert.
� 3M v. Tomar Elec., 2006 WL 2670038 (D. Minn. Sept. 18, 2006). In a patent infringement case,
the district court upheld the magistrate’s decision to award sanctions based on the defendant’s
discovery insufficiencies. In this case, the defendant repeatedly gave false testimony regarding the
existence and content of relevant e-mails of employees within his company. In addition, the
defendant failed to inquire into whether other employees had potentially relevant material, but
merely looked at his own e-mail and files. The court found the defendant “should have conducted a
reasonable inquiry into whether employees … had documents or information responsive to 3M’s
request” and that he “should have instigated a litigation hold after being notified of this litigation.”
The court held that such deliberate failure to comply with any rules of discovery warranted
sanctions that included: adverse jury instructions, negative inferences to the jury and monetary
sanctions to cover the costs of the plaintiff in bringing the motions related to the discovery and any
future depositions needed to correct the defendant’s withholdings.
203

� Olson v. International Bus. Machs., 2006 WL 503291 (D. Minn. Mar. 1, 2006). In a case involving
allegations of wrongful termination from employment, the parties filed cross-motions for summary
judgment. After terminating the plaintiff, the defendant requested the return of a company-issued
laptop and instructed the plaintiff not to make any changes to the laptop. The laptop was returned
and examined by a computer forensic expert, who found evidence of data deletion. The expert
indicated the computer’s file content was unrecoverable, but file names – several of which related
to sexually explicit material – were located. Following the investigation, the plaintiff admitted to
deleting data from the laptop after his termination, but testified others, including family and friends,
had used the machine. In seeking summary judgment, the defendants claimed they would have
terminated the plaintiff if they knew he was visiting Internet sites featuring sexual content. The
defendants also claimed the plaintiff’s spoliation of data was grounds for termination. In support of
his summary judgment motion, the plaintiff declared the defendants could not prove facts to
support its “after-acquired evidence defense.” The court declined to grant summary judgment for
either side and found “a factual dispute exists regarding whether [the plaintiff] is responsible for the
files found on the laptop and regarding whether [the defendants] would actually have terminated
[the plaintiff] in this situation.”
� Afremov v. Amplatz, 2006 WL 44341 (Minn. Ct. App. Jan. 10, 2006). An attorney appealed a
sanctions award prohibiting him from appearing before the district court. During discovery, the
court ordered the attorney’s client to immediately turn over his computer to a court-appointed
recipient. A computer forensic expert examined the computer and found e-mail had been deleted
on the morning the computer was handed over. The expert subsequently stated he recovered 300
e-mails that were moved and may have been archived rather than deleted. The district court
determined the attorney had instructed his client to "open the computer, turn it on and to look at
‘what was in there.’ " In sanctioning the attorney, the court found the attorney “had been ‘untruthful
to the court directly and by omission,’ had deliberately and intentionally impeded discovery and
violated the court’s order, and had engaged in the spoliation of evidence that would not have been
discovered without the services of an expert.” On appeal, the court reversed the award on the
grounds that the attorney’s due process rights had been violated as the attorney was not provided
with sufficient notice of a hearing at which sanctions might be considered.
� Foust v. McFarland, 698 N.W.2d 24 (Minn. Ct. App. 2005). The defendants appealed an $11
million jury verdict in a personal injury lawsuit involving an automobile accident. Specifically, the
defendants argued that the trial court erred by barring evidence relating to the plaintiff’s intentional
spoliation of electronic evidence. The defendants also contended the court should have granted a
mistrial or dismissed the case with prejudice, instead of granting a spoliation adverse inference
instruction. Upon examining the plaintiff’s computer, the defendants’ computer forensic expert had
discovered evidence of child pornography, illegal downloads of intellectual property, and evidence
that a software wiping program was used in an attempt to permanently delete data from the
computer hard drive. The trial court refused to admit the evidence on the grounds that it was more
prejudicial than probative. The trial court further concluded an adverse inference instruction was an
appropriate spoliation sanction in light of the circumstances. On appeal, the appellate court
determined the trial court properly issued the adverse inference instruction and concluded that
intentional spoliation did not create “a presumption that a dismissal with prejudice of the spoiling
party’s claims is the best and fairest sanction.” The appellate court also found the spoliation
evidence was appropriately excluded as “some of the information was character assassination and
was more prejudicial than probative.”
204

� State v. Levie, 695 N.W.2d 619 (Minn. Ct. App. 2005). In a case involving allegations of attempting
to use a minor in a sexual performance, the trial court admitted evidence of the defendant’s
Internet use and of the existence of an encryption program on his computer. Specifically, the trial
court admitted parts of a computer forensic report, which revealed the defendant used search
terms such as “Lolita” relating to sex with minors. The computer forensic expert who authored the
report testified the computer also contained the text of a statute relating to sex with minors as well
as an encryption program. The expert stated the encryption program could "basically encrypt any
file" and that "other than the National Security Agency" he was not aware of anyone who could
break such an encryption. On appeal, the defendant argued that his case was prejudiced because
the court specifically used evidence of his Internet use and the encryption program in finding him
guilty. The defendant further contended these factors were unrelated to the charges in the case.
The appellate court rejected the defendant’s argument and found the evidence was appropriately
admitted, noting “the district court did exclude other and more inflammatory search terms and
phrases because it found them more prejudicial than probative…Evidence of appellant’s computer
usage and the presence of an encryption program on his computer was relevant to the state’s
case.”
� E*Trade Securities LLC v. Deutsche Bank AG, et al., No. 02-3711 RHK/AJB and No. 02-3682
RHK/AJB (D. Minn. Feb. 17, 2005). The plaintiffs – who alleged the defendants engaged in a
fraudulent securities lending scheme – sought sanctions against the defendants for “convert[ing]
the litigation process into a sport of dirty tricks and obfuscation” by allegedly destroying evidence,
suppressing discoverable material, and failing to search for responsive documents. The defendants
counterclaimed, arguing they complied with all discovery requests and requested an award of
attorney fees and costs. A magistrate judge analyzed the defendants’ duty to preserve their
computer hard drives, telephone recordings and e-mail. The magistrate found sanctions were
appropriate because the defendants acted in bad faith by permanently erasing all of the company’s
hard drives in mid-2002, despite being on notice of potential litigation in January 2002. The
magistrate also found the defendants’ failure to preserve relevant phone calls – recorded on DVDs
– warranted sanctions because they should have realized the recordings would be highly relevant
and, as a result, should have halted their recycling policy. Finally, the defendants argued they were
not obligated to halt their e-mail retention policy because they had stored the e-mail on backup
tapes. However, the magistrate found this unsatisfactory since the defendants recycled their
backup tapes every three years. The magistrate recommended an adverse inference instruction
and $10,000 in sanctions, declaring the “destruction of potentially relevant evidence … prejudiced
the plaintiffs.”
� Hypro, LLC v. Reser, 2004 WL 2905321 (D.Minn. Dec. 10, 2004). Alleging breach of various
employment and confidentiality agreements and conspiracy to misappropriate trade secrets, the
plaintiff filed a motion to preserve and protect evidence. The plaintiff claimed the defendant
installed “Incinerate,” a software wiping utility, on his company laptop that deleted 94 megabytes of
information, and returned the laptop without mentioning the deleted files. The plaintiff informed the
court that it had made a backup copy of all of the documents on the laptop prior to the defendant’s
actions, and a comparison of the backup copy with the returned laptop revealed the defendant had
deleted documents relating to his involvement in the activities at issue. Based on the plaintiff’s
allegations, the court ordered all parties to preserve and “not erase, alter, modify, or destroy” any
evidence, including e-mail and electronic documents.
� State v. Kandel, 2004 WL 1774781 (Minn. App. Aug. 10, 2004). In a criminal prosecution for
possession of child pornography, the state appealed a trial court’s order dismissing the case
205

against the defendant as a sanction for the state’s discovery violations. Pursuant to a court order,
the defendant had requested a “forensically sound” image copy of his computer hard drive, which
had been turned over to the state by someone other than the defendant. When the state failed to
comply with this and other discovery requests, the defendant moved to suppress any evidence
derived from the computer and to have the charges dismissed. Refusing to award sanctions at that
time, the district court granted the state more time to produce the disclosures. However, the state
still had not produced the requests or allowed the defendant to access the computer even after
several months had passed. As a result, the trial court granted the defendant’s motions for
suppression and dismissal. On appeal, the state argued that it did not want to lose the forensic
value of the computer by giving access to the defendant since that would violate laws prohibiting
dissemination of child pornography. Affirming the trial court’s decision, the appellate court noted,
“[a]lthough dismissal is an extreme sanction, ‘[t]he values sought to be achieved through reciprocal
discovery will be attained only if the rules are properly observed, and to this end the trial courts
must have the ability to make those obligations meaningful’.”
� In re Pemstar, Inc. Secs. Litig., Civ. No. 02-1821 (DFW/SRN) (D. Minn. Apr. 23, 2004). In a
securities fraud class action lawsuit, the plaintiffs filed a motion to compel production of
spreadsheets, electronic documents and databases in native format. In support of its argument, the
plaintiffs declared that the “usual course of business” requirement set forth in Fed. R. Civ. P. 34
should be interpreted as requiring production of the data in native format. The defendants claimed
that the production format should be either paper, TIFF or PDF and argued that Fed. R. Civ. P. 34
does not require native production and TIFF production would adequately address any of the
plaintiffs’ concerns about retaining metadata and file structure. The court ordered the defendants to
produce a sub-set of documents in native format, stating that “production of electronic discovery in
native format is appropriate, feasible, and important under the circumstances of this case.” The
court further noted that in this case the substantive allegations were based upon an employee’s
native Lotus Notes file, making it “most useful to the fact finder to view, understand, and step into
the shoes of the information source that actually provided the alleged knowledge and access.”
� Anderson v. Crossroads Capital Partners, L.L.C., 2004 WL 256512 (D.Minn. Feb. 10, 2004). In
a sexual harassment and whistleblower lawsuit, the defendants sought to recover the hard drive of
the plaintiff’s personal computer because it allegedly contained an October 2001 document
outlining the harassment. After a protracted discovery battle, the defendants sought a Motion to
Compel and the judge ordered the plaintiff to furnish the defendant with a "copy of all
documents/files relevant to this litigation that exist on Ms. Anderson’s personal computer as well as
those that have been deleted or otherwise adulterated." Pursuant to the judge’s Order, the
defendants’ computer forensic expert examined the plaintiff’s hard drive and discovered that a data
wiping software application had been installed after the plaintiff had agreed not to “delete any
existing documents” in a deposition. The computer forensic expert also found that the hard drive
installed in the machine was manufactured in August 2002. The plaintiff claimed that she did not
use the software program to destroy evidence, but that she used it routinely to protect her
computer files. She also stated that in her view she owned the same computer throughout the
litigation despite changing the hard drive in 2002. The defendants then moved to dismiss the
complaint due to the plaintiff’s alleged discovery violations and destruction of evidence. The court
noted that the plaintiff’s “exceedingly tedious and disingenuous claim of naiveté! regarding her
failure to produce the requested discovery…defies the bounds of reason” but was not sufficiently
egregious to warrant dismissal of the case. Instead, the court issued an adverse inference jury
206

instruction because the plaintiff intentionally destroyed evidence and attempted to suppress the
truth.
� Star Tribune v. Minn. Twins Partnership, 659 N.W.2d 287 (Minn. Ct. App. 2003). In litigation
between a sports facilities commission and a professional baseball team, three media companies
brought a motion to intervene and modify a protective order, which protected all assertedly
confidential material. The media companies sought access to discovery materials, including a CD-
ROM containing 9,000 documents held by the commission. The appellate court denied the media
companies’ request and determined the trial court was within its discretion in entering the
protective order. The appellate court further concluded the protective order denied the media
companies’ the right to access the CD-ROM pursuant to a state statute.
� Kerber v. Dairy Queen Operators Ass’n, 2003 WL 21694395 (Minn. Ct. App. July 22, 2003).
After being fired for violating a company computer use policy by instant messaging a co-worker, an
employee applied for unemployment benefits. The employment department denied her benefits on
the grounds that she was terminated for employment misconduct, namely the unauthorized instant
messaging. An unemployment-law judge affirmed the decision. Although several lines of the
employee’s instant message were not work-related, most of the message was devoted to whether
Good Friday was a paid holiday. The employment commissioner’s representative reversed,
deciding that, while her conduct may have been inadvertent or negligent, it did not rise to the level
of employment misconduct. The employer appealed the decision, arguing a company handbook
prohibited an employee’s "personal use" of work computers, although the handbook did not
explicitly prohibit instant messaging. The handbook also provided an e-mail policy that directed the
e-mail system “may not be used for personal business." On appeal, the court affirmed the
commissioner’s decision, noting “the handbook does not put employees on notice that instant
messaging or e-mail is prohibited among co-workers concerning work-related topics.”
� Antioch v. Scrapbook Borders, Inc, 210 F.R.D. 645 (D.Minn. 2002). In a copyright infringement
action, the plaintiff moved for issuance of an order directing the defendant to: preserve records,
expedite discovery, compel discovery, and appoint a neutral computer forensics expert.
Emphasizing the potential for spoliation of the computer data, the court stated “we conclude that
the defendants may have relevant information, on their computer equipment, which is being lost
through normal use of the computer, and which might be relevant to the plaintiff’s claims, or the
defendants’ defenses.”
� Moench v. Red River Basin Board, 2002 WL 31109803 (Minn. Ct. App. Sept. 24, 2002). The
plaintiff was forced to resign from his executive director position after being confronted with
allegations that pornographic images were found on his computer. The plaintiff’s employer used a
computer forensic expert to investigate the pornographic material stored in the cache file of the
plaintiff’s computer. Given that the plaintiff’s employment was terminated for cause, the
Commissioner of Economic Security refused to issue unemployment benefits. The appellate court
reversed the denial of benefits stating that the evidence in the record did not support the finding
that the plaintiff intentionally downloaded or stored any pornographic material on his computer.
� The Gorgen Co. v. Brecht, 2002 WL 977467 (Minn. Ct. App. May 14, 2002). The plaintiff brought
suit against former employees for misappropriation of trade secrets. Prior to serving the complaint,
plaintiff obtained a TRO, which prohibited the defendants from destroying or altering electronic
documents and provided for expedited discovery of relevant electronic data. The Appellate Court
found that the district court abused its discretion by issuing the TRO and by denying the
defendants’ motion to dissolve it. The Appellate Court stated, “Although the TRO seems
207

easonable on its face…this issue cannot be resolved at this early stage of the litigation without a
showing of irreparable harm or without complying with the rules of procedure.”
� In re St. Jude Med., Inc., Silzone Heart Valves Product Liab. Litig., 2002 WL 341019 (D. Minn.
Mar. 1, 2002). The court entered a pretrial preservation order to address the parties’ obligation to
preserve documents (including but not limited to electronic data, backup tapes and e-mail). The
order prohibited "the routine erasure of computerized information potentially relevant to the subject
matter of this litigation," but stated that "[t]he full and complete back-up of any server or other
computer on a periodic basis (e.g. monthly) shall relieve the party of any obligation to maintain any
interim backups of the same server or other computer."
� Northwest Airlines v. Local 2000, C.A. No. 00-08DWF/AJB (D. Minn. Feb. 2, 2000) (Order on the
defendants’ Motion for Protective Order and the plaintiff’s Motion to Compel Discovery); Northwest
Airlines v. Local 2000, C.A. No. 00-08DWF/AJB (D. Minn. Feb. 29, 2000) (Memorandum Opinion
and Order). The court ordered the plaintiff’s expert to act as a neutral third party expert; on behalf
of the court, the expert collected and imaged the defendants’ personal hard drives and provided
the parties with a complete report of all data “deemed responsive.” The court issued detailed
protocol for conducting the electronic discovery.
� Lexis-Nexis v. Beer, 41 F. Supp. 2d 950 (D. Minn. 1999). Employer sued former employee for
misappropriation of trade secrets. Court issued monetary sanctions against former employee
where former employee failed to produce a specific copy of an electronic database he made at the
time of his resignation.
� State of Minnesota v. Phillip Morris, 1995 WL 862582 (Minn. Ct. App. Dec. 26, 1995). Petitioners
seek relief from a trial court’s discovery order claiming that the material is attorney work product.
The trial court made specific findings that (a) the computerized databases include fields containing
objective information, (b) release of the specified information will not reveal the impressions,
opinions, or theories of counsel, and (c) respondents have met the standards for disclosure. Both
the trial court and the court of appeals found unpersuasive the Petitioners’ argument that the mere
selection of documents for inclusion in the database would reveal attorney strategies.
Missouri
� Custom Hardware Eng’g & Consulting, Inc. v. Dowell, 2012 WL 10496 (E.D. Mo. Jan. 3, 2012).
In this trade secret litigation, the plaintiff submitted a discovery proposal that accounted for
acronyms and misspellings of specified search terms. The defendants objected, believing such
terms were overbroad and offered their own proposal that required precise matches of the search
terms. Responding, the plaintiff objected that the defendants’ proposal was unduly narrow and
likely to prevent the production of discoverable ESI. Before analyzing the parties’ claims, the court
advised the parties to exercise greater civility to avoid putting the court “in the position of having to
craft keyword search methodology without adequate information.” Responding, the court found that
each of the defendants’ concerns lacked evidence to substantiate their “fears” of producing
irrelevant or privileged documents, further noting that the plaintiff’s requests were well within the
defendants’ duty to produce all responsive information. Additionally, when reviewing the
defendants’ proposed list, the court found that requiring exact keyword matches would fail to
produce relevant documents, effectively stifling the plaintiff’s discovery efforts. As such, the court
ordered that discovery be conducted according to the plaintiff’s proposed search terms.
� Monsanto Co. v. E.I. DuPont de Nemours & Co., 2011 WL 1004852 (E.D. Mo. Mar. 18, 2011). In
this intellectual property litigation, the defendants moved to compel production in response to the
208

plaintiffs’ alleged failure to meet the terms of a stipulated preservation and production agreement.
Contending the defendants’ interpretation of the agreement was overbroad, unrealistic and a
moving target, the plaintiffs argued their obligations were satisfied by interviewing all stipulated
custodians except former employees. Although the court agreed with the plaintiffs’ narrower
interpretation, it characterized the plaintiffs’ decision not to interview former employees as "an
inadequate and unsupportable excuse" and concluded the plaintiffs failed to comply with the
custodian protocol required by the agreement. However, finding an order to fully comply at this
point in the litigation would likely do "violence," and that the parties might already have received the
requested information in late productions, the court instead ordered the parties to meet and confer
and report any agreement concerning how to proceed with non-expert discovery, after which time
the court will rule on the 12 categories included in the defendants’ motion to compel.
Trickey v. Kaman Indus. Techs. Corp., 2010 WL 5067421 (E.D. Mo. Dec. 6, 2010). In this
employment discrimination litigation, the plaintiff sought production of all relevant electronic
communications, alleging the defendants failed to adequately preserve electronic data in
anticipation of litigation. Employees of the defendants manually selected and preserved documents
and e-mails contained in the live database or archive that they deemed potentially relevant instead
of preserving a mirror image of the e-mail server and relevant data sets. Although concerned by
the defendants’ failure to create a mirror image, the court declined to issue sanctions as the plaintiff
made no spoliation claims and the defendants made considerable remedial efforts by hiring an
independent forensic computer expert to examine the electronic data for relevant information.
Based on this retention of the forensic IT consultant and efforts to search existing data, the court
agreed that the requested documents no longer existed and denied the motion to compel unless
the plaintiff could identify now-existing databases that were not previously searched.
� Secure Energy, Inc. v. Coal Synthetics, 2010 WL 597388 (E.D.Mo. Feb. 17, 2010). In this
business dispute, the plaintiffs sought production of electronic engineering drawings in native
format with metadata. The plaintiffs argued that the definition of “documents” in previous discovery
requests included ESI, that they were under the impression the defendants agreed to produce the
files and that the terms of a proposed joint scheduling plan entitled them to native production.
Citing Fed.R.Civ.P. 34, the court determined the defendants were not obligated to produce the
drawings in native format since the plaintiffs failed to identify a specific format in their requests. The
court also found the plaintiffs’ motion untimely, since they waited until two months after the
discovery and motion to compel deadlines had passed. Finally, the court recognized that expert
testimony may be required regarding retrieval and interpretation of the metadata from the drawings
and determined the defendants would be prejudiced if the plaintiffs’ request was granted. Thus, the
court denied the plaintiffs’ motion and held the defendants fulfilled discovery obligations by
producing the drawings in PDF format.
� Am. Boat Co., Inc. v. Unknown Sunken Barge, 2008 WL 1821486 (E.D.Mo. April 22, 2008). In
this negligence action, the plaintiffs moved to reopen the time to file an appeal claiming the
plaintiffs’ attorney did not receive the electronic notice of the court order. The defendants’ computer
forensic expert imaged the computer hard drive belonging to the plaintiffs’ counsel and found no
evidence the notice had ever been on the computer system. Based on his investigation, the expert
opined the notice was successfully sent, but was removed from the server after the attorney’s
secretary accessed the e-mail from a remote computer using the internet Post Office Protocol. The
court found that proof an e-mail is not in a recipient’s possession is insufficient to rebut the
presumption that a generally reliable, properly dispatched e-mail reached its intended recipient.
209

� Claredi Corp. v. SeeBeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007). In a breach
of contract claim, the plaintiff moved the court to order sanctions against the defendant for
discovery misconduct. The plaintiff requested e-mail and documents from the defendant related to
its dealings with competitors in the field. The defendant vehemently denied the existence of any emails
or agreements with third parties and refused to search its systems or archived databases.
The plaintiff obtained e-mail records from the third-party competitors and discovered that the
defendant had, in fact, communicated and contemplated agreements with the third-party
competitors. The plaintiff argued that sanctions in the amount of $317,000 should be awarded to
cover the plaintiff’s fees and expenses in bringing the discovery motions. The defendant argued
that the plaintiff’s claims were “merely a boy crying wolf, unnecessarily taking up the Court’s time
on baseless accusations.” The court agreed with the plaintiff and issued sanctions because the
documents were material to the plaintiff’s case, finding the defendant’s discovery compliance “to be
dilatory and inadequate.” The court stated that the case was filed almost two years ago and the
defendant “has yet to run appropriate searches on its archived database for responsive
documents, a search that should have been completed long ago.” The court awarded the plaintiff
$54,000 for its fees and costs related to bringing the motion to compel and issued sanctions in the
amount of $20,000.
� Self v. Equilon Enter., 2007 WL 427964 (E.D. Mo. Feb. 2, 2007). In a drawn-out litigation
spanning more than six years, the plaintiffs filed a motion to compel the discovery of additional
electronic documents and e-mail from the defendants. The defendants already produced over
16,000 e-mails taking hits on search terms provided by the plaintiff. The plaintiff argued that in the
latest production of e-mails, the defendants withheld or “cherry-picked” relevant e-mails. The court
denied the plaintiffs’ motion to compel, stating that they did not show that the need for further
electronic discovery outweighed the burdens and costs of locating, retrieving, and producing more
electronic discovery. Additionally, the court found no evidence that the defendant was “cherry
picking” relevant e-mails during discovery disclosure. However, the court held that if after
completing their review of the produced e-mails the plaintiffs locate any "smoking gun" e-mails
showing the defendants withheld relevant documents then the court would reconsider the denial of
the plaintiffs’ motion.
� Ameriwood Industries, Inc. v. Liberman, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006). In a suit
alleging misappropriation of trade secrets inter alia, the plaintiff sought e-mails from the defendants
containing specific communications related to the claims. After the defendants failed to produce an
e-mail, which was subsequently discovered by the plaintiff, the plaintiff motioned the court for an
order to compel the defendants to produce computer hard drives for imaging. The plaintiff not only
requested all work-related computers, but any home computers that may have been used to
transmit the trade secrets. The plaintiff argued it was entitled to the hard drives even if information
was deleted since the computers might contain evidence that went to the heart of the claims. The
defendants argued the costs involved would be substantial and imaging should not be completed.
The court determined the data requested was not reasonably accessible because of undue burden
and cost. However, the court closely examined the newly implemented Federal Rules of Civil
Procedure and determined there was good cause for the plaintiffs to search the defendants’ hard
drives since “allegations that a defendant downloaded trade secrets onto a computer provide a
sufficient nexus between plaintiff’s claims and the need to obtain a mirror image of the computer’s
hard drive.” The court then provided detailed guidance for the mirror-imaging process and
discovery of documents on the defendants’ hard drives. It instructed the plaintiff to choose a
qualified computer forensics expert and required the defendants to produce all hard drives,
210

including those from their homes. A disclosure process, including provisions regarding production
of documents and privilege issues, was also ordered.
� In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006). In this
multi-district litigation regarding two prescription drugs, the parties agreed to a document
management plan which the court incorporated into its order. The parties established that the
plaintiffs would preserve the hard drives of computers used by the plaintiffs and the plaintiffs’
decedents, and such hard drives would be imaged and analyzed pursuant to an agreed forensic
examination protocol. The parties also decided the defendants would not be required to restore any
of their backup tapes at this time, and instead, responsive electronically stored information would
be collected from the defendants’ active IT environment. They must preserve the thirty-five backup
tapes set aside for this litigation, but may otherwise resume backup tape recycling. The plaintiffs
deferred the production format decision to the defendants and allowed them to produce data in any
format that is generally searchable and manageable. The parties were unable to agree on how
costs should be apportioned, the scope of discovery into electronic databases, and who should
perform the forensic examination of the computer hard drives. The court determined it would
decide these issues after more briefing by the parties.
� State v. Tripp, 168 S.W.3d 667 (Mo. Ct. App. 2005). The defendant appealed a murder, rape and
kidnapping conviction, arguing the trial court erred in admitting evidence regarding the contents of
his laptop. The defendant alleged, inter alia, the testimony was legally irrelevant and that its
prejudicial effect outweighed any probative value it might have had. At trial, the State’s computer
forensic expert testified that a significant amount of unallocated space remained on the hard drive
and that the space was filled with zeros. The expert also uncovered a reference to “wipinfo.exe” in
the computer’s swap file on the hard drive. Based on these factors, the expert concluded that a
wiping utility was used on the computer and that 160 files had been accessed, modified or deleted
the day the victim disappeared. The defendant’s computer expert argued it was impossible to
distinguish between a hard drive on which a wiping utility had been used and a hard drive on which
the unallocated space was in the same condition as it was when the manufacturer delivered it. On
appeal, the court noted the “State’s position would be stronger if there had been any testimony or
other evidence that suggested that the laptop ever had anything on it that would connect [the
defendant] with the offenses for which he was being tried.” Despite this, the court affirmed the trial
court’s judgment, stating that admission of the testimony and evidence did not constitute plain error
as the state only made a passing reference to the free space on the computer and the evidence of
a wiping utility.
Nebraska
� Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL 2560455 (D.Neb. June 24,
2010). In this environmental contamination dispute, the plaintiff sought a temporary restraining
order and preliminary injunction against the Environmental Protection Agency (EPA). Seeking to
evaluate the merits of the EPA’s lead contamination claim, the plaintiff requested information
pursuant to the Freedom of Information Act (FOIA). Based on information contained in e-mails
gathered from the initial disclosure, the plaintiff argued that an EPA supervisor ordered employees
to destroy information responsive to the plaintiff’s FOIA requests and "relevant in future
enforcement actions." Granting the temporary restraining order to prevent further destruction of
evidence, the court ordered the defendant to produce all relevant data and designate "an individual
211

well acquainted" with its technology, electronically stored information systems and management
structure to ensure proper enforcement of the order.
� Seger v. Ernest-Spencer Metals, Inc., 2010 WL 378113 (D.Neb. Jan. 26, 2010). In this personal
injury case, the defendants requested production of a non-party’s e-mails and previously produced
privileged documents. In support of their motion, the defendants argued that the information sought
was not privileged, but if it was, any claim of privilege had been waived. Recognizing the nonparty’s
failure to take reasonable precautions to prevent inadvertent disclosure of privileged
information and its lack of promptness in asserting a claim of privilege, the court found the
disclosure to be “knowing and intentional” and granted the defendants’ motion to compel. Turning
to the production issue, the court largely disagreed with the non-party’s undue burden argument
with respect to the two disputed production requests. The court found that narrowing the search
terms would provide the necessary limitations on the request and left open the resolution of costshifting
pending more accurate estimates.
� GP Indus., LLC v. Bachman, 2008 WL 1733606 (D.Neb. April 10, 2008). In this patent litigation,
the court reconsidered the plaintiff’s motion for sanctions and to compel after the defendant
produced approximately 3,000 pages of documents “in a jumbled fashion” and refused to identify
which documents were responsive to which document requests. The defendant argued the
documents were produced as they were kept in the ordinary course of business and submitted an
index. Finding the index to be untimely and unhelpful, the court determined the defendant did not
comply with the previous court order. Additionally, the court ordered the defendant to identify the
responsiveness of each document or potentially face the imposition of sanctions. The court also
awarded the plaintiff costs associated with bringing the motion to compel.
� Kellogg v. Nike, Inc., 2007 WL 4570871 (D.Neb. Dec. 26, 2007). In this patent infringement suit,
the plaintiff filed a motion to compel, alleging the defendants’ response to production requests was
“slow and evasive” in regard to electronically stored information. The plaintiff also sought
documents from a privilege log allegedly created prior to the defendants’ knowledge of the
impending litigation. In regard to the first issue, the plaintiff argued that the defendants failed to
provide information regarding document retention and preservation policies. Subsequent to the
filing of the motion, the plaintiff deposed a Rule 30(b)(6) witness regarding the defendants’
document retention policy. At the time of the hearing, the plaintiff did not dispute he had all the
information sought with regard to information document storing. As such, the court did not compel
the defendants to supplement their discovery responses. Because of the plaintiff’s failure to make a
good faith effort to resolve the discovery issue and the defendants’ willingness to produce the
requested information, the court refused to impose sanctions. In regard to the privilege log, the
plaintiffs argued that privilege did not apply as the documents were generated before the threat of
litigation and the underlying facts are not privileged. The court disagreed with the plaintiffs in that
the document creation date controlled the privilege analysis and held that the documents were
protected by the attorney-client privilege and therefore not discoverable.
� Bd. of Regents of the Univ. of Nebraska v. BASF Corp., 2007 WL 3342423 (D.Neb. Nov. 5,
2007). In this breach of contract case, the defendant moved to impose sanctions against the
plaintiff for violation of an earlier court order compelling document production. The defendant’s
request included full compliance by continued search and production of employee files, certification
of full compliance by plaintiff, reproduction of witnesses for deposition as well as reasonable fees
and expenses. The record revealed that the plaintiff continued to produce documents following the
discovery deadline and an additional 6,000 pages following the deposition of the plaintiff’s
witnesses. In fact, one of the plaintiff’s witnesses testified during his deposition that while the
212

litigation was pending, he had not received a litigation hold notice but was rather encouraged to
review and eliminate as many files as he could. The court determined that such lack of compliance
with the motion to compel was not willful but that the plaintiff’s counsel was far from diligent in
complying with the order. The court held that as the litigation was pending at the time of the
destruction, bad faith was not required for sanctions and ordered the plaintiff to pay for all costs
and expenses associated in re-deposing witnesses and the filing of this motion.
� United States v. Jackson, 2007 WL 1381772 (D. Neb. May 8, 2007). In a criminal case, the
defendant filed a motion in limine to exclude evidence of chat room conversations. At the
conclusion of each chat room session, an undercover police officer conducting the chat room
conversation would cut-and-paste the entire conversation into a word document for later review.
However, a computer forensics expert testified that this cut-and-paste method created several
errors and that several portions of the defendant’s conversations were omitted. The defendant
argued the omitted portions of the transcript contained evidence relating directly to his intent and
should not be admitted as evidence. The court found that the cut-and-paste document was not
admissible evidence at trial because it was not authentic under the Federal Rules of Evidence. The
government did not prove the proper foundation to show that the cut-and-paste transcript was a
trustworthy source of evidence. Additionally, the court found that the transcript was not the “best
evidence” as required by the Federal Rules of Evidence. Although original duplicate documents
may be admitted as evidence in lieu of original documents, they still must be an accurate reflection
of the original’s content. The court found the cut-and-paste document offered by the government
could not be proven to be an accurate reflection of the original chat room discussions.
� United States v. Bailey, 272 F. Supp. 2d 822 (D.Neb. 2003). The FBI suspected that an employee
within American Family Insurance was distributing child pornography using his company e-mail
account. Pursuant to a subpoena, American Family Insurance accessed the contents of the
defendant’s e-mail account and reported to the FBI that pornographic images were found. Based
on this information, the FBI issued a warrant to search the defendant’s office space and computer.
The defendant moved to suppress evidence of child pornography located during the search of his
work computer. The court held that the defendant did not have an expectation of privacy in the
information stored on his work computer given his employer’s practices, procedures, and regulation
over the use of the computer property. Specifically, the company had a log-in notice that warned of
possible monitoring or searching and required users to click "OK" to proceed. The employer also
posted company computer-use policies on its intranet site and sent e-mail notification to all users
reminding them to read the policy.
North Dakota
� Executive Air Taxi Corp. v. City of Bismarck, North Dakota, 2008 WL 564725 (8th Cir. Mar. 4,
2008). In this §1983 discrimination claim, the plaintiff claimed the defendant violated its
constitutional rights to equal protection of the laws, causing a diminution in the value of its
business. The plaintiff sought a forensic inspection of the defendant’s laptop, claiming such was
necessary to search for e-mail not produced in discovery. The defendant argued that it had a
rational basis for preferring other businesses over the plaintiff, namely generating revenue for the
city. The defendant further argued against a forensic inspection, claiming it produced all relevant email
and such inspection could produce confidential or privileged information. The defendant filed a
motion for summary judgment which was granted by the district court and upheld by the United
States Court of Appeals for the Eighth Circuit.
213

� In re Ward, 701 N.W.2d 873 (N.D. 2005). A hearing panel found an attorney violated a state
professional responsibility rule in failing to maintain duplicate records or electronic backup to
account for portions of money placed in a client’s trust account as an advance on future fees. The
attorney argued the client’s sister took the original fee record out of the client’s file, and a computer
virus destroyed the backup record. The court found the attorney violated the rule and stated,
“[a]lthough it is unfortunate that a computer virus destroyed Ward’s backup billing record files, it
does not relieve him of his duty to maintain records.”
� Bertsch v. Duemeland, 639 N.W.2d 455 (N.D. 2002). In an action alleging tortious interference
with a business relationship, the appellate court affirmed a lower court’s denial of the plaintiff’s
motion to compel discovery of data from some of the defendant’s computers. Specifically, the court
denied the plaintiff access to computers purchased by the defendant after the transaction that gave
rise to the litigation. The court reasoned that the resulting data could not be relevant to the case,
and that granting access “would not lead to relevant information” and “could result in disclosure of
privileged and confidential information.” The court had previously permitted e-discovery of the
defendant’s computer that was owned at the time of the alleged torts.
South Dakota
� Benson, M.D. v. Sanford Health, 2011 WL 1135379 (D.S.D. Mar. 25, 2011). In this discovery
dispute, the plaintiff filed a fourth motion to compel seeking production of a single e-mail. Asserted
that its e-mail retention policies and document destruction cycles would have destroyed any such
e-mail – if it ever existed – years before the plaintiff’s request, the defendant nevertheless
attempted to locate and retrieve the e-mail. Discrediting the plaintiff’s "counterproductive
overstatement and half truth," the court determined the plaintiff’s "picture of her own ‘pure driven
snow’ innocence and [the defendant’s] dastardly evasion" and description of the first three motions
were inaccurate. Instead, the court acknowledged the defendant’s efforts and characterized the
fourth motion as duplicative to an order previously denied. Finding a strong probability that the email
no longer existed anywhere on the defendant’s laptops, networks, backup tapes or in hard
copy, and concluding there was nothing else the defendant could reasonably do, the court denied
the motion and awarded attorney fees to the defendant.
� United States v. Two Bank Accounts, 2008 WL 2696927 (D.S.D. July 2, 2008). In this litigation
seeking forfeiture of two specific bank accounts, the government filed a motion to compel seeking
production of requested electronic information and production of specified computers used in
transactions alleged in the complaint for imaging. Appearing pro se, the defendant, who asserted
an interest in some of the potentially forfeited accounts, filed a motion to deny requests for
production, claiming undue expense. Finding insufficient facts to establish undue burden or
expense given the government’s ability to travel to the relevant computers and willingness to copy
the relevant documents at their own expense, the court granted the motion to compel. Additionally
the court sternly reminded the defendant that discovery is “not a game” but is a “two-way street”
that must be diligently followed. See also United States v. 11 Bank Accounts, 2008 WL 2660969
(D.S.D. July 2, 2008).
� United States v. Luken, 2007 WL 2428656 (D.S.D. Aug. 21, 2007). In a criminal prosecution for
possession of child pornography, the defendant argued that he was not in possession of
contraband materials because he did not possess forensic software necessary to access the illegal
images in question. Denying the defendant’s motions to suppress evidence and dismiss the
indictment, the court found that evidence of the defendant’s purposeful downloading and saving of
214

the illegal images onto his computer hard drive, in order to view them in thumbnail format, was
sufficient to establish knowing possession.
215

� State v. Guthrie, 627 N.W.2d 401 (S.D. 2001). In a criminal prosecution for murder, a computer
specialist conducted several forensic searches on a computer used by the defendant, finding that
the computer had been used to conduct numerous Internet searches on subjects related to the
incidents surrounding the murder. In addition, the forensic analysis was able to reveal that a
computer printed suicide note, offered to exculpate the defendant, was created several months
after the victim’s death. State v. Guthrie, 654 N.W.2d 201 (S.D. 2002). Anticipating that the State
would not have time to thoroughly examine the evidence against the defendant for murdering his
wife, Defense counsel failed to disclose the victim’s purported computerized suicide note during the
discovery period. The appellate court affirmed the trial court’s finding that defense counsel acted in
bad faith by holding this evidence back from discovery. The appellate court also held that the fees
of the State’s computer forensic expert were reasonable because the expert was highly qualified in
computer forensics.
Ninth Circuit – State and Federal Cases
� Suzlon Energy Ltd. v. Microsoft Corp., No. 10-35793 (9th Cir. Oct. 3, 2011). In this civil fraud
proceeding, the appellant objected to the district court’s holding that denied production of e-mails
sent by an Indian citizen (a former employee of the appellant) via his Hotmail account. Previously
the district court did grant production, but then reconsidered following Microsoft’s objections. The
district court disagreed with two of these objections, including that the documents sought must be
discoverable in the foreign proceeding and that the subpoenas must be compliant with the Federal
Rules of Civil Procedure, but agreed with the third objection that raised the Electronic
Communications Privacy Act (ECPA). This ruling forms the basis of the plaintiff/appellant’s
objection. Upon appeal, the United States Court of Appeals for the Ninth Circuit analyzed the
statutory framework of the ECPA and determined that “any person” as defined in § 2510(13) of the
ECPA extends protection to literally any person, including foreign citizens. Based on this plain text
reading of the statute, the court upheld the district court’s ruling finding the ECPA protects the
domestic communications of noncitizens.
� In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. Nov. 16, 2010). In this securities litigation,
the plaintiffs appealed a summary judgment order entered for the defendants, contesting the
adequacy of adverse inferences given regarding the defendants’ willful failure to preserve the
CEO’s e-mails and taped discussions. The plaintiffs argued the adverse inferences should have
been “sufficient to defeat a challenge to the insufficiency of their prima facie case,” instead of
merely that the e-mails and tapes would have proved the defendants’ knowledge of any material
facts the plaintiffs established. While more than 2.1 million documents were produced during
discovery, the court found that the plaintiffs were unable to glean any material issues of fact from
these documents or from depositions and written discovery, and that the plaintiffs’ problem resided
in the “dearth of admissible evidence” to demonstrate fraud. Accordingly, the court found the
sanction was carefully fashioned with no abuse of discretion to deny the defendants any benefit
from their preservation failures. Further asserting that “[i]t behooves litigants, particularly in a case
with a record of this magnitude, to resist the temptation to treat judges as if they were pigs sniffing
for truffles,” the court ultimately affirmed summary judgment for the defendants.
� Truckstop.net, LLC v. Sprint Corp., 2008 WL 4710681 (9th Cir. Oct. 28, 2008). In this contract
dispute, the defendant filed an interlocutory appeal following the district court’s order. The district
court’s order redacted privileged portions of an inadvertently produced e-mail but found that other
216

portions of the e-mail were not protected by the attorney-client privilege. Finding a lack of appellate
jurisdiction under the collateral order doctrine because the privileged information had already been
disclosed, the court dismissed the appeal. The court noted that while the disclosure of the e-mail
was unfortunate, “the chicken has already flown the coop – the alleged harm from disclosure has
already occurred.”
� Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008). In this case, the
plaintiffs appealed the district court’s ruling, claiming the defendants violated the Stored
Communications Act (“SCA”) and their Fourth Amendment rights by producing plaintiff’s text
messages to the police department. The police department claimed it sought the plaintiffs’ text
message transcripts to determine if the usage overages the plaintiffs incurred were due to personal
messages. Categorizing the defendant service provider as an “electronic communication service”
(ECS) that knowingly provided transcripts of the text messages to the defendant City who was
merely a “subscriber” and not “an addressee or intended recipient of such communication,” the
court determined the defendant violated the SCA and remanded the case to the district court. The
court also agreed with the plaintiffs that the search violated the Fourth Amendment, finding that the
plaintiffs had a reasonable expectation of privacy in the text messages stored on the service
provider’s network and that the search was conducted unreasonably and intrusively.
� United States v. Giberson, 527 F.3d 882 (9th Cir. 2008). In this criminal conviction appeal, the
appellant argued that the trial court erred in denying his motion to suppress incriminating evidence
found on his computer. The computer was seized via a search warrant for documents and records
relating to child support obligation failures, and was forensically searched under a warrant for
evidence of fraudulent activities. The appellant argued that the general principle that a search
warrant for materials authorizes the search of objects that may contain those materials should not
apply to computers because computers contain an enormous volume of data, likely contain
irrelevant personal data, and likely contain First Amendment-protected data. Also, the appellant
argued that the forensic search of his computer should have been limited to files likely to contain
documents relevant to the search warrant’s purpose. Finding the appellant’s technology-based
arguments to be unpersuasive, the court held that a search warrant describing a document
reasonably likely to be contained on a computer authorizes the seizure of that computer. The court
also cited precedent which reasoned that a forensic search methodology limited to certain files is
unreasonable since computer records are extremely susceptible to tampering, hiding or
destruction. Subsequently, the court upheld the trial court’s decision not to suppress the computer
evidence and the appellant’s conviction.
� Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006). In a discrimination suit based on an ADA
claim, the plaintiff appealed sanctions against him for evidence spoliation involving the deletion of
2,200 files from his work-issued laptop. The defendant’s computer forensic expert determined the
plaintiff intentionally wiped the laptop’s hard drive before turning it over to defendant for
examination. The plaintiff admitted to running a program designed to delete any files from the
unallocated space on his hard drive but argued that the deletion was only performed to protect his
privacy interests. The court, however, stated the plaintiff had “ample notice” to preserve any
relevant evidence and “the files he destroyed were not merely ‘private’ and were potentially
relevant to the litigation at hand.” The appellate court determined that the district court did not
abuse its discretion when determining that the plaintiff acted in bad faith in destroying electronic
files and that defendant was prejudiced because of such destruction. The court agreed further that
lesser sanctions would not be useful since any attempts to rectify the harm done by plaintiff would
be “futile.” Therefore, dismissal was proper.
217

� U.S. v. Ziegler, 456 F.3d 1138 (9th Cir. 2006). In an appeal from Montana district court, defendant
claimed that child pornography and other information found on his workplace computer was
protected as private information under the 4th Amendment. Plaintiff argued that a workplace
computer is much like a locked desk drawer in an office and that a similar expectation of privacy
should follow. However, the government argued that no employee can possibly have an
expectation of privacy when the computer and internet access is paid for by the employer and
when there is an entire company department dedicated to monitoring employee’s internet use. The
court held that the defendant could not have an objective expectation of privacy since his employer
published and practiced a computer monitoring policy. The court noted that the defendant’s
personal password protection did not increase privacy expectations. Furthermore, the court stated
that if the employer did not have a properly practiced policy in place, than an objective expectation
of privacy may have existed for defendant. However, the court concluded “[s]ocial norms suggest
that employees are not entitled to privacy in the use of workplace computers.”
� Barton v. United States, 2005 WL 1355481 (9th Cir. June 9, 2005). In a suit relating to an
antidepressant drug, the trial court denied the plaintiff’s writ of mandamus to prevent disclosure of
answers to a law firm questionnaire completed online by prospective clients. The trial court’s
decision rested on a disclaimer on the bottom of the questionnaire that stated filling out the
questionnaire "does not constitute a request for legal advice and that I am not forming an attorney
client relationship by submitting this information." On appeal, the court reversed the trial court’s
decision and determined the questionnaire answers were submitted in the course of prospective
attorney-client relationship and were thus confidential and protected by the attorney-client privilege.
� United States v. Gordon, 393 F.3d 1044 (9th Cir. 2004). After discovering missing stock shares,
an employer suspected embezzlement and requested the defendant’s laptop computer for
examination. The employer specifically told the defendant not to delete anything from the hard
drive. A computer forensic analysis revealed the defendant attempted to overwrite files on the
computer by running “Evidence Eliminator,” a software wiping program, at least five times the night
before he turned over the computer. The defendant was convicted of embezzlement and ordered
to pay restitution, including reimbursing the employer for a portion of the investigation costs. On
appeal, the defendant argued the trial court should not have awarded the employer investigation
costs, including the costs of the forensic examination. The appellate court rejected this argument
and affirmed the district court’s award, noting the defendant “purposefully covered his tracks as he
concealed his numerous acts of wrongdoing from [his employer] over a period of years. As the
victim, [the employer] cannot be faulted for making a concerted effort to pick up his trail and identify
all the assets he took amid everything he worked on.”
� Theofel v. Farey Jones, 341 F.3d 978 (9th Cir. 2003), amended by, 359 F.3d 1066 (9th Cir.
2004), cert. denied, 125 S. Ct. 48 (2004). Seeking e-mail discovery, a party in a commercial
litigation issued a third party subpoena on the opposing party’s Internet Service Provider (ISP).
Instead of limiting the scope of the subpoena to particular subject matters, custodians, or time
periods, the subpoena sought all e-mail to or from the opposing party. The ISP substantially
complied, but when the opposing party learned of the subpoena, it moved to quash. The court
severely criticized the subpoenaing party for its overbroad subpoena and issued $9,000 in
sanctions. The employees of the subpoenaed party then brought a new civil suit against the
subpoenaing party and its attorney under the Stored Communications Act, the Wiretap Act and the
Computer Fraud and Abuse Act. The trial court granted a motion to dismiss the new suit, finding
that no claim was stated. The Ninth Circuit reversed and reinstated the civil suit, holding that an
overbroad subpoena is not valid especially when directed against a third party that may not have
218

the resources to oppose the subpoena. The ISP’s consent by complying with the e-mail production
was invalid since the subpoenaing party had at least constructive knowledge of the subpoena’s
invalidity and thus any consent was obtained deceptively and through mistake.
� Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664 (9th Cir. 2002). In a dispute relating
to the market conduct of Intel Corp, Advanced filed a complaint with the European Commission,
and sought discovery according to practices and rules in the United States under federal law.
Adopting a broad interpretation of the scope of discovery rights in cases involving foreign tribunals,
the court permitted domestic-style discovery under 28 U.S.C. § 1782 in an investigation conducted
by the European Community Directorate.
� Sea-Land Service, Inc. v. Lozen Int’l, 285 F.3d 808 (9th Cir. 2002). The court ruled that the trial
court should have admitted an internal company e-mail, which an employee of the plaintiff had
forwarded to the defendant. The defense persuasively argued on appeal that the e-mail was not
excludable hearsay because her remarks in forwarding the e-mail manifested an adoption or belief
in truth of the information contained in the original e-mail. The court ruled that this satisfied the
requirements for an adoptive admission under Fed.R.Evid. 801(d)(2)(B).
� Monotype Corp. v. Int’l Typeface Corp., 43 F.3d 443 (9th Cir. 1994). The court declined
admission of a detrimental e-mail in a license infringement action, due to the prejudicial nature of
the message and fact that the e-mail was not admissible under the business record exception.
� United States v. Catabran, 836 F.2d 453 (9th Cir. 1988). Computer printouts are admissible as
business records under the Federal Rules of Evidence 803(6), provided that proper foundational
requirements are first established.
� Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982). In an employment discrimination
suit, the court refused to order production of the electronic information on computer tape where all
the data was previously produced in hard copy. Therefore, the court determined that the Appellants
were not deprived of any data.
� Transamerican Computer Co. v. IBM, 573 F.2d 646 (9th Cir. 1978). The court was more lenient
regarding waiver of privilege where the party was required to produce larger amounts of data and
where they actually performed some degree of privilege review.
� None reported
Alaska
Arizona
� Surowiec v. Capital Title Agency, Inc., 2011 WL 1671925 (D. Ariz. May 4, 2011). In this breach
of contract, inter alia, litigation, the plaintiff requested sanctions, arguing the defendants spoliated
evidence and misrepresented the extent of its discovery efforts. In response, the defendants
argued a letter it received threatening future litigation did not trigger a duty to preserve because the
letter did not specifically name the plaintiff. Clarifying the duty is owed to the court rather than the
party’s potential adversary, the court found the letter clearly encompassed a threat from
homeowners such as the plaintiff, thus triggering the duty to preserve. Although the court declined
to apply the Pension Committee culpability standard, it nonetheless found the defendants’ in-house
counsel’s failure to issue a litigation hold, suspend routine document destruction and capture
evidence, constituted gross negligence. Reviewing the alleged discovery abuses, the court
determined the defendant used unreasonably narrow and literal search terms that initially
219

succeeded in returning zero results, and found its boilerplate objections to be inexcusable.
Concluding the defendants acted willfully, the court imposed an adverse inference instruction and
issued monetary sanctions to reimburse the plaintiff’s expenses incurred as a result of the
misconduct and to pay reasonable attorney fees.
� Lake v. City of Phoenix, 2009 WL 3461304 (Ariz. Oct. 29, 2009). In this employment
discrimination claim, the plaintiff appealed the appellate court’s ruling that metadata is not
considered a public record. The plaintiff sought production of electronic public records, including
embedded metadata, after suspecting hard copies produced by the defendants were backdated.
The Supreme Court of Arizona found the metadata to be a part of the underlying electronic
document that could not stand on its own. As a result of this analysis, the court found that any
embedded metadata is part of the electronic public record and is subject to disclosure. The court
noted that this decision would be unlikely to cause the administrative nightmare the city prophesied
because properly responding to a request for metadata would only require producing a copy of the
electronic record in native format.
� Lake v. City of Phoenix, 2009 WL 73256 (Ariz.Ct.App. Jan. 13, 2009). In this special action to
compel the defendant City to produce public records, the plaintiff appealed a lower court decision
denying his motion to compel the production of metadata. The plaintiff argued metadata was
necessary to determine whether the produced notes were backdated and for authentication
purposes. The defendant argued that metadata is not a public record. Agreeing with the defendant,
the court affirmed the lower court’s holding that metadata is not a public record and need not be
produced.
� Kinnally v. Rogers Corp., 2008 WL 4850116 (D.Ariz. Nov. 7, 2008). In this age discrimination
litigation, the plaintiffs sought an adverse inference sanction alleging spoliation of relevant
evidence. The plaintiffs claimed the defendant failed to issue a litigation hold, failed to produce
document retention and destruction policies, and failed to produce certain evidence, which resulted
in spoliation. The defendant argued the plaintiffs’ motion was raised after the close of discovery
and was therefore untimely and also that the plaintiffs failed to show that any of the requested
documents were destroyed. Finding the discovery dispute should have been raised during the
allowable discovery period, the court denied the plaintiffs’ motion as untimely. Moreover, the court
determined the motion, had it been timely, would have been denied due to the lack of evidence that
information was destroyed.
� Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D.Ariz. Aug. 29, 2008). In this copyright
infringement litigation, the plaintiffs sought terminating sanctions alleging the defendant willfully
destroyed material evidence. The defendant removed the file-sharing program at issue from his
computer after receiving the notice of litigation, without taking a proper backup. He also reinstalled
the operating system after he received the request for copies of various files on his computer. In
addition, a forensic examination showed that the defendant downloaded wiping software to
permanently delete traces of files shortly after he filed his answer. Finding the defendant to have
engaged in “brazen destruction of evidence,” which made it impossible for the case to be decided
on the merits, the court imposed a default judgment against defendant and awarded the plaintiff
$40,500 in statutory damages and $350 in filing fees.
� State v. Jensen, 173 P.3d 1046 (Ariz.App.Div. Jan. 15, 2008). In this criminal case, the defendant
appealed his conviction for sexual exploitation of a minor, claiming the evidence was insufficient to
support the jury verdict that he knowingly possessed or received child pornography. The
government conducted a forensic examination of the defendant’s computer, which revealed three
images that were automatically saved to the hard drive. Two of the images were found on the hard
220

drive in temporary internet file folders and the third was recovered from an unallocated cluster.
Disregarding the defendant’s claims he did not knowingly possess the images as they were saved
automatically into the computer’s random access memory (RAM), the court determined the
defendant’s active search for the images was sufficient to support the conviction.
� United States v. Flyer, 2007 WL 2051373 (D.Ariz. July 13, 2007). In this case, the defendant was
charged with attempted transportation and shipping of, as well as possession of, child
pornography. After initially pleading guilty to the charges, the defendant retained substitute counsel
and withdrew his plea. The defendant then hired a computer forensics expert to review the
electronic evidence gathered through the search warrant. The expert testified via affidavit that
numerous files were accessed and created months after the laptop had been seized by the
government, making the data completely unreliable and unusable. The government’s expert
responded that battery malfunction caused the erroneous files and access dates. The court held
that while the government may have been negligent, the defendant was not prejudiced, and
therefore denied the defendant’s motions to dismiss, suppress the evidence, and to hold a hearing
to debate the evidentiary foundation of the affidavit relied on in issuing the search warrant.
California
� Calvert v. Red Robin Int’l, Inc., 2012 WL 1668980 (N.D. Cal. May 11, 2012). In this wage and
hour class action, the defendant motioned to impose sanctions and disqualify the class
representative for failing to disclose relevant evidence in the form of Facebook conversations with
putative class members. After the plaintiff failed to submit initial disclosures on three separate
occasions, the defendant made a request for production of documents, and the plaintiff moved for
class-wide discovery. Upon deposing the plaintiff, the defendant learned of the plaintiff’s repeated
cycle of attempts to contact putative class members in an attempt to recruit additional class
members, as well as to suborn perjury. Despite several requests for these messages, the plaintiff
claimed ignorance of such conversations, blamed counsel for insufficient production, and testified
that they did not delete any content. Once the defendant filed a motion to disqualify the plaintiff as
class representative, several incomplete Facebook conversations were produced—many of which
contradicted the plaintiff’s earlier assertions. Reviewing the plaintiff’s conduct, the court found
repeated non-compliance with basic discovery obligations and disqualified the plaintiff as class
representative. Additionally, due to the plaintiff’s bad faith efforts to suborn perjury, the court
imposed sanctions in the amount of $15,985.
� In re Online DVD Rental Antitrust Litig., 2012 WL 1414111 (N.D. Cal. April 20, 2012). In this
antitrust litigation, the plaintiffs motioned for review of the clerk’s award of $737,838.79 in taxable
costs. In its analysis, the court took note of “the Third Circuit’s well-reasoned opinion in Race Tires
Am., Inc. v. Hooiser Racing Tire Corp.,” which limited taxable costs to a very narrow reading of 28
U.S.C. § 1920, but identified the “absence of directly analogous Ninth Circuit authority.” Thus, the
court concluded that a broad reading of § 1920 for e-discovery costs was most appropriate in this
matter. Reviewing the taxation award, the court denied costs taxed for production of black and
white copies of PowerPoint slides, restamping of documents, and transcripts—totaling
approximately $27,000. With regard to the rest of the e-discovery costs, the court declined to deny
them, modifying the taxation award to $710,194.23, for which payment was stayed pending further
appeal of the court’s decision.
221

� In re National Ass’n of Music Merchants, 2011 WL 6372826 (S.D. Cal. Dec. 19, 2011). In this
antitrust litigation, the plaintiffs moved for a nine-day extension of a previously-extended discovery
deadline. Among other contentions, the plaintiffs argued that the defendants’ delays made it
difficult to review late productions, identify deponents and complete ten depositions by the
deadline. In response, the defendants argued that the plaintiffs were not diligent in pursuing
discovery and failed to request their first deposition until two weeks before the deadline. The court
granted the plaintiffs’ request for an extension of the discovery deadline, but disallowed further
depositions without court permission. Next, the plaintiffs requested that each defendant run
additional document searches containing abbreviations and acronyms for agreed-upon search
terms, based upon the realization that the defendants’ search within relevant ESI did not capture
the agreed-upon universe of responsive documents. Citing Fed.R.Civ.P. 26(b)(2)(B), the court
emphasized the importance of cooperation in e-discovery, holding that the plaintiff squandered
ample opportunities to meet and confer with defendants for additional discovery and that the
burden to the defendants in complying with the request would outweigh its likely benefit.
Acknowledging that the defendants already incurred significant discovery expenses, the court
permitted further ESI searches if the plaintiff was willing to bear the cost.
� Jardin v. DATAllegro, Inc., 2011 WL 4835742 (S.D.Cal. Oct. 12, 2011).
In this patent infringement litigation, the plaintiff objected to a taxation of costs award for the
defendants, who prevailed on summary judgment. Specifically, the plaintiff requested that the court
"stay, deny, or re-tax" portions of the award for the costs of converting data to TIFF format and a
for a project manager who oversaw the conversion process. The plaintiff also motioned to deny
costs entirely based on economic disparity between the plaintiff and Microsoft, the defendant’s
parent company. First addressing the plaintiff’s economic disparity argument, the court denied on
grounds that Microsoft was not a party and further noted that an economic disparity argument
required limited financial resources, which the plaintiff’s earlier assertions contradicted. Turning to
the TIFF conversion discussion, the court noted the variety of file formats in which the plaintiffs
produced ESI, and considered the TIFF conversion done "in lieu of making traditional paper
copies," thus within the scope of Federal Rule of Civil Procedure 54’s language. Finally, the court
considered the work done by the project manager substantially different than the work done by an
attorney or paralegal because it was confined solely to physical production and required no
"intellectual efforts." Thus, the court denied motions to deny or re-tax the award.
� Couch v. Wan, 2011 WL 2971118 (E.D. Cal. July 20, 2011). In this RICO action, the plaintiffs
sought reconsideration of a magistrate judge’s order requiring the parties to share costs of the
plaintiffs’ requests for ESI. The plaintiffs argued the cost-shifting order was contrary to law because
the requested data was stored on reasonably accessible hard drives or optical drives. Alternatively,
the plaintiffs argued that cost-shifting was premature because they should not have to "bear the
burden" of sharing costs for the initial 140 gigabytes of data identified by the defendants, which
likely contains irrelevant and unrequested information. Finding for the defendants, the court noted
that the plaintiffs’ unsupported assertions that the $54,000 estimated cost to produce the requested
ESI was exaggerated and that hard drives are accessible did not support a finding that the ruling
was clearly contrary to law. In denying the motion, the court also admonished the plaintiffs for
seeking reconsideration without the benefit of first attending the court ordered meet and confer
session, noting this failure was currently the only issue of prematurity.
� In re Google Inc. St. View Elec. Commc’ns Litig., 2011 WL 2571632 (N.D. Cal. June 29, 2011).
In this class action litigation, the defendant moved to dismiss claims alleging violations of the
federal Wiretap Act and various state wiretap statutes. Although the defendant admitted it had used
222

"wireless sniffers" to intercept approximately 600 GB of information containing whole e-mails,
usernames, passwords and other private data in over 30 countries, it argued the communications
were sent over unencrypted Wi-Fi networks and were thus readily accessible to the general public
as excepted under the Wiretap Act. In response, the plaintiff argued the readily accessible
exception applied only to radio communications. Turning to the legislative history to interpret the
structure and intent of the Act, the court found the exception applied to all electronic
communications rather than the more narrowly defined radio communications. But the court
rejected Google’s broader argument because Wi-Fi networks, like cellular communications, are
designed to make intentional monitoring by third parties difficult. Absent the use of "rare packet
sniffing software" – a technology not possessed by the general public – the court found that
intercepting information over Wi-Fi networks would be extremely difficult, and thus falls outside the
readily accessible exception. Accordingly, the court denied the motion to dismiss the federal
wiretap allegations.
� Adams v. AllianceOne, Inc., 2011 WL 2066617 (S.D. Cal. May 25, 2011). In this class action suit,
the plaintiff requested $17,076.06 in sanctions arguing the defendant committed discovery abuse
by producing over 20 million pages of documents in unsearchable PDFs. In response, the
defendant argued a PDF was the most useable format available because data extraction from its
third party, proprietary software storage system rendered the data unreadable “mush” that could
become readable only via printing (impractical due to the volume) or PDF conversion. Further, the
PDFs could be searched using commercially available software. Finding the plaintiff did not specify
a desired format and noting that past production practices do not dictate future requirements
absent a party agreement, the court found no basis on which to impose sanctions. The court
additionally found the information was usable and searchable, that translating data between
formats was permissible under the Fed.R.Civ.P. and that there was insufficient evidence the
defendant acted with willful intent. Although the court remained “less than pleased” with the
defendant’s past discovery delays, it withdrew its informal recommendation for sanctions and
denied the motion.
� United States v. Salyer, 2011 WL 1466887 (E.D. Cal. Apr. 18, 2011). In this criminal antitrust and
racketeering litigation, the defendant requested the creation of a web-based, common database to
review the mass of documentation – estimated at 1 to 2 terabytes – collected by the government
over a ten year investigation. Identifying numerous issues, including the size of information,
resources and technological learning curve of defense counsel, need to review all discovery and
the inability to agree, the court noted that when information "reaches the hundreds of
gigabytes/terabytes stage, the government should consider whether everyone is better served if
this information is placed in a common database" (emphasis in original). However, in consideration
of the high costs involved, estimated to be between $350,000 and $2 million, and finding there was
neither a clear benefit to the parties nor authority of the court to compel such a contribution, the
court declined to recommend delay of the motion schedule or compel creation of the database.
Nonetheless, the court recommended the defendant file, ex parte, a Criminal Justice Act request
for financial assistance.
� In re Facebook PPC Adver. Litig., 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011). In this breach of
contract litigation, the plaintiffs sought resolution of various production disputes including a
disagreement regarding the development of an Electronically Stored Information (ESI) Protocol.
Rejecting as speculative the defendant’s concern that entering an ESI Protocol would frustrate and
slow the discovery process, the court ordered the parties to meet and confer to develop an ESI
Protocol in light of the "clear thrust of the discovery-related rules, case law, and commentary,"
223

including the Federal Rules of Civil Procedure, case law and the Sedona Conference® that
suggest communication is crucial to a successful discovery process. Turning to the production
disputes, the court prohibited the defendant from using a secure and restrictive document-viewing
website in lieu of actual production, finding the website was unduly burdensome, inefficient and
unnecessary in light of a two-tiered protective order. The court also ordered the defendants to
reproduce unusable, non-searchable files – including an 18,000 page customer complaint
database – in their native format, disclose relevant source code, and meet and confer to determine
the appropriate method of production for proprietary documents relating to the dispute.
� Coleman v. Sterling, 2011 WL 1099793 (S.D. Cal. Mar. 24, 2011). In this employment litigation,
the plaintiffs, former executives of the defendant company, sought unredacted copies of four
investigative reports prepared by a private law firm concerning alleged misconduct. Arguing the law
firm provided legal advice or analysis on certain legal issues, the defendant redacted nine pages
citing attorney-client privilege and work product doctrine from the 364 pages of the reports
produced. In finding that privilege and work product protection applied to the documents, the court
noted that each page of the reports was marked as confidential, was prefaced with a warning to
that effect, contained legal advice and analysis, and was prepared under the prospect of litigation.
However, the court determined the defendant disclosed substantially all of the communications and
relied on counsel’s advice to justify its termination of the plaintiffs. In reliance of those facts and
Federal Rule of Evidence 502(a), the court found the defendant waived privilege and ordered it to
produce unredacted copies of the reports.
� Techsavies, LLC v. WDFA Mktg. Inc., 2011 WL 723983 (N.D. Cal. Feb. 23, 2011). In this
discovery dispute, the plaintiff requested sanctions alleging the defendant failed to both timely
produce documents and respond to an interrogatory. Despite the plaintiff’s multiple complaints that
the first production of 32,000 documents was incomplete, the defendant did not produce
approximately 120,000 additional responsive documents until after discovery closed, claiming it
"moved offices and simply forgot about them." Agreeing the defendant was on notice of its
inadequate responses, the court found the defendant had an affirmative duty to investigate but
failed to do so in a timely manner. Further, the defendant did not seek leave of the court before
correcting its production. Concluding the defendant was unable to show its conduct was
substantially justified or harmless, the court held sanctions were appropriate; however, the court
also noted that the plaintiff contributed to the problems as it never moved to compel discovery.
Thus, the court barred the defendant from introducing and relying on any untimely produced
documents and ordered the parties to meet and confer regarding this issue.
� Muniz v. United Parcel Serv., Inc., 2011 WL 311374 (N.D. Cal. Jan. 28, 2011). In this
employment discrimination litigation, the plaintiff moved to quash the defendants’ third party
subpoena seeking additional documentation related to the plaintiff’s previous motion for attorney
fees. Among the documentation sought by the defendants were postings by the attorney on
listservs and social media networks (including LinkedIn and Facebook). To demonstrate the
relevancy of the demand, the defendants submitted postings from the attorney’s Facebook page
and listservs. Denying the defendants’ request for this information, the court found the subpoena
was not appropriately geared toward revealing information relevant to the fee dispute and ordered
the postings submitted by the defendants to be removed from the record. The court also noted that
the dispute had already "spiraled into the kind of ‘wasteful and time consuming satellite litigation’
that should not occur in…post-trial fee disputes."
� Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. App. 3 Dist. Jan. 13, 2011). In this
employment litigation, the plaintiff appealed the trial court‘s finding that attorney-client
224

communications sent over her work computer were not privileged. Regarding the transmission of
electronic communications in the workplace, the court stated that privilege does not extend to when
the employee uses the employer‘s systems, is advised that the communications are not private,
and is aware of and agrees to these conditions. Although the attorney-client communication was
sent via the employer‘s e-mail account and the plaintiff was informed of the usage policy, she
argued communications were not monitored in practice and this contradiction provided her a
reasonable expectation of privacy. Distinguishing the factual circumstances from City of Ontario v.
Quon and Stengart v. Loving Care Agency, Inc., the court noted that “absent a company
communication…explicitly contradicting” company policy, it is immaterial whether the company
actually monitors communications. The court analogized the usage of an employer‘s
communication systems to consulting an attorney in the employer‘s “conference rooms, in a loud
voice, with the door open, yet unreasonably expecting that the conversation overheard” and
accordingly affirmed the trial court‘s finding that attorney-client privilege did not apply.
� Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010). In this
employment discrimination litigation, the parties moved to compel discovery and production, obtain
protective orders and impose sanctions. Among its motions to compel, the plaintiff sought
production of responsive e-mails in their native format. Although the Federal Rules of Civil
Procedure do not require a party to produce e-mails in their native format, the court noted this does
not permit the party to produce the information in a form that “makes it more difficult or
burdensome for the requesting party to use…efficiently.” The court acknowledged that both parties
possess a mutual obligation to discuss electronic discovery at the Rule 26(f) conference and
considered the plaintiff’s failure to address e-discovery in both the conference and in her
production requests. The belated request for native production along with the determination that
the plaintiff would not be “hard pressed” to review the approximately 4,000 pages of e-mails
produced, led the court to deny the plaintiff’s request with the exception of one document – for
which the metadata would likely reveal useful information. Admonishing both parties for exhibiting
unprofessional conduct, the court denied sanctions.
� The Sunrider Corp. v. Bountiful Biotech Corp., 2010 WL 4590766 (C.D. Cal. Oct. 8, 2010). In
this intellectual property litigation, the plaintiffs renewed their motion for terminating sanctions,
alleging the defendant repeatedly perjured himself in an effort to thwart discovery, failed to comply
with self-executing discovery obligations imposed by the federal rules and failed to comply with
discovery orders. Analyzing the appropriateness of terminating sanctions, the court found the
defendant acted with “disingenuousness, dishonesty, disregard of discovery obligations, and
disobedience of court orders.” Further, the court found prejudice to the plaintiff in that the
defendant willfully and repeatedly gave perjurious testimony and other non-credible sworn
statements, failed to produce (or belatedly and incompletely produced) responsive documents,
breached his duty to supplement discovery responses and failed to comply with a discovery order
requiring him to provide information relevant to evidence spoliation. In addition, the caretaker
entrusted with the defendant’s personal and business affairs destroyed and failed to preserve
documents, leaving no method to determine what documents were destroyed. Finding that the
responsive documents were within the defendant’s possession, custody or control, the court
determined the defendant breached his duty to preserve and recommended the motion for
terminating sanctions be granted, the defendant’s answer be stricken and default judgment be
entered against the defendant.
� In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, and Prods. Liab.
Litig., 2010 WL 2901798 (C.D. Cal. July 20, 2010). In this products liability litigation, the court
225

entered a preservation order based on the parties’ submissions regarding preservation methods
and categories of content to be preserved for production and use in the ongoing multidistrict
litigation. Among the ESI preservation requirements, the parties were ordered to retain existing
documents in their existing form or in a reasonably usable format that would not result in loss of
content or usability, including the preservation of metadata and e-mail attachments. Additionally, all
subsequently created ESI was required to be retained in original or native format, or copied to an
alternative storage device or media. The order also provided instructions for the identification of
custodians and specified data that was not required to be preserved, such as “system” data
created by the normal operation of computer systems. Finally, the order identified the permissible
modifications and alterations of documents generally resulting from the routine maintenance and
operation of computer systems.
� Multiven, Inc. v. Cisco Sys. Inc., 2010 WL 2813618 (N.D. Cal. July 9, 2010). In this antitrust
litigation, the court adopted the magistrate judge’s recommendation directing the plaintiff and
counter-defendant to retain a third party vendor for assistance with further data collection, search,
review and production. Having earlier rejected the idea of using an outside vendor, the producing
parties instead relied on approximately five attorneys to review a “giant mass of information”
without using search terms. Concerned by the looming discovery deadline and anticipating “no end
in sight” to the process, the court agreed that “something must be done.” The court approved the
order recommending that a vendor “assist with this increasingly perilous situation,” with the
defendant paying half of the costs as it so offered. Noting that “there are several more [discovery]
problems on the horizon,” the court additionally recommended granting full authority to a previously
appointed special master to help the parties resolve any further discovery issues, such as choosing
a third party vendor if the parties could not reach an agreement, crafting a search protocol and
establishing deadlines.
� Crispin v. Christian Audigier, Inc., 2010 WL 2293238 (C.D.Cal. May 26, 2010). In this dispute
over artwork licensing, the plaintiff moved to quash the defendants’ subpoenas on the social
networking sites Facebook, MySpace, Inc. and Media Temple, Inc., which sought the plaintiff’s
basic subscriber information and certain electronic communications. Appealing the magistrate
judge’s order, the plaintiff claimed the Stored Communications Act (SCA) prohibits third-party
Internet Service Providers from disclosing such communications. Agreeing with the plaintiff that
some communications sought were not strictly “public,” the court quashed the subpoenas that
sought private messaging (such as e-mail-type communications). With respect to the portion of
subpoenas that sought information from the plaintiff’s Facebook wall and MySpace postings and
comments, the court vacated and remanded for further investigation to determine the plaintiff’s
privacy settings and the extent of access allowed to his Facebook wall and MySpace comments.
� Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (S.D.Cal. Apr. 2, 2010). In this patent
infringement litigation, the plaintiff was sanctioned $8.5 million for egregious discovery misconduct.
Six of the plaintiff’s attorneys, who were personally sanctioned for assisting in the plaintiff’s
withholding of critical information and failure to conduct reasonable inquiries into the plaintiff’s
productions, filed objections to the sanctions order. The court determined the “fundamental
problem…was an incredible breakdown in communication…that permeated all of the relationships.”
In addition, outside counsel failed to meet with appropriate employees of the plaintiff, understand
how the plaintiff’s computer system was organized and take supervisory responsibility to verify
necessary discovery was conducted. Citing Fed.R.Civ.P. 26, the court determined that, despite the
“massive discovery failure” and “number of poor decisions,” sanctions against the individual
attorneys for discovery failures were unwarranted as the attorneys did not act in bad faith. The
226

court also determined the attorneys made repeated efforts to verify accuracy of the plaintiff’s
discovery responses and noted the lack of candor demonstrated by some of the plaintiff’s
employees.
� Wixon v. Wyndham Resort Dev. Corp., 2009 WL 3075649 (N.D. Cal. Sept. 21, 2009). In this
litigation, the parties filed several motions regarding the special master’s report. The report found
the defendants’ violation of a previous production agreement was harmless but still held the
defendants responsible for 75 percent of the fees related to the special master proceeding. In
particular, the plaintiffs objected to the special master’s finding that the defendants’ noncompliant
production was harmless. Addressing the timeliness of the production, the court upheld the report
with respect to 47 of the documents because they did not contain any keywords selected by the
plaintiffs. However, the court rejected the portion of the report that pertained to the defendants’
failure to produce documents stored on a "shared" directory in a timely manner, noting the
defendants should have noticed a flaw in the custodian-based search when a group of potentially
relevant documents had no custodian. Based on this failure, the court issued sanctions, which
included requiring the defendants to bear expenses incurred by the plaintiffs in preparing the
motion to strike and the full cost of the special master’s fees.
� United States v. Comprehensive Drug Testing, Inc., 2009 WL 2605378 (Cal. App. 9 Dist. Aug.
26, 2009). In this federal investigation into steroid use by professional baseball players, the
government appealed three orders entered by separate courts in the Ninth Circuit relating to the
search and seizure of electronic information. The government argued it complied with the protocols
set forth in United States v. Tamura and also that it was allowed to seize any additional data
related to other players’ steroid use under the plain view exception of the Fourth Amendment.
Labeling the government’s argument as "too clever by half," the court determined the government
should "forswear reliance on the plain view doctrine or any similar doctrine" regarding seizure of
data requiring segregation. The court also held that any future search warrant application should
include a protocol that prevents agents from examining or retaining data other than that specified in
the warrant, which may require segregation to be conducted by an independent third-party to
protect privacy interests. Finally, the court acknowledged the reality that over-seizure of data is part
of the electronic search process and issued five guidelines magistrate judges must follow when the
government seeks a warrant regarding examination of electronic media. The guidelines aimed "to
strike the proper balance between the government’s legitimate interest in law enforcement and the
people’s right to privacy and property . . . as guaranteed by the Fourth Amendment."
� Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802 (Cal. App. 4 Dist. June 2009). In this
warranties and consumer fraud case, the plaintiff appealed a jury verdict, arguing the trial court
abused its discretion by choosing to impose an adverse jury instruction and monetary sanctions
instead of terminating sanctions against the defendant for discovery abuses. Prior to trial, the
defendant failed to produce documents by the initial court-ordered production date and violated
four discovery orders. After trial began, the plaintiff’s attorney reviewed e-mails produced by the
defendant and renewed its prior motion for terminating sanctions, asserting that the defendant had
failed to locate, withheld or destroyed relevant electronic documents. The court of appeals
determined the defendant had stonewalled in producing highly relevant documents resulting in
severe prejudice to the plaintiff, and that the defendant’s repeated and egregious violations of
discovery laws threatened the integrity of the judicial process. While the court of appeals held that
the trial court did not initially abuse its discretion in denying the plaintiff’s request for terminating
sanctions, the duty to impose the severe sanctions arose when the trial court learned during trial
that the defendant had failed miserably to comply with the discovery orders. Accordingly, the court
227

of appeals reversed the trial court judgment and remanded with directions to enter a default
judgment against the defendant. The court also awarded attorneys’ fees to the plaintiff in the
amount of $402,187 in connection with discovery proceedings.
� Oz Optics Ltd. v. Hakimoglu, 2009 WL 1017042 (Cal. App. 1 Dist. Apr. 15, 2009). In this
employment dispute, both parties appealed the denial of their respective motions for judgment
notwithstanding the verdict (JNOV). The defendant argued that the court improperly allowed expert
forensic testimony alleging it was "devoid of substance" and improperly awarded $90,000 in
monetary sanctions based on the defendant’s hard drive file scrubbing. The plaintiff argued that the
court abused its discretion by limiting sanctions to $90,000. The court of appeals affirmed the trial
court on all grounds. First, the court rejected the defendant’s argument that the forensic testimony
was prejudicial, citing the defendant’s inability to demonstrate why the testimony was inappropriate.
Second, the court affirmed the sanctions as reasonable compensation for attorney’s fees, costs
and expenses incurred as a result of the defendant’s discovery misconduct. In affirming, the court
rejected the defendant’s argument that the spoliation was unintentional, determining that intent is
not required for monetary sanctions under the California Code of Civil Procedure. The court also
rejected the plaintiff’s argument that the monetary sanctions did not provide full compensation for
reasonable expenses, finding the plaintiffs failed to establish the amount awarded was "arbitrary,
capricious or whimsical."
� Keithley v. Homestore.com, Inc., 2009 WL 816429 (N.D.Cal. Mar. 27, 2009). In this ongoing
patent infringement litigation, the plaintiffs sought $1,379,410.50 in additional sanctions from the
August 12, 2008 order (awarding the plaintiffs over $250,000 in fees and costs). The court awarded
$282,970.37 in additional sanctions on the following issues: prevailing on the motion to compel;
fees and costs incurred due to the defendants’ belated production; and fees and costs in taking
discovery on late-produced reports, reducing the amount of requested sanctions by between five to
ten percent to account for any inefficiency by the plaintiffs. The court denied the plaintiffs’ request
for fees and costs incurred in seeking sanctions and ordered the plaintiffs to file a reply brief to the
defendants’ objections to costs incurred by the plaintiffs’ expert.
� United States v. Maxxam, Inc., 2009 WL 817264 (N.D.Cal. Mar. 27, 2009). In this False Claims
Act qui tam action, the plaintiffs sought sanctions alleging spoliation of an important document,
known as the sustained yield plan, central to their case. The court first determined the defendants
were responsible for preserving the evidence despite it being possessed by a third party and then
determined that relevant evidence was not preserved. However, the court denied the plaintiffs’
motion because they did not satisfy their burden of establishing the evidence was destroyed after
the duty to preserve arose, despite being "troubled" by the fact that the defendants did not issue a
litigation hold notice to the third party.
� Viacom Int’l, Inc. v. YouTube, Inc., 2009 WL 102808 (N.D.Cal. Jan. 14, 2009). In this ongoing
copyright infringement litigation, the defendants sought documents from a third party via a
subpoena duces tecum. (The third party was hired by the plaintiffs to monitor the defendant’s
website for infringing materials.) The subpoena contained thirteen document requests for
documents relating to the third party’s relationship with the plaintiffs and its actions with regard to
monitoring and identifying infringing materials. The third party objected to the subpoena, arguing it
was overly broad and imposed an undue burden. Finding the information sought to be relevant and
the economic burden to be lessened due to the plaintiffs’ reimbursement of legal expenses, the
court overruled the third party’s objections and ordered compliance with the subpoena.
Additionally, the court ordered the third party to provide privilege logs and an affidavit outlining the
response methodology used.
228

� Keithley v. Homestore.com, Inc., 2009 WL 55953 (N.D.Cal. Jan. 7, 2009). In this ongoing patent
infringement litigation, the defendants sought $391,903.51 in additional sanctions. The sanctions
sought were based on two categories: costs the defendants incurred in securing production and
costs relating to the use of materials produced late. After considering each specific monetary
request, the court awarded a total of $205,507.53 to the defendants: $72,281.71 attributable to
depositions costs; $11,606.00 for the costs incurred in preparing the documents for deposition; and
$428.83 for subpoena costs. The court also ordered the plaintiffs to pay the lodging expenses
incurred during the re-depositions.
� Keithley v. Homestore.com, Inc., 2008 WL 5234270 (N.D.Cal. Dec. 15, 2008). In this ongoing
patent infringement litigation, the defendants objected to the magistrate judge’s report and
recommendation for monetary sanctions. The defendants objected to the monetary sanctions
arguing: (1) the spoliation of source code is not sanctionable; (2) they reasonably believed they
had complied with a previous production order; (3) appropriate document retention and litigation
hold policies were in place; and (4) sanctions, if warranted, should only be imposed on the
defendant Move (formerly homestore.com). Declining to find the magistrate’s report and
recommendation clearly erroneous, the court adopted it.
� Keithley v. Home Store.com, Inc., 2008 WL 4830752 (N.D.Cal. Nov. 6, 2008). In this ongoing
patent infringement litigation, the defendants sought multiple types of sanctions alleging the
plaintiffs produced documents too late and committed spoliation. The defendants argued the late
production and spoliation were prejudicial, caused them to conduct last-minute “triage” discovery
and prevented them from conducting important depositions. Finding the belated production and
failure to produce e-mail attachments to be negligent, the magistrate judge issued sanctions under
Rule 37, awarding fees and costs reasonably attributed to the spoliation. Additionally, the court
extended the discovery cutoff date for the limited purpose of allowing the defendants to take
additional depositions.
� Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D.Cal. Sept. 19,
2008). In this sales contract litigation, the defendant/third-party plaintiff moved for adverse
inference and monetary sanctions, claiming the third-party defendant intentionally destroyed and
refused to produce relevant documents. The third-party defendant argued sanctions were
inappropriate, arguing no duty to preserve existed as litigation was not anticipated prior to the date
the suit was filed. Additionally, the third party defendant claimed that any document destruction
occurred in accordance with the established document destruction policy. Frustrated with the lack
of information on record, the court ordered the parties to file supplemental briefs addressing
several specific issues, including: what evidence was destroyed, when it was destroyed, when
litigation could have been reasonably anticipated and why the document destruction policy was not
followed.
� Cartwright v. Viking Indus., Inc., 2008 WL 4283614 (E.D.Cal. Sept. 11, 2008). In this products
liability class action, the plaintiffs filed a motion to compel production of defendants’ privilege log
identifying withheld documents, and the defendants’ moved for a protective order. The plaintiffs
argued the defendants’ failure to provide a privilege log should result in a waiver of privilege. The
defendants countered that production requests should be narrowly construed to not seek privileged
information, and that any such production would be unduly burdensome. Disagreeing with the
defendants’ undue burden argument, the court ordered production of the privilege log. However,
the court did not believe a waiver of privilege was appropriate, noting the delay was excusable due
to a mutual misunderstanding.
229

� Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D.Cal. Sept. 2, 2008). In
this securities class action, the plaintiffs sought a default judgment or, alternatively, an adverse
inference sanction. To support the motion, plaintiffs alleged the defendants: engaged in inadequate
preservation efforts after receiving notice of the litigation; failed to preserve backup tapes; and
failed to preserve transcripts and audio files. Declining to issue default judgment, the court found
that the plaintiffs had not demonstrated the degree of prejudice necessary to warrant such
sanctions, noting that the alleged misconduct did not “eclipse entirely the possibility of a just result.”
However, the court issued an adverse inference regarding the failure to preserve and produce emails
from one of the defendant’s files, noting this failure raised questions of authenticity and
uncertainty.
� Tierno v. Rite Aid Corp., 2008 WL 3876131 (N.D.Cal. Aug. 19, 2008). In this class action
litigation, the defendant objected to a previous order requiring it to pay copying costs associated
with producing responsive paper documents. See Tierno v. Rite Aid Corp., 2008 WL 3287035
(N.D.Cal. July 31, 2008). The plaintiff argued the defendant’s failure to seek a protective order to
shift costs waived the right of objection. Granting the defendant’s objection, the court held that a
responding party is not obligated to seek a protective order if it complies fully with Fed.R.Civ.P. 34,
which requires the producing party to make the documents available for inspection, but does not
require them to pay copying costs. Notably, the court found it in error that the magistrate judge
applied the Zubulake cost shifting factors, holding such factors inapplicable to the instant case
involving only paper documents. Growing frustrated with the numerous discovery disputes, the
court appointed a special master to avoid wasting judicial resources and ordered the parties to split
the costs, unless the special master determined otherwise.
� Dorn-Kerri v. South West Cancer Care, 2008 WL 3914458 (S.D.Cal. Aug. 18, 2008). In this
wrongful termination litigation, the pro se plaintiff moved to compel the defendant to supplement its
response to her request for production of documents. The plaintiff sought a report from her period
of employment in 2004-2005 from a database that updates continually. The defendant responded
that the records no longer exist since the printed records are destroyed post-processing, and that
the software program is incapable of producing historical reports, as corroborated by plaintiff’s
expert. Citing the Ninth Circuit’s “repeated admonition that courts construe pro se pleadings and
motions liberally,” the court imposed a burden on the defendant to prove discovery should not be
allowed. Finding the defendant had met its discovery obligations by demonstrating the reports no
longer tangibly exist and are incapable of electronic regeneration, the court denied the motion. The
court stated that if requested material does not exist, it cannot be in the “possession, custody, or
control of a party and therefore cannot be produced for inspection.”
� Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008). In this patent
infringement litigation, the plaintiffs sought monetary and evidentiary sanctions alleging spoliation
of evidence. The defendants’ failure to issue a written document retention policy well after its
preservation duty arose led the court to label the discovery misconduct “among the most egregious
this Court has seen.” Additional factors justifying sanctions included the defendants’ numerous
false and misleading representations made to the plaintiffs, in addition to the material
misstatements made to the court. The court ordered the defendants to pay over $250,000 in fees
and costs associated with prior and future motion practice and expert fees, deferring additional
amounts until actual fees can be determined. Furthermore, the court ordered an adverse jury
instruction against the defendants.
� Gippetti v. United Parcel Service, Inc., 2008 WL 3264483 (N.D.Cal. Aug. 6, 2008). In this age
discrimination litigation, the plaintiff sought sanctions for spoliation claiming the defendant
230

destroyed relevant electronic documents, specifically tachographs, which records a vehicle’s speed
and length of time it is moving or stationary. The defendant responded that some of the requested
tachographs were destroyed as part of the company’s routine document retention policy, which due
to the large volume of data, called for destruction of the records following 37 days. Additionally, the
defendant argued it was not under a duty to preserve the records because they had no reason to
believe that they had any bearing on the age discrimination claim. Agreeing with the defendant, the
court refused to impose sanctions.
� Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D.Cal. July 31, 2008). In this class action
employment litigation, the defendant objected to the magistrate judge’s order that required them to
pay the costs of copying responsive paper documents. The court stated, “the seven-factor
Zubulake test which [the magistrate judge] applied is intended solely for electronic discovery, not
for discovery of paper documents.” According to the court, the rule for paper documents is that “[a]
party producing documents will ordinarily not be put to the expense of making copies for the
requesting party.” Relying on these rules, the court held that the magistrate judge clearly erred by
analyzing the cost-shifting dispute under Zubulake, but granted the plaintiffs an opportunity to brief
the cost-shifting issue on other grounds. See also Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309,
322 (S.D.N.Y. 2003).
� United States v. Arnold, 2008 WL 2675794 (Cal. July 10, 2008). In this suit charging the
defendant with transporting child pornography, the government appealed the district court’s ruling
granting the defendant’s motion to suppress evidence seized from his laptop computer by Customs
and Border Patrol officers. The defendant argued that laptops were more analogous to a home and
the human mind rather than closed containers, because of the computer’s ability to record ideas, emails,
chats and web habits. Conversely, the government argued reasonable suspicion was not
required under the Fourth Amendment when dealing with border searches due to, “a sovereign’s
inherent authority to protect its territorial integrity.” Finding the district court’s decision erroneous,
the court held that reasonable, particularized suspicion is not required for customs officials to
search a laptop or other personal electronic storage devices at the border.
� L.H. v. Schwarzenegger, 2008 WL 2073958 (E.D. Cal. May 14, 2008). In this class action
litigation, the plaintiffs filed a motion to compel an inadequate privilege log and sought sanctions.
The plaintiffs claimed some of the defendants’ privileges were inadequately asserted and the
defendants produced electronic documents in a non-searchable PDF format that were searchable
in their native format. The defendants asserted they substantially complied with previous
production orders and were not required to provide files natively because the plaintiffs did not
specifically request that production format. Finding the defendants’ behavior representative of
“purposeful foot dragging”, the court determined the defendants’ production of non-searchable
documents violated Fed.R.Civ.P. 34’s requirement that electronic documents be produced in a
reasonably usable form and ordered monetary sanctions. Additionally, the court found the
previously produced privilege logs lacking in substance and usability, and ordered the defendants
to produce a final omnibus privilege log. Finally, the court warned the defendants that it would allow
the plaintiffs to bring a motion for sanctions or a waiver of privilege if the defendants continue to
“abuse the privilege log procedure.”
� R&R Sails, Inc. v. Ins. Co. of Pa., 2008 WL 2232640 (S.D. Cal. April 18, 2008). In this insurance
litigation, the plaintiff sought sanctions and preclusion of ESI that the defendants produced after the
discovery deadline. The defendants argued that sanctions were inappropriate because the
untimely production was an “honest mistake” as they initially did not realize the logs existed, and
then belatedly realized they failed to produce six pages of computer notes from the electronic claim
231

logs. Finding sanctions appropriate under Fed.R.Civ.P. 26(g), the magistrate judge determined a
reasonable inquiry into potentially discoverable material must be made and that an “honest
mistake” is not a substantial justification for an incorrect certification made by an attorney.
Additionally, the magistrate justified sanctions under Fed.R.Civ.P. 37(c), citing the defendants’
failure to timely supplement initial disclosures without substantial justification. The magistrate
ordered monetary sanctions and recommended precluding the defendants from introducing or
relying on documents and ESI that were not produced on time.
� Ruiz v. Ed Richard Discing, Inc., 2008 WL 1925203 (N.D.Cal. April 29, 2008). In this suit alleging
unpaid overtime wages, the plaintiff filed a motion to compel production and sought monetary
sanctions. Prior to the hearing, the defendants contacted the plaintiffs to inform that the documents
were available and would be produced if the plaintiffs agreed to absorb the costs of copying. The
plaintiffs agreed to pay for costs incurred for copying the documents. Holding the motion to compel
to be technically granted since the documents in dispute have not yet been produced, the court
stated this dispute should never have reached court intervention due to this prior agreement and
denied the motion for monetary sanctions.
� In re Flash Memory Antitrust Litig., 2008 WL 1831668 (N.D.Cal. April 22, 2008). In this antitrust
litigation, the court issued an Order Regarding Preservation of Evidence and reminded the parties
to comply with the duty to preserve all potentially relevant documents, data and tangible things in
their possession, custody or control. The court identified documents, data and tangible things to
encompass a broad list of electronically stored information, including writings, reports, calendars,
telephone message logs, ledgers, bills, charts, films, and phonographic recordings. Additionally,
the court ordered that each party must identify and notify non-parties of their duties to preserve
potentially relevant information.
� Qualcomm Inc. v. Broadcom Corp., 2008 WL 638108 (S.D.Cal Mar. 5, 2008). In this underlying
patent infringement case, cross examination of the plaintiff’s witness revealed over 200,000 pages
of undisclosed relevant e-mails during one of the last days of trial. The court, displeased with the
“organized program of litigation misconduct,” ordered the plaintiff’s counsel to show cause as to
why individual sanctions should not be imposed against the attorneys. The attorneys filed a motion
shortly thereafter seeking application of the federal common law self-defense exception which
would have allowed disclosure of attorney-client privileged information at the hearing. On January
7th, 2008, the magistrate judge denied the motion and this appeal followed. The Senior District
Court Judge, Rudi M. Brewster, vacated the trial court’s decision as violating the due process rights
of the attorneys to fully defend themselves and found the self-defense exception to apply.
� Finley v. Hartford Life & Accident Ins. Co., 2008 WL 509084 (N.D.Cal. Feb. 22, 2008). In this
wrongful termination of disability benefits suit, the plaintiff filed a motion for sanctions alleging the
defendant failed to timely disclose a relevant surveillance video taken of the plaintiff. The plaintiff
sought monetary sanctions reimbursing the costs spent deposing members of the defendant
corporation and retaining the services of an expert. Additionally, the plaintiff sought sanctions
against the defendant’s attorney for failure to perform a reasonable inquiry. Citing an
“administrative oversight”, the defendant claimed a reasonable search was conducted and upon
discovery of its existence, supplied the full video six months later. In regard to the plaintiff’s claim of
negligence, the attorney argued lack of evidence of bad faith should preclude sanctions.
Disagreeing with the defendant’s position regarding the surveillance video, the court found it
unreasonable to rely on a discovery system with few checks and balances. Further, while the court
found the defendant’s attorney negligent in oversight of the discovery process, it refused to issue
232

personal sanctions due to an absence of evidence of bad faith. Of the $57,888.50 sought by the
plaintiff, the court awarded $9,000 as a reasonable sanction.
� United States v. Comprehensive Drug Testing, Inc., 2008 WL 191672 (Cal. Jan. 24, 2008). In
this investigation into illegal steroid use by professional athletes, the government executed a
search warrant seizing computer equipment and storage devices, claiming they could not be sorted
on-site due to extensive co-mingling with other data. The defendants sought return of the evidence,
arguing its seizure constituted a callous disregard for the privacy rights of individuals named in the
seized databases. The court, realizing the special complexities caused by ESI and the particular
difficulty faced in instances where the data is incomprehensible and unusable when outside its
native format, found in favor of the government and determined the seizures were reasonable.
� Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D.Cal. Jan. 7, 2008). In this patent
infringement litigation, the court found the plaintiffs to have committed “monumental and
intentional” discovery violations for failing to produce thousands of documents requested in
discovery. Several plaintiffs’ attorneys were ordered to show cause as to why they should not be
personally sanctioned. Finding an absence of good faith participation in the discovery process, the
court upheld the sanction previously issued, ordering Qualcomm to pay the defendant’s attorney’s
fees in excess of $8.5 million. Additionally, the court sanctioned six attorneys for intentionally hiding
or recklessly ignoring relevant documents and blindly accepting Qualcomm’s claims that the
searches were adequate. The six attorneys were ordered to forward the sanction order to the
California State Bar for review and consideration of possible further disciplinary actions due to
violation of their ethical duties. Additionally, the attorneys were instructed to participate in a Case
Review and Enforcement of Discovery Obligations (CREDO) program. The court believed
participation in this program may deter future discovery misconduct by providing a “road map” to
assist in understanding ethical obligations during the discovery process as well as establish a
turning point for increased ethical conduct in the practice of law.
� Columbia Pictures v. Bunnell, Case No. 2:06-cv-01093 FMC-JCx (C.D.Cal. Dec. 13, 2007). In
this copyright infringement suit, the plaintiffs sought default judgment sanctions based on the
defendants’ spoliation of evidence. The plaintiffs claimed the defendants willfully spoliated
evidence by deleting and modifying user forums to remove mention of copyrighted material,
deleting directory headings, destroying full IP addresses previously kept on file and falsely claiming
that identifying information of moderators was not available. The court set forth five factors to
consider when deciding whether to enter default judgment: 1) expeditious resolution of litigation; 2)
the court’s docket management; 3) risk of prejudice; 4) public policy in deciding cases on their
merits; and 5) the availability of lesser sanctions. The court found the defendants engaged in
efforts to destroy evidence and provided false testimony under oath. Considering lesser sanctions,
the court concluded the prejudice suffered was too great to overcome with an adverse jury
instruction. The court also noted past monetary sanctions imposed upon the defendants were
clearly ineffective and granted the motion for a default judgment in favor of the plaintiffs.
� Verigy US, Inc. v. Mayder, 2007 WL 3144577 (N.D.Cal. Oct. 24, 2007). In this trade secret
misappropriation case, the plaintiff sought an expedited motion to compel the defendants to
produce mirror images of all hard drives. The issue at question was whether the defendants should
be permitted an opportunity to review and object to any potential third party expert searches
deemed necessary by the plaintiff. The court held that the defendants’ review of the search terms
was entirely reasonable, comporting with the normal conduct of discovery. The court approved the
defendants’ proposed protocol which allowed for 1) discovery in areas the defendants deemed
233

presumptively relevant and 2) other searches at the plaintiff’s request, subject to the defendants’
opportunity to review and object.
� United States v. Flinn, 2007 WL 3034932 (E.D.Cal. Oct.16, 2007). In this suit charging the
defendant with possession of child pornography, the defendant filed a motion seeking to have a
mirror image of his seized hard drive and thumb drive removed from government facilities for
expert examination purposes. The defendant challenged the constitutionality of an act requiring the
government to main control of seized material constituting child pornography. The defendant
claimed that no defendant in a child pornography case would have an “ample opportunity” to
inspect the contraband unless the expert is free to take the contraband to an expert’s facilities for
use with the expert’s own devices/software. No pertinent appellate court cases existed and several
district court cases determined that the act was consistent with due process. Additionally, the court
determined that the defendant and the expert made no attempt to differentiate his case from the
“ordinary” child pornography case. Therefore, the court found the government facilities offering an
“ample opportunity” to perform at least the initial examination of the seized materials.
� Schmidt v. Levi Strauss & Co., 2007 WL 2688467 (N.D.Cal. Sept. 10, 2007). In this action
brought under the Sarbanes-Oxley Act, the plaintiffs, former employees of the defendant, claimed
they were wrongfully terminated. The defendant counterclaimed, alleging that the plaintiffs took
confidential company documents. In the discovery dispute at issue, the plaintiffs moved for an
order requiring the defendant to reproduce its entire document production in native electronic
format. As the plaintiffs’ initial discovery request occurred prior to the 2006 Fed. R. Civ. P.
amendments and did not specify the form in which the documents should be produced, the court
held that the defendant’s burden to reproduce documents in native electronic format would far
outweigh any benefit to be gained by the plaintiffs.
� In re eBay Seller Antitrust Litigation, 2007 WL 2852364 (N.D.Cal. Oct. 2, 2007). In this antirust
litigation, the plaintiffs moved the court to order the defendant to disclose its efforts to preserve and
collect relevant electronically stored information (ESI). The plaintiffs sought information regarding
the contents of the document retention notice as well as the names and job titles of the employees
who received the notice. Finding the language of the document retention notice to be protected by
attorney-client privilege, the court refused to give the defendants access to the document itself, but
ordered a 30(b)(6) deposition to determine what employees were doing with respect to collecting
and preserving ESI. The court also ordered the defendant to produce a list of names and job titles
of the employees who received the notice.
� Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2900537 (S.D.Cal Sept. 28, 2007). In this patent
infringement suit, the court issued numerous orders beginning with non-infringement of the patents
at issue to most recently ordering the plaintiff’s attorneys to show cause why they should not be
personally sanctioned for discovery abuses. During one of the last days of trial, cross-examination
of the plaintiff’s witness revealed the existence of relevant e-mails that the court later held were
“the tip of the iceberg” in an attempt to conceal over 200,000 pages of relevant e-mails. The court
found by clear and convincing evidence that Qualcomm’s counsel engaged in misconduct by
providing calculatedly misleading and false discovery responses, asserting patently false
statements of fact during motion hearings, minimizing the significance of missing e-mail at trial,
continuing through post-trial activity. The judge characterized the discovery abuses as, “an
organized program of litigation misconduct” and ordered the plaintiff’s attorneys to demonstrate
why they should not be sanctioned, without use of documents protected by the attorney-client
privilege. See also Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2261799 (S.D.Cal. Aug. 6, 2007);
234

Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2296441 (S.D.Cal. Aug. 6, 2007); Qualcomm, Inc. v.
Broadcom Corp., 2007 WL 1031373 (S.D.Cal. March 21, 2007).
� Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D.Cal. Sept. 18,
2007). In this contract dispute, discovery was a long, drawn out battle where the defendant
repeatedly failed to comply with court ordered discovery. For over a year, the defendant responded
to orders compelling production by repeatedly certifying they had fully complied without producing
any correspondence, memoranda, e-mail, notes, work papers or litigation settlement documents.
Relying on Tulip Computers Int’l B.V. v. Dell Computer Corp., 2002 WL 818061 (D.Del. Apr.30
2002), the court ordered the defendant to retain an outside vendor to access servers and hard
drives of specified employees and conduct keyword searches for responsive documents and emails.
The court also imposed monetary sanctions under Fed.R.Civ.P. 37(b)(2) and 26(g)(3) in the
amount of $125,000.
� Columbia Pictures, Inc. v. Bunnell, 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007). In this copyright
infringement litigation the defendant, the operator of a website engine that enables users to locate
and download dot-torrent files, sought review of a magistrate’s order requiring production of server
log data stored in random access memory (RAM). The defendant argued that data stored in RAM
is too ephemeral and temporary to be considered electronically stored information (ESI) within the
meaning of Fed. R. Civ. P. 34(a). Citing the Advisory Committee Notes to the Rules, the court
explained that Fed. R. Civ. P. 34(a) was to be read expansively and denied the motion.
Responding to concerns about the potential impact of the decision with respect to individual and
business record-keeping obligations, the court held the decision was limited to the defendant in this
case, who, only after the issuance of a court order, was obliged to preserve and produce the server
log data.
� Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2007 WL 1848665 (N.D.Cal June 27, 2007).
In this trademark case, the plaintiff sought terminating, evidentiary, and monetary sanctions from
the defendant based on its alleged failure to preserve, collect, and produce documentary evidence.
The plaintiff showed that no deposed employee recalled the existence of a preservation plan after
the litigation ensued, that employees routinely deleted documents, and that the defendant confined
its production to communications between the two companies, which were already in the plaintiff’s
possession. The defendant offered little rebuttal evidence. The court agreed with the plaintiff
finding “a willful indifference” with regards to the defendant’s discovery obligations. However, the
court was unwilling to impose terminating sanctions and instead ordered evidentiary sanctions in
the form of several judicially established facts and also ordered monetary sanctions in the form of a
$15,000 sanction against the defendant. The plaintiff also argued the founder and CEO of the
defendant’s company destroyed and erased electronic data from certain computers upon his
resignation. However, the court found that only a possibility remained that some relevant
documents may have been lost as a result of this conduct, and the weight of the evidence did not
support an inference that any wholesale destruction of relevant evidence took place at that time.
� In re ATM Fee Antitrust Litig., 2007 WL 1827635 (N.D. Cal. June 25, 2007). In a suit alleging an
illegal price fixing scheme, the plaintiff motioned the court to compel the defendant to produce
numerous additional documents in discovery and sought modification of the production format
previously agreed upon by the parties. The plaintiff sought production of material regarding
networks other than the defendants, material provided to the government or in connection with
other relevant private litigation, material regarding ATM networks in foreign countries, material from
the inception of the plaintiff’s network to date, materials regarding entities that the defendant
acquired, among other things. The defendant argued the scope of discovery sought was limitless
235

and sought relief from complying with all of the requests. The court set forth general guidance
regarding the appropriate scope of discovery, operating under the perspective that discovery is
limited by the specific subject matter presented in the complaint. As for the production format, the
parties originally agreed to produce in a tiff image format, subject to optical character recognition
scanning. The court declined to order a different production format because the parties had
reached the agreement over two years prior, well before the new Federal Rules of Civil Procedure
amendments were modified in December 2006.
� 3M Co. v. Kanbar, 2007 WL 1725448 (N.D.Cal. June 14, 2007). In this trademark infringement
case, the defendant motioned the court to order the plaintiff to organize or itemize its production in
some useful way. The plaintiff produced over 170 boxes of printed documents, as organized by
electronic storage methods in the ordinary course of business. The court held while in most
situations the producing party has the option to produce documents either in the usual course of
business or organized by categories, there are some instances where special factors justify the
requesting party selecting the method, however, volume alone is insufficient for a finding of special
circumstances. In this case, the court determined the large volume was due to the defendant’s
broad document requests and lack of demand for electronic production, and therefore of
defendants own making. However, the court found the plaintiff’s printed production format
concerning and ordered the plaintiff to produce all previously produced responsive ESI in an
electronic and reasonably usable format. The court noted that although the electronic production
did not provide the defendant quite what it asked for, it should enable the defendant to utilize
commercially available software to manage and review the production.
� Columbia Pictures Industries v. Justin Bunnell, No. 06-1093 FMC (JCx) (C.D.Cal. May 29,
2007). In a suit alleging copyright infringement, specifically claiming the defendant enables,
encourages, and induces profit from online piracy, the plaintiff sought preservation and production
of the IP addresses of users of the defendant’s Web site and the dates and times of the users’
requests. The defendant argued that this server log data was not stored on its Web site or in any
form from which it could be retrieved. Instead, this data was temporarily stored in random access
memory (RAM) on servers located in the Netherlands and routed through a contracted server. The
defendant also argued the data did not constitute ESI, was not within their possession, custody or
control, that preservation and production was tantamount to requiring the creation of new data, and
such an order would be unduly burdensome. Additionally, the defendant argued that the
preservation and production of their Web site user IP addresses raised privacy issues. Disagreeing
with the defendant and ordering preservation and production of the data stored in RAM, the court
found that the data was extremely relevant, did constitute ESI, was within the defendant’s
possession and control, and the IP addresses should be masked to protect the privacy of the Web
site users. The court also rejected defendant’s arguments as to violation of the Stored
Communications and Wiretap Acts, holding that compliance with this order provides a complete
defense to any civil or criminal action predicated on either statute. Lastly, the court refused to
sanction the defendant or require them to pay plaintiff’s attorney’s fees and costs.
� World Courier v. Barone, 2007 WL 1119196 (N.D. Cal. Apr. 16, 2007). In a case involving
misappropriation of trade secrets, the plaintiff moved for monetary sanctions and adverse jury
instructions against the defendant based on a claim of spoliation of evidence. The plaintiff alleged
the defendant’s husband destroyed a hard drive containing information related to the defendant’s
professional career and underlying suit against her. The defendant argued that she did not destroy
the hard drive but that her husband was responsible for the destruction, and she cannot be held
liable for his action since he was a non-party to the suit. The court held that the defendant was
236

liable for the destruction of the hard drive since the affirmative duty to preserve evidence extends
to instances when the evidence is not directly within the party’s custody or control, so long as the
party has access to or indirect control over such evidence. The court found it hard to believe that
she was not in regular contact with her husband over the facts of the suit. It held that the defendant
was “knowingly willful” or, at the very least, negligent in failing to prevent the destruction of relevant
evidence by her husband. In order to compensate for the destroyed hard drive, the court awarded
the plaintiff adverse jury instructions and monetary sanctions.
� IO Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007). In this
copyright infringement suit, the plaintiff sought to compel the defendant to produce all copies of any
video published on the defendant’s website in electronic form. The defendant company operated a
website that enabled the sharing of user-provided video content over the internet. The plaintiff
claimed that some of its videos were shared over the defendant’s website without the plaintiff’s
authorization. The defendant argued that the request to produce all videos on its website was
overbroad and likely to lead to the discovery of irrelevant third-party videos. The plaintiff argued
that its videos can only be identified by examining all videos contained on the website. The court
held that since information related to the plaintiff’s works was indisputably relevant and since there
was no other way for plaintiff’s works to be identified except through a review of all material
published on the defendant’s website, the defendant was required to produce all electronic video
that was once published on its website. The defendant argued that the costs of production should
be shifted to the plaintiff, but the court undertook a Zubulake cost-shifting analysis and determined
that the defendant did not provide any information on how such information was “inaccessible,”
much less any information necessary for the court to decide whether it would be appropriate to shift
all costs of production to plaintiff. However, the court did encourage the parties to come to an
agreement as to the most efficient means of production, and the plaintiff noted that it was willing to
provide high capacity storage devices for the production in order to reduce costs.
� Padgett v. City of Monte Sereno, 2007 WL 878575 (N.D. Cal. Mar. 20, 2007). In a case alleging
civil rights violations and infliction of emotional distress, the plaintiff sought to explore claims about
the authorship of a harassing letter he received from a city employee. The court initially denied the
plaintiff’s request to compel inspection of the city’s computers but ordered the defendant to
preserve “everything.” The city assured the court it would abide by the preservation order.
However, after a subsequent court order for production of three of its employee’s hard drives, the
defendant acknowledged it had destroyed one of them. The defendant explained that the hard
drive in question had been inadvertently discarded after the user’s laptop “crashed.” However, at a
hearing before the court the city indicated that it found the laptop, with no explanation other than
that it “appeared”. Unsatisfied with the city’s explanation, the plaintiff moved for terminating
sanctions, monetary sanctions, and default judgment. In turn, the defendant moved for clarification
of the court’s previous order to allow inspection or, in the alternative, for a protective order. The
court found the defendant had discarded the laptop with notice of its potential relevance, causing
delay and additional expense to the plaintiff. While reserving judgment as to whether the
defendant’s actions warranted terminating sanctions, the court ordered monetary sanctions against
the defendant in the amount of the plaintiff’s attorney fees and traveling costs associated with
bringing the motion. It also ordered the defendant to pay the plaintiff’s expert’s fees and to bear the
cost of a court-appointed special master. The court declined to consider the defendant’s motion for
clarification, directing the defendant to seek further direction from the special master.
� Memry Corp. v. Kentucky Oil Tech., N.V., 2007 WL 832937 (N.D. Cal. Mar. 19, 2007). In this
discovery dispute arising out of a multi-party litigation, the counter defendant moved to compel the
237

counterclaimant to produce computer hard drives for forensic inspection. The counter defendant
argued the counterclaimant’s production was incomplete when two e-mails were not produced in
discovery. While acknowledging the counterclaimant’s production had not been “absolutely
perfect,” the court noted that the counter defendant had not demonstrated that the data it sought
was in jeopardy of spoliation or central to the dispute. Declaring the discovery phase of the
litigation to have come to a close, the court denied the counter defendant’s motion to compel.
� Phillips v. Netblue, Inc., 2007 WL 174459 (N.D. Cal. Jan. 22, 2007). In a dispute involving spam
messages sent to the plaintiff through e-mail, the defendants brought a motion for sanctions
against the plaintiff for not preserving the e-mails that were subject to the suit. In producing
evidence to the defendants, the plaintiff did not preserve the hyperlinks contained in the spam email.
The hyperlinks in the spam tell an e-mail recipient’s computer what web address to contact in
order to download and display certain images. The defendants argued the e-mail links initially
received in the spam messages were no longer active and that the plaintiff had a duty to preserve
not only the e-mails but the images as displayed by the links attached to the e-mail. The plaintiff
argued that it was under no duty to memorialize the e-mails as displayed to a user would, but only
that they preserve the e-mails as sent by the sender. The court denied sanctions against the
plaintiff stating that “the absurdity of [the defendants’] argument is patent.” The defendants’
argument is not based on the plaintiff’s failure to preserve evidence but upon the plaintiff’s failure to
gather evidence. The court noted that a plaintiff does not have a legal duty to gather evidence for a
defendant. The defendants’ request was for information that is beyond what is contained in the
actual e-mail. The plaintiff fulfilled its discovery duties by disclosing the e-mail as seen by the
plaintiff and did not have control or custody of the requested information.
� In Re Napster, Inc. Copyright Litigation, 2006 WL 3050864 (N.D. Cal. Oct. 25, 2006). In a
copyright infringement matter, the plaintiffs alleged a Napster investor willfully deleted relevant email
so the court should issue an adverse inference instruction and default judgment on some of
the claims. The investor argued they did not have a duty to preserve the e-mails in question
because they were not a named party to any Napster litigation at the time nor did they reasonably
expect to be a part of any litigation related to Napster. The court disagreed and determined that as
investors, the president of the company knew prior to the commencement of this litigation, they
could be named as a party in the suit and be required to produce documents. Although the court
did not find the investor willfully destroyed e-mail, it determined that it was grossly deficient in its
attempt to preserve any evidence. Default judgment was not ordered; however, adverse inferences
and monetary sanctions were awarded.
� Zamora v. D’Arrigo Bros. Co., 2006 WL 3227870 (N.D. Cal. Nov. 7, 2006). In an employment
discrimination case, the defendant produced electronic data in response to a document request.
The plaintiffs’ electronic data consultant apparently found several problems with the data, including
inconsistencies, incompleteness, and undecipherable codes. The plaintiffs’ then served the
defendant with a subpoena requesting a 30(b)(6) deposition of a representative to explain the
incomplete electronic data. The defendant argues the deposition will be duplicative of a 2004
deposition and will not uncover any new information. The court ruled, however, that the prior
deponent did not answer questions regarding the production of incomplete data. The court further
ruled that an additional deposition of a corporate representative would not be unduly burdensome
or costly to defendant and that the deposition must take place.
� People v. Stone, 2006 WL 2893777 (Cal. App. 5th Dist. Oct. 12, 2006). In a murder case, the
defendant motioned the court to exclude the discovery of documents found on his laptop by a
computer forensics expert as inadmissible. The expert discovered certain documents in his
238

investigation where the defendant referred to himself as a “hitman for hire”. The defendant argued
that such documents were inadmissible because the prejudice of the documents outweighed the
probative value. However, the court held the documents authored by the defendant found on his
personal laptop computer could be classified as an admission by a party opponent and admissible
in trial proceedings if accompanied with proper foundation.
� Del Campo v. Kennedy, 2006 WL 2586633 (N.D. Cal. Sept. 8, 2006). During a claim under the
Fair Debt Collection Practices Act, plaintiff filed a motion to prevent the destruction of documents
and for an order requiring the parties to meet and confer to develop a document preservation plan.
Defendant’s company implemented a telephone recording system for one month where all calls
were recorded and saved on digital media. Plaintiff claims that defendant circulated an internal
memo during litigation advising employees to discard the recorded information in the normal
course of business. Defendant argued that it wanted to be relieved from the "burden" of
maintaining the digital evidence. However, the court refused to accept that maintaining digital
evidence was a burden and ordered the defendant to preserve all electronic evidence. The court
also ordered the parties to meet and confer to develop a preservation plan for electronic evidence.
� OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006). In
a patent infringement case, the defendant filed a motion to compel the production of electronic
documents. The defendant claimed the plaintiff produced a disk of information containing 29,000
pages of material that were not in a proper electronic format and not searchable. The court noted
the defendant’s motion was ironic since earlier in the litigation the defendant produced a similar
disk of information to the plaintiff that contained the same unsearchable electronic formatting. The
plaintiff claimed it bore the cost of converting the files into a searchable database because the
defendant refused to produce the information in a searchable format. The court stated the
defendant’s own prior refusal to convert its documents should not be rewarded in this situation by
forcing the plaintiff to again expend costs in converting electronic documents. The court denied
defendant’s motion.
� In re CV Therapeutics, Inc., 2006 WL 2458720 (N.D. Cal. Aug. 22, 2006). In a securities litigation,
the plaintiff claimed the defendant failed to follow a judge’s order compelling the defendant to
produce documents found on various backup tapes and employee hard drives. The plaintiff
claimed the defendant’s non-compliance came from their failure to produce documents determined
as invalid through a de-duplication software filter. The defendant claimed approximately 423,000
documents were discovered during their initial search. Upon using various search terms and a deduplication
process the number was reduced to 125,000 documents, of which only 4,000 were
relevant. The plaintiff motioned the court to discover all 423,000 documents before the filter
process was applied. The court held that the search terms chosen by the defendant were proper
and the de-duplication process was an acceptable method for narrowing the document set.
However, the defendant agreed to provide additional cataloging information to the plaintiff for the
non-produced documents and relieved the court of deciding the issue.
� Quon v. Arch Wireless Op., 445 F.Supp.2d 1116 (C.D. Cal. 2006). In a suit claiming 4th
Amendment and federal statutory violations, the court determined that public employees who send
text messages through department-issued pagers are protected by the 4th Amendment. The
plaintiffs, police department employees, were issued pagers by their employer police department.
The department had a loose policy of reviewing the text messages sent on these pagers; however,
they did not uniformly implement the policy of reviewing employee’s text messages. Plaintiffs
argued that reviewing private text messages on department-issued pagers constituted an illegal
search under the 4th Amendment and was an unreasonable invasion of privacy. The defendants
239

contended that the pagers were subject to a lesser expectation of privacy since they were owned
by the department and department policy of reviewing the messages was adequate notice of a
reduced expectation of privacy. The court held that the plaintiff had a reasonable expectation of
privacy in his text messages sent to and from his city-issued pager since the police department’s
policy was to only review employee’s text messages if they went over the monthly limit for text
messages – a policy that was used sparingly. Therefore, the plaintiff could not have reasonably
expected his messages to be reviewed for content by his employer absent a policy stating
otherwise. Furthermore, the court noted that the defendant’s argument that the police department
actually owned the pager used to transmit the protected messages was of no merit.
� Ukiah Auto. Invs. v. Mitsubishi Motors of N. Am., Inc., 2006 WL 1348562 (N.D. Cal. May 17,
2006). Alleging that the plaintiff had failed to produce all relevant documents, the defendants
sought permission from the court to inspect one of the plaintiff’s computers, which contained
financial records pertinent to the case. The plaintiff maintained that it had produced all relevant
documents from the computer to the defendant in paper form, and further, that the computer in
question was no longer operational. Finding that an inspection of the computer was warranted, the
court ordered a neutral expert to examine the computer at the plaintiff’s expense.
� Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006). The
defendant brought a motion to compel examination of the plaintiff’s computer hard drives,
contending that the plaintiff’s conduct warranted a conclusion that the plaintiff was concealing
evidence and misrepresenting facts. Although recognizing a forensic examination may be
appropriate upon a showing that the opposing party has deleted electronic evidence, the
magistrate judge observed, “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.” The
magistrate judge ultimately denied the defendant’s motion, noting that the defendant’s
unsubstantiated accusations of discovery misconduct did not warrant the remedy of a forensic
examination.
� Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Metro. Transp. Auth., 2006 WL
1703824 (Cal. Ct. App. June 22, 2006). In a construction dispute case, the appellate court affirmed
the trial court’s award of terminating sanctions against the defendant for years of discovery abuses
and the intentional spoliation of evidence. After the defendant repeatedly failed to produce financial
documents responsive to the plaintiffs’ discovery requests, the plaintiffs sought an order to conduct
a forensic examination of the defendant’s computer hard drive. When the trial court awarded the
plaintiffs request, the defendant filed an interlocutory appeal. The retained computer forensic
examiner determined a number of files had been individually selected and manually deleted. In
addition, the expert testified that the recycle bin had been emptied on the same day the Court of
Appeals denied the defendant’s appeal and issued an order to preserve and produce the computer
hard-drive. Finding that the financial records were integral to the case, the court observed, “[the
defendant’s] conduct effectively destroys the ability of [the plaintiffs] to litigate the trial.” In affirming
the default judgment against the defendants, the appellate court noted, “any lesser sanction for this
willful failure to comply would have condoned [the defendant’s] behavior and by definition would
have been insufficient.” The court also awarded the plaintiffs’ attorneys fees and the costs of
appeal.
� O’Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal. App. 6th Dist. 2006).
In a case involving the online publication of a company’s trade secrets, the defendants sought a
protective order to enjoin discovery of documents identifying their confidential sources. Their
240

motion was denied by the trial court. However, the appellate court, ruling on the rights of web
publishers to resist the discovery of unpublished material, granted the protective order, citing
federal and state law, and a constitutional privilege against the compulsory disclosure of
confidential sources.
� Miller v. International Bus. Machs., 2006 WL 995160 (N.D. Cal. Apr. 14, 2006). Alleging breach
of contract and fraud claims, the defendant filed a motion for sanctions and argued, inter alia, the
plaintiff failed to produce e-mails and accompanying attachments together as previously ordered.
The plaintiff claimed the attachments, produced separately as files on a disk, sufficiently referenced
the corresponding e-mails. Alternatively, the plaintiff argued he should not be compelled to
determine which attachments accompanied which e-mails. The court noted, “It is not clear how [the
plaintiff] can argue that he has identified specific e-mail to which the produced files were
referenced, while at the same time stating that he cannot determine which attachments belong to
which e-mails.” Thus, the court ordered the plaintiff to “produce the relevant e-mails with the
attachments physically attached, or…provide specific references (i.e., date of production, Bates
and/or page numbers, and labels) which enable [the defendant] to identify which attachments
belong to which e-mails.” Failure to comply with the order would result in preclusion of improperly
produced e-mails or attachments at trial.
� Creative Sci. Sys., Inc. v. Forex Capital Mkts., LLC, 2006 WL 870973 (N.D. Cal. Apr. 4, 2006).
In a copyright infringement lawsuit, the plaintiff moved for sanctions claiming the defendants failed
to comply with a preservation order. The preservation order required the defendants to “preserve
all relevant documents as defined under Federal Rule of Civil Procedure 34(a), including but not
limited to all electronic evidence or evidence stored on computers regardless of the medium on
which it is stored.” Upon inspecting five of the defendants’ forty servers, a computer forensic expert
found the operating systems on three of the servers had been reinstalled after the preservation
order was issued. The defendants claimed they reinstalled the operating systems in order to test
and install new software. Although finding an adverse inference instruction was not warranted, the
court ordered the defendants to bear the cost of analyzing the remaining servers. The court
concluded “the failure of [the defendants and their] counsel to take affirmative steps to comply with
the Preservation Order-which would have caused [the defendants] not to reinstall the operating
systems on the servers at issue-is evidence of at least some degree of bad faith.”
� Tessera, Inc. v. Micron Tech., Inc. 2006 WL 733498 (N.D. Cal. Mar. 22, 2006). The plaintiff
sought to compel production of documents from a non-party in a patent infringement case.
Objecting, the non-party claimed the request was overbroad, burdensome and not relevant to the
issues in the litigation. In response, the plaintiff asserted the production merely required the nonparty
to produce documents from existing electronic databases of documents, previously created
for a government investigation. The plaintiff also argued the non-party needlessly delayed its
response by failing to agree to a list of search terms proffered during the parties’ meet and confer
conference. The court ordered the non-party to “produce on DVD-ROMS or hard drives documents
derived using specific search terms from databases created for the U.S. Department of Justice
investigation of the DRAM industry and any related preceding litigation in which the [non-party was]
a party.” In addition, the court directed the plaintiff to review the documents for responsiveness and
to obtain third party permission for use of any responsive documents.
� Bob Barker Co., Inc. v. Ferguson Safety Prods., Inc., 2006 WL 648674 (N.D. Cal. Mar. 9, 2006).
In an action brought under the Lanham Act, the plaintiff sought, inter alia, all financial software
databases used in the operation of the defendants’ business. The defendants protested arguing
the request was overbroad. Noting the defendants did not appear to have the requested software,
241

the court observed the plaintiff’s other requests were broad enough to encompass the requested
data, regardless of whether it was maintained in a "financial software database." The court
determined the defendants need not produce documents specific to the plaintiff’s request but
declared the defendants “may not withhold any documents (including electronic documents) that
are responsive to any other request simply because they were created by or exist in a financial
database program.” The court also denied the plaintiff’s expert direct access to the database
indicating the plaintiff could seek direct access upon “a showing of why [direct access] is
necessary, and by proposing a procedure containing adequate safeguards to protect [the
defendants’] interests.”
� Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F.Supp.2d 1121 (N.D. 2006). In a
patent infringement case, the plaintiffs sought to compel production of documents in native format
with original metadata. The plaintiffs asserted native production format was mandated by a local
patent rule that required a party defending a patent infringement claim to make available "[s]ource
code, specifications, schematics, flow charts, artwork, formulas, or other documentation…” Finding
the defendants failed to offer relevant reasons why the documents should not be produced in their
native format, the court granted the motion and ordered the defendants to “produce the documents
in their native file format, with original metadata.” The court further declared the document
production set “shall be separately identified by Bates numbers to correspond to each aspect or
element of each accused instrumentality identified in [the defendant’s patent] chart.”
� Hynix Semiconductor, Inc. v. Rambus, Inc. v., No. C-00-20905 RMW (N.D.Cal. Jan. 4, 2006). In
a patent infringement suit, the plaintiffs argued the defendant’s claims should be dismissed based
on the defendant’s adoption of a document retention policy that resulted in the destruction of
potentially relevant electronic and paper documents. Prior to filing the litigation at issue, the
defendant developed a document retention policy requiring the destruction of e-mail contained on
backup tapes after three months. In addition, the defendant held several “Shred Days” during
which employees were instructed to follow the retention policy guidelines to determine what to
keep and what to throw away. In assessing the plaintiffs’ argument, the court noted the evidence
failed to show the defendant targeted any specific document or category of relevant documents
with the intent to prevent production in the upcoming lawsuit. The court further found the
defendant’s adoption of the policy was not designed to prevent the plaintiffs from obtaining
evidence that would be helpful to the plaintiffs’ defense. For these reasons, the court declined to
accept the plaintiffs’ argument and declared, “[The defendant’s] adoption and implementation of its
content neutral Document Retention Policy in mid-1998 was a permissible business
decision…[and] did not constitute unlawful spoliation.”
� Sony Computer Entertainment Am., Inc. v. Filipiak, 2005 WL 3556676 (N.D.Cal. Dec. 27,
2005). The plaintiff sought injunctive relief and damages claiming the defendant sold products that
allowed users to play illegal copies of the plaintiff’s PlayStation video games. After receiving a
cease-and-desist letter from the plaintiff’s attorneys, the defendant signed the letter and agreed to
an injunction prohibiting the marketing, sale and distribution of the products. Although the
defendant removed the products from his Web site, he continued to sell them. After confronting the
defendant about his violation of the previous agreement, the parties executed a Consent Judgment
against the defendant for an undetermined amount which was to be based on further discovery. As
a part of the discovery provisions, the defendant agreed he would not destroy any documents or
computer files reflecting sales of his products. During discovery, the defendant’s hard drive was
examined by a computer forensic expert, who determined thousands of files had been deleted from
the hard drive just days before production of the hard drive. The deleted files included numerous
242

documents with titles indicating they were sales records. Finding a “significant” statutory damage
award was warranted under the circumstances, the court awarded more than $6 million in
damages. The court stated, “[the defendant] intentionally and in bad faith violated the terms of the
Consent Judgment as well as his discovery obligations under Rule 26 of the Federal Rules of Civil
Procedure.”
� Hamilton v. Signature Flight Support Corp., 2005 WL 3481423 (N.D.Cal. Dec. 20, 2005). In an
employment discrimination action, the plaintiffs sought sanctions against the defendants for
destroying video surveillance recordings allegedly containing critical evidence about an altercation
between an employee and a customer. During discovery, the plaintiffs had requested the video
recording as well as information about the defendants’ surveillance system and a chain of custody
for the video. The defendants only produced a portion of the footage but declared it had preserved
the only video of the incident. The defendants further stated that the remaining portion was
unavailable because the surveillance system automatically records over previous tapings every 15
to 30 days. The court found the video contained relevant evidence, the defendants had a duty to
preserve that evidence, and the defendants destroyed the evidence. However, the court declared
that the defendants had, at the most, “acted negligently in failing to preserve the end of the
recorded portion of the altercation” and declined to award sanctions. The court also noted the
plaintiffs failed to show the missing video would have favored their case and that its destruction
would have been harmful.
� In re ATM Fee Antitrust Litig., 2005 WL 3299763 (N.D. Cal. Dec. 5, 2005). In addition to
document production and admission requests, the plaintiffs sought interrogatories and 30(b)(6)
depositions concerning document and electronic data storage and management issues. The
defendant conceded that one of its wholly-owned subsidiaries, which was not a named party to the
suit, would be the most likely source of this information. However, the defendant objected to
providing the requested information and argued such a measure would be unduly burdensome and
expensive. The defendants stated the plaintiffs should directly request the documents themselves
by subpoenaing the subsidiary or by adding them as a party to the suit. Rejecting this claim, the
court ordered the defendant to respond to the plaintiffs’ discovery requests on behalf of its
subsidiaries, stating the defendant had access to and control over this information. The court
further found the defendants failed to show responding to the request would be unduly
burdensome.
� Electronic Funds Solutions v. Murphy, 36 Cal.Rptr.3d 663 (Cal. Ct. App. 2005). In a lawsuit
involving various business tort claims, the defendants appealed a default judgment and argued the
trial court abused its discretion. During discovery, the plaintiffs’ computer forensic expert
discovered four of the defendants’ hard drives had been "wiped" after the date the court ordered
their production. The expert further concluded data had been copied from the hard drives before
the wiping and selected data was reinstalled after the wiping. On one of the computers, the
defendants appeared to have aborted the data wiping program minutes before they were required
to turn it over to the plaintiffs’ expert. Based on the defendants’ intentional data destruction, the
court entered a terminating sanction and awarded a default judgment of $24 million in punitive and
compensatory damages in favor of the plaintiffs. On appeal, the court upheld the terminating
sanctions in light of the “defendants’ brazen violation of a discovery order in the face of an express
warning.” The court stated, the “Plaintiffs recovered e-mails from the computer only because
defendants had not run the program properly…defendants’ actions have made it virtually
impossible to determine what items defendants destroyed.” The court remanded the case, finding
the damage award inconsistent with the amount sought in the complaint.
243

� Sonista, Inc. v. Hsieh, 2005 WL 3113083 (N.D.Cal. Nov. 21, 2005). The plaintiff sought summary
judgment in a case involving a breach of fiduciary duty claim. In support of its motion, the plaintiff
produced e-mails, retrieved by a computer forensic expert from the defendant’s work laptop, that
evidenced self-dealing on the part of the defendant. The defendant argued the mere presence of
these e-mails was insufficient to establish the existence of undisputed material facts. Although it
agreed, the court awarded summary judgment in favor of the plaintiff and declared a dispute of
material fact did not exist because the defendant failed to contradict the e-mail evidence.
� People v. Jiang, 31 Cal.Rptr.3d 227 (Cal. Ct. App. 2005), withdrawn, 33 Cal.Rptr.3d 184 (Cal. Ct.
App. 2005). In an appeal from a rape conviction, the defendant argued, inter alia, that passwordprotected
documents contained on his employer-issued laptop in a folder marked “Attorney” were
protected by the attorney-client privilege. The trial court had previously determined these
documents were not subject to the attorney-client privilege because the defendant had no
reasonable expectation of privacy in documents on an employer-issued laptop computer. On
appeal, the state argued the defendant did not have a reasonable expectation of privacy based on
the terms of an employment agreement in which the defendant acknowledged he had no
expectation of privacy for any company-owned property. The appellate court reversed the trial
court’s holding and found the defendant “made substantial efforts to protect the documents from
disclosure by password-protecting them and segregating them in a clearly marked and designated
folder.” The appellate court further declared the prosecution failed to prove the documents were not
confidential and noted the employment agreement did not prevent the defendant from using the
laptop for personal use.
� AdvantaCare Health Partners, LP v. Access IV, Inc., 2005 WL 1398641 (N.D. Cal. June 14,
2005). One of the Defendants, Porter, sought reconsideration of a default judgment issued against
her and other defendants in a case involving unfair competition allegations by a former employer.
The employer’s computer forensic expert had previously discovered that another Defendant,
Dangerfield, had copied numerous computer files prior to leaving the company and tried to conceal
his actions by deleting the copied files from his hard drive. In an earlier order, the court had
imposed $20,000 in monetary sanctions and issued an adverse inference instruction, directing the
fact finder to conclude that the defendants copied all of the files on the employer’s computers.
Approximately seven months later, the court entered a default judgment based upon its factual
determination that while the sanctions motion was under submission, the defendants wiped two
hard drives clean and continued deleting files after the sanctions order was issued. In her current
motion, Porter argued that the court should not have entered default judgment against her because
the court never determined she personally copied or destroyed files. While noting this was true, the
court stated, “Porter apparently left compliance in Dangerfield’s hands. The fact that Porter
reposed trust in Dangerfield does not insulate her from the affirmative obligations placed upon all
Defendants… especially in light of the Court’s repeated findings that Dangerfield has engaged in
misconduct with respect to AdvantaCare’s files throughout this litigation.” The court denied the
motion for reconsideration and entered a default judgment against all of the defendants.
� Hypertouch, Inc. v. Superior Court, 27 Cal. Rptr. 3d 839 (Cal. Ct. App. 2005). In a class action
lawsuit relating to unsolicited advertisements sent to fax machines, the plaintiffs had sought
discovery of a database containing the telephone numbers to which the defendants allegedly sent
the advertisements. The defendants argued the database contained confidential customer
information and was protected as a trade secret. Agreeing with the defendants, the court denied
the plaintiff’s motion to compel. Shortly after, the plaintiff learned the defendants destroyed a
second database – called the “do not fax” database – which listed phone numbers from which the
244

defendants had received requests to stop sending faxes. The plaintiff then moved for an order
approving certified class, asserting the defendant should pay for identifying and noticing class
members due to the defendant’s destruction of the “do not fax” database, its refusal to disclose the
telephone number database, and its financial resources. The court determined the defendants
should bear notice costs if they either "unnecessarily complicated the problems of identifying and
notifying the class" or "possess the ability to provide class notice easily and at relatively little cost."
Thus, the appellate court determined the superior court could order the defendants to provide
notice by telephone fax “to the persons whose numbers are in the ‘fax database’ if that can be
done without disclosure of the database to [the] plaintiff, and would be relatively easy and less
expensive than alternative forms of notice.”
� Communications Ctr., Inc. v. Hewitt, 2005 WL 3277983 (E.D. Cal. Apr. 5, 2005). In a case
arising from misappropriation of trade secrets, unfair competition, and other allegations, the plaintiff
brought a motion for terminating sanctions against the defendant for violating a magistrate’s
discovery order. The order required the defendant to produce a compact disc containing mirror
images of any responsive hard drives in the defendant’s possession. The production was to be
designated for “Attorney’s Eyes Only” and no documents were to be withheld from production.
Although the defendant produced three CDs, the CDs were not mirror images of the defendant’s
hard drives. The defendant supplemented the production with ten discs, which also failed to
contain mirror images. Days after the production, the defendant ran a software wiping program
called Evidence Eliminator on three of the hard drives. The defendant claimed he purchased the
program only after learning the true meaning of the “mirror image” as set forth in the magistrate
order. He further stated he used the program to cover up evidence of an affair and to prevent
disclosure of embarrassing Web sites. The defendant further admitted he re-installed an operating
system on one of the drives, despite knowing that this would destroy data on the drive. The
magistrate found this conduct “a stark affront to the judicial process.” Noting the destroyed data
was “gone forever,” the magistrate awarded the plaintiff over $145,000 in costs and fees. The
magistrate further recommended that a default judgment be entered for six out of the eight causes
of action.
� Satchell v. FedEx Corp., 2005 WL 646058 (N.D. Cal. Mar. 21, 2005). In a case involving an
employment discrimination class action lawsuit, the plaintiffs requested that the court compel
production of certain personnel records. The defendant contended it had already produced all of
the requested information in an electronic database. However, the court ordered the defendant to
re-produce the personnel records, stating that “the electronic data produced for class discovery
purposes is not an adequate substitute for the personnel records…and other discovery sought.”
� People v. Samuels, 2005 WL 639143 (Cal. Ct. App. Mar. 21, 2005). The defendant appealed a
jury conviction for grand theft relating to alleged exorbitant contingency fees charged by the
defendant. Specifically, the defendant argued the trial court should have granted his pretrial motion
to dismiss because the prosecution destroyed evidence that would have supported the defendant’s
claim of right defense. In the pretrial motion, the defendant contended state bar investigators failed
to preserve case files and computer records necessary for his defense. He further alleged the state
bar failed to provide an inventory of his computer files after they seized the files. When the case
files and computer records were returned, they were incomplete, making it impossible for the
defendant to prove the amount, complexity and nature of the work performed for his clients.
Although the defendant filed an affidavit from an investigator who stated the computer was turned
off abnormally while in the state bar’s possession, the trial court refused to consider the evidence
unless the affiant testified. The appellate court affirmed the trial court’s judgment, concluding that
245

the defendant failed to demonstrate bad faith on the part of the state bar or that any of the seized
evidence was exculpatory or material.
� Green v. Baca, 225 F.R.D. 612 (C.D.Cal. 2005). A former county jail detainee filed a motion for
fees and costs, claiming the county failed to produce computer-based records relating to an overdetention
claim. Despite persistent questioning by the court and orders requiring the county to
provide the requested information, the county did not inform the court or the plaintiff about the
computer-based records for nearly nine months. In its defense, the county argued the plaintiff did
not make a good faith effort to narrow the scope of its discovery request. The court rejected this
argument and stated production would not have occurred absent court intervention, even if the
plaintiff had acted in good faith. The court awarded $54,375 in attorney fees and costs and
declared the “plaintiff’s efforts to obtain discovery … were unduly complicated and extraordinarily
delayed by the failure of the county and/or its counsel to investigate promptly and effectively the
records available, both in hard-copy and computer-based formats, regarding such over-detentions.”
� Icu Med., Inc. v. B. Braun Med., Inc., 2005 WL 151927 (N.D.Cal. Jan. 4, 2005). The defendant
sought an order compelling the plaintiff to adequately search for and produce all non-privileged
documents. Upon reviewing information submitted by the parties, the magistrate judge ordered the
plaintiff to search “all computerized files, e-mails, voice mails, work files, desk files, calendars and
diaries, and any other locations and sources if materials of the type to be produced might plausibly
be expected to be found there.” The magistrate also ordered the plaintiff to produce all nonprivileged
documents, along with a written list setting forth each specific source and location
searched as well as the individuals conducting the search and their areas of search responsibility.
In addition, the plaintiff was to provide a list describing the specific source for each produced item
and a list of items withheld on the basis of privilege. The magistrate further required the plaintiff to
confirm it had searched all locations potentially containing this material and produced all nonprivileged
documents.
� United States v. Conte, 2004 WL 2988567 (N.D.Cal. Dec. 28, 2004). In an investigation relating to
suspicions that the defendants supplied athletes with illegal performance-enhancing drugs, a
magistrate judge issued search warrants permitting the government to search Yahoo! and AOL email
accounts allegedly used by the defendants and a drug company. The defendants challenged
these warrants and a warrant permitting seizure of e-mail correspondence with athletes, claiming
the warrants were stale, overbroad and lacked probable cause. Concluding it was likely the e-mail
accounts would contain e-mails relating to the distribution of the drugs, the court found probable
cause existed for issuing the warrants. The court also declared the warrants were not stale since
the e-mail accounts were used recently. In addition, the court found the warrants were not
overbroad because they did not permit the seizure of all e-mails in the accounts. Rather, the
warrants only permitted seizure of e-mails that were restricted to financial matters and
performance-enhancing drugs.
� Toshiba Am. Elec. Components, Inc. v. The Superior Court of Santa Clara County, 21 Cal.
Rptr. 3d. 532 (Cal. Ct. App. 2004). Alleging misappropriation of trade secrets, breach of fiduciary
duty, and unfair competition claims, the plaintiff moved for production of relevant evidence
contained on more than 800 backup tapes and asked that the defendant bear the costs of
retrieving the data. The defendant objected, claiming undue burden and expense. The defendant
also revealed that some of the tapes had become obsolete, making the data accessible only
through the use of specialized tools. The plaintiff contended that it should not be penalized
because the defendant chose to keep records in a format difficult for retrieval. Without comment,
explanation or suggestion of a sampling protocol, the trial court ordered the defendant to produce
246

the backup tape data and to bear production costs. On appeal, the court declined to apply the
Zubulake seven-factor cost-shifting test and instead referenced California Code of Civil Procedure
§2031, stating that “our Legislature has identified the expense of translating data compilations into
usable form as one that, in the public’s interest, should be placed upon the demanding party.” The
appellate court required the plaintiff to pay for translating the backup tape data. The court stated
that the plaintiff could seek a protective order or file a motion to compel production if asked to pay
costs that it finds unreasonable and unnecessary. The court indicated that sampling would be an
appropriate test for determining necessity and remanded the case for a determination on whether
the backup tapes were necessary and reasonable.
� Sempra Energy Trading Corp. v. Brown, 2004 WL 2714404 (N.D.Cal. Nov. 30, 2004). In a
discovery dispute relating to a preliminary investigation of gas-price increases, the court ordered
the plaintiff to restore, review and produce responsive e-mail spanning a 15-month period. The
plaintiff brought a motion for costs stating it was not a named party to the investigation. Denying
the request, the administrative law judge determined the party was not “an uninvolved third party”
and thus should bear production costs. Several months later, the judge held another discovery
hearing to implement a faster e-mail review process and amended the early order to expedite the
review process. The plaintiff then filed the instant action in district court, challenging the discovery
orders relating to the underlying investigation and claiming “irreparable injury” as it had already
spent $1.4 million in attempting to comply with the discovery orders. The court refused to exercise
its jurisdiction and declared the plaintiff’s litigation costs did not demonstrate “irreparable injury.”
The court dismissed the action but declared the plaintiff could pursue other remedies if warranted.
� Collaboration Properties, Inc. v. Polycom, Inc., 2224 F.R.D. 473 (N.D. Cal. 2004). In a patent
infringement case, the plaintiff, inter alia, sought to compel production of electronic documents and
e-mails. The defendant claimed the disputed documents fell within the attorney-client privilege
since they were exchanged between the defendant’s engineers and former defense counsel. In
response, the plaintiff argued the defendant had waived the privilege because it was asserting an
advice-of-counsel defense to charges of willfulness and because it sent the documents to its
current counsel. The defendant maintained that the attorney-client privilege still existed because its
counsel never opened the e-mail attachments containing the privileged documents. Denying its
motion to compel, the court found the plaintiff did not present sufficient evidence to refute the
defendant’s argument. The plaintiff also disputed 58 e-mails identified by the defendant as
privileged. These e-mails were exchanged between non-attorney employees but contained a
forwarded exchange with an attorney. Although the defendants had produced redacted copies of
the e-mails, the plaintiffs argued the redactions were overbroad because they blocked out
information about the author and the recipient of the e-mails. The court agreed, ordering the
defendant to show the plaintiff unredacted copies of the e-mails in order to discuss the scope of
privilege. This disclosure conference, the court added, would not waive any existing attorney-client
privilege.
� Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195 (N.D.Cal. Sept. 30, 2004). The
plaintiffs sought a judicial declaration preventing the defendants from claiming that the plaintiffs
unlawfully posted the defendants’ e-mail archive on multiple websites and in electronic newsletters.
After the posting, the defendants sent cease and desist letters threatening to sue for copyright
infringement under the Digital Millennium Copyright Act (DMCA) if the archive remained accessible
on the Internet. The defendants argued that the e-mail archive, in which employees acknowledged
problems with the company’s electronic voting machines, also contained proprietary and trade
secret information as well as personal employee contact information. Although the court
247

determined that the plaintiffs allegations were moot and did not entitle them to receive declaratory
or injunctive relief, it found that publishing portions of the e-mail archive was lawful. The court
noted “[e]ven if portions of the e-mail archive have commercial value…[the plaintiffs] used the email
archive to support criticism that is in the public interest, not to develop electronic voting
technology.” The court also determined that the defendants unlawfully used the DMCA safe harbor
provisions “as a sword to suppress publication of embarrassing content rather than as a shield to
protect its intellectual property.”
� Advantacare Health Partners, LP v. Access IV, 2004 WL 1837997 (N.D.Cal. Aug. 17, 2004). The
plaintiffs filed suit against the defendants, former employees of the plaintiffs, alleging the
defendants’ newly created company competed directly with the plaintiffs’ business. In support of
their claims, the plaintiffs hired a computer forensic expert to examine the defendants’ former work
computers. The forensic expert discovered that, prior to leaving the company, one of the
defendants accessed the plaintiffs’ computer network, copied company confidential files, and
deleted the copied files from his hard drive, in an attempt to conceal the file copying. Based on this
evidence, the court granted the plaintiffs’ request to make forensic copies of the defendants’
current home and business computers and server. The forensic expert found that after the court
issued the order, numerous computer searches for data deletion software were performed and a
program called “BC Wipe” was used to delete more than 13,000 files from the defendant’s home
and office computers and server. The forensic expert also found an additional 100 files deleted just
hours before the defendants submitted the hard drives to the plaintiffs for analysis. Based on these
facts, the court ordered the defendants to permanently delete the files and authorized the plaintiffs
to re-image the defendants’ hard drives to verify compliance. Upon re-imaging the hard drives, the
plaintiffs’ expert discovered thousands of confidential files still existed on the drives. The
defendants argued they could not ensure whether they had deleted all of the files because the
plaintiffs failed to identify the files by name, directory, and computer. Declining to accept the
defendants’ argument, the court stated, “[d]efendants’ behavior, from the very inception of this
case, has demonstrated willfulness, fault, and bad faith.” The court awarded $20,000 in sanctions
and indicated that it would instruct the jury to make a negative inference concerning the deleted
files.
� Feather River Anesthesia Med. Group, Inc. v. Fremont-Rideout Health Group, 2004 WL
1468741 (Cal. Ct. App. June 30, 2004). In a case involving unfair competition allegations, the
plaintiff claimed that the defendant failed to adequately respond to its document production
requests. After the defendant failed to adequately respond for almost an entire year, the trial court
issued a production order and awarded monetary sanctions against the defendant. The defendant
then filed a motion for clarification. In response, the trial court modified its original order and upheld
the sanction award. Among other things, the modified order required the defendant to report the
authority and expertise of the person searching any electronic data. The defendant was also
ordered to assure that the person could access all relevant data and that they had made an effort
to recover any relevant deleted data. On appeal, the defendant argued that its actions were
substantially justified because it opposed the plaintiff’s motion to compel. In affirming the trial
court’s imposition of sanctions, the appellate court stated that even if the defendant’s “objections to
disclosure of…some of the evidence may have been valid [that] does not make its refusal to
disclose other discoverable evidence substantially justified.”
� People v. Superior Court, 2004 WL 1468698 (Cal. Ct. App. June 29, 2004). In a case arising from
a fraud and grand theft investigation, the defendant was accused of creating false evidence when
served with a federal subpoena that required him to produce certain documents. The false
248

documents included an inaccurate billing statement and five letters pertaining to “future” meetings.
A computer forensics investigation of the defendant’s computer revealed that the letters were
actually created after the “future” meetings were set to occur. In addition, the billing statement was
created within an hour of the letters. The trial court held that this evidence was insufficient to show
that the defendant created the documents after he found out about the audit. On appeal, the
government argued that because that the defendant’s fellow director knew about the audit the day
before the defendant created the documents, a fact finder could reasonably infer that the defendant
created the backdated letters in response to the audit. Determining that the evidence supported the
government’s argument, the appellate court reversed the trial court’s decision and declared that a
reasonable person could conclude that the defendant was aware of the audit when he created the
backdated documents.
� People v. Dominguez, 2004 WL 1068809 (Cal. Ct. App. May 13, 2004). In a child pornography
prosecution case, the State examined the defendant’s computer for illegal material. The
prosecution’s computer forensic expert recovered 45 child pornography images, deleted from the
computer’s active memory, and 20 deleted “favorites folders,” which marked prior visits to child
pornography Web sites. The expert also testified that he discovered child pornography “cookie
files,” files designed to make return visits to a Web site faster. In response, the defendant noted,
inter alia, that, because the evidence was located in his computer’s inactive memory and could not
be recovered without the use of specialized computer programs, it was insufficient evidence to
support the conviction. In rejecting the defendant’s argument, the court declared that “[t]he fact that
the evidence of that possession was the result of a forensic examination of the inactive memory of
his computer is meaningless.” As such, the court determined that the evidence supported the
defendant’s conviction for possession of child pornography.
� In re Verisign, Inc. Sec. Litig., 2004 WL 2445243 (N.D. Cal. Mar. 10, 2004). In a class action
securities lawsuit, the plaintiffs sought to compel production of electronic documents in electronic
form. The magistrate judge granted the order, specifically stating that a tiff document production
was insufficient and ordered the defendants to produce the documents in a searchable electronic
format – such as a native .pst format – that included metadata. The defendants objected to the
magistrate’s order, arguing that production in native format rather than in tiff format was contrary to
Fed.R.Civ.P. 34. The district court judge rejected this argument and declared the Rules “required
[the defendants] to produce responsive electronic documents in their native .pst format if that is
how they were stored in Defendants’ usual course of business.”
� OpenTV v. Libertate Technologies, 219 F.R.D. 474 (N.D.Cal. 2003). The plaintiff requested that
the defendant produce copies of its source code for various products at issue in the litigation. The
defendant objected to the request, claiming that producing this data would be overly burdensome,
but offered to make the source code data available for review at its facilities. The plaintiff rejected
this offer, claiming that it inappropriately shifted the costs of production to the requesting party as
the code must be extracted at its expense. Relying on the analysis set forth in Zubulake cases, the
court found that the source code data was stored in an inaccessible format for purposes of
discovery. The court used the Zubulake seven factor balancing test to determine that the parties
should split the costs of extracting the data equally, with the defendant bearing the copying costs
once the data has been extracted.
� Dodge, Warren, & Peters Ins. Servs. v. Riley, 130 Cal. Rptr. 2d 385 (Cal. Ct. App. 2003). Prior to
termination of their employment, the defendants copied and took with them volumes of
computerized data maintained in the plaintiff’s files and storage media. The plaintiff sued the
defendants alleging claims of misappropriation of trade secrets, unfair business practices, breach
249

of fiduciary duty and breach of contract. The appellate court affirmed the trial court’s order issuing a
preliminary injunction against the defendants, requiring the preservation of electronic evidence and
ordering them to allow a court-appointed expert to copy the data, recover lost or deleted files, and
perform automated searches of the evidence under guidelines agreed to by the parties or
established by the court.
� Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D.Cal. 2002). In a copyright
and trademark infringement action, the court refused to find that all evidence printed from websites
is inauthentic and inadmissible. Instead, the court found that the printouts were properly
authenticated under Fed.R.Evid. 901(a) where the plaintiff’s CEO adequately established that the
exhibits attached to his declaration were “true and correct copies of pages printed from the Internet
that were printed by [him] or under his direction.”
� Lombardo v. Broadway Stores, Inc., 2002 WL 86810 (Cal. Ct. App. Jan. 22, 2002). The court
upheld sanctions where the defendant destroyed computerized payroll data that was the subject of
the plaintiff’s discovery request.
� Pennar Software Corp. v. Fortune 500 Sys. Ltd., 2001 WL 1319162 (N.D.Cal. Oct. 25, 2001). In
a breach of contract suit, the court imposed sanctions upon the defendant in the form of attorney’s
fees for committing spoliation of evidence and prolonging the discovery process. The court based
its findings on the defendant’s failure to present a maintenance policy, log files, or backup tapes
that would track the website maintenance and deletion procedures. When the evidence was
produced, the court found that the defendant tampered with and deleted evidence in order to evade
personal jurisdiction.
� Unnamed Physician v. Board of Trustees of St. Agnes Medical Center, 113 Cal.Rptr.2d 309
(Cal. Ct. App. 2001). In a physician review hearing, the hospital was ordered to provide the
physician with all existing documents related to the hospital’s computer programs, except those of
a proprietary nature.
� In re Pacific Gateway Exchange, Inc., 2001 WL 1334747 (N.D.Cal. Oct. 17, 2001). In a securities
violation case, the court lifted the discovery stay, stating “The court finds that there is a significant
risk that relevant documents, both paper and electronic, could be irretrievably lost, which could
result in prejudice to plaintiffs.”
� Benton v. Allstate Ins. Co., 2001 WL 210685 (C.D. Cal. Feb. 26, 2001). The court refused to
grant a continuance on the defendant’s summary judgment motion where the plaintiff claimed that
he had not had an adequate opportunity to conduct discovery of the defendant’s computer system.
The court concluded that the plaintiff did not show that a further continuance was necessary to
prevent irreparable harm or that further discovery will enable him to obtain evidence essential to his
opposition to the motion.
� Adobe Sys., Inc. v. Sun South Prod., Inc., 187 F.R.D. 636 (S.D. Cal. 1999). In a computer piracy
suit, the court denied the plaintiff’s ex parte application for a temporary restraining order. The court
based its decision on the fact that it is more difficult to erase evidence that is magnetically encoded
on a computer hard disk than it is to physically destroy floppy disks, compact discs, invoices, and
other tangible forms of evidence. “Manual or automated deletion of that software may remove
superficial indicia, such as its icons or presence in the user’s application menu. However, telltale
traces of a previous installation remain, such as abandoned subdirectories, libraries, information in
system files, and registry keys…Even if an infringer managed to delete every file associated with
the plaintiffs’ software, the plaintiffs could still recover many of those files since the operating
system does not actually erase the files, but merely marks the space consumed by the files as free
for use by other files.”
250

� Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999). The court appointed a
computer expert who specialized in the field of electronic discovery to create a “mirror image” of
the defendant’s hard drive. The court reserved Respondent’s right to object to production after data
capture by expert and review of materials.
� Symantec Corp. v. McAfee Assoc., Inc., 1998 WL 740807 (N.D. Cal. Aug. 14, 1998). The plaintiff
sought to obtain the entire source code for all of the defendant’s products dating back to 1995, as
well as copies of all hard drives which had access to the server from which the information was
copied. The court found that production of this magnitude would be unduly burdensome to the
defendant, both in terms of volume and in terms of the proprietary nature of the information sought.
� Aviles v. McKenzie, 1992 WL 715248 (N.D. Cal. Mar. 17, 1992). In an action involving claims of
wrongful termination and employment discrimination, the plaintiff presented e-mail messages that
demonstrated he was fired for whistleblowing about unsafe and illegal company practices.
� Cabinetware Inc., v. Sullivan, 1991 WL 327959 (E.D. Cal. July 15, 1991). The court issued a
default judgment as a sanction for spoliation of electronic evidence. “Destruction of evidence
cannot be countenanced in a justice system whose goal is to find the truth through honest and
orderly production of evidence under established discovery rules.”
� Lawyers Title Ins. Co. v. United States Fidelity & Guar. Co., 122 F.R.D. 567 (N.D. Cal. 1988).
The court rejected, as broadly framed and intrusive, a request to inspect the responding party’s
entire computer system where it was a mere possibility that responding party might produce
applicable documents. The court required a showing that this inspection would lead to evidence
that had not already been produced.
� National Assoc. of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987). The court
imposed sanctions on party that altered and destroyed computer documents in the regular course
of business. The court appointed special master to oversee the discovery process.
� William T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443 (C.D. Cal. 1984). GNC
was ordered to preserve all records that were maintained in the ordinary course of its business;
despite this, company employees were instructed that these judicial orders “should not require us
to change our standard document retention or destruction policies or practices.” The court ordered
a default judgment and over $450,000 in monetary sanctions, where GNC deleted electronic
documents that were not otherwise available.
Hawaii
� Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., 2008 WL 185649 (Bkrtcy.D.Hawaii Jan. 22,
2008). Previously in this breach of contract litigation, the court sanctioned the defendant for
deliberate destruction of electronic evidence while under a preservation obligation by finding
certain facts conclusively established in favor of the plaintiff. Subsequently, the plaintiff filed this
motion for attorney’s fees and costs. Finding the defendant’s prior spoliation to be the cause of the
expenditures of the plaintiff’s computer forensic expert, the court awarded the related fees and
expenses. However, as the additional expert witness fees, attorney travel, meal costs and
computerized legal research fees were unrelated to the misconduct, the court declined to award
them to the plaintiff.
� Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., 2007 Bankr. LEXIS 3679 (Bankr.D.Haw. Oct. 30,
2007). In this trade secret misappropriations claim, the plaintiff motioned the court to sanction the
defendant, alleging deliberate destruction of evidence that the defendant had a duty to preserve.
Before the complaint was filed, the defendant’s top officer installed program deletion software on
251

his home computer and two laptops that permanently eliminated the residue of previously deleted
files and changed the system clock. The court found the destruction to be intentional, deliberate,
willful and in bad faith. Therefore, the court found spoliation and ordered an adverse inference that
the evidence destroyed was unfavorable to the defendant.
Idaho
� Multiquip, Inc. v. Water Mgmt. Sys. LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009). In this
dispute, the defendants moved to exclude the plaintiff’s use of a privileged e-mail obtained after
one defendant inadvertently included a third party via the "autofill" feature. The third party then
passed the e-mail chain to the plaintiff’s counsel. After discovering the mistake, the defendants
requested return of the e-mail, which the plaintiff denied claiming Fed.R.Civ.P. 26(b)(5)(B) only
applied to documents turned over in discovery. Using Fed.R.Evid. 502(b) to determine whether
disclosure constituted a waiver, the court determined that the disclosure was inadvertent, that the
defendants took reasonable steps to prevent disclosure because reliance on the "autofill" feature
was not unreasonable and that the defendants acted promptly to rectify the error. Based on this
analysis, the court found privilege was not waived and granted the defendants’ motion to exclude
the privileged information.
� Alamar Ranch, LLC v. County of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009). In this Fair
Housing Act lawsuit, the non-party’s attorney requested the return of privileged documents
obtained through the plaintiff’s previous subpoena. The privileged information included e-mails sent
to the non-party attorney from one of his clients via her work e-mail address. The plaintiff argued
that any privilege was waived on account of the company’s privacy policy, which included the right
to review and disclose all electronic messages created. Using a four-part balancing test that
balanced the expectation of privacy against the lack of confidentiality, the court found that the
company placed all employees on notice that e-mails would become the employer’s property. The
court also noted that the client’s apparent lack of awareness of the privacy policy was
unreasonable "in this technological age" and that the client’s e-mail address itself clearly put the
non-party attorney on notice of a potential issue of confidentiality. Thus, the court determined
privilege was waived with respect to the e-mails sent using the client’s work e-mail account.
� Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D.Idaho Oct. 20, 2008). In this
libel case, the plaintiff sought limited expedited discovery prior to the Fed.R.Civ.P. 26(f)
conference. The plaintiff sought permission to serve a subpoena duces tecum on the third-party
internet service provider, requiring it to produce identifying information for the “Doe” defendants
and also sought to image the named defendants’ hard drives. The plaintiff argued the expedition
was necessary to ascertain the “Doe” defendants’ names and to preserve relevant ESI. Granting
the plaintiff’s motion, the court noted that service providers typically retain user activity logs for a
limited period of time and that the information was necessary for the litigation. Additionally, the
court ordered the defendants’ to make any computer, portable, or detachable hard drive available
to the plaintiff’s computer forensic expert for imaging, citing the defendants’ previous behavior of
service evasion, which gave rise to the assumption that it had little respect for the legal process or
the requirement to preserve electronic data. In order to prevent prejudice to the defendants, the
forensic expert was ordered to keep the images confidential and file them under seal.
Montana
252

� Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009). In this §1983 claim
asserting unreasonable force and lack of probable cause, the plaintiff sought default judgment
sanctions alleging the defendants spoliated video-recorded evidence. The defendants argued
sanctions were not appropriate because the video’s deletion was accidental. Citing the defendants’
failure to have a backup system in place to ensure adequate preservation, the court determined the
spoliation was the result of recklessness that warranted sanctions. In determining the appropriate
sanction, the court found that an adverse inference was insufficient to cure the prejudice to the
plaintiff. Although the court did not find an outright default judgment sanction appropriate, the court
held that the defendants used unreasonable force. The court recognized this determination would
effectively grant summary judgment on the issue of unreasonable force, "and, as such, [was]
tantamount to a default judgment."
Oregon
� United States v. Sedaghaty, 2010 WL 1490306 (D.Or. Apr. 13, 2010). In this criminal case, the
defendant moved to suppress electronic evidence and prevent additional searching of nine
computer hard drives seized and copied during the execution of a search warrant. Citing United
States v. Comprehensive Drug Testing, the defendant argued the government exceeded the
warrant’s scope by searching the computer hard drive. Acknowledging the importance of the cited
case, the court noted that the warrant and seizure in this case predated the Comprehensive Drug
decision, which was not intended to be applied retroactively. Finding the procedure utilized was
consistent with pre-existing case law, the court determined appropriate search terms were used
that were reasonably related to the items described in the warrant. The court also noted that
government exercised care in this case that exceeded what is required given the nature of white
collar crimes and denied the defendant’s motion to suppress.
� Relion, Inc. v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D.Or. Dec. 4, 2008). In this patent
litigation, the plaintiff moved to enforce a stipulated protective order and sought the return of two
inadvertently produced e-mails, alleging they were attorney-client privileged. Analyzing the
plaintiff’s conduct using Fed.R.Evid. 502(b), the court determined that the plaintiff did not pursue all
reasonable means of preserving the inadvertently produced e-mails. The court based its decision
on the fact that the plaintiff did not assert privilege until four months after the e-mails were
produced, and then only in response to a letter from defense counsel discussing the two e-mails
and the fact that the plaintiff had multiple opportunities to inspect the documents prior to
production. The court held that such behavior was tantamount to a failure to pursue all reasonable
means of preserving the confidentiality of the documents, which resulted in waiver of the privilege.
� Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440 (D. Or. 1999). The court
held that “plaintiffs are not entitled to unbridled access [of] defendant’s computer system…plaintiffs
should pursue other less burdensome alternatives, such as identifying the number of letters and
their content.”
Nevada
� United Factory Furniture Corp. v. Alterwitz, 2012 WL 1155741 (D. Nev. Apr. 6, 2012). In this
computer fraud case, the plaintiff sought mirror imaging of the defendants’ home computers due to
the defendants’ “history of tampering with and deleting electronic data.” The plaintiff specifically
argued that because the defendants tampered with expense accounts and accounts payable files
253

on plaintiff’s computer server, they were highly likely to destroy relevant evidence on their personal
computers. The defendants objected, alleging that mirror imaging would be personally intrusive.
Weighing the potential benefits against the burdens, the court found that a majority of factors—
namely the substantial amount-in-controversy, the high likelihood that relevant ESI was on the
drive, and the plaintiff’s willingness to bear associated costs—favored mirror imaging. Responding
to the defendants’ privacy concerns, the court outlined a protocol where a neutral third party would
examine the devices subject to a protective order and the clerk would lock the mirror images in an
office vault unless allegations of spoliation arose.
� Cannata v. Wyndham Worldwide Corp., 2011 WL 3495987 (D. Nev. Aug. 10, 2011). In this
federal sexual harassment and discrimination litigation, the defendants sought an emergency
protective order to limit the scope of the plaintiffs’ requested deposition, claiming it was overbroad.
Prior to this motion, the plaintiffs had received a court order to depose the defendants’ "person
most knowledgeable" on several topics, including the defendants’ litigation hold process. Noting
that a litigation hold is generally not discoverable unless spoliation is at issue, the court determined
the plaintiffs’ request for information regarding the basic details surrounding the litigation hold
(when and to whom the hold was issued, what categories of ESI were included in the hold, etc.)
was reasonable. In denying the defendants’ motion, the court further stated the request may
ultimately benefit the defendants if questions arise regarding efforts to preserve ESI.
� Corbello v. Devito, 2010 WL 4703519 (D. Nev. Nov. 12, 2010). In this intellectual property
litigation, the court considered several discovery motions filed by both parties, including the
requested production of native files, e-mail communications and privilege logs. The court had
previously “admonished counsel regarding their lack of cooperation concerning electronically
stored information and the exchange of ad hominem attacks,” and in an attempt to settle the
ongoing discovery disputes, ordered the parties to file a joint status report following a meet and
confer session. Despite making significant progress, the parties were unable to reach a resolution,
leaving several issues before the court. Addressing these motions, the court denied the request for
native files as “an unjustifiable waste of time and resources” because the requested information
was already produced in PDF form, which constituted a reasonably useable format. Regarding the
requested e-mail communications, the court agreed with the defendants that the scope of the
request and bulk of information available warranted a temporal limitation on discovery. Finally, the
court ordered the defendants to produce a privilege log within thirty days of the order.
� G.K. Las Vegas L.P. v. Simon Prop. Group, Inc., 2009 WL 4283086 (D. Nev. Nov. 30, 2009). In
this business litigation, the defendants previously requested case dismissal and sanctions based
on the plaintiffs’ alleged spoliation of evidence. Due to the defendants’ failure to demonstrate that
electronic evidence was destroyed and no longer available, the motion was dismissed without
prejudice. However, the court ordered a forensic examination of the plaintiffs’ computer equipment
by a court-appointed independent computer forensics expert. Upon learning of the defendants’ ex
parte communications with the independent expert during the imaging process, the plaintiffs moved
to have the forensic examination order vacated and the spoliation motion modified to dismissal with
prejudice. The defendants claimed that the expert was not court-appointed but was instead a "party
retained independent expert." Finding the intent to enlist a court-appointed, independent expert
blatantly clear in the record and subsequent agreement, the court determined the defendants
"forfeited their opportunity to obtain an independent forensic examination" and granted the
plaintiffs’ motions.
� Johnson v. Wells Fargo Home Mortg., Inc., 2008 WL 2142219 (D. Nev. May 16, 2008). In this
mortgage loans and credit dispute, the defendants filed a motion to dismiss, alleging evidence
254

spoliation. Through forensic analysis, the defendants’ computer forensic expert established that the
plaintiff reformatted both laptops shortly after a production request for the hard drives, and also
found two documents containing metadata suggesting the plaintiff created the documents one year
later than claimed. Opposing the motion, the plaintiff claimed the hard drives were wiped and
reformatted for maintenance purposes due to virus infections. The court ordered an adverse jury
instruction creating a presumption in favor of the defendants finding the plaintiff acted willfully; was
on notice that information contained on the hard drives was potentially relevant to litigation; and did
not produce backup files despite numerous requests. The court reasoned that the harsh sanction
of dismissal was not appropriate because the evidence secured by the defendants’ computer
forensic expert, combined with the adverse jury instruction, did not render it “helpless to rebut any
material that [the] plaintiff might use to overcome the presumption” at trial.
� Coburn v. PN II, Inc., 2008 WL 879746 (D.Nev. Mar. 28, 2008). In this gender discrimination
claim, the defendants filed a motion to compel the plaintiff to provide supplemental answers to
interrogatories and requests for the production of documents. Specifically, the defendants sought a
forensic examination of the plaintiff’s home computers, and the plaintiff opposed the request as
potentially violating her privilege, privacy and confidentiality interests. Finding the burden of
compliance to be minimal, the court set out a protocol for appointing a computer specialist to
conduct the examination, whose cost was payable by the defendants. The protocol contemplated
agreement of the parties, whereby access to protected information would not result in waiver of the
attorney-client privilege. Additionally, the parties were ordered to agree to a time and date for
collection whereby the plaintiff’s attorney would maintain the sole copy of the mirror image of the
computers.
� LVRC Holdings, LLC v. Brekka, 2007 WL 2891565 (D.Nev. Sept. 28, 2007). In this trade secret
misappropriations suit, the defendant moved the court for summary judgment, claiming the plaintiff
had not established an issue of material fact and they were entitled to judgment as a matter of law.
To prevail on a claim based on the Computer Fraud and Abuse Act, the plaintiff must establish
access to a protected computer without authorization. In this instance, the plaintiff’s computer
forensic expert testified that the defendant’s personal computer had been used to access the
plaintiff’s secured Web site, but was unable to testify as to when the access took place. Because
the plaintiff did not present facts indicating that the date of access was after termination, the court
granted the defendant’s summary judgment motion.
� Koninklijke Philips Elec. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007). In a
discovery dispute, the plaintiff filed an emergency motion with the court to clarify its discovery order
with respect to the defendants’ production of documents. The plaintiff anticipated less than
adequate discovery responses from the defendants in responding to the court’s order. The plaintiff
also expressed concern that the defendants not be permitted to simply produce an unorganized
body of electronic or paper records which the plaintiff would then be required to search through to
locate documents responsive to particular requests. The defendants claimed that they did not have
to produce the electronic data because during the plaintiff’s original seizure of documents, several
hard drives and servers belonging to the defendants were damaged and many documents were
lost. The court did not find the defendants’ arguments credible; instead, the court noted that the
defendants had not produced any evidence to show that the hard drives were damaged and that
no information could be gleaned from the drives. The court further cautioned that it could order a
computer forensics examination of the alleged damaged drives to determine if the defendants were
truthful and to establish if any discoverable information was retrievable. Furthermore, the court
255

warned that the costs of the examination and sanctions could be imposed on either party,
depending on what the investigation revealed.
� Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June
5, 2006). In this case, the plaintiffs produced documents in both paper and electronic form,
presenting the defendants with a CD-ROM of imaged files, numbered according to the order in
which they were scanned. Although the plaintiff did not provide an index or table of contents, the
plaintiff maintained that the imaged documents were formatted so that defendant could perform key
word searches for information. The plaintiffs argued that they had satisfied their Rule 34 obligations
by presenting the documents in the manner in which they were maintained in the ordinary course
of business and were not required to organize or label the documents to correspond with
categories in the defendant’s discovery request. However, in recognizing that the documents had
been gathered from different locations, the court found that a table of contents was “reasonably
necessary to determine…from which entity or department the documents have been produced or
the type of file in which they are contained.” While the court refused to award attorney fees for
delays in discovery, which were “unavoidable in view of the voluminous nature of the documents in
issue,” the court warned the plaintiffs that failure to timely comply with the order could result in
future sanctions.
� City of Reno v. Reno Police Protective Assoc., 59 P.3d 1212 (Nev. 2002). The court overturned
the Employee Relations Board’s decision that documents sent by e-mail cannot be considered
privileged. The court stated that “[C]ourts have generally looked to the content and recipients of the
e-mail to determine if the e-mail is protected” and held that documents transmitted by e-mail are
protected by the attorney-client privilege.
Washington
� Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011). In
this intellectual property litigation, the defendants sought discovery sanctions in response to the
plaintiff’s motion for voluntary dismissal, alleging a persistent pattern of discovery-related
misconduct. In response to the defendants’ production requests, the plaintiff initially pointed the
defendants to 360 boxes of unsorted records. Even though the plaintiff certified that its production
was complete, the plaintiff’s counsel e-mailed multiple addendums to discovery, many times
requiring the defendants to scramble to meet court deadlines or necessitating extensions. Although
the plaintiff certified that none of its records existed in electronic form, it eventually turned over
some of the demanded ESI, claiming the accessibility of the database was unknown because "no
one bothered to ask" the company’s IT consultant (plaintiff’s counsel also put the CFO and CEO in
charge of discovery responsibilities). Citing this litany of discovery mishaps, the court found
sanctions appropriate and awarded the plaintiff over $137,000. Further, because the plaintiff’s
counsel did not abide by Fed.R.Civ.P. 26(g)(1), which requires lawyers to make a "reasonable
inquiry" before certifying discovery responses, the court ordered him to share the burden of the
sanctions.
� O’Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010). In this action concerning the
Public Records Act (PRA), the plaintiffs sought disclosure of an e-mail and its associated metadata
that was sent to the deputy mayor alleging improprieties in city zoning decisions. The Court of
Appeals determined the e-mail was a public record to which the plaintiffs were entitled (along with
the metadata) and remanded the case to the trial court. The defendants petitioned for review,
which the Supreme Court of Washington granted. Upon review, the court referenced Lake v. City of
256

Phoenix and determined that an electronic version of a record along with its embedded metadata
was a public record subject to disclosure. Further, the court found the State Records Management
Guidelines did not justify the deletion of e-mails or related metadata that were subject to a pending
PRA request and held the plaintiffs were entitled to disclosure of the original e-mail and associated
metadata. In addition, the court reasoned that the PRA would be drastically undermined if
government employees could circumvent it by using their home computers for government
business and directed the City to inspect the hard drive of the deputy mayor’s computer to attempt
recovery of the missing e-mail and metadata. Accordingly, the court remanded giving the City the
chance to search for the requested metadata, and instructed the trial court to determine whether
the City has violated the PRA if the metadata is not found and to decide if a monetary penalty is
appropriate.
� Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. Nov. 25, 2009). In this personal injury
action, the Supreme Court of Washington reviewed the Court of Appeals’ reversal of the trial
court’s imposition of a default judgment sanction on the defendant corporation. Among the
defendant’s violations: The defendant limited the search for documents to its legal department;
made false, misleading and evasive responses; and willfully violated discovery rules. Arguing that
the plaintiff’s discovery requests were overly broad, the defendant claimed that the harshness of a
default judgment sanction was not warranted. The court noted that the defendant is a
"sophisticated multinational corporation experienced in litigation,” and it analyzed the three factors
assessed by the trial court to determine the appropriateness of a default judgment sanction –
willfulness of violation, substantial prejudice to opposing party, and availability of lesser sanctions.
The court found that the record reasonably and substantially supported the trial court’s conclusion,
and it reinstated the $8 million default judgment.
� Starbucks Corp. v. ADT Sec. Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009). In this
discovery dispute, the plaintiff sought production of e-mails from a specified time period. The
defendant argued the e-mails were archived on the company’s "cumbersome" old system and were
not reasonably accessible under Fed.R.Civ.P 26(b)(2)(B). In support of the position, the
defendant’s information technology representative made several claims, including that accessing
the e-mails would be disruptive to business operations and would take nearly four years to restore.
The representative also provided an initial cost estimate for the work of $88,000, but upped the
ante six months later to $834,285. The court noted that the representative "provided exaggerated
reasons and exaggerated expenses as to why the [defendant] allegedly [could not] or should not
be ordered to comply with its discovery obligations." The court found that the plaintiff should not be
disadvantaged since the defendant, a "sophisticated" company, chose not to migrate the e-mails to
the now-functional archival system and thus determined that the e-mails were reasonably
accessible. Furthermore, the court explained that even if the information was ruled not reasonably
accessible, good cause existed to order production.
� Quinstreet, Inc. v. Ferguson, 2009 WL 1789433 (W.D. Wash. June 22, 2009). In this defamation
and interference with contractual relations litigation, the plaintiff moved to compel production of
electronically stored information in a reasonably usable format. In response to the plaintiff’s request
for all documents and communications supporting the defendant’s claim and certain
communications, the defendant provided the plaintiff with an Internet link. The plaintiff asserted the
link contained more than 7,000 pages of raw code listing e-mails messages, and that it was
impossible to separate one e-mail from another or to know which e-mails were responsive to which
requests. Finding that the e-mails were not produced in a “reasonably usable format” and that the
defendant’s lack of cooperation did not help the parties to reach the merits of the case, the court
257

determined the defendant’s behavior was the kind that the Federal Rules of Civil Procedure
specifically caution against. Accordingly, the court ordered the defendant to produce the e-mails in
a readable format, number them individually and indicate which e-mails respond to the plaintiff’s
specific requests for production.
� Suarez Corp. Indus. v. Earthwise Technologies, Inc., 2008 WL 2811162 (W.D.Wash. July 17,
2008). In this litigation involving trademark infringement, inter alia, the plaintiffs filed a motion to
compel seeking electronic documents. Unsatisfied with the defendants’ production, the plaintiffs
asserted the production was a disorganized “document dump” and that they should be able to
specify production format with regard to the organization of production. Finding the plaintiffs’
argument unpersuasive, the court determined the plaintiffs were without authority to mandate the
defendants’ production organization under Fed.R.Civ.P. 34(b). The court also determined the
advisory committee comments to that rule do not specify the term “form” as referring to the
organizational mandates found in Fed.R.Civ.P. 34(b)(2)(E). Nevertheless, the court required the
defendants to “convey some information as to how the documents were determined to be
responsive or how the documents were kept in the normal course of business.” Accordingly, the
court granted the motion to compel in part.
� Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D.Wash. June 20, 2008). In this
litigation alleging a breach of a duty of loyalty, the interested third party filed a motion to quash
subpoenas served upon it by the plaintiff and sought a protective order. The third party argued the
search of its hard drives was unduly burdensome and would result in the disclosure of confidential
trade secrets. Finding the plaintiff’s discovery request to meet the good cause standard of
Fed.R.Civ.P. 26(b)(1), the court nonetheless quashed the subpoena insomuch as it required the
third party to produce its computers for copying. However, the court directed the third party to
search its own computers. Recognizing the need for a protective order given the sensitive nature of
trade secrets, the court relied on Playboy Enterprises, Inc. v. Welles, F.Supp.2d 1050 (S.D.Cal.
1999) as a model for this case, ordering the third party to conduct a search of the hard drives,
producing information that is relevant, responsive and does not disclose trade secrets.
� Mikron Indus., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. April 21,
2008). In this dispute, the defendants sought a protective order regarding electronically stored
information (ESI), claiming searching through their ESI would create significant costs and would
yield cumulative results. The defendants also relied on Fed.R.Civ.P. 26(b)(2) to make a costshifting
argument. The plaintiff argued the defendants had not reasonably complied with discovery
requests. Denying the protective order, the court determined the defendants did not sufficiently
demonstrate the inaccessibility of the requested ESI, or an undue hardship; therefore, cost-shifting
was not appropriate. Specifically, in alleging continued discovery of ESI would be unduly
burdensome, the defendants failed to offer evidence beyond a cost estimate, such as the number
of backup tapes, different methods used to store electronic information, or document retention
policies. The court ordered the parties to meet and confer to discuss ESI discovery, prior to
bringing any future motions.
� City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D.Wash. Feb. 25, 2008). In
this dispute over performance of a lease agreement, the plaintiff filed a motion to compel the
defendant to search and produce responsive e-mails from six of its eight members. Having
produced 150,000 e-mails from two of the members, the defendant objected to this request,
claiming the search would “increase the universe exponentially” and would generally produce
irrelevant documents. Finding a principal-agent relationship between the defendant and its
members, the court determined sufficient cause to demand the documents from its members as
258

the defendant was in possession, custody or control of the e-mails at issue. The court, therefore,
ordered the defendant to produce e-mail from the remaining four members at issue, finding the
defendant’s claim of burden to be insufficient under Fed.R.Civ.Pro. 26(b)(2)(B).
� Am. Fast Freight, Inc. v. Nat’l Consolidation & Distribution, Inc., 2007 WL 3357694
(W.D.Wash. Nov. 7, 2007). In this suit alleging breach of contract, the plaintiffs filed a motion to
compel discovery of material relevant to the claim that the defendant intentionally used a corporate
alter ego to evade duties to the plaintiffs. The defendant argued that the sought after information
would not lead to the production of relevant information and that the burden of production
outweighed the plaintiffs’ likely benefit. The court ordered production consistent with the plaintiffs’
request and listed five factors relevant in determining the burden question: 1) the needs of the
case; 2) the amount in controversy; 3) the parties’ resources; 4) the importance of the issue at
stake; and 5) the importance of the proposed discovery. Further, court found that the breadth of the
discovery requests justified the defendant’s failure to produce documents and denied the plaintiffs’
request for attorney’s fees.
� Vaughn v. City of Puyallup, 2007 WL 3306743 (W.D.Wash. Nov. 6, 2007). In this termination suit,
the plaintiff alleged he was constructively discharged from his employment with the police
department. After serving the defendant with discovery requests, the plaintiff filed a motion to
compel, requesting the court to order the defendant to instruct its employees to conduct a diligent
search for responsive and relevant electronic documents, extend the discovery deadline and grant
appropriate sanctions including the costs resulting from the alleged discovery violations. Finding
the defendant fulfilled its duties and was not under a duty to comply with every discovery procedure
requested by the plaintiff, the court denied the plaintiff’s motion to compel and refused to impose
sanctions.
� Sims v. Lakeside School, 2007 WL 2745367 (W.D.Wash. Sept. 20, 2007). In this discovery
dispute, the defendant made an image of the plaintiff’s employer-owned laptop with no objection
from the plaintiff. Shortly thereafter, the plaintiff objected, prompting the defendant to file this
motion to compel review of the hard drive. The court found the plaintiff had no reasonable
expectation of privacy since the laptop was furnished by his employer and clearly articulated in the
employee manual. The court granted the defendant’s request to review the contents of the
plaintiff’s hard drive excluding web-based generated e-mails, communications between the plaintiff
and his spouse (marital communications privilege) and communications between the plaintiff and
his attorney (attorney client privilege). Agreeing with the defendant’s proposal as to how the hard
drive should be imaged, the court ordered the defendant to provide, at its expense, the parties with
a list of files from the plaintiff’s computer, allowing the plaintiff a chance to review for any privileged
files.
� Mother, LLC v. L.L. Bean, Inc, 2007 WL 2302974 (W.D.Wash. Aug. 7, 2007). In a suit alleging
false designation of origin, inter alia, the defendant motioned the court to sanction the plaintiff
based on its failure to comply with an earlier discovery order requiring the plaintiff to produce all
electronically stored information regarding its finances. In response to the motion, the plaintiff
offered to forgo the claim for lost profits and continue only on the disgorgement claim and argued
that the information sought could have been calculated from other information already in the
defendant’s possession. Realizing that the plaintiff’s argument was made following a deposition,
which was rescheduled due to the plaintiff being unprepared, and therefore disingenuous at best,
the court granted the defendant’s motion. The court ordered the plaintiff to pay reasonable
expenses, costs and attorney’s fees associated with the motion and ordered the lost profits claim
stricken from the record.
259

� Keystone Fruit Mktg., Inc. v. Brownfield, 2007 WL 788358 (E.D. Wash. Mar. 14, 2007). In a
misappropriation of trade secrets case, the plaintiff alleged that one of its former employees
opened and used a key document on her laptop after being fired from the plaintiff’s company. The
employee was then hired by the defendant who is a competitor in the field. The fired employee
stated that she merely opened up the document and viewed it and argued that it was only
speculation that the document was given to or used with the defendant’s business. She also
claimed that any documents belonging to the plaintiff were destroyed. However, the plaintiff
conducted a computer forensics analysis on the hard drive of the employee’s laptop and home and
work computers. The analysis showed that the employee retained the plaintiff’s data and files on
her home computer and that some of those files also existed in her e-mail account and on the
computers at the defendant’s company. This evidence was contrary to the employee’s testimony
that she destroyed all of plaintiff’s data and did not use the plaintiff’s computer data in her new
employment. Based on these facts, the court allowed the plaintiff to amend its complaint to
supplement claims against the defendant.
� Hedenburg v. Aramark Am. Food Services, 2007 WL 162716 (W.D. Wash. Jan. 17, 2007). In a
gender discrimination employment suit, the defendant moved the court to compel production of the
plaintiff’s home computer hard drive. The defendant argues that the home hard drive may contain
information, namely e-mails or letters to other people, which may reveal discrepancies between her
testimony and statements to others regarding her actual emotional state of mind while working for
the defendant. The plaintiff argues that the request is a “fishing expedition” for evidence and
information contained on the hard drive would have little relevance to the case. The court denied
the defendant’s motion stating that the “central claims in the case are wholly unrelated to the
contents of plaintiff’s computer.” The court further held that the “defendant is hoping blindly to find
something useful in its impeachment of the plaintiff” and there is not a strong likelihood that
evidence would be found on the hard drive. Furthermore, the court described the defendant’s
request as a “search warrant” stating that defendant merely is searching for evidence that may not
exist and the burden of such a search clearly outweighs the benefit.
� The Bedford, LLC v. Safeco Ins. Co. of Am., 2006 WL 3616434 (Wash. App. Div. 1 Dec. 11,
2006). In a breach of contract case, the plaintiff appealed a jury decision in favor of the defendant
based on the defendant’s failure to disclose an attachment to an e-mail before trial. The
defendant’s attachment to the e-mail was only available on a backup tape which was eventually
recovered and produced shortly before the trial’s end. The e-mail was sent from the defendant’s
expert and the attachment was a draft of his expert report. The plaintiff argued it was significantly
prejudiced in its claim because of the discovery delay. The defendant argued the attachment was
only a draft and it was under no obligation to produce mere drafts of expert reports which were
ultimately submitted to the plaintiff. The court held that there is no duty to retain all experts’ drafts
which are eventually overwritten and submitted in a separate final form. The court also held the
plaintiff was not prejudiced by the surprise draft report before the trial ended because it had a
chance to cross-examine the author of the report.
� Henry v. IAC/Interactive Group, 2006 WL 354971 (W.D. Wash. Feb. 14, 2006). In a case
involving employment discrimination allegations and breach of contract counterclaims, the
defendants asserted they first learned (months into the discovery process) the plaintiff possessed
tens of thousands of company documents, a company-issued laptop, and a company e-mail
account. The defendants promptly demanded the return of this data, any copies of the data, and
written declarations regarding use of the data. Ultimately, the plaintiff turned over several
computers, documents, computer disks and CDs to a neutral computer forensic expert.
260

Nevertheless, the defendants believed the plaintiff’s counsel retained copies of the data and sought
a preliminary injunction. Granting the injunction, the court stated, “[a]llowing [the] plaintiff and her
counsel to continue to have access to the documents increases the risk that they will review
privileged documents. Any documents to which [the] plaintiff is entitled can be produced through
the normal channels of discovery.” The court ordered the plaintiff to return all of the defendant’s
property immediately, and indicated that the plaintiff’s attorney-client privilege documents
contained on the computer media could be removed by a neutral computer forensic expert at the
plaintiff’s expense. The expert was to supply the defendants with a log identifying any documents
withheld as privileged.
� Shank v. Kitsap County, 2005 WL 2099793 (W.D.Wash. Aug. 30, 2005). In an employment
related suit, the defendants filed a motion for sanctions alleging the plaintiff violated a court order
and withheld discovery. In its request for interrogatories and production of documents, the
defendants specifically defined a “document” as including "electronic recordings" and "tape
recordings." After the plaintiff failed to provide the requested documents and information, the
defendants sought to compel discovery. The court granted the motion and ordered the plaintiff to
comply, to which the plaintiff then submitted answers to the interrogatories. During a deposition a
month later, the plaintiff revealed it failed to produce tape and electronic recordings falling within
the scope of the defendants’ discovery requests. Although the plaintiff produced four electronic
recordings shortly thereafter, the defendants sought Fed. R. Civ. P. 37 sanctions and requested
dismissal of three of the plaintiff’s claims. Alternatively, the defendants sought an order prohibiting
the plaintiff from introducing the recordings at trial. Defending the late production, the plaintiff
claimed he did not initially turn over the recordings because they were stored on his computer in a
format that could not be easily copied. The court found this “a wholly unacceptable basis for failing
to comply with discovery” and determined the recordings would be excluded from evidence at trial.
The court stated, “[m]uch of present day discovery is contained on computers. It is both parties’
duty to comply with the rules of discovery and court orders despite technical difficulties.”
� Nieshe v. Concrete Sch. Dist., 2005 WL 1580043 (Wash. Ct. App. July 5, 2005). A former student
claimed a school district violated her due process rights by excluding her from participating in her
high school graduation ceremony for not attaining the requisite grade point average. During
discovery, the student requested sanctions against the district for failing to produce a computer
disk containing grade report data. The district had provided hard copies of the student’s grading
report but failed to produce the disk until the first day of trial. The trial court found there may have
been a discovery violation because the disk was within the scope of discovery and was not
produced before trial, but decided that sanctions were not warranted. On cross-appeal, the student
argued the court erred by not sanctioning the district for violating the discovery rules. The appellate
court, however, affirmed the district court’s decision and found the student did not request the court
to order the district to produce additional documents under Rule 37(a). Moreover, sanctions were
not warranted because the information on the disk did not contain any information that the plaintiff
did not already have.
� Banks v. United States, 2005 WL 974723 (W.D.Wash. Mar. 22, 2005). The plaintiff filed a medical
malpractice suit relating to care received at a veteran’s hospital. During discovery, the plaintiff
obtained a series of “privileged” e-mails attached to various discoverable documents. The
defendant argued that the e-mails were privileged as attorney work product, had been inadvertently
disclosed, and should be returned to the defendant and disallowed at trial. In response, the plaintiff
contended that even if the e-mails were work product, the defendant waived protection of the
privilege by producing the e-mails. The court adopted the Ninth Circuit’s five factor test relating to
261

privilege waiver, which weighed the following factors: "(1) the reasonableness of the precautions to
prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery;
(4) the extent of the disclosure; and (5) the ‘overriding issue of fairness’." Applying the test, the
court noted neither party presented evidence of precautionary measures taken to prevent
inadvertent disclosure. The court also noted the defendant timely attempted to rectify the error and
that the extent of the disclosure was limited. Based on its findings, the court determined the
privilege was not waived, ordered the plaintiff to return the e-mails, and declared the e-mails would
not be admissible at trial.
� Go2Net, Inc. v. C I Host, Inc., 60 P.3d 1245 (Wash. Ct. App. 2003). After discovery commenced
in a suit to collect payment due under a services contract, the parties exchanged document
requests. In responding to the defendant’s requests, the plaintiff provided some documents, but
advised that one of its servers had crashed and was in the process of being rebuilt. The plaintiff
stated that it would supplement its production at a later date. A day prior to the summary judgment
hearing in the case, the plaintiff produced the additional e-mails from the rebuilt server. The trial
court issued summary judgment in favor of the plaintiff. On appeal, the defendant argued that the
trial court abused its discretion in refusing to vacate the summary judgment order in light of "newly
discovered evidence”, namely the internal e-mail messages produced just prior to the summary
judgment hearing. The appellate court found that the e-mail messages were not “newly discovered
evidence” where there was nothing to suggest that the plaintiff deliberately tried to hide these
documents.
� State v. Townsend, 57 P.3d 255 (Wash. 2002) (Bridge, J. concurring). The principal issue the
court resolved was whether a police officer violated a provision in Washington’s privacy act when
he saved and printed e-mail and real time client-to-client ICQ messages between the defendant
and a fictitious child. The court upheld the conviction and held that the act was not violated. In a
concurring opinion, one judge further addressed the unique aspects of electronically created and
stored e-mail. “Technically, e-mail messages are permanently recorded since ‘most e-mail
programs keep copies of every message a user ever wrote, every message the user ever received,
and every message the user deleted.’…Although some e-mail services may offer the possibility of
‘shredding’ an e-mail message, arguably the equivalent of actually deleting it, the e-mail file may
still be retrievable using certain software. ‘A deleted file is really not a deleted file, it is merely
organized differently.’ “
� Demelash v. Ross Stores, Inc., 20 P.3d 447 (Wash. Ct. App. 2001). In an action for a false
shoplifting arrest, the court stated, “A trial court must manage the discovery process in a fashion
that promotes full disclosure of relevant information while at the same time protecting against
harmful side effects. Consequently, a court may appropriately limit discovery to protect against
requests that are unduly burdensome or expensive.” The court limited the scope of to a
computerized summary of the store’s files.
� State of Wash. v. Ben-Neth, 663 P.2d 156 (Wash. Ct. App. 1983). Computer-generated evidence
is hearsay but may be admitted as a business record provided a proper foundation is laid.
Tenth Circuit – State and Federal Cases
� Lee v. Max Int’l, LLC , 2011 WL 1651640 (10th Cir. May 3, 2011). In this contract dispute, the
plaintiffs appealed an order dismissing the case as a sanction for discovery misconduct, arguing
they complied with the second production order and contending the district court failed to
sufficiently explain its reasons for dismissal. Rejecting both arguments, the court identified at least
262

one violation of the second order, found the plaintiffs falsely declared their production was
complete and concluded there was no abuse of discretion by the district court – which it noted
should be given wide deference in imposing discovery sanctions. Remarking that "there is such a
thing as discovery karma," the court warned that "[d]iscovery misconduct often may be seen as
tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up
with us, so do discovery machinations." In affirming the dismissal, the court held, a "party’s thrice
repeated failure to produce materials that have always been and remain within its control is strong
evidence of willfulness and bad faith, and in any event is easily fault enough . . . to warrant
dismissal or default judgment."
� Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005). In an action brought under the
Lanham Act, the plaintiffs alleged defendant Haugen spread a voice-mail message to thousands of
Amway distributors falsely declaring profits from the plaintiffs’ products were used to support the
Church of Satan. In assessing the impact of the Satanism rumors on its sales and market share,
the plaintiffs hired experts to review market share databases created by an unrelated third party.
The defendants sought sanctions against the plaintiffs for failing to preserve and produce these
databases even after receiving several discovery requests and production orders. In response, the
plaintiffs contended the following: its subscription contract did not allow it to download all of the
third party database information; its computer system could not handle the entire download; the
data was unhelpful in assessing damages; the defendants refused the third party’s offer to make
the databases available for a fee; and the discovery-related orders were not violated. The district
court found the plaintiff failed to preserve data, granted the sanctions motion and dismissed the
claim with prejudice. See Procter & Gamble Co. v. Haugen, 2003 WL 22080734 (D.Utah Aug. 19,
2003), rev’d, 427 F.3d 727 (10th Cir. 2005). On appeal, the court reversed the ruling finding it
“impossible to conclude that [the plaintiffs] acted with the requisite culpability to justify the sanction
of dismissal.” The court also noted genuine issues of material fact existed as to whether the
defendants were prejudiced by their lack of access to the databases.
� United States v. Bass, 411 F.3d 1198 (10th Cir. 2005). The defendant appealed a conviction of
five counts of knowing possession of child pornography on the grounds the evidence was
insufficient to support the convictions. At trial, the defendant argued he did not know the images
were automatically saved to the computer. However, he admitted he attempted to remove child
pornography from the computer using two software programs, “History Kill” and “Window Washer.”
Based on this admission, the appellate court found sufficient evidence existed to support the
convictions. The defendant also challenged the sufficiency of his indictments, stating they were
deficient because they identified the images as “bmp” files rather than “jpeg” files (which actually
existed on the computer). The court also rejected this argument and declared “[t]he images
identified in [the defendant’s] indictment indisputably came from his computer.” The court noted the
file type identification change resulted from the forensic examiner’s software but was numerically
identical to what existed in the defendant’s computer.
� United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005). The defendant appealed from a
conviction for transporting child pornography in interstate commerce in violation of federal law. At
trial, the government introduced 44 child pornography images the defendant allegedly uploaded to
a newsgroup. The images contained computer-generated header information (also known as
metadata) linking the defendant to the images. On appeal, the defendant argued the headers
constituted hearsay and should have been excluded from evidence. The appellate court rejected
this argument and found the district court was correct in finding the headers did not amount to
hearsay. The court reasoned the information did not fall within the Rule 801(c) definition of hearsay
263

ecause “the header information was automatically generated by the computer hosting the
newsgroup each time Hamilton uploaded a pornographic image to the newsgroup.”
� United States v. Meienberg, 263 F.3d 1177 (10th Cir. 2001). The government introduced printouts
of computerized records and the defendant objected to these print-outs based on lack of
authentification. The court held that the government met its burden by presenting a witness who
testified that the print-outs were a record of all transactions. The court held that this was in
accordance with Federal Rule of Evidence 901(b)(7).
� Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001). To prove that an insurance
company had followed notice of cancellation requirements, the court admitted computer files and
print-outs regarding how the cancelled policy was processed and maintained. The court stated that
computer business records are admissible under Rule 803(6) “if the offeror establishes a sufficient
foundation in the record for [their] introduction.”
Colorado
� Grabenstein v. Arrow Elecs., Inc., 2012 WL 1388595 (D. Colo. April 23, 2012). In this
employment discrimination and wrongful termination case, the plaintiff sought sanctions against the
defendant former employer for deletion of e-mails related to the plaintiff’s request for disability
benefits. At issue in this case was whether the defendant had a duty to preserve the e-mail in
question before it had notice of impending litigation, and whether such deletion occurred in bad
faith so as to warrant sanctions. The plaintiff argued that the defendant had such a duty under an
EEOC retention regulation, 29 CFR § 1602.14, requiring “an employer covered by [the ADA] to
retain all personal records” for one year after their creation, or “until the dispute has been resolved”
when a discrimination charge has been filed against the employer. Although the court found the
defendant adhered to its document retention policy, the defendant nonetheless had a duty to
preserve under the EEOC regulation. In response to allegations of bad faith, however, the court
found that the plaintiff did not sufficiently substantiate that the defendant deleted the e-mails with
the intent to withhold unfavorable information. Thus, the court found no bad faith in the defendant’s
adherence to a good faith document retention policy and denied the plaintiff’s motion for sanctions
� McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992 (D. Colo. May 2, 2011). In this racial
discrimination litigation, the plaintiff sought spoliation sanctions based on the automatic destruction
of surveillance video evidence, which included footage from multiple work shifts that allegedly
showed discrimination and a persistently hostile work environment. Arguing it could not have
reasonably anticipated litigation concerning events other than one particular incident, the defendant
claimed its duty to preserve evidence was limited to video of that single work shift. Disagreeing, the
court found the duty to preserve triggered when the plaintiff filed a formal complaint, putting the
defendant on notice to preserve all existing and future video that included the plaintiff. Noting the
defendant’s conduct went “well beyond corporate arrogance,” the court found the plaintiff was
prejudiced by the recordings which the defendant willfully and in bad faith chose not to preserve.
Accordingly, the court issued both mandatory and permissive adverse inference instructions as
well as attorney fees relating to the spoliation motion.
� Christou v. Beatport, LLC, 2011 WL 650377 (D. Colo. Feb. 10, 2011). In this antitrust litigation,
one of the defendants moved for a protective order staying all discovery pending the adjudication
of its motion to dismiss. Opposing the motion, the plaintiff argued that if discovery did not proceed,
information stored by nonparties would be lost or destroyed pursuant to automatic retention
schedules, or might be archived and require increased costs to restore, ultimately resulting in
264

delays and financial harm. In support of the motion, the defendant offered a hypothetical scenario
to demonstrate that it, along with the court and nonparties, would be burdened by discovery
proceedings, protracted discovery disputes and piecemeal litigation. Finding the defendant failed to
provide specific demonstrations of fact to establish good cause, and that granting the motion would
cause piecemeal litigation and run counter to the public interest, the court denied the protective
order.
� Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D.Colo. June 15, 2010). In this
discovery dispute, the defendants objected to the special master’s ruling, arguing the sanctions
imposed (jury instruction and expenses) were not severe enough to address the prejudice caused
by the plaintiff’s willful spoliation of approximately 43 hard drives. The defendants requested the
entirety of fees and costs associated with litigating the sanctions motion and sought dismissal.
Addressing the dismissal request, the court found that the mitigation of actual prejudice through the
jury instruction and the plaintiff’s otherwise responsive production warranted a lesser penalty. The
court also noted there was no evidence the plaintiff acted in a "premeditated” intentional manner,
but rather was merely negligent. Turning to the defendants’ request for $130,000 in expenses, the
court noted that the defendants spent "too much time and money . . . on this matter." However, in
light of the nature of the wrongful conduct and the importance of the evidence destroyed, the court
awarded the defendants $89,395.88 in attorneys’ fees and costs.
� Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721 (D.Colo. Feb. 8, 2010). In this
misappropriation of trade secrets litigation, the court addressed several motions, notably the
defendants’ motion for a protective order. The defendants argued the production requests
exceeded the discovery permitted by a previous court order, imposed an unreasonable expense
and burden, and sought information that was duplicative or not likely to lead to the discovery of
admissible evidence. Noting the burden required for a protective order cannot be met with “bald
generalizations,” the court found the defendants’ undue burden and expense arguments regarding
the discovery of ESI unpersuasive. The defendants did not provide specific information regarding
ESI storage, the number of backup or archiving systems in place, or the capability to retrieve
information. Rather the defense counsel argued that producing this information would affect
profitability and client service. Determining this statement to be the “e-discovery equivalent of an
unsubstantiated claim that the ‘sky is falling,’” the court denied the defendants’ motion in part and
ordered the defendants to supplement their discovery responses. The court also noted that ediscovery
“has simply become too expensive and too protracted to permit superficial compliance
with the ‘meet and confer’ requirement” under the Fed.R.Civ.P. and endorsed the Sedona
Conference Cooperation Proclamation.
� Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009). In this
discovery dispute, the plaintiff filed a motion for determination of privilege waiver regarding a single
relevant document, arguing its production resulted in a subject matter waiver. After its initial
determination that the document was protected by both attorney-client privilege and work product,
the court relied on Fed.R.Evid. 502(b) to establish the scope of the waiver. First, the court
determined the disclosure was intentional—not inadvertent—as defined by Rule 502, since it was
originally examined and withheld by the defendants’ counsel. Citing the defendants’ knowledge of
the production and failure to take reasonable steps to rectify the erroneous disclosure, the court
held that the defendants had intentionally disclosed the material to gain advantage in litigation,
which justified a subject matter waiver. Noting the plaintiff was not entitled to a "discovery free-forall,"
the court also held that opinion work product would remain protected.
265

� Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL 641297 (D.Colo. Mar. 10, 2009). In this
employment contract litigation, the plaintiff sought a court-ordered e-discovery plan for inspection
of the mirror image of the defendant’s hard drive. Granting the motion, the court set forth the
following protocol: the defendant shall redact privileged and confidential data from the mirror image
hard drive, and provide a detailed privilege log and the redacted mirror image to the plaintiff; the
parties shall then confer and agree on search terms with assistance from their respective forensic
experts; the plaintiff shall conduct the forensic search and provide the defendant with a Bates
labeled hard copy of relevant ESI which the defendant will then review for responsiveness and
privileged data, providing a privilege log as necessary.
� Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D.Colo.
Feb. 25, 2009). In this real estate litigation, the defendants objected to the magistrate judge’s
recommendation regarding the plaintiffs’ motion for sanctions for the destruction of evidence. The
plaintiffs’ expert concluded the defendants engaged in a systemic effort to erase pertinent data
based on evidence of wiping software and reformatting. The magistrate judge found the
defendants’ actions to be willful and in bad faith after the duty to preserve arose. The magistrate
judge therefore recommended an adverse inference jury instruction, a monetary award associated
with attorneys’ fees and costs as well as the costs associated with the forensic examination of the
computer files. Finding the recommendation based on substantial evidence, the court adopted the
magistrate’s recommendation and warned the defendants that any further sanctions would be more
severe and may include a default judgment.
� Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D.Colo. July 1, 2008). In this
insurance contract dispute, the defendants moved for a protective order to prevent the plaintiff from
inquiring into various topics contained in the plaintiff’s Rule 30(b)(6) Notice of Deposition. The
defendants argued that the plaintiff’s notice of the topic regarding “knowledge concerning the
storage, preservation and backup” of e-mail was irrelevant to the breach of contract claim. The
plaintiff stated that he communicated with the defendants via e-mail about his claim, requested all
e-mail relating to his claim, and yet received almost no e-mail. The court held that the plaintiff had
not met his burden of establishing the topic’s relevance after noting that the defendants asserted
the plaintiff had not referenced any specific missing e-mails. The court granted the defendants’
motion for a protective order in part and denied in part; the court granted the motion with respect to
the topic of e-mail storage, preservation and backup.
� Palgut v. City of Colorado Springs, 2007 WL 4277564 (D.Colo. Dec. 3, 2007). In this suit, the
plaintiff filed a motion to reconsider discovery rulings made by the magistrate judge and to compel
responses to previous discovery requests and further discovery to prove unlawful spoliation of ESI.
The court made several findings: the plaintiff’s requests were overbroad and unduly burdensome
(affirming a prior ruling); the defendant completed an adequate search for all relevant ESI and
agreed to complete and pay for an additional search; according to Rule 34 of the FRCP, the
plaintiff was no more entitled to the defendant’s ESI than to a warehouse storing paper documents;
and the defendant’s backup tapes were not reasonably accessible due to the lack of hardware to
access them and the cost of restoration, which outweighed any possible return of relevant
information. Based on these findings, the court denied the plaintiff’s motions and ordered each
party to pay their own attorney fees.
� Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D.Colo. Nov. 13, 2007). In this
lawsuit, the plaintiff brought a bad faith claim against her disability insurer. During discovery, the
defendant sought a DVD produced by the University of Denver containing over 4,000 e-mails with
1,500 attachments sent or received by the plaintiff while she was at the University. In response, the
266

plaintiff produced a mere ten e-mail strings and a privilege log of 135 additional e-mails off the
DVD. The plaintiff blamed the discrepancy on a lack of computer expertise and argued against
production of the entire DVD as irrelevant and privileged. The court found the entire DVD relevant
to the underlying claim of long term disability and ordered that it be produced by the plaintiff,
subject to the provisions of FRCP 26(b)(2)(B).
� Tomlinson v. El Paso Corp., 2007 WL 2521806 (D.Colo. Aug. 31, 2007). In this retirement
benefits litigation, pension plan participants sought production of electronic pension plan records
from the defendant employer. The defendant maintained it could not produce the data because it
was in the possession of a third-party plan record-keeper. The plaintiffs argued that the defendant
had a duty under the Employment Retirement Income Security Act (ERISA) to maintain the data for
inspection or examination. In light of the defendant’s obligations under ERISA, the Court held the
data was in the defendant’s possession, custody or control within the meaning of Fed. R. Civ. P.
26(a)(1)(B) and subsequently ordered production of the requested documents.
� Metro Wastewater Reclamation Dist. v. Alfa Laval, Inc., 2007 WL 1160012 (D. Colo. Apr. 19,
2007). In a case involving claims of breach of contract, the defendant sought an order to compel
the plaintiff to produce certain data in electronic format and all electronic documents, including
archived or back-up e-mails and electronic files. The defendant specifically wanted electronic data
for the plaintiff’s personnel identified in its responses to the defendant’s discovery requests.
Although the plaintiff argued that the requested information was overly broad, unduly burdensome,
and costly, the court succinctly referred to Fed. R. Civ. P. 26 and held that the requested
documents were relevant to the issues of the case and were discoverable. The plaintiff was
required to produce all electronic documents, including the archived and back-up e-mails for every
employee referred to in their discovery responses.
� Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 2007 WL 684001 (D. Colo. Mar. 2, 2007).
In a trademark infringement claim, the plaintiff sought relief for alleged discovery violations.
Specifically, the defendant produced various electronic documents and issued a litigation hold
during the suit, but the plaintiff claimed that the defendant’s litigation hold came too late in the
litigation process and resulted in systematic spoliation. The plaintiff first sent letters to the
defendant regarding the trademark infringement in 2002 but did not initiate suit until 2004. The
defendant issued its litigation hold once the lawsuit commenced. Furthermore, the plaintiff claimed
the defendant failed to preserve hard drives of former employees. The defendant admitted that it
wiped the hard drives of several employees who left the company during this litigation according to
company policy. The plaintiff not only sought production of documents but spoliation sanctions. The
defendant argued that its litigation hold was timely applied when litigation was reasonably
foreseeable and that any spoliation of evidence was not purposeful conduct. Refusing to order
spoliation sanctions, the court found that the defendant’s litigation hold was properly issued upon
commencement of the lawsuit and that the plaintiff’s letters to the defendant before the suit was
actually filed did not give the defendant sufficient notice that a suit was likely to occur. The court
determined, however, that the defendant improperly destroyed evidence contained on former
employee hard drives because this evidence was destroyed after suit was initiated. As such, the
court found that the plaintiff was forced to incur additional expense in litigating the matter and
ordered $5,000 in monetary sanctions.
� Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006). In an age and sex
discrimination dispute, the court entered a stipulated order regarding the discovery of electronically
stored information. The order includes definitions of various e-discovery terms and sets forth a
number of discovery protocols. The order included a mandate that all electronic documents be
267

produced in their native formats unless otherwise agreed amongst the parties. Additionally, the
court established a procedure for the parties to object to the production of any electronic
documents, requiring the parties to state reasons why the documents are not accessible, why there
would be an undue burden or cost, and whether there is any available information that it is willing
to produce. Finally, the court ordered all electronic evidence be preserved by the parties.
� Crandall v. The City and County of Denver, 2006 WL 2683754 (D.Colo. Sept. 19, 2006). In a
case involving exposure to harmful chemicals, the plaintiffs sought sanctions against the defendant
for deleting e-mail before and during the litigation. Specifically, the defendant’s e-mail protocol
automatically deleted e-mails every seven days. The defendant did not change the server’s
protocol until six months after litigation started, resulting in the deletion of many relevant e-mails.
However, the defendant purchased data recovery software and recovered 91,000 deleted e-mails .
The plaintiffs still allegeded several relevant e-mails were destroyed which could never be
recovered and the missing e-mails severely prejudiced their case. The defendant argued no
relevant e-mails were destroyed and it took substantial steps to recover any deleted e-mails. The
plaintiffs urged the court to “create a presumption in favor of spoliation whenever a moving party
can prove that records that might have contained relevant evidence have been destroyed.” The
court declined to create a legal presumption in favor of spoliation. Instead, it re-opened discovery
and allowed the plaintiffs to depose two persons having knowledge of the e-mail system. It also
allowed the plaintiffs to have a computer expert examine the defendant’s e-mail system. The court
found that because the plaintiffs were not prejudiced by loss of the alleged data, sanctions in the
form of adverse inferences and fees and costs would not be assessed on the defendant. The court
stated the defendant may file another motion if new evidence was discovered.
� Marcin Eng’g, L.L.C. v. Founders at Grizzly Ranch, L.L.C., 2003 WL 23190385 (D.Colo. Dec.
18, 2003). The plaintiff brought suit for payment of civil engineering services provided to the
defendant and moved for summary judgment. The defendant moved to deny summary judgment
based on the need to reopen discovery, claiming that the plaintiff “intentionally withheld” computer
data that was relevant and material to the defendant’s claims. The “withheld” data included the
computerized versions of the plaintiff’s work product, of which the defendant had already obtained
hard copies. The court did not allow the defendant to reopen discovery because the defendant did
not allege that the plaintiff’s production was deficient (because it omitted the computerized
versions) until nearly five months after the discovery cut-off. The court stated that the defendant
“was dilatory both in failing to review Marcin’s hard copy work product when it was timely produced
and also in failing to inform Marcin and the court that it believed the production was incomplete.”
The plaintiff counterclaimed for sanctions against the defendant, stating that the defendant failed to
produce certain documents responsive to the plaintiff’s discovery requests, including an e-mail that
terminated the plaintiff from the project. The defendant asserted that they diligently searched for
the e-mail but could not find it. Based on the defendant’s diligent attempt to locate the documents,
the court did not impose sanctions for failure to produce the documents.
� Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200 (Colo. Ct. App. 1998). In a breach of
licensing agreement suit, the defendant’s employees, with knowledge of the significance of the
hardware as crucial evidence in the lawsuit, destroyed computer hardware. The appellate court
held that a trial court may impose attorney fees and costs as a sanction for the bad faith and willful
destruction of evidence, even in the absence of a specific discovery order.
� Gates Rubber Co. v. Bando Chem. Ind., 167 F.R.D. 90 (D. Colo. 1996). The court awarded
sanctions (ten percent of the plaintiff company’s total attorney fees and costs) where the
268

defendant’s employees continuously destroyed (by overwriting) electronic evidence. The court
criticized the defendant’s expert for not making an image copy of the drive at issue for production.
� Computer Assocs. Int’l, Inc. v. American Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990). The
court issued a default judgment where the defendant revised portions of the source code after
being served in the action, and thus put on notice that the source code was irreplaceable evidence.
Revised code was a central piece of evidence to the litigation.
Kansas
� Chura v. Delmar Gardens of Lenexa, Inc., 2012 WL 940270 (D. Kan. Mar. 20, 2012). In this
employment discrimination case, the plaintiffs motioned to compel the defendant to search for and
produce ESI responsive to several requests for production and provide supplemental answers to
the plaintiffs’ interrogatories. Identifying the defendant as a large corporate body, the plaintiffs
asserted that typical production in this type of litigation would include e-mails between managers
and witnesses regarding the plaintiffs’ complaint, reports to and from the corporate office, and
investigation notes compiled by human resources. However, the defendant did not produce any
written complaints, e-mails, or phone logs, arguing instead that “it cannot produce what does not
exist.” Reviewing the defendant’s argument, U.S. Magistrate Judge Waxse considered it
“questionable” that none of the defendant’s investigating employees exchanged e-mail or other
correspondence on the matter. Finding insufficient evidence to opine on the defendant’s
preservation and search methods, the court ordered an evidentiary hearing to gauge the
reasonableness of the defendant’s conduct.
� Rajala v. McGuire Woods, LLP, 2010 WL 2949582 (D. Kan. July 22, 2010). In this securities, inter
alia, litigation, the defendant moved for an entry of a clawback provision that would govern
inadvertent disclosure and protect against privilege waiver, arguing the provision was necessary to
“prevent contentious, costly, and time consuming discovery disputes.” The plaintiff argued that, in
light of Fed.R.Evid. 502, a clawback agreement was not justified and that such an agreement
would prevent arguments relating to care and reasonableness if documents were inadvertently
produced. Despite the plaintiff’s arguments and the parties’ inability to reach an independent
agreement, the court found that “this case is precisely the type of case that would benefit from a
clawback provision.” Based on the substantial amount of ESI involved and the defendant firm’s
duty to protect its extensive client base, the court determined that the risk of inadvertent disclosure
was high and that “[s]uch a provision will permit the parties to conduct and respond to discovery in
an expeditious manner, without the need for time-consuming and costly pre-production privilege
reviews” – an outcome the court deemed consistent with the intent behind the recent privilege
waiver amendments and rules.
� Cherrington Asia Ltd. v. A & L Underground, Inc., 2010 WL 126190 (D.Kan. Jan. 8, 2010). In
this discovery dispute, the plaintiffs sought monetary sanctions for costs incurred as a result of the
defendants’ alleged discovery violations, which included a “document dump” of the computer hard
drive, and a failure to adequately prepare witnesses and produce requested financial records. The
defendants argued that the computer hard drive was produced in the format maintained in the
normal course of business and that, upon court instruction, a search engine was loaded to allow
the plaintiffs to search the hard drive. Despite finding the defendants’ cooperation efforts
unacceptable, the court denied the plaintiffs’ motion in relation to the “document dump” as untimely
since the plaintiffs were aware of the defendants’ actions fifteen months prior to filing the motion.
269

However, the court found the plaintiffs’ arguments regarding the other violations compelling and
awarded $26,382.99 in costs.
� Spieker v. Quest Cherokee, LLC, 2009 WL 2168892 (D. Kan. July 21, 2009). In this dispute over
royalty payments, the plaintiffs renewed their motion to compel production of electronically stored
information, addressing relevance, cost and accessibility. Previously the court recommended the
parties consider conducting searches using the defendant’s software and in-house IT staff and
Rule 502 to minimize expenses of a detailed privileged review. The defendant argued the software
was untested and that in-house IT staff had no experience producing ESI. Addressing relevance,
the court determined the plaintiffs’ arguments demonstrated that the requested ESI was relevant to
class certification issues and that the defendant failed to timely oppose the requested discovery.
Finding the defendant’s arguments regarding the court’s previous recommendations unpersuasive,
the court noted it was not aware of any case where a party was excused from producing discovery
because it had not been previously asked to do so. The court also found the defendant’s estimate
of $250,000 for a privilege review "greatly exaggerated" and found the defendant failed to prove
the data were not reasonably accessible. Finally, the court held the defendant did not show the
discovery was duplicative or that the information could be more efficiently obtained through
depositions, and therefore granted the plaintiffs’ motion to compel.
� Robert v. Board of County Comm’rs of Brown County, Kan., 2009 WL 1362530 (D.Kan. May
14, 2009). In this employment litigation, the plaintiff moved to compel production of a single e-mail.
The plaintiff argued the court should order a forensic search for the e-mail by an outside expert at
the defendants’ expense. The defendants had offered to allow the plaintiff to conduct a forensic
search at her own expensive but the plaintiff rebuffed the offer, citing insufficient resources. The
defendants asserted they had been unable to recover the e-mail and additional searches were
futile because the hard drive had been irreparably damaged. The court denied the motion and
refused to shift the costs, finding no evidence of bad faith by the defendants. The court further
rejected the plaintiff’s alternative request that the defendants contact their e-mail provider to
acquire the message, reasoning the defendants are only obligated to produce documents in their
possession or control.
� Patterson v. Goodyear Tire & Rubber Co., 2009 WL 1107740 (D.Kan. Apr. 23, 2009). In this
employment litigation, the plaintiff sought production of various electronic employee records and
policies, and an adverse inference instruction alleging spoliation of attendance records. The
defendant argued electronic copies no longer existed due to the routine document deletion every
12 months, but that all records were preserved and produced in hard copy. Denying the motion to
compel as untimely, the court noted "both parties neglected the issue of ESI from the outset of this
litigation" in violation of their obligations under Rule 26 of Kansas’ Guidelines for Discovery of
Electronically Stored Information. Because many of the documents sought were contained on
backup tapes, if available at all, the court was hesitant to intervene at the late time, but ordered the
defendant to search two backup tapes pursuant to its offer to do so. The court denied the adverse
inference instruction request, determining there was no evidence the attendance records were
intentionally destroyed given the defendant’s routine deletion system.
� White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 WL 722056
(D.Kan. Mar. 18, 2009). In this ongoing wrongful termination litigation, the plaintiff sought reproduction
of electronic and native copies of e-mails with attachments, the mailboxes that sent or
received the e-mails, and mirror images of hard drives that created or modified the attachments.
The defendants opposed the motion arguing they substantially fulfilled their discovery obligations
and that further production was overbroad and irrelevant. Finding native and electronic copies of
270

the e-mails and attachments to be relevant in explaining the discrepancies in creation dates
identified by the plaintiff’s computer forensic expert, the court ordered their production. The court
also ordered production of Outlook mailboxes following a conference between the parties and their
experts to agree on a production process. Finally, the court allowed access to the hard drives
related to two e-mails, but ordered the parties to confer regarding the location of information
relating to the third e-mail’s creation.
� Spieker v. Quest Cherokee, 2008 WL 4758604 (D.Kan. Oct. 30, 2008). In this lawsuit seeking
class action certification, the plaintiffs filed a motion to compel production of electronically stored
information (ESI). The defendant argued undue burden and provided evidence that the estimated
cost of production, including collection, processing, reviewing and copying costs, would be
$375,000, while the plaintiffs’ claims were worth $100,000 or less. Determining the plaintiffs failed
to explain the relevancy of the disputed ESI in relation to class certification, the court denied the
plaintiffs’ motion without prejudice. As the plaintiffs were granted leave to re-file its motion to
compel, the court went on to address several additional issues raised by the parties. Ultimately the
court instructed the parties to discuss Fed.R.Evid. 502 in future production and cost discussions,
noting that Rule 502 was enacted “to reduce the costs of exhaustive privilege reviews of ESI.”
� White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D.
Kan. Aug. 7, 2008). In this wrongful termination litigation, the plaintiff moved to compel the
defendants to provide complete information on its document retention policy and how it may have
affected relevant electronically stored information. The defendants argued that providing such
information would be overly broad and unduly burdensome, and that such information was
irrelevant, proprietary and confidential. Determining the defendants had provided a sufficient
response to the discovery request via expert affidavit establishing an adequate search of the
electronic systems, the court denied the motion to compel. The plaintiff also sought reproduction of
certain electronic documents in native format, claiming that production of ESI in paper format was
contrary to the “reasonably usable” requirement of Fed.R.Civ.P. 34. The defendants argued that
converting the e-mails and attachments to PDF, then printing them and producing the printouts
constituted a reasonably usable form since the plaintiff failed to request a particular format.
Disagreeing with the defendants, the court held that the conversion of electronic documents to
paper did not satisfy the requirements under Fed.R.Civ.P. 34, and accordingly granted the
plaintiff’s motion to compel production in native format. The court also noted that this dispute could
have been avoided had the parties adequately discussed production format during the
Fed.R.Civ.P. 26(f) conference as required by Guideline 4(f) of the United States District Court for
the District of Kansas’ Guidelines for Discovery of Electronically Stored Information.
� Dean v. New Werner Holding Co. Inc., 2008 WL 2560707 (D.Kan. June 26, 2008). In this product
liability litigation, the plaintiff filed two motions to compel production and sought sanctions. The
plaintiff argued that the defendant failed to produce complete initial disclosures in response to the
interrogatories and production requests, including a failure to produce any electronic data, digital
media or metadata. The defendant claimed that the interrogatory requests were overbroad and
unduly burdensome, and that both the interrogatory requests and production requests sought
information not under its control. The defendant also represented to the court that it intended to
produce relevant electronically stored information (ESI) in its possession, but gave no anticipated
production date. Disagreeing in part with the defendant, the court determined the information
sought in the production requests was under the control of the defendant, but provided limitations
to some of the plaintiff’s interrogatory requests. The court also noted that the defendant already
had nearly six months to review and accumulate its ESI, and ordered production within 30 days.
271

The court declined to issue sanctions for attorneys’ fees or reasonable expenses incurred by the
plaintiff in bringing these two motions, finding sanctions unwarranted.
� Thompson v. Assurant Employee Benefits, 2008 WL 373711 (D.Kan. Feb. 8, 2008). In this
case, the defendants failed to produce initial disclosures within the deadline established by the
scheduling order. The plaintiff followed up with a letter and a phone call and when both were
unanswered, he filed a motion to compel and a subsequent motion seeking reimbursement of fees
and expenses associated with the original motion to compel. The defendants claimed an “innocent,
internal miscommunication” between the partner and associate resulted in the missed production
deadline and argued against the imposition of sanctions. The court determined the plaintiff
expended unnecessary resources in the effort to secure production from the defendants and was
therefore entitled to reimbursement of fees and expenses in the amount of $580.
� Benton v. Dlorah, Inc., 2007 WL 3231431 (D.Kan. Oct. 30, 2007). In this employment
discrimination suit, the defendants moved to compel the plaintiff to produce documents responsive
to their requests for production and the hard drive of the plaintiff’s personal computer. The
defendants also sought sanctions for the plaintiff’s failure to provide complete responses and
alleged destruction of evidence. The defendants argued that the plaintiff admittedly deleted and
failed to produce relevant e-mail communications with her husband and students. Further, the
plaintiff used her personal computer to send and delete hundreds of responsive e-mails, therefore,
entitling the defendants to the plaintiff’s personal computer hard drive for retrieval of the deleted emails.
The plaintiff objected, claiming the hard drive contained personal, privileged information
beyond the scope of discovery. The court ordered the plaintiff to produce her personal computer for
inspection by a forensic specialist, limited in scope to topics responsive to the production requests,
and ordered the plaintiff to pay $1,000 in sanctions to reimburse the defendants for costs
associated with filing of this motion.
� MGPIngredients, Inc. v. Mars, Inc., 2007 WL 3010343 (D.Kan. Oct. 15, 2007). In this suit alleging
patent infringement and misappropriation of trade secrets inter alia, the plaintiff moved the court to
compel the defendant to identify particular documents responsive to each request for production,
rather than merely producing documents in the format in which they are kept in the usual course of
business. The court denied the motion, relying on Fed.R.Civ.P. 34(b) which requires a responsive
party to produce documents either in the manner in which they are kept in the usual course of
business or to organize and label the documents to correspond to each request. As the parties
failed to agree in advance to an alternative manner or production per Rule 34(b), the court refused
to order a different form of production.
� Benton v. Dlorah, Inc., 2007 WL 2225946 (D.Kan. August 1, 2007). In this case alleging
employment discrimination on the basis of gender, the defendants motioned the court to compel
the plaintiff to produce the hard drive of her personal home computer and further requested an
order prohibiting the plaintiff from destroying email and other relevant evidence. In support of these
requests, the defendants claim that the plaintiff had only produced a handful of email for a time
period spanning several months. The plaintiff argued that she already produced all relevant
materials and refused to produce the computer for investigation by a computer forensic expert. The
court denied the motion and declined to assume the plaintiff was lying or had been discredited in
her discovery responses.
� Oxford House, Inc. v. City of Topeka, 2007 WL 1246200 (D. Kan. Apr. 27, 2007). In this case,
the plaintiffs brought suit against the defendant for denying several conditional housing permits.
The plaintiffs brought a motion to compel the defendant to comply with several discovery requests
and produce all electronically stored information (ESI), including e-mail and instant messages,
272

elating to any ex parte communications regarding the denial of the plaintiffs’ permits. The
defendant contended that all requested ESI was automatically deleted and overwritten by the
defendant’s archiving system on its disaster back-up tapes. The plaintiffs disputed the defendant’s
contention and argued that even if the disputed ESI was deleted, the defendant still had a duty to
preserve the potential evidence and argued that the defendant should be sanctioned for failure to
preserve the data. The court found that the defendant fulfilled its discovery obligations and
adequately explained the non-existence of any ESI requested by the plaintiff. The defendant
provided several affidavits from witnesses stating there was no ESI to produce to the plaintiffs.
Furthermore, the court found the failure to preserve the e-mail evidence was reasonable since the
duty to preserve the documents and the likelihood of litigation did not arise until well after the
documents were overwritten on the back-up tapes. Moreover, the court used a cost-benefit
balancing test called the “marginal utility test” to find that the production of the requested ESI would
be unduly burdensome and costly since the “likelihood of retrieving these electronic
communications is low and the cost high.”
� Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. Apr.
9, 2007). In this antitrust litigation, the defendant filed a motion to compel the plaintiff to produce a
Rule 30(b)(6) witness who could testify about the specific produces and practices relating to the
organization’s handling of electronic data. The defendant also requested an award of costs
incurred in bringing the motion and taking the additional deposition. The plaintiff provided its Chief
Executive Officer for the deposition; however, during the deposition it was apparent that the CEO
was unprepared or did not have the requisite knowledge to adequately answer the questions about
the plaintiff’s computer systems and electronic discovery practices. The plaintiff argued that the
topics of the deposition were overly broad and that it did not have enough time to prepare for the
extensive deposition. Finding that it was the plaintiff’s “choice to use a designee without substantial
personal knowledge of the noticed topics, and the fact that [the CEO] required extensive education
about the noticed topics is a burden that must be borne by [the plaintiff] alone,” the court ordered
an additional deposition about the unanswered electronic data topics. The court refused to award
costs or sanctions because the parties did not discuss the narrow issue of compliance with Rule
30(b)(6) during the initial meet and confer conference.
� Bolton v. Sprint/United Mgmt. Co., 2007 WL 756644 (D. Kan. Mar. 8, 2007). In an employment
discrimination suit brought by employees terminated in a reduction-in-force, the plaintiffs compelled
the defendant to produce certain electronic documents, such as databases and spreadsheets,
related to the terminated employees. The defendants argued that the requests were irrelevant,
overly broad, and unduly burdensome. In addition, the defendants opposed the plaintiffs’ demand
for information in a native format with corresponding metadata, claiming that a native production
would be difficult and time-consuming and would reveal privileged information. The court granted
some of the plaintiffs’ document requests stating that the benefit of the information outweighed the
defendants’ burden, but denied other document requests as overly broad. For the document
requests that were granted, the court stated that the plaintiffs’ requests should be produced “in the
form in which it is currently maintained, but in electronic format to the extent possible.”
� School-Link Techs., Inc. v. Applied Res., Inc., 2007 WL 677647 (D. Kan. Feb. 28, 2007). In a
contract dispute, the plaintiff sought sanctions against the defendant for its failure to implement a
litigation hold to preserve relevant documents in the custody of one of its key employees and for its
failure to adequately search for and gather responsive discovery documents. The key employee
testified that she was never contacted by the defendant to search for relevant documents but that
she searched her own computers under her own accord. The defendant eventually produced the
273

employee’s files from her computer and they were merely duplicative of already produced
documents. The court, despite finding that the defendant breached its duty to preserve evidence,
refused to order sanctions, as there was no showing that the breach caused relevant documents
and information to be destroyed. With regard to the plaintiff’s inadequate search claims, the court
ordered the defendant to assure the plaintiff that all employees’ documents and computer files had
been produced. The court also ordered the defendant to produce an identical copy of the memory
stick used to save the key employee’s documents to ensure that all information had actually been
produced.
� Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 625809 (D. Kan. Feb.
23, 2007). In this discovery dispute in an antitrust litigation, the defendant moved the court to order
the plaintiff to supplement its privilege logs according to the parties’ pre-trial electronic discovery
protocol. The agreed upon protocol defined the scope of discoverable electronic information and
provided for specific procedures if any electronic documents were withheld from discovery based
on privilege. The defendant argued that the plaintiff did not follow the agreed upon protocol when
submitting its privilege log because it did not list sufficient information on the log in order to enable
the defendant to properly identify whether the plaintiff’s withheld documents were in fact privileged.
The defendant further argued that the plaintiff’s privilege log did not meet the standards as set by
local caselaw and the Federal Rules of Civil Procedure. The plaintiff argued that it did comply with
the privilege log and that the defendant itself did not comply with the agreed upon electronic
discovery protocol and therefore cannot be punished. The court held that some of the plaintiff’s
submissions were insufficient according to the parties’ protocol agreement and that the privilege
log must be supplemented in some areas. The court refused to order sanctions for the privilege log
insufficiencies.
� Thompson v. Jiffy Lube Int’l, Inc., 2007 WL 608343 (D. Kan. Feb. 22, 2007). In this class action
suit, the defendant filed for sanctions against the plaintiffs for spoliation of important documents
and information. The plaintiffs, under an order to produce witness names, addresses and phone
numbers, claimed that the information was lost when the hard drive possessed by its’ counsel
crashed and the information was not backed up for retrieval. The plaintiffs argued that it did not
intentionally or negligently destroy any witness information and that they attempted to salvage the
data stored on the hard drive but concluded that reconstructing the data would be too time
consuming and burdensome. The defendant argued that the plaintiffs had a duty to preserve the
information in a manner that would have prevented loss and, at a minimum, preserved the data in a
backup system. The court declined to issue sanctions against the plaintiffs stating that the
“plaintiffs’ failure to utilize a backup system for counsel’s computer is troubling” but sanctions were
inappropriate because the issues for trial had not yet been established. The court noted that “the
issue of spoliation may be revisited by motion after the issues in the case are better defined.” The
court did, however, allow the defendant to issue written deposition questions to plaintiffs’ counsel to
determine the extent of the lost data.
� G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007). The plaintiffs in
this case brought a claim of wrongful disclosure of medical information against the defendant
medical provider. The plaintiffs’ medical information was inadvertently disclosed when a computer
was placed on the curb for trash disposal. The computer was obtained by a passerby who
subsequently had the hard drive repaired. Once the computer was in working condition, it was
discovered that the computer contained confidential medical information of several of the
defendant’s patients. The plaintiffs filed a motion to compel the production of the computer and all
information contained on its hard drive. The defendant objected to the motion stating that it was an
274

“unadulterated fishing expedition” and that the plaintiffs’ request was meant to “simply ‘troll’ the
‘electronic pond’ to eliminate any skepticism regarding production.” The court disagreed with the
defendant’s objections and granted production of the computer hard drive with some limitations. It
ordered an interdependent computer forensics expert to image the hard drive and provide a report
to each party of the information contained on therein. The defendant was to provide the plaintiffs
with information on the computer concerning any of the plaintiffs, however the court held that any
other confidential information about non-party patients and employees was irrelevant and beyond
the scope of plaintiffs’ claims. The parties were ordered to submit a protective order concerning
any confidential information discovered on the hard drive. Furthermore, the parties were ordered to
share the cost of the hard drive imaging and examination.
� Williams v. Sprint/United Mgmt. Co., No. 03-2200 (D. Kan. Jan. 23, 2007). On remand from the
district court judge, the magistrate issued an order explaining his reasons for denying sanctions
against the defendant for failure to produce documents in their native format. In this employment
discrimination claim, the plaintiffs filed a motion for sanctions against the defendant for failure to
produce several spreadsheets which were originally produced in hard copy. The plaintiffs argued
that the Federal Rules of Civil Procedure compelled the defendant to produce documents in their
native format despite an earlier agreement between the parties stating that the parties could
produce documents in a non-native .tiff format. The defendant argued that they attempted, in good
faith, to produce the spreadsheets in a native format as quickly as possible and did not delay
production of the documents in order to gain a tactical advantage. The magistrate judge agreed
with the defendant and held that there was no evidence of bad faith on part of the defendant
because it gave reasonable explanations as to any delay and impossibility of producing native
format documents. Further, the court found that the unique circumstances of the discovery disputes
demonstrate that there was no bad faith. The court also held that any duplicative production of
documents occurred only as a result of the plaintiffs’ multiple discovery requests and not as an
intentional tactic by the defendant used to confuse or frustrate the plaintiffs.
� Apsley v. Boeing Co., 2007 WL 163201 (D. Kan. Jan. 18, 2007). In an age discrimination class
action, the plaintiffs moved to compel the defendant to produce e-mails relevant to the claims. The
requested e-mails covered a five year period and several hundred employees. The plaintiffs
provided search terms to the defendant to reduce the amount of relevant emails. The defendant
argued that a production of five years of e-mails from several hundred employees would be unduly
burdensome and costly. In some situations, the defendant argued, an e-mail search of one
employee could take one person as long as an entire day to perform the search. The plaintiffs
argued, however, that the benefits to the plaintiffs would be outweighed by the burden to
defendant. The court found that it could not make a decision on burden versus benefit and
requested additional information from the parties. The requested information included how the
search would be conducted, the search terms, specific employees’ e-mail to be searched, who
should bear the production costs, and other balancing questions.
� Williams v. Sprint/United Mgmt. Co., 2006 WL 3691604 (D. Kan. Dec. 12, 2006). In an
employment termination case, the plaintiffs moved the court for native file production of e-mails
which had been previously produced by the defendant in a hardcopy format. In the original
production, the e-mails had spreadsheets that were detached and provided as separate documents
in their native, electronic format. The plaintiff claimed that without the native e-mail, the plaintiff was
forced to match the hardcopy e-mails with the corresponding electronic spreadsheet attachment
using a correlation table created by the defendant, which caused the plaintiff to incur more time
and cost. The defendant argued that the parties agreed during pre-trial conferences that any
275

electronic discovery would be produced as TIFF images and not in a native file format.
Furthermore, producing native e-mail files would increase the risk of privileged information being
disclosed since native files cannot be redacted. The court reasoned that the prior production of emails
was not a deliberate attempt by the defendant but the result of an agreement between the
parties. The court held the plaintiffs failed to give an adequate reason to compel the native e-mail
production and denied their motions to produce native e-mails. See also Williams v. Sprint/United
Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006).
� Thompson v. Jiffy Lube Int’l, 2006 WL 3388502 (D. Kan. Nov. 21, 2006). In a fraudulent sales
practices case, plaintiffs’ requested e-mail from over 450 managers of the defendant’s vehicle
service stores. The plaintiffs provided several search terms to narrow the relevant e-mail search
and stated that production would “only” cost the defendant $600,000. The court denied the motion
because production of every manager’s e-mail with common search terms would be too
burdensome and too costly for the defendant. Some of the search terms included words such as:
services, customers and dollars. Although the motion was denied the court hinted that e-mail could
be compelled if the plaintiffs narrowed the scope of the inquiry.
� Semsroth v. City of Wichita, 2006 WL 3913444 (D. Kan. Nov. 15, 2006). In a gender
discrimination case, the defendant brought a cost-sharing motion for discovery costs associated
with producing e-mail from 117 employees, as requested by the plaintiff. The e-mail was only
stored on disaster relief backup tapes. The defendant had already spent $20,000 in producing
electronic documents from their backup tapes and would have to purchase additional software to
produce the remaining e-mail. The plaintiff argued that the defendant should incur all of the costs
because they chose to store the e-mail in an inaccessible format. The court held that the defendant
should incur all of the discovery costs. It noted that the costs already incurred are irrelevant to a
cost-shifting analysis because “the majority of those expenses do not directly relate to the
restoration and search of the backup tape.” Furthermore, the court noted its power under the
amendments to the Federal Rules of Civil Procedure to rule on discovery that was overly broad.
The court ordered the plaintiff to reduce the number of e-mail accounts to 50 employees instead of
117, and it also removed several generic search terms from defendant’s list of search terms and
reduced the total number to 10 specific terms.
� Johnson v. Kraft Foods, 2006 WL 3302684 (D. Kan. Nov. 14, 2006). The plaintiffs motioned the
court to compel the defendant to produce electronic data, including electronic databases, regarding
its employees. The defendant objected generally to several discovery requests made by the
plaintiffs, claiming that the discovery requests where overbroad, duplicative, and vague. Notably,
the defendant objected to the plaintiffs’ definitions of electronic discovery terms (such as “electronic
database” and “personnel related data”) as vague and ambiguous despite the fact that the
plaintiffs’ provided detailed definitions of each term. The defendant argued that the different
attorneys examining the scope and adequacy of the requests will view the electronic data terms
differently and produce inconsistent discovery results. The court overruled the defendant’s
objections and identified several credible sources to access an accurate legal definition of
electronic discovery terms, including the Kansas electronic discovery guideline practices, the
Sedona Conference guidelines, and caselaw.
� Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006). The court
conducted an in camera review of 65 documents inadvertently disclosed by the defendant to the
plaintiffs. The court found the documents -- spreadsheets containing statistical information -- were
created at the request of the defendant’s attorneys for the purpose of obtaining legal advice, and
were protected by attorney-client privilege. In reaching its conclusion, the court considered several
276

e-mails establishing the documents had been e-mailed directly to the defendant’s counsel. In ruling
the privilege had not been waived by the defendant’s inadvertent disclosure, the court analyzed
five factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2)
the time taken to rectify the error; (3) the scope of discovery; (4) the extent of disclosure; and (5)
the overriding issue of fairness. To prevent inadvertent disclosure, the defendant converted the
documents into TIFF images, allowed attorneys to review them on a computer screen, and
implemented document production software to label “privileged” documents for inclusion within the
privilege log. Citing the Advisory Committee’s comments to the proposed amendments to FRCP
Rule 26(f), the court considered the added volume, expense and time required to sift through
electronically stored information in determining that the defendant’s efforts to prevent disclosure
were reasonable. In addition, since the defendant had immediately taken steps to secure the return
of the spreadsheets after learning the documents had been inadvertently disclosed, the court ruled
the privilege not waived and ordered the documents be returned to the defendant.
� Cardenas v. Dorel Juvenile Group, Inc., 2006 WL 1537394 (D. Kan. June 1, 2006). In this
product-liability case, the plaintiffs sought sanctions under FRCP Rule 37 against the defendant for
providing false responses to discovery requests, failing to supplement discovery requests, failing to
comply with a court order compelling discovery and for withholding a crucial document damaging to
the defendant’s case. The plaintiffs first learned that the defendant had failed to provide a key
document when they examined communications contained in an internal email, produced in
response to other discovery requests. Although the defendant produced the document after the
plaintiffs specifically requested it be turned over, the plaintiffs asserted they were unfairly
prejudiced by the document’s untimely production. The plaintiffs moved the court to prohibit the
defendant from asserting affirmative defenses, in effect granting a default judgment, or
alternatively, to issue adverse inference jury instructions against the defendant. However, the court
found the sanctions requested by the plaintiff to be unwarranted, as the defendants had not
withheld the key document willfully or in bad faith. Still, the court observed, “parties cannot be
permitted to jeopardize the integrity of the discovery process by engaging in halfhearted and
ineffective efforts to identify and produce relevant documents.” Finding that the defendant’s
counsel were under obligation to review all documents in their possession to determine the
existence of other potentially relevant undisclosed documents, the court awarded the plaintiff
reasonable attorney’s fees and expenses incurred as a result the defendant’s noncompliance and
untimely production.
� Thompson v. Jiffy Lube Int’l, Inc., 2006 WL 1174040 (D. Kan. May 1, 2006). In a class action
consumer protection lawsuit, the defendant objected to a request for electronic documents
including “any and all information related to e-mail.” The defendant claimed the request was
overbroad and unduly burdensome since it would cost approximately $10 million to produce the
documents in TIFF format. Countering, the plaintiffs asserted the defendant could first produce the
documents in “native PST format” and then print the documents “without any additional cost.”
Declining to rule on the issue of costs, the magistrate judge ordered the parties to confer and agree
upon a data sampling protocol and/or production format. If the parties could not agree, a hearing
would be held to determine production scope and cost-shifting. The magistrate also found the
plaintiff’s request for e-mail overly broad and stated, “[t]he mere suspicion that a document
containing relevant evidence might be located in defendant’s computer files does not justify the
production of all e-mail communications or computer records . . . requests must be reasonably
tailored to secure the production of documents relevant to the issues in this lawsuit.”
277

� Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668 (D. Kan. Mar. 24, 2006). Alleging
copyright infringement, the plaintiffs sought to mirror image the hard drives of the defendants’
business and personal computers. The defendants objected to the mirror imaging of any
computers not related to the business, claiming the plaintiffs failed to demonstrate how collecting
information on these computers would be calculated to lead to the discovery of admissible
evidence. In response, the plaintiffs contended that any of the defendants’ computers could have
been used to download the copyrighted patterns at issue; thus, all of the computers should be
mirror imaged in order to preserve any relevant information. The Court found it reasonable to
conclude relevant evidence could be found on any of the defendant’s computers, noting a personal
computer was used to draft a document related to the alleged infringement. Thus, the Court
ordered “all of Defendants’ computers and peripheral equipment, such as ZIP Drives, shall be
made available for mirror imaging, at Plaintiffs’ expense, in accordance with the protocol previously
agreed to by the parties.”
� Bergersen v. Shelter Mut. Ins. Co., 2006 WL 334675 (D. Kan. Feb. 14, 2006). Alleging wrongful
termination from employment, the plaintiff moved to compel production of documents previously
scanned onto three CDs and produced by the defendants. Stating this production was not “kept in
any perceivable sequential order,” the plaintiff claimed it did not comply with the “usual course of
business” Fed.R.Civ.P. 34(b) requirement. Agreeing with the plaintiff, the court found it “clear that
the documents produced by [the defendants] were not produced ‘as they are kept in the usual
course of business’.” According to the court, the production was problematic as “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.” The court noted other courts had required a producing party to label, organize or
index electronic documents to make them usable by a requesting party. Methods referenced by the
court included (1) noting which documents were produced from electronic files and which were
scanned from hard-copy files, (2) maintaining multi-page documents as a unit, and (3) providing
source information to identify document custodians. Nevertheless, the court denied the plaintiff’s
motion based on the plaintiff’s failure to file the motion in a timely manner.
� Williams v. Sprint/United Mgmt Co., 230 F.R.D. 640 (D. Kan. 2005). In an employment case
involving allegations of age discrimination, the plaintiffs requested native production of Microsoft
Excel spreadsheets so they would be able to determine if the documents “had any actual other
columns or types of information available on a spreadsheet.” After receiving the spreadsheets from
the defendant, the plaintiffs claimed the defendant “scrubbed” the spreadsheet files to remove
metadata without producing a log of the information scrubbed. The plaintiffs also asserted the
defendant locked cells and data on the spreadsheets, thus preventing the plaintiffs from accessing
those cells. The defendant admitted it had scrubbed metadata and locked certain cells but argued
the plaintiffs never requested production of the metadata and claimed the metadata was irrelevant
and contained privileged information. The court gave the defendant seven days to show why it
should not produce electronic Microsoft Excel spreadsheets in native format and why it should not
be sanctioned for its behavior. The defendant declared its actions were made in good faith,
designed to prevent the plaintiffs from discovering information the Magistrate ruled undiscoverable,
and maintained data integrity. Although the court did not sanction the defendant, it ordered the
defendant to produce the spreadsheets’ metadata and to produce "unlocked" versions of those
spreadsheets. The court held, “when a party is ordered to produce electronic documents as they
are maintained in the ordinary course of business, the producing party should produce the
electronic documents with their metadata intact, unless that party timely objects to production of
278

metadata, the parties agree that the metadata should not be produced, or the producing party
requests a protective order.”
� United States v. The Boeing Co., 2005 WL 2105972 (D. Kan. Aug 31, 2005). The plaintiffs
alleged the defendants concealed information and submitted false claims for payment relating to
aircraft and parts delivered to the government. Claiming the defendants had attempted to "sweep
evidence under the rug," the plaintiffs sought a preservation order, requiring the defendants to
“preserve documents, physical evidence, and electronic (computer-based) evidence for discovery
and trial.” The plaintiffs further claimed the defendants’ past conduct demonstrated a genuine
concern they might destroy relevant documents. In reply, the defendants stated they had already
taken appropriate steps to preserve relevant evidence within days of being notified of the lawsuit.
The court found the plaintiffs failed to show that any evidence would be lost or destroyed absent a
preservation order. In refusing to grant the preservation order, the court declared the defendants
demonstrated they had the capability to preserve the evidence at issue. The court also issued an
Initial Order Regarding Planning and Scheduling and stated, “the parties have a duty under Rule
26(f) to meet and develop a discovery plan, including arrangements for electronic discovery in
accordance with this court’s Electronic Discovery Guidelines.”
� United States v. Kaufman, 2005 WL 2087759 (D.Kan. Aug. 25, 2005). In a case involving an
indictment for health care fraud, civil rights violations and other charges, the defendants sought
dismissal of the indictment or, alternatively, recusal of the prosecutors based on their alleged
knowledge of privileged material. The government, who had seized the defendants’ computer and
searched it pursuant to a valid warrant, admitted some potentially privileged letters between the
defendants and its counsel were present on the computer. The government claimed the computer
search was performed by a computer forensic lab. After the lab transferred the data from the
computer hard drive to a CD, a Department of Justice attorney not associated with the prosecution,
created a DVD of the computer’s contents with potentially privileged materials redacted. The
attorney also printed hard copies of the potentially privileged material and turned them over to
defense counsel. Despite these precautions, the defendants argued the government possessed
un-redacted copies of the DVD, providing it with unfettered access to the potentially privileged
information. The court determined that “even if some of those documents were privileged, and
even if the prosecutors had read some of them, neither the ‘draconian’ remedy of dismissal, nor the
slightly less drastic remedy of recusing the prosecutors, would be appropriate under the facts of
this case.” The court also set forth a detailed protocol for the defendants to review the evidence for
privileged material.
� Evolution, Inc. v. The Suntrust Bank, 2004 WL 2278559 (D. Kan. Sept. 29, 2004). In an action
for copyright infringement, breach of contract, and misappropriation of trade secrets, the plaintiff
accused the defendants of not producing source code, object code, and application databases in
response to a production request. The defendants argued that the plaintiff should have retained an
expert to assist with accessing the code. The court appointed a special master to assist with the
technical aspects of the discovery dispute. In allocating fees and expenses, the special master
recommended that the defendant pay 80 percent of his fees because “the majority of the time
spent on this matter [is] directly attributable to defendants’ representations and lack of
cooperation.” The special master recommended that the parties evenly split other expenses. Both
parties objected to this fee splitting recommendation. While the court agreed with the special
master’s findings regarding the defendant’s lack of cooperation, the court ordered the defendant to
pay 70 percent of the fees and the plaintiff to pay 30 percent. The court ordered the parties to split
the other expenses evenly.
279

� Super Film of Am., Inc. v. UCB Films, Inc., 219 F.R.D. 649 (D. Kan. 2004). In a collection action,
the defendant moved to compel the plaintiff to produce electronic data including e-mail,
spreadsheets, and databases. The plaintiff argued that it could not be compelled to produce the
documents because it did not have control of the documents as required by FRCP Rule 34(a). The
court determined that under Rule 34(a), the plaintiff possessed the requisite control because the
plaintiff had “the right, authority, or ability to obtain the requested document.” The plaintiff further
contended that it had produced all electronic documents off of its two computer systems that were
within its “knowledge and expertise” and offered to allow the defendant’s technicians to inspect the
computers. The defendant rejected this offer stating that it would unreasonably shift the discovery
burden and expense to the defendant. The court agreed with the defendant, noting that “the court
cannot relieve a party of its discovery obligations based simply on that party’s unsupported
assertion that such obligations are unduly burdensome.” The court further found that the plaintiff
did not make the required showing that complying with the defendant’s request would unduly
burden the plaintiff in terms of time, money, and procedure. Thus, the court ordered the plaintiff to
produce the electronic documents within 30 days.
� Zhou v. Pittsburgh State Univ., 2003 WL 1905988 (D.Kan. Feb. 5, 2003). In an employment
discrimination suit, the plaintiff sought to compel the defendant to produce computer generated
documents (instead of typewritten documents compiled by hand already produced) reflecting the
salaries of the defendant’s faculty. Relying on the Advisory Committee Notes to F.R.C.P. 34, the
court stated, “[T]he disclosing party must take reasonable steps to ensure that it discloses any
back-up copies of files or archival tapes that will provide information about any ‘deleted’ electronic
data.” The court granted the plaintiff’s motion to compel and ordered the defendant to disclose all
data compilations, computerized data and other electronically-recorded information reflecting the
salaries of the defendant’s faculty. The court further ordered the parties to preserve evidence that
they know, or should know, is relevant to the ongoing litigation, including preservation of all data
compilations, computerized data and other electronically-recorded information.
� Kleiner v. Burns, 2000 WL 1909470 (D. Kan. Dec. 15, 2000). The court ordered the defendant
Yahoo! to disclose all electronic data compilations in its possession, custody, and control that are
relevant to disputed facts. The court also ordered parties to preserve evidence that they know, or
should know, is relevant to the ongoing litigation, including preservation of all data compilations,
computerized data and other electronically-recorded information.
� Hoffman v. United Telecomms., Inc., 117 F.R.D. 436 (D. Kan. 1987). In an interrogatory, the
plaintiff requested specific information concerning a computer file containing information regarding
possible employment discrimination. The court denied requesting party’s motion to compel finding
that since the data would reveal the defendant’s discovery plan, the information was protected by
the work-product doctrine.
New Mexico
� Radian Asset Assurance, Inc. v. College of the Christian Brothers of New Mexico, 2010 WL
4928866 (D. N.M. Oct. 22, 2010). In this litigation, the plaintiff objected to a proposed court order
that would require the defendants to produce e-mails and other ESI from backup tapes subject to a
clawback agreement, claiming the defendants should be required to search its own ESI and
produce responsive documents – not shift the burden and cost to the plaintiff to do so. Disagreeing
with the plaintiff’s arguments, the court determined the backup tapes were not reasonably
accessible and found there to be good cause to issue a protective order due to the significant
280

expense in restoring and searching the tapes in light of their largely irrelevant content. Thus, the
court ordered the defendants to produce copies of all ESI from the backup tapes for the plaintiff to
review, dismissing the plaintiff’s arguments that this constituted a document dump. The court also
ordered the defendants to produce user logs for 135 hard drives to determine which one (if any)
belonged to a particular defendant. Both the production of the backup tapes and hard drive were
subject to a Fed.R.Civ.P. 502(d) order.
Oklahoma
� Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009). In this
tortious interference of a contract suit, the plaintiff alleged the defendant "spoliated electronic
documents in the face of ongoing litigation." As such, the plaintiff sought an order requiring the
defendant to obtain and fund a restoration and search of its 37 backup tapes. The defendant
argued the backup tapes were not reasonably accessible and that no further relevant evidence
existed on the tapes as a litigation hold was in effect. Finding the plaintiff failed to establish a
reasonable expectation that the benefit of restoring the backup tapes would outweigh the burden,
the court declined to impose the significant costs to restore, search and review the tapes on the
defendant. The court also declined to impose sanctions because no bad faith existed regarding the
defendant’s IT employee’s deletion of an e-mail box as part of a regular practice. However, the
court concluded one of the backup tapes may contain discoverable records because it was unclear
when the e-mail box deletion occurred and ordered the tape’s restoration and search.
� Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 2009 WL 3334868 (D.N.J. Oct. 14, 2009). In
this business dispute, the defendants alleged the plaintiffs copied the defendants’ computer files in
violation of the Computer Data Access and Fraud Act (CDAFA). Prior to the joint venture
termination, the plaintiffs’ computers were connected to the defendants’ server via a virtual private
network. After the joint venture ceased, the plaintiffs copied approximately 152,000 documents,
including proprietary business information, contained on the defendants’ server in an act the court
labeled "brazen and surreptitious." The plaintiffs claimed the defendants knew access to the joint
system existed, were concerned the defendants would destroy relevant information on the network
and that the defendants’ litigation hold letter required them to preserve all documents within their
possession or control. Finding the plaintiffs’ "clandestine copying of computer files" was not
performed purely for e-discovery purposes, the court determined the copying of files created after
the joint venture dissolved was a clear violation of the CDAFA. Accordingly, the court granted the
defendants’ motion for partial summary judgment.
� United States v. Haymond, 2009 WL 3029592 (N.D. Okla. Sept. 16, 2009). In this criminal case,
the defendant renewed his request for access to unlawful images allegedly contained on his
computer that were seized by the government. The defendant argued the hard drive was "stripped"
of metadata prior to the mirror image creation, which prevented him from preparing a forensic
defense. The defendant also requested redacted copies of the images to support subpoenas to the
Web sites where the images originated. Relying upon the defendant’s expert’s testimony that he
was "99.99-percent sure" no metadata would be located, the court found no basis for the
defendant’s claim that metadata had been "stripped." The court further ordered the defendant to
identify the images with embedded Web site information in advance of trial, at which point the
government is to prepare redacted images for the defendant’s use in conjunction with the
subpoenas.
281

� Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009). In this litigation,
the plaintiff sought default judgment or adverse inference sanctions claiming the defendants failed
to preserve and destroyed relevant documents, and also sought punitive monetary sanctions. The
defendants’ attorneys drafted a litigation hold, which the defendants failed to issue, and
subsequently hired an outside vendor to recover deleted e-mails after the defendants’ internal
information technology (IT) department failed to recover the documents. Finding the defendants’
local counsel had little to do with discovery responses, and that the other firm drafted the litigation
hold policy and made efforts to confirm client compliance, the court declined to sanction the
attorneys. Addressing the defendants’ conduct, the court held that while the defendants failed to
meet preservation obligations by failing to issue the litigation hold, the conduct was not intentional
and therefore did not warrant imposition of a default judgment or an adverse inference. However,
the court determined some sanctions were appropriate and awarded future deposition costs,
excluding attorneys’ fees, to the plaintiff. Additionally, if the plaintiff discovered a specific, relevant
e-mail had not been produced, it would be allowed to petition the court for further relief. Finally, the
defendants were ordered to pay $2,500 to the Tulsa County Bar Association to fund a seminar on
litigation holds and preservation of electronic data.
� Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 10, 2008). In this breach of contract case, the
trial court required willfulness for the imposition of sanctions and the plaintiffs appealed. The Court
of Civil Appeals affirmed the trial court’s ruling, but remanded for consideration of whether
sanctions could be imposed for mere negligence. Both sides petitioned for writs of certiorari. In the
underlying dispute, the plaintiff sought unpaid royalties on an oil lease and the defendant filed a
motion to compel production of certain files on the plaintiff’s computer. Defendant’s motion to
compel was granted by the trial court. Subsequently, the plaintiff enlisted the help of several
computer experts to remove alleged viruses, neglecting to mention that the hard drive was the
subject of a court order. During the expert analysis, several files were deleted as a result of the use
of numerous data wiping programs. Citing Oklahoma’s discovery code §3237(B)(2) (which mirrors
Fed.R.Civ.Pro. 37(b)(2) and authorizes sanctions for the failure to comply with a court order) the
Court held that the trial court erred as a matter of law in determining that sanctions could be
imposed only upon a showing of willful conduct. The Court determined that willfulness is relevant to
the severity of sanctions imposed, but not to whether sanctions should be imposed. Accordingly,
the Court reversed and remanded for reconsideration of the defendants’ motion for sanctions.
� Oldenkamp v. United Am. Ins. Co., 2008 WL 4682226 (N.D.Okla. Oct. 21, 2008). In this case
involving the payment of health insurance benefits, the plaintiffs filed a motion to compel discovery
responses or an adverse inference for spoliation. The plaintiffs claimed responsive documents
were not produced, and that the defendants either destroyed or failed to preserve these documents
after notice of litigation. The plaintiffs sought recordings of telephone conversations, e-mails and
internal company communication reports. Arguing a litigation hold was in place, the defendant
claimed all e-mails were produced and no records were destroyed. Noting a party cannot be
ordered to produce documents which do not exist, combined with the defendant’s assertion under
oath that all responsive documents were produced, the court denied the motion to compel. The
court also denied sanctions finding the plaintiffs failed to produce evidence of intentional
destruction.
� The Ponca Tribe of Indians of Okla. v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla.
Oct. 11, 2006). In a tort action, the plaintiffs filed several motions requesting the production of
various electronic documents. After the defendant’s initial production of documents, the plaintiffs
filed motions to: compel mirror images of various databases; produce native file formats of e-mails;
282

and create a more organized and understandable database of electronic documents already
produced. The defendant argued the cost of providing a mirror image database to the plaintiff
would exceed $10,000. The court found the large cost of production did not outweigh the plaintiffs’
interest in having the documents. The court noted, however, the parties could negotiate production
of the database without the court’s assistance if the plaintiffs desired to pay the costs associated
with obtaining the data. In arguing for the native production of e-mails, the plaintiffs claimed the
defendant merely provided “pictures” of the requested e-mails and did not provide them in an easily
searchable format. The court found the plaintiffs’ discovery requests did not specifically ask for the
e-mails in a particular format. The defendant provided documents as asked for in the discovery
requests. Lastly, the plaintiffs argued the production of e-mails and other documents were
“produced as single page documents with no consideration of the organization.” The plaintiffs
requested the electronic documents be provided in an “un-shuffled” manner and produced in a
more easily readable method. Refusing to place such a burden on the defendant, the court ruled
the production followed accepted industry practices and the plaintiffs possessed the capabilities to
organize the produced documents.
� Farmers Ins. Co. v. Peterson, 81 P.3d 659 (Okla. 2003). In a discovery dispute, the district court
ordered the defendant to search insurance claim files for the years 2000, 2001, and 2002 and
produce documents containing complaints from Oklahoma insureds on medical payment claims.
The defendant insurer claimed the request was unduly burdensome because to comply, it would
have to manually examine 600,000 closed paper files and 3,300-3,400 electronic files. The
defendant estimated the average examination time per file at 30 minutes. On appeal from the
district court order, the Oklahoma Supreme Court noted that the expenditure of time and money to
conduct the search in accordance with the plaintiff’s request would be unduly burdensome on the
defendant. However, the court was hesitant to excuse the defendant from meeting the plaintiff’s
discovery demands noting that the defendants “unilateral decision on how it stores information
cannot, by itself, be a sufficient reason for placing discoverable matter outside the scope of
discovery.” The court ordered the defendant to use a statistical sampling technique that will meet
the trial court’s “muster for integrity of the process and protect both litigants from distortive effects”
to produce discovery.
� York v. Hartford Underwriters Ins. Co., 2002 WL 31465306 (N.D.Okla. Nov. 4, 2002). In a case
alleging bad faith in processing an insurance claim, the defendant opposed the plaintiff’s 30(b)(6)
deposition request on the subject of the defendant’s use of a claims adjusting software program
called “Colossus.” The court found that the defendant failed to demonstrate that the “Colossus”
program was proprietary or confidential and ordered that the plaintiff should be given the
opportunity to discover what data was inputted into "Colossus" concerning her claim. The court
also ordered the defendant to provide a Rule 30(b)(6) witness to testify to the use of the “Colossus”
program. Granting part of the defendant’s motion for a protective order, the court held that the
nature and extent of the defendant’s use of "Colossus" may be confidential and entitled to
protection from third parties.
� United States v. Koch Ind., 197 F.R.D. 463 (N.D. Okla. 1998). The plaintiffs claimed that the
defendant thwarted discovery attempts by destroying backup computer tapes and files. The court
found that the defendant failed in its duty to preserve evidence that it should have known was
relevant. The court allowed the plaintiffs to inform jury that computer tapes and files were
destroyed but did not allow negative inference.
Utah
283

� Brigham Young Univ. v. Pfizer, Inc., 2012 WL 1302288 (D.Utah April 16, 2012). In this patent
litigation, the plaintiffs filed a fourth motion for sanctions against the defendants for alleged
discovery misconduct. Specifically, the plaintiffs argued that the defendants implemented
“unreasonable” records management practices and that they lost or destroyed critical documents in
violation of their duty to preserve. Additionally, the plaintiffs argued that the defendants had not
altered their conduct following a 2009 court order that imposed $850,000 in sanctions for the
defendants’ negligent discovery conduct that “closely approach[ed] a finding of bad faith.” With
regard to the defendants’ records management policies, the court found that changes in control of
documents over ten years old was the “natural result of business transactions,” and failed to see
any attempts by the defendants to confound discovery. With regard to the defendants’ duty to
preserve, the court was not persuaded by the plaintiffs’ argument that defendants’ were
“sensitized” by earlier industry lawsuits— which would impose an overbroad duty to preserve that
would make it “difficult for the [c]ourt to imagine how a party could ever dispose of information . . .
because of the potential for some distantly related litigation that may arise years into the future.” As
such, the court denied the entire motion, finding that although the defendants’ discovery conduct
was less than commendable at times, their overall conduct did not rise to a level warranting any of
the severe sanctions requested.
� Philips Elecs. N. Am. Corp. v. BC Tech., 2011 WL 677462 (D. Utah Feb. 16, 2011). In this
intellectual property litigation, the defendant objected to the magistrate judge’s recommendation
that the court strike the defendant’s answer, dismiss its counterclaims, enter a default judgment
and refer the case to the U.S. Attorney’s Office for investigation and criminal prosecution. Although
conceding that it engaged in discovery violations, the defendant argued it merely followed its
counsel’s advice, was not responsible for the actions of its employees and had largely remedied
any prejudice arising from the spoliation. Adopting the recommendation in full, the court found the
defendant’s destruction of at least 17,800 relevant documents, attempted cover-up of electronic
deletions after a third court order and misrepresentations while under oath were prejudicial and
interfered with the judicial process. In addition, the court determined the company was liable for the
actions of the employees – largely upper management and executives – who destroyed evidence
as a "company cannot act or have a mental state by itself." Finally, the court held both attorney
fees and terminating sanctions were appropriate given the egregious nature of the discovery
abuses and upheld the referral to the U.S. Attorney’s Office for perjury investigation.
� Daynight, LLC v. Mobilight, Inc., 2011 WL 241084 (Utah App. Jan. 27, 2011). In this intellectual
property dispute, the plaintiff and third-party defendants appealed the district court’s decision to
grant default judgment as a sanction for ESI spoliation. Rejecting the argument that the sanction
was excessive and unduly harsh, the court noted that Rule 37(g) of the Utah Rules of Civil
Procedure concerns discovery violations greater than simple discovery abuse (as opposed to Rule
37(b)(2)) and “does not require a finding of ‘willfulness, bad faith, fault or persistent dilatory tactics’
or the violation of court orders before a court may sanction a party.” Moreover, the court noted that
even if such culpability was required, the appellants willfully and in bad faith destroyed ESI, as
evidenced by a video wherein the appellants’ employees spoke of their destruction of potentially
harmful evidence. In addition, the employees committed such actions as “throwing the laptop off a
building; running over the laptop with a vehicle; and stating ‘[If] this gets us into trouble, I hope
we’re prison buddies.’” Finding this behavior demonstrated bad faith and a general disregard for
the judicial process, the court affirmed the default judgment and award of attorneys’ fees and costs.
284

� Phillip M. Adams & Assoc., LLC v. Winbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16,
2010). In this ongoing intellectual property litigation, the plaintiff objected to the magistrate judge’s
denial of terminating sanctions as moot. The plaintiff sought spoliation sanctions alleging the
defendant deleted several documents when it switched over to a new server. In light of the
defendant’s claim that it “has always had a reasonable document retention system,” the plaintiff
argued it was suspicious that only some e-mails were deleted. The defendant also disputed that a
duty to preserve ESI existed and further argued that its lack of patent litigation experience rendered
it unaware of any such duty. Rejecting the defendant’s arguments as unconvincing and lacking
merit, the court found the defendant had a duty to preserve and was on notice of a potential for
litigation based on a well-publicized statement in a large class action lawsuit that affected the
industry as a whole, in addition to a letter the defendant received notifying it of potential liability.
Finding sufficient evidence of a duty to preserve and spoliation, the court permitted the plaintiff to
present evidence on these matters to the jury and imposed a permissive adverse inference
instruction sanction.
� Phillip M. Adams & Assoc., L.L.C. v. Winbond Elec. Corp., 2010 WL 2977228 (D. Utah July 21,
2010). Previously in this intellectual property litigation, the magistrate judge granted the plaintiff’s
motion for sanctions in part and ordered both parties to produce documents for a determination of
the degree of prejudice to the plaintiff. Examining the plaintiff’s evidence of prejudice, the court
found that the produced materials did not prove the defendant destroyed documents noting “[t]he
fact that evidence is not present does not mean it was spoliated.” Moving to the defendant, who
failed to preserve and produce its original source code as ordered, the court found this failure again
highlighted the lack of an information retention policy. The court nevertheless found the evidentiary
value of the developer’s comments from the original source code to be mere speculation – not the
proverbial “smoking gun” as claimed by the plaintiff. Declining to issue terminating sanctions, the
court opted to allow the jury to consider the plaintiff’s arguments regarding why the original source
code should be available and draw their inferences.
� Phillip M. Adams & Assocs., LLC v. Fujitsu Ltd., 2010 WL 1901776 (D.Utah May 10, 2010). In
this intellectual property litigation, one of the defendants sought reproduction of documents and emails
in native format, documents from the plaintiff’s previous computers and documents from prior
litigation. The plaintiff argued that it never agreed to produce documents in native format, and that
producing documents from the old computers would be unduly burdensome and costly. Addressing
the first production dispute, the court ordered the plaintiff to reproduce the documents relevant to
one production request natively as it failed to object to the format specification. However, no format
specification was made in the defendant’s second request. As such, the court determined the
plaintiff’s production of documents per the ordinary course of business was sufficient, and that the
burden of reorganizing and labeling the production would likely outweigh the benefit. Turning to the
computer issue, the court ordered the plaintiff to produce an inventory of previous computers
containing data described in the defendant’s request to determine if the created archives for these
systems were adequate. Finally, the court ordered the plaintiff to search documents related to a
prior litigation matter, producing any document that is responsive, but not privileged.
� AccessData Corp. v. Alste Tech. GMBH, 2010 WL 318477 (D.Utah Jan. 21, 2010). In this
international breach of contract action, the plaintiff, a U.S. company, requested a reproduction of
previously produced discovery in native format. The defendant, a German company, argued that
compliance with the discovery requests would violate the German Data Protection Act (GDPA),
subjecting the company to civil and criminal penalties under a German blocking statute. The
defendant also claimed that its previous electronic production was in a “readily usable form” and
285

eproduction would be unnecessarily burdensome. Reviewing the GDPA, the court found nothing
that barred discovery of personal information provided customer consent was obtained, and even if
disclosure was prohibited under the GDPA, the U.S. Supreme Court has held that blocking statutes
do not deprive U.S. courts of the power to compel production from a foreign party subject to its
jurisdiction. See Societe Nationale Industrielle Aerospatiale v. United States District Court, 482
U.S. 522 (1987). Addressing the production format dispute, the court determined that scanned PDF
images are not readily usable as required by Fed.R.Civ.P. 26(b)(2)(E)(ii) and ordered the
defendant to reproduce the requested documents in native form or in an electronically generated
PDF format.
� Flying J Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1834998 (D. Utah June 25, 2009). In this
litigation, the defendants filed a motion to compel production of the plaintiffs’ credit card transaction
database and e-mails responsive to 28 new search terms. While the plaintiffs were initially willing to
comply with the transaction database request, they conditioned production seeking a comparable
database from the defendants and restriction of database use from other cases where the plaintiffs
are not a party. Denying the plaintiffs’ arguments, the court determined the production of a
comparable database and restricting the plaintiffs’ database were not issues for the court to
determine in the present motion. The court also found the plaintiffs’ claims that production would be
overly burdensome unpersuasive, determining the database to be relevant and accessible.
Regarding the additional search terms request, the court again found the plaintiffs’ arguments
unpersuasive, holding that the defendants’ request was timely made and was not overly
burdensome as the terms were likely to produce relevant material. However, the court ordered the
defendants to justify each of the chosen additional terms.
� Phillip M. Adams & Assocs., LLC v. Dell, Inc., 2009 WL 910801 (D.Utah Mar. 30, 2009). In this
patent infringement litigation, the plaintiff inferred that spoliation occurred based on the defendants’
non-production of certain relevant evidence and sought sanctions. The defendants explained that
the e-mail servers were not designed for archival purposes and that employees should locally
preserve e-mails of long term value (as determined by each individual employee). Agreeing that
the defendants should possess far more evidence than was produced, the court considered when
the defendants’ preservation duty arose. The court determined the duty arose around 1999/2000
based on the litigation environment surrounding the specific subject matter of this patent dispute,
not in February 2005 when the defendants learned that the plaintiff may bring a lawsuit. The court
also denied application of the safe harbor provision, citing an e-discovery expert’s declaration that
failed to state the destruction was a result of a "routine, good-faith operation." Finally, the court
found that the defendants’ "[irresponsible data retention] practices invite the abuse of others" and
that prejudice may be considerable. However, the court decided that appropriate sanctions could
not be determined until after discovery closed and ordered the parties to provide further briefing on
the prejudice suffered.
� ClearOne Commc’ns, Inc. v. Chiang, 2008 WL 920336 (D.Utah April 1, 2008). In this trade secret
litigation, the plaintiff moved for entry of a search protocol order establishing guidelines for
searching mirror images and identifying relevant and responsive documents. Previously the plaintiff
accepted search terms proposed by the defendants with five additions, but disputes arose over the
conjunctive or disjunctive use of the terms. The defendants argued it was reasonable to search
conjunctively (i.e., require connectors between the search terms) in order to narrow the results to
relevant subjects. Analyzing the advantages and disadvantages of both search techniques, the
court ordered “license” terms to be searched disjunctively and “name” terms to be searched
conjunctively.
286

� ClearOne Communications, Inc. v. Chiang, 2008 WL 704228 (D.Utah Mar. 10, 2008). In this
litigation involving trade secret misappropriation, the plaintiff filed a motion for sanctions alleging
the defendants misrepresented material facts during discovery and withheld a “smoking gun” email.
The defendants claimed the misrepresentation was merely a misunderstanding by their
Fed.R.Civ.P. 30(b)(6) witness, who spoke English only as his third language. Further, the
defendants argued they were not in possession of the e-mail in question as their computer system
was not programmed to save sent e-mails. Suspicious of the defendants’ computer system but
unable to locate the e-mail in question, the court found the defendant’s actions sanctionable. The
court was unwilling to enter default judgment as it had not previously issued a warning and instead
issued an adverse jury instruction relating to the misrepresentation of the 30(b)(6) witness, allowing
the jury to consider the misrepresentation when determining the witness’ credibility.
� United States v. Bhownath, 2007 WL 2570199 (D.Utah Aug. 31, 2007). In a criminal software
piracy investigation, federal agents obtained and executed a warrant to search all computer
systems in the defendant’s home. The defendant argued the warrant was impermissibly overbroad
and moved to suppress evidence obtained in the search. Disagreeing with the defendant’s position
that the agents’ keyword searches of his computer files were the digital equivalent of "rummaging,"
the court denied the motion. The court reasoned that if agents were not allowed access to all files
on a computer to search for files and folders relating to a case, any defendant would be able to
hide evidence of illegal conduct in unlikely places on a computer.
� Hentsch Henchoz & Cie v. Gubbay, 97 P.3d 1283 (Utah 2004). Arguing that a forum selection
clause made venue in a Utah court improper, the defendants sought to dismiss a case arising from
investment fraud accusations. After a series of hearings, the district court determined the forum
selection clause was unfair and should be disregarded. The court ordered the defendants to
comply with the plaintiff’s outstanding discovery requests. Contrary to the district court’s discovery
orders, the defendants shipped all of their documents, records, and computer hard drives from
Utah to Spain. The plaintiff then moved for summary judgment on three of its claims, and the
district court granted the motion entering a $24.73 million judgment against the defendants. The
defendants appealed, again claiming the suit should have been dismissed pursuant to the forum
selection clause. Arguing for dismissal of the appeal, the plaintiff contended the defendants
“repeatedly and willfully disobeyed [the district court’s] orders… [and] destroyed evidence.” In
response, the defendants declared they did not willfully disobey discovery orders, but that they
“simply declined to participate substantively in the proceedings.” Rejecting the defendants’
argument, the appellate court stated the defendants were obligated to comply with the court’s
discovery orders, even if they were erroneous. The appellate court gave the defendants 30 days to
comply with the discovery orders, indicating that any further noncompliance by the defendants
would result in dismissal of the defendants’ appeal.
� United States v. Tucker, 150 F. Supp. 2d 1263 (D. Utah 2001). The defendant was found guilty of
knowing possession of child pornography. The conviction was largely supported by computer
forensic evidence found in the form of deleted Internet cache files that were saved to the
defendant’s hard drive when he viewed the various websites. See also United States v. Tucker,
305 F.3d 1193 10th Cir. 2002).
� Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295 (D. Utah 1999). A federal district court
found that a series of intra-company e-mails offered “direct evidence” that the corporation was
actively trying to destroy a competitor.
� Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah 1998), rev’d on other grounds, 222
F.3d 1262 (10th Cir. 2000). In an unfair competition case, the defendant moved for sanctions
287

against the plaintiff, alleging that the plaintiff violated its duty to preserve relevant e-mail
communications of five key employees identified by the plaintiff as containing relevant information.
Finding a sanctionable breach of the plaintiff’s discovery duties, the court sanctioned the plaintiff
$10,000 --$2,000 for each of the five custodians. In addition, the plaintiff objected to an order
limiting the scope of a keyword search that the plaintiff desired to conduct on the defendant’s
electronic databases. The court held that the keyword searching limitation prevented discovery of
information relevant to the plaintiff’s claims. The plaintiff was allowed to submit a list of 25
keywords given that the proposed terms were not so extensive as to render general commercial or
competitive information.
� Bills v. Kennecott Corp., 108 F.R.D. 459 (C.D. Utah 1985). The court denied the defendant’s
motion requiring plaintiffs to pay the cost the defendant incurred in producing a printout of
computer data that plaintiffs sought through discovery. The court based its holding on that the
amount of money involved was not excessive or inordinate, that the relative expense and burden in
obtaining the data would have been substantially greater for the plaintiffs as compared with the
defendant, that the amount of money required to obtain the data as set forth by the defendant
would have been a substantial burden to the plaintiffs, and that the defendant was benefited to
some degree by producing the data.
Eleventh Circuit – State and Federal Cases
� Harbuck v. Teets, 152 Fed.Appx. 846 (11th Cir. 2005). In an employment discrimination lawsuit,
the plaintiff appealed a district court’s grant of summary judgment in favor of the defendant. The
plaintiff argued the district court erred in involving the district court’s own computer personnel in
discovery and in finding the defendant had fully produced all discoverable electronic data. During
the discovery process, the plaintiff filed a motion to compel discovery on the grounds that the
defendant deleted e-mails and destroyed documents. In response, the court ordered both parties to
submit their copies of data to the court’s information technology (“IT”) personnel to see if the
material could be retrieved. The court’s personnel successfully retrieved the information, and the
court closed discovery without requiring the defendant to take further action. The court also granted
summary judgment declaring it had no reason to believe the defendant was concealing data or
harassing the plaintiff during discovery. In affirming the district court’s decision, the appellate court
noted the district court did not abuse its discretion in having the IT personnel evaluate the data as
the IT personnel was acting as a neutral party on behalf of the court. Finding no reason existed to
believe the defendant was hiding information, the court also rejected the plaintiff’s contention that
all electronic documents found in discovery were not fully produced.
� In re Ford Motor Company, 345 F.3d 1315 (11th Cir. 2003). The plaintiff brought claims against
Ford Motor Company alleging that the seatbelt buckle of her automobile, which unlatched during
an accident, was defectively designed. After serving several document requests, the plaintiff filed a
motion to compel seeking direct access to Ford’s electronic databases to conduct searches for
claims related to unlatching seatbelt buckles. These databases recorded all customer contacts with
Ford, as well as all records of dealers and personnel, among other things. The trial court granted
the plaintiff’s motion to compel. Ford appealed, filing petition for a writ of mandamus. The appellate
court held that the plaintiff was not entitled to direct, unlimited access to Ford’s computer
databases, stating that without constraints, the lower court’s order granted the plaintiff access to
information that would not be discoverable without Ford first having had an opportunity to object.
288

� Wright v. AmSouth Bancorp, 320 F.3d 1198 (11th Cir. 2003). In an age discrimination suit, the
plaintiff sought discovery of computer disks and tapes containing “all word processing files created,
modified and/or accessed” by five of the defendant’s employees spanning a two and a half year
period. The court denied the plaintiff’s motion to compel because his request was overly broad and
unduly burdensome and made no reasonable showing of relevance.
Alabama
� Evans v. Mobile County Health Department, 2012 WL 206141 (S.D. Ala. Jan. 24, 2012). In this
reverse racial discrimination case, the plaintiff was deposed regarding ESI stored on her personal
computer. The plaintiff admitted that she forwarded racially insensitive materials from her work
computer to her personal computer, and that she had not produced relevant emails from her
personal computer. Despite this frank testimony, the plaintiff failed to reveal that she had already
burned her personal computer in her yard. After several fruitless discovery requests for ESI from
the plaintiff’s personal computer, the defendant filed a motion to compel. At an evidentiary hearing
and contrary to her affidavit, the plaintiff claimed that her computer crashed during discovery and,
fearing identity theft, burned her computer in her yard. The court reprimanded the plaintiff, stating,
“[t]he fact that Evans destroyed her computer, instead of preserving same or transferring the
information on that computer to a new computer, is unfathomable given that she was in the middle
of pursuing this lawsuit and she had on her home computer items crucial to her suit.” In sum, the
court gave little credence to the plaintiff’s evidentiary testimony, given her “whirling dervish” nature.
Granting the defendant’s motion to compel, the court demanded that the plaintiff allow the
defendant’s IT experts to examine ESI on her new computer and ordered her to pay attorney’s fees
for the motion.
� ANZ Advanced Tech., LLC v. Bush Hog, LLC, 2010 WL 3699917 (S.D. Ala. Sept. 9, 2010). In
this contract litigation, the plaintiffs moved to modify a court order requiring two of its executives to
produce hard drives or other data storage devices for forensic analysis. The plaintiffs claimed
Indian authorities denied permission for production, rendering them unable to comply with the
order. Upon review of the documents submitted by the plaintiffs to support its asserted claims and
efforts, the court found the plaintiffs had not followed the ordered protocol in requesting permission
and determined that the proffered evidence did not establish that Indian law prohibited compliance.
Addressing a document the plaintiffs admittedly altered, the plaintiffs claimed it did not contain
substantive information and requested a reevaluation of whether the alteration casted doubt over
production authenticity. Finding no credible evidence to rebut the original conclusion, as well as the
discovery of two more critical document fabrications, the court denied the motion, ordered the
immediate production of the requested hard drives for forensic examination and stayed
consideration of the defendant’s motion to show cause why the case should not be dismissed.
� Hope for Families & Cmty. Serv., Inc. v. Warren, 2008 WL 2074425 (M.D. Ala. May 15, 2008). In
this gaming regulation dispute, the plaintiffs filed a motion to compel production. The defendants
provided numerous defenses to the plaintiffs’ motion, claiming the documents and electronic
information were protected by attorney-client privilege; the request sought trade secret and
competitive information; the documents sought were not relevant; and the request was overbroad
and unduly burdensome. Granting in part the plaintiffs’ motion to compel, the court ordered
production of specified requested documents finding the documents to be relevant. The court
referenced a previously entered protective order to ease the defendants’ fears regarding a potential
289

exposure of trade secrets. Additionally, the court stated that a future review will be completed to
determine attorney client privilege issues.
� Ex parte Vulcan Materials Co., 2008 WL 1838309 (Ala. April 25, 2008). In this breach of contract
litigation, the defendant sought review of an order regarding permissible post-trial discovery in
response to a punitive damages award. The defendant claimed the trial court exceeded its
discretion in denying the motion for a protective order regarding production of e-mail circulated
within the company. Specifically, the defendant claimed because the e-mail sought was created
after the case was filed, it was not relevant to the issue of punitive damages and protected by work
product doctrine. Relying upon Ex parte Cooper Tire & Rubber Co., So.2d (Ala.2007) and the
Fed.R.Civ.P. 26(b)(2)(B), the court directed the trial court to reconsider the defendant’s motion for
a protective order.
� Peacock v. Merrill, 2008 WL 176375 (S.D.Ala. Jan. 17, 2008). In this litigation, the defendants
sought production of electronic tax information, and the plaintiff claimed the motion was moot,
arguing she had already fully produced responsive documents. The defendants sought an exact
replica of a floppy disk to determine if the plaintiff fully complied with the discovery request. Relying
on FRCP 34(b)(i)-(iii), the court ordered production of disk files in native electronic format to ensure
access to all metadata, determining that the date stamps of many of the documents were relevant .
� United States v. King, No. 07-11808 (M.D.Ala. Dec. 14, 2007). In this appeal of a conviction for
transportation of child pornography, the defendant, a civilian contractor at a United States Air Force
base, sought a motion to suppress evidence obtained from his computer hard drive as violating of
his fourth amendment right to be free from unreasonable search and seizure. The government
obtained evidence from the defendant’s hard drive via a “shared” drive by an airman searching for
music files. Upon discovery of the pornographic images, the airman notified a computer specialist
who accessed the drive in the same manner. Subsequently, the specialist notified an investigator
who obtained a search warrant and seized the defendant’s computer. Determining that data saved
on a hard drive connected to a network belongs to a network administrator, the court held that the
defendant had no legitimate expectation of privacy for files located and accessible via a shared
network drive, and therefore denied the defendant’s motion to suppress.
� Braxton v. Farmer’s Ins. Group, 209 F.R.D. 651 (N.D.Ala. 2002). In a class action brought under
the Fair Credit Reporting Act, the plaintiffs sought e-mails from non-party individual insurance
agents of the defendant’s insurance company. The defendant objected, claiming that enforcement
of the subpoena would subject the agents to an undue burden. The court refused to require the
non-party insurance agents to engage in the task of “combing through their e-mail files and other
records in search of the documents sought by the plaintiff.” The court ordered the defendant to
locate and produce relevant e-mails, newsletters, and other correspondence that it sent to its
agents.
� Ex Parte Wal-mart, Inc., 809 So.2d 818 (Ala. 2001). In a personal injury case, the plaintiff sought
discovery of Wal-mart’s electronic database containing customer incident reports and employee
accident review forms. The appellate court held that discovery order should have been restricted to
falling-merchandise incidents with geographic and temporal limits set forth by the trial court.
Florida
� Indep. Mktg. Group, Inc. v. Keen, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012). In this discovery
dispute, the defendant brought a motion to compel the production of ESI in a reasonably usable
format after the plaintiff produced PDFs that compiled hundreds of documents without any
290

metadata or searchable text. Following production, the defendant identified issues with the
document format, to which the plaintiff stated problems with the initial vendor and noted they would
quickly process and produce documents with a new vendor. Shortly thereafter, the plaintiffs
refused to produce ESI in a different format because the $10,000 production cost was “prohibitive.”
Reviewing the facts, the court found that the plaintiffs appeared to have printed relevant ESI off
their server and scanned them back to PDF files. Although the parties did not agree to a specific
production format, the court found the plaintiff’s method in violation of Fed.R.Civ.P. 34’s
requirement that parties produce files as “ordinarily maintained” and “reasonably accessible” to the
opposition. In response to the plaintiff’s cost argument, the court found that the requested files—
which were readily available on the plaintiff’s server—were reasonable accessible and did not
present an undue burden per Fed.R.Civ.P. 26(b)(2)(B). Accordingly, the court granted the
defendant’s motion to compel and warned the plaintiffs that future discovery violations might
warrant sanctions.
� SPM Resorts v. Diamond Resorts Mgmt., Inc., 2011 WL 2650893 (Fla. App. 5 Dist. July 8,
2011). In this business litigation, the plaintiff (who is the defendant in the underlying case) sought
certiorari review of a circuit court decision ordering it to pay $20,000 – and potentially more in the
future – to conduct computer searches to comply with the defendant’s (the plaintiff in the underlying
case) discovery request. The plaintiff argued the court order was unreasonable and unduly
burdensome, and marked a departure from the "essential requirements of the law." Agreeing with
the plaintiff’s arguments, the court believed ordering the plaintiff to split the costs associated with
engaging a computer expert to inspect its computer systems was unreasonable. Further, the court
noted that "placing a substantial financial burden on a party relating to the production of its
adversary’s document request does nothing more than require a party to fund its adversary’s
litigation" which is not permitted by the Rules of Civil Procedure. Accordingly, the court granted the
plaintiff’s request and quashed the trial court’s order.
� Point Blank Solutions, Inc. v. Toyobo Am., Inc., 2011 WL 1456029 (S.D. Fla. Apr. 5, 2011). In
this products liability litigation, the plaintiffs sought ESI spoliation sanctions contending the
defendants were under a general duty to preserve due to a separate government investigation and
other reasonably foreseeable industry-wide litigation. Denying they acted in bad faith or that any
grounds for sanctions existed, the defendants claimed they had “no inkling” the plaintiffs would
pursue litigation and further argued there was no jurisdictional support for an industry-wide
anticipation of litigation theory. Agreeing with the defendants, the court found the preservation duty
was owed only to other parties and refused to "establish some type of free-floating or shifting duty"
which they could latch onto. Further, the court asserted it would not simply assume destruction
based on the number of e-mails already in the plaintiffs’ possession and noted that the plaintiffs
had virtually all of the documents in their possession via other means. Finding no evidence of bad
faith – a requirement for the imposition of an adverse inference in the Eleventh Circuit – the court
held there was no basis for sanctions and denied the motion.
� Seven Seas Cruises S. DE R.L. v. V. Ships Leisure SAM, No. 1:09-cv-23411-UU (S.D. Fla. Feb.
19, 2011). In this breach of contract dispute, the plaintiffs requested sanctions and production,
alleging the defendants intentionally and continuously failed to produce all responsive ESI. The
defendants conceded not all relevant ESI was produced, noting that "in hindsight, an E-discovery
consultant/vendor should have been retained." However, the defendants argued that they had
agreed to re-run recent searches, that they would run searches on additional custodians identified
by the plaintiffs and that the plaintiffs had access to much of the information via copies of
correspondence between the parties. Noting that much of the dispute could have been significantly
291

narrowed if not totally avoided through a pre-trial conference, the court agreed the defendants’
searches were wholly inadequate and found their failure inexcusable. Accordingly, due to their
repeated failure to conduct full and complete ESI searches, and the failure to retain a consultant to
conduct such searches, the court ordered the defendants to utilize a third party vendor and pay the
associated attorney fees and costs. The court declined to recommend default judgment, finding a
lack of bad faith and no non-speculative evidence of prejudice.
� Fed. Trade Comm’n v. First Universal Lending, LLC, 2011 WL 673879 (S.D. Fla. Feb. 17,
2011). In this Federal Trade Commission (FTC) investigation, the defendants sought to enjoin the
prosecution, alleging they were unable to mount a defense due to the FTC’s bad faith spoliation of
the defendants’ computer systems. After seizing the defendants’ business, the FTC employed a
third party to forensically image computers for use in its prosecution; however, the defendants did
not inform the FTC about numerous servers. Believing all computers were imaged, the courtappointed
receiver ordered all computers owned by the defendants to be wiped before being sold.
Rejecting the defendants’ argument that this loss was catastrophic to the case, the court
determined that relevant information was available in hard copy and was stored via a third party
cloud computing service. In denying the bad faith spoliation claim, the court also noted that the
destruction was carried out by the defendants themselves and that the FTC did not have an
obligation to preserve the evidence. Although acknowledging the loss presented additional
challenges in mounting a case and defense, the court found the obstacles were not insurmountable
and denied the motion.
� In re Fontainebleau Las Vegas Contract Litig., 2011 WL 65760 (S.D. Fla. Jan. 7, 2011). In this
bankruptcy litigation, the defendant claimed the third party waived privilege by producing three
servers in response to a subpoena and court orders without conducting a review for either privilege
or responsiveness. Seeking to use the information but avoid any adverse consequences, the
defendant offered to “eat” the cost of searching the massive document dump of approximately 800
GB and 600,000 documents for relevant materials in exchange for the right to review and use the
data free of the obligation to appraise or return any privileged documents. Reviewing the third
party’s conduct, the court found that its failure to conduct any meaningful privilege review prior to
production constituted voluntary disclosure and resulted in a complete waiver of applicable
privileges. Noting that more than two months after production the third party had not flagged even
one document as privileged, the court rejected its “belatedly and casually proffered” objections as
“too little, too late.” Accordingly, the court granted the defendant full use of these documents during
pretrial preparations of the case, but ordered it to timely advise the third party of any facially
privileged information it encountered upon review.
� Moore, II v. Shands Jacksonville Med. Ctr., Inc., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010). In
this employment discrimination litigation, the plaintiffs moved to compel discovery responses
including the reproduction of video surveillance footage. The defendants initially produced DVDs
containing the responsive footage; however, the plaintiffs were allegedly unable to view the content
without access to a particular type of media software. When informed by the defendants that the
necessary software was freely available on the Internet, the plaintiffs claimed they were “insulted”
and that accessing the program was not feasible and would cause undue hardship. Arguing the
“DVDs were rigged,” the plaintiffs sought reproduction. An unsympathetic court noted the plaintiffs
failed to specify the format prior to production and did not attempt to confer in good faith to resolve
the issue before seeking relief. Accordingly, the court denied the plaintiffs’ motion as it related to
reproduction of the surveillance footage, but ordered production of additional responsive video
footage.
292

� In re Fontainebleau Las Vegas Contract Litig., 2010 WL 4281808 (S.D. Fla. Oct. 25, 2010). In
this discovery dispute, the producing party sought entry of a confidentiality order, arguing it would
be impossible for the producing party’s attorney to review all of the documents before the deadline.
Disagreeing, the court recalled counsel’s earlier assurance that running a privilege review on the email
server with agreed-upon search terms would take less than a day and found no explanation
“why an attorney would need to personally examine ‘hundreds of thousands of documents’” since
the producing party previously represented that its e-discovery vendor was prepared to do exactly
that. Further, the court found that the producing party’s proposal, which would place the burden on
the requesting parties to return all of the documents copied off the servers, would risk disclosing
attorney work product. Denying the confidentiality order request, the court noted the producing
party may seek an extension of production deadlines via a verified motion if more time is needed to
produce the privilege log.
� Leor Exploration & Prod., LLC v. Aguiar, 2010 WL 3782195 (S.D. Fla. Sept. 28, 2010). In this
consolidated commercial litigation, the plaintiffs sought sanctions and contempt, alleging the
defendant violated court orders against witness tampering and hacked into the e-mail account of a
principal plaintiff to gain a litigation advantage. The plaintiff charged that the e-mail account
contained over 45,000 e-mails, including hundreds of attorney-client privileged communications, a
compilation of which the defendant forwarded to his counsel and others. Introducing numerous
factual, procedural and legal arguments, the defendant contended that the hacking was “spoofed,”
the plaintiff tried to “goad” the defendant by filing frivolous lawsuits and, that “there is nothing wrong
with wanting to win [the] lawsuit.” Disturbed by the defendant’s “win-at-all-costs mentality,” the
court found the defendant gained an unfair advantage by obtaining unauthorized access to the email
and acted in bad faith, despite having a mental illness. Thus, the court affirmed and adopted
the magistrate’s report and recommendation, striking the defendant’s pleadings at an alleged value
of $1 billion. Satisfied that this sanction was both necessary and sufficient, the court declined to
award attorneys’ fees and costs.
� Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 2010 WL 3368654 (S.D. Fla. Aug. 23,
2010). In this breach of contract litigation, the plaintiff sought sanctions based on the defendant’s
alleged spoliation of e-mails and other documents. While the court agreed the defendant violated
its duty to preserve by failing to timely issue a litigation hold, it found the defendant’s duty arose
over one year later than alleged by the plaintiff. Although a number of e-mails and attachments
were negligently destroyed during this time under a routine document destruction policy, the court
underscored that "[n]egligence…is not tantamount to bad faith," which is required for a default
judgment or adverse inference instruction. Furthermore, the court found the plaintiff obtained
sufficient evidence from deposition testimony and documents received from third parties, and
thereby failed to demonstrate that the spoliated evidence was crucial to establishing its claim.
Citing the plaintiff’s failure to satisfy the necessary elements, and noting that monetary sanctions
and targeted discovery had previously been awarded, the court denied the motion for additional
sanctions.
� Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL 55595 (M.D.Fla. Jan. 5, 2010). In
this ongoing insurance litigation, the district court considered the defendant’s motion for sanctions
and reviewed the magistrate judge’s previous recommendation of dismissal sanctions and
reimbursement of costs. See Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754
(M.D. Fla. Aug. 3, 2009). The plaintiffs claimed they were unaware of an automatic function of the
business’s computerized accounts management system that archived records after six months.
Citing the plaintiffs’ duty of preservation, failure to consult its software provider to attempt to
293

etrieve the archived documents, and the minimal effort and expense required for retrieval, the
court denied the plaintiffs’ request to be allowed to cure the production defect without sanctions.
The court also noted the court orders were “clear, unambiguous and frequent” and that the
plaintiffs’ willful, bad faith actions “evidenced a pattern of inexcusable disregard for the authority of
[the] court.” Thus, the court found dismissal of the claims arising from or related to the documents
appropriate and ordered the plaintiffs to pay the defendant $75,000 in expenses and costs.
� Chick-Fil-A and CFA-NC Townridge Square, LLC v. ExxonMobil Corp., 2009 WL 3763032
(S.D. Fla. Nov. 10, 2009). In this environmental litigation, the plaintiffs sought production of all work
product-protected documents related to the subject matter of a privileged memorandum that the
defendant voluntarily produced. Following the court’s determination that the defendant’s intentional,
voluntary disclosure to the plaintiffs waived the work product protection, the defendants argued that
the waiver’s scope should be limited to the information actually disclosed. Turning to Fed.R.Evid.
502(a), the court determined that disclosure of work product results in a subject matter waiver only
if the additional materials "ought in fairness to be considered together" with the memorandum.
Finding a subject matter waiver to be warranted, the court relied on federal case law, interpreting
Rule 502(a) to determine that subject matter waiver was limited to fact work product. Therefore, the
court granted the plaintiffs’ motion in this respect and ordered the defendant to produce fact work
product materials.
� Swofford v. Eslinger, 2009 WL 3818593 (M.D. Fla. Sept. 28, 2009). In this §1983 claim asserting
excessive force, the plaintiffs sought sanctions, alleging the defendants destroyed key evidence,
including a laptop and e-mails. Despite receiving preservation notices from the plaintiffs, the
defendants’ in-house counsel only forwarded a copy of the letters to senior-level employees (who
did not ensure other employees complied with the defendants’ preservation obligations) and failed
to issue a litigation hold. Citing Zubulake V, the court found that it is insufficient for in-house
counsel to simply notify employees of preservation notices, but rather counsel "must take
affirmative steps to monitor compliance" to ensure preservation. Finding sanctions appropriate for
the preservation failures, the court issued an adverse inference sanction for the laptop wiping and
deletion of e-mails. The court also awarded attorneys’ fees and costs to the plaintiffs, holding the
defendants and in-house counsel jointly and severally liable.
� Leor Exploration & Prod. LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009). In this
business litigation, the plaintiffs objected to the special master’s ruling regarding two exhibits – both
e-mails – in which the first was classified as attorney-client privileged and the second as protected
work product. Discussing the first exhibit, the court found there was no reasonable expectation of
privacy because the e-mail was sent by the defendant (a former employee of the plaintiffs) through
the plaintiffs’ server. The plaintiffs’ employee handbook stated that all electronic communications
were owned by the plaintiffs and that no expectation of privacy existed. Thus, the court overruled
the special master’s report and found no attorney-client privilege existed with the first exhibit. The
court also granted the plaintiffs’ objection regarding the second exhibit because it was not prepared
in anticipation of litigation and could not therefore be protected work product.
� Se. Mech. Servs., Inc., v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009). In this ongoing
computer fraud and abuse litigation, the plaintiff requested sanctions alleging the laptops and
BlackBerry smartphones belonging to the defendants were wiped of data. The defendants argued
that all evidence was preserved on the servers and that e-mails were produced in hard copy from
the servers. Relying on explanations provided by computer forensics experts that the "wiped" state
of the BlackBerry smartphones was attributed to intentional and deliberate actions, the court
disagreed with the defendants’ arguments and held that sanctions were appropriate. Given the
294

nature of the destroyed evidence, including personal e-mails, telephone records, text messages
and calendar entries, the court determined the evidence was likely unfavorable to the defendants
and therefore issued an adverse inference instruction.
� Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009).
In this ongoing insurance litigation, the defendants sought dismissal sanctions or preclusion of
evidence pertaining to a key business interruption loss claim. The defendants argued the plaintiffs’
violation of three court orders to compel production, misrepresentations that discovery was
complete and production of 188 pages of key documents after the close of discovery warranted
sanctions. In opposition, the plaintiffs argued they had no reason to know the production was
incomplete. Finding that none of the court’s previous efforts were effective to defer the plaintiffs
from "continuing their pattern of stubborn defiance," the magistrate judge determined severe
sanctions were warranted. In cataloging the plaintiffs’ discovery failures, the magistrate judge noted
that "no reasonable person could conclude" the plaintiffs’ failure to timely produce documents was
justified and that the plaintiffs’ conduct was intended to deceive and prevent discovery. The
magistrate judge also discussed the attorneys’ role in the discovery misconduct, noting lawyers
owe a duty of candor to the court and a duty to deal honestly and fairly with opposing counsel.
Accordingly, the magistrate judge granted the motion for preclusion sanctions and determined the
plaintiffs and counsel were jointly and severally responsible for the defendants’ expenses and
costs.
� Se. Mech. Servs., Inc., v. Brody, 2009 WL 2242395 (M.D. Fla. July 24, 2009). In this computer
fraud and abuse litigation, the defendants sought adverse inference and preclusion sanctions
striking allegations in the plaintiff’s complaint and barring plaintiff testimony regarding alleged
spoliation by the defendants for the plaintiff’s failure to issue a litigation hold and subsequent
destruction of data. The defendants contended the only evidence related to the plaintiff’s claim that
the defendants improperly deleted data was lost because the plaintiff did not put a litigation hold
into place to halt the automatic overwriting of its backup tapes. The plaintiff argued sanctions were
inappropriate because the defendants’ request came too late to preserve the relevant data from
automatic overwriting and its failure to implement a litigation hold was not in bad faith. The court
found that the plaintiff had a duty to preserve evidence and should have initiated a litigation hold
that would suspend the routine overwriting of its backup tapes at the time it sent the defendants a
demand letter. Despite the finding of spoliation, the court denied the defendants’ motion to impose
sanctions against the plaintiff because it found the plaintiff did not act in bad faith and the
defendants failed to show that any "crucial evidence" existed on the destroyed backup tapes.
� Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009). In this medical tort action,
the plaintiff moved to compel discovery, asserting that recently discovered e-mails and purported
irregularities in the defendant’s production warranted additional discovery. The defendant argued
that any additional e-mails were in backup storage and not reasonably accessible. While the court
recognized that there may be responsive documents that had not been produced, it questioned the
relevance of the potential evidence and noted that the “eleventh hour” timing of the request – two
weeks before trial – made it impossible to complete the searches before the start of trial and might
interfere with the defendant’s trial preparations. Accordingly, the court granted the plaintiff limited
discovery, holding the plaintiff may hire an outside vendor at its own expense to search at most five
of the defendant’s backup tapes; the search would contain a limited number of search terms; the
search would include the e-mail records of seven key employees; and the results would be subject
to a confidentiality agreement.
295

� Feig v. Apple Org., Inc., 2009 WL 1515506 (S.D.Fla. May 29, 2009). In this wrongful termination
litigation, the plaintiff sought production of the defendant’s communications, including e-mails to
and from the plaintiff. The defendant claimed that production of employee e-mails referencing the
plaintiff was burdensome and would produce irrelevant documents. The defendant also argued that
its server was shut down when it went out of business and that if the employee e-mail accounts
were recreated, they would be impossible to search by keyword. Rejecting the defendant’s
irrelevancy argument, the court found that e-mails sent by the plaintiff’s co-workers could be
reasonably calculated to lead to admissible evidence. Thus, the court ordered an electronic search
of the defendant’s server data. The court noted that if a keyword search proved impossible, the
defendant could seek a protective order provided it had support from a computer forensic expert.
� Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 117312 (S.D.Fla. Apr. 24, 2009).
In this RICO action, the plaintiff sought a production response from the defendants after a previous
motion to compel proved fruitless. The plaintiff also requested sanctions in the form of direct
access to the defendants’ computer hardware and electronic information. Finding the defendants
failed to present a sufficient reason for the discovery inadequacies, the court determined an
independent computer expert should be appointed to retrieve deleted responsive files from the
defendants’ computers. The court ordered the plaintiff to submit search terms and bear the expert’s
costs unless future evidence of discovery misconduct necessitated cost allocation to the
defendants, but awarded attorneys’ fees to the plaintiff. The court also afforded the defendants the
right to review the search terms and determine privilege and responsiveness.
� Cont’l Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 1098461 (S.D.Fla. Apr. 22, 2009). In this
Computer Fraud and Abuse Act litigation, the plaintiff claimed a former employee downloaded
proprietary information prior to leaving the company. Among the plaintiff’s numerous motions was
its request for an adverse inference sanction. The plaintiff alleged that the computer files were
taken with the intention to use the information in the former employee’s new employment, they
were accessed after notice of litigation and the related metadata was destroyed. Finding the
plaintiff failed to demonstrate bad faith on the part of the former employee, the court denied the
adverse inference request noting the conduct did not rise to the requisite level for a finding of
evidence spoliation.
� Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982460 (S.D.Fla. Apr. 9,
2009). In this litigation alleging a confidentiality agreement breach, the plaintiffs sought sanctions
based on the defendant’s "document dump" of 10,000 documents two months after the close of
discovery and deletion of documents pursuant to a "print and purge" directive from defense
counsel. Finding the defendant clearly failed to carry out its discovery obligations by acting in a
grossly negligent manner, the court imposed sanctions. First, the court ordered further depositions
regarding several categories of documents at cost to the defendant. The court then ordered
additional limited discovery in relation to several document categories. According to the court,
these sanctions were intended to compensate the plaintiffs as well as to punish and deter any
further breaches of discovery obligations. The court also determined the defendant’s counsel’s
decision to print and purge electronic documents without consulting opposing counsel or the court
was an exercise in bad judgment constituting a breach of the defendant’s duty to preserve.
Accordingly, the court ordered that the plaintiffs shall be permitted to conduct a forensic
examination of the defendant’s electronic data backup system to verify all e-mails were produced.
In addition, the court ordered that the plaintiffs shall be permitted to conduct a forensic examination
to ensure the reduction of the 60,000 data set to 35 documents (produced in a supplemental
production) was appropriate. Finally, the court determined default judgment sanctions were not
296

appropriate because the plaintiffs failed to demonstrate severe prejudice and the defendant did not
act in bad faith.
� Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D.Fla. Mar. 4, 2009). In
this ongoing insurance dispute, the defendants sought production of electronically stored
information in native format with metadata and sanctions for alleged non-compliance with
Fed.R.Civ.P. 34 and a prior court order. Prior to this fifth discovery order, the plaintiffs produced the
requested evidence as TIFF images without metadata despite the defendants’ original production
request that explicitly sought native format with metadata. In May 2008, an attorney for the plaintiffs
concocted a false explanation for how the ESI was collected; however, days before a hearing,
plaintiffs’ counsel disclosed that the documents had been converted into TIFF images using a
program that selectively excluded metadata. After the defendants provided expert testimony
regarding the production, the plaintiffs’ counsel admitted metadata existed. Based on several more
examples of gamesmanship, the court found that if the plaintiffs (and their counsel) believed the
production format was substantially justified, they would not have concealed information and made
material misrepresentations. The court ordered the plaintiffs to bear all costs related to the
production of a copy of its database (excluding privileged information), which included purchasing
any necessary software and hiring professionals. Additionally, the court sanctioned a lead plaintiff
attorney, ordering him to pay reasonable attorneys’ fees, costs and expenses incurred by the
defendants and ordered another plaintiff attorney to show cause why he should not be personally
sanctioned. The law firm was also found responsible for the discovery misconduct and was "jointly
and severally liable" with the lead attorney to pay the defendants’ expenses.
� Cont’l Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 425945 (S.D.Fla. Feb. 20, 2009). In this
litigation, the plaintiff filed a motion to compel production and discovery compliance. Noting the
parties were unable to cooperate regarding the imaging of the portable devices, the court provided
further direction. The court set out the following procedure: the plaintiff would image the
defendants’ portable electronic devices and the defendants would conduct a privilege search and
create a privilege log. The court advised that the plaintiff’s possession of any privileged information
did not constitute a waiver.
� Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 71678 (M.D.Fla. Jan. 8, 2009). In
this insurance litigation, the defendants objected to the special master’s recommendation that the
court deny a “blanket” finding of privilege or waiver and that any privileged documents produced in
response to a court order for expedited production would not constitute a waiver. The special
master determined the plaintiffs clearly established intent to protect privileged documents by taking
appropriate measures prior to the production. Additionally, the special master concluded the
opposition’s “first look” at potentially privileged documents was punishment enough for any
transgressions in the plaintiffs’ document management. Describing the order as a “narrow ruling,”
the court denied the defendants’ objection. The court reserved the right to consider the question of
waiver, if necessary, in response to an appropriate motion after the court determines if the plaintiffs
have established privilege.
� Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D.Fla. Dec. 17, 2008). In this
patent litigation, the defendants moved to compel production of consumer survey data relied upon
in expert reports. The defendants requested hard copy printouts including all metadata that was
previously produced in an allegedly “unusable” electronic .sav file format. The plaintiff opposed the
motion, asserting that it produced all of its experts’ survey data in the same format in which it was
reviewed and analyzed, and that such files can be easily accessed with any standard statistical
computer package. Finding the plaintiff’s production complied with Fed.R.Civ.P. 34(b)(2)(E)’s
297

equirement that data be produced in a reasonably accessible format, the court denied the
defendants’ motion as the defendants provided no materials to demonstrate that their rebuttal
experts were unable to access or review the data.
� Klayman v. Freedom’s Watch, Inc., 2008 WL 5111293 (S.D.Fla. Dec. 4, 2008). In this litigation,
the defendants moved the court to tax the costs of their electronic discovery collection to the
plaintiff. The defendants requested the plaintiff pay the $150,000 they spent for expenses incurred
in hiring an outside firm to collect their electronic documents, including travel expenses. Applying
28 USC §1920, which provides for the taxation of costs for “fees for exemplification and copies of
papers necessarily obtained for use in the case,” the court denied the motion. The court refused to
tax costs not specifically authorized by the statute, such as the hourly costs of collection at issue
here.
� Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D.Fla. Sept. 15, 2008). In this
breach of contract litigation, the plaintiff sought production of documents that it alleged were
relevant to prove its claim that the defendant violated its duty of good faith and fair dealing (the
defendant was the surety for the party that previously entered into a contract with the plaintiff). The
plaintiff requested: all documents and electronic documents that reflect all communications
between the defendant and the third party; documents that reflect the defendant’s knowledge of the
third party’s insolvency and inability to perform; and reproduction of documents in their native form
that were previously produced in a TIFF format. The court denied the first request as overbroad,
but granted the second request, finding the sought-after information to be relevant. Despite the
plaintiff’s failure to specify a production format, the court determined the defendant did not comply
with the Advisory Committee Note to Fed.R.Civ.P. 34 when it chose to produce TIFF images. The
court ordered the defendant to reproduce documents in either their native format, another
comparably searchable format or to supply the plaintiff with software for searching the TIFF
images.
� Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D.Fla. Aug. 29, 2008). In this
trade secret litigation, the plaintiff filed a motion to compel production of relevant e-mail and sought
sanctions for defendant’s untruthful representations regarding the e-mail account. The defendant
argued he did not identify the particular Yahoo! account because he could not produce e-mails
from it, claiming they were deleted as a result of his deactivation of the account. Frustrated by the
defendant’s lack of evidence of destruction, the court ordered the defendant to immediately attempt
to obtain and produce e-mails from the Yahoo! account. The court also awarded sanctions against
the defendant, but stayed the determination of which sanctions to impose until a later date.
� St. Cyr v. Flying J, Inc., 2008 WL 2097611 (M.D. Fla. May 16, 2008). In this negligence litigation,
the plaintiff filed a motion to prevent the defendant from using the plaintiff’s work-product
correspondences to his expert. Previously, the plaintiff’s expert furnished a four-page letter and an
e-mail authored by the plaintiff’s counsel to the defendant in paper format. The defendant argued
that this voluntary disclosure waived work-product protection, and also argued that Fed.R.Civ.P.
26(b)(5)(B) applies only within the context of electronically stored documents. The court disagreed,
holding that Fed.R.Civ.P. 26(b)(5)(B) applies to both paper and electronic documents. However,
the court held that Fed.R.Civ.P. 26(b)(5)(B) merely provides a procedure for addressing the issue
of waiver and “the voluntary disclosure of a work product document into the hands of the adversary
results in a waiver of the privilege.”
� Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2007 WL 4336316 (Fla. Dec.
12, 2007). In this underlying fraud case, a jury originally awarded the plaintiff $1.58 billion due to
the defendant’s willful destruction of e-mail and failure to comply with the court’s production order.
298

The award stemmed from the court’s jury instruction sanction which made the jury aware of the
defendant’s attempt to “thwart” e-mail discovery. The defendant appealed and the state appellate
court reversed the award in favor of the defendant based on the plaintiff’s failure to prove
compensatory damages. The plaintiff appealed and the Florida Supreme Court denied the petition
for review. See also Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., 2007 WL
837221 (Fla. App. 4th Dist. Mar. 21, 2007); Coleman (Parent) Holdings, Inc. v. Morgan Stanley &
Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005).
� U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D.Fla. Nov. 26, 2007). In this
breach of contract case, the defendant filed a second motion to compel and sought sanctions for
insufficient compliance with the first motion to compel, claiming the plaintiff failed to produce
numerous 2004 e-mail attachments, relevant correspondence and certain critical documents
identified by Bates number. The plaintiff countered with a motion for a protective order, arguing that
the request was unduly burdensome as the parties already exchanged over six thousand pages.
The court was not persuaded by the plaintiff’s vague assertion and denied the motion for the
protective order. The defendant also subpoenaed similar documents from a non-party who sought
to squash the subpoena, claiming undue burden. The court was again not persuaded by the lack of
detail provided as to the efforts required to comply and upheld the subpoena. Before ruling on the
issue of sanctions, the court ordered the plaintiff to submit an affidavit from its corporate
representative detailing the cause of the missing information and efforts undertaken to retrieve it.
� Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D.Fla. Oct. 25,
2007). In this case, the defendant moved to impose sanctions for spoliation and discovery abuses
against the plaintiff or in the alternative, to reopen discovery. The plaintiff claimed that an employee
deleted relevant e-mail and therefore they could not produce e-mails responsive to the discovery
requests. The employee claimed to have not received the litigation hold notice. The employee also
claimed he deleted some e-mail in his inbox to clean it up but was unable to recall the subject
matter of the deleted e-mails. The plaintiff then conducted a forensic search of the employee’s hard
drive and produced responsive e-mails not earlier produced. The court therefore denied the motion
as the defendant failed to establish two elements of a spoliation claim, 1) the deleted e-mail was
relevant to the litigation and 2) that it had not been already produced.
� In re Seroquel Prod. Liab. Litig., 2007 WL 2412946 (M.D.Fla. Aug. 21, 2007). In this multidistrict
product liability litigation, the plaintiffs motioned the court to impose sanctions on the defendant for
failing to timely comply with discovery obligations. The plaintiffs pointed to numerous instances
where the defendant failed to produce documents in an accessible or useable format, in addition to
missing numerous deadlines. While the court found two of those instances to be excusably
negligent, the other behavior warranted sanctions. The court was extremely displeased with the
defendant’s failure to discuss keyword search terms with the plaintiffs, failure to include page
breaks between documents it did produce, failure to produce usable single-page tiff documents,
omission of attachments and relevant emails, and purposeful sluggishness in making an effective
production. The court stayed the determination of which sanctions to impose to allow the plaintiffs
an opportunity to present evidence as to their damages or prejudice.
� Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007). In this employment discrimination
suit, the plaintiff sought production of e-mail from seven of the defendant’s employees. The plaintiff
also submitted that the defendant implemented a new e-mail deletion policy where e-mails were
deleted within 90 days of creation, unless designated for retention. Accordingly, the plaintiff sought
permission from the court to take the deposition of the defendant’s IT representative to determine if
the defendant had any of the requested e-mail and if the defendant destroyed any relevant
299

evidence. In response, the defendant argued that it had produced all relevant email and that a
deposition to inquire about its email deletion policy would be redundant and unnecessary. Although
the court deferred ruling on the motion to compel the e-mail, the court granted the plaintiff
permission to depose the defendant’s representative. The court referred to the committee notes of
Fed. R. Civ. P. 34, which states that “[d]eleted emails are, in most cases, not irretrievably lost.” The
court held the record was insufficient to determine whether the defendant produced all responsive
documents to the plaintiff’s requests and whether responsive documents exist elsewhere in the
defendant’s records which may be accessed electronically. The court also noted the defendant did
not provide adequate information regarding its e-mail deletion policy which further warranted
granting the plaintiff’s deposition request. The court also ordered that after the deposition, the
parties should confer in good faith and if a resolution concerning the e-mail discovery requests
cannot be reached, the plaintiff should notify the court.
� Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., 2007 WL 837221 (Fla. App. 4th
Dist. Mar. 21, 2007). In this landmark electronic discovery case, the Florida state appellate court
reversed the $1.58 billion judgment against Morgan Stanley in the litigation brought by Coleman
(Parent) Holdings. The court reversed the judgment upon the grounds that the plaintiff failed to
prove compensatory damages. The plaintiff did not establish the actual value of the stock on the
date of the merger, and the court held that the jury must not speculate as to the stock value. The
court did not reach a decision on whether the trial court improperly entered a partial default against
Morgan Stanley as a sanction for discovery misconduct since the sale of stock decision was
dispositive of the case. The court reversed both the compensatory and punitive damage awards
and remanded the case to enter judgment for Morgan Stanley. The dissent firmly stated that the
lower court’s issuance of e-discovery sanctions was legal error by the court and the jury is best
equipped to award punitive damages.
� Qantum Comm. Corp. v. Star Broad., Inc., 2007 WL 445307 (S.D. Fla. Feb. 9, 2007). The
plaintiff brought an action against the sellers of a radio station, alleging breach of the purchase
agreement and seeking specific performance. The plaintiff filed a motion for sanctions and default
judgment based on the defendant’s failure to produce key "smoking-gun" documents during
discovery. Specifically, the plaintiff noted an instance where the defendant produced an e-mail
without the corresponding attachment. The defendant stated in deposition testimony that the
attachment was withheld because it was not relevant to the suit. The plaintiff obtained the “smoking
gun” e-mail and attachment, which directly contradicted the defendant’s testimony, from a thirdparty.
The defendant argued that it did not delete e-mail in bad faith but rather as part of an
ongoing business practice to purge e-mail due to the limited amount of computer storage space.
Furthermore, the defendant claimed that he did not have the e-mail and attachment prior to his
deposition to refresh his memory and all testimony was given to the best of his un-refreshed
memory. The court ordered monetary sanctions and default judgment against the defendant
because of the discovery misconduct and other bad faith actions. The court held that the withheld
e-mails prejudiced the plaintiff since it “hampered the ability of plaintiff to present its claim on the
central issue of this case.” A later hearing was scheduled to determine the amount of costs and
specific performance damages.
� Floeter v. City of Orlando, 2007 WL 486633 (M.D. Fla. Feb. 9, 2007). In case involving a sexual
harassment claim, inter alia, the plaintiff filed a motion for sanctions against the defendant for
destruction of evidence. The plaintiff requested various e-mail documents from the defendant;
however, the hard drives in the defendant’s possession had been previously replaced and sold as
new computers were purchased for employees. The backup tapes containing the relevant e-mails
300

were also overwritten per department policy. The plaintiff argued in favor of sanctions because the
defendant ignored its duty to preserve data when litigation was reasonably foreseeable. The
defendant argued that its duty to preserve e-mail or hard drive data did not occur until the
discovery requests were served and any prior destruction was done in accordance with good faith
procedures. The magistrate ruled that sanctions were not appropriate against the defendant. It held
that the duty to preserve the hard drives may have arisen when the complaint was served but
failure to follow the duty was immaterial since the missing documents were not crucial to the
plaintiff’s case. The documents were not crucial because other evidence existed which
demonstrated the same information as would have been found in the deleted e-mails. Furthermore,
the court determined that the destruction by the defendant was not performed in bad faith because
of the pre-existing procedures to overwrite data on its backup tapes and hard drives.
� In re Seroquel Prods. Liab. Litig., 2007 WL 219989 (M.D. Fla. Jan. 26, 2007). In a multi-district
litigation matter, the court issued a discovery order addressing several issues related to
electronically stored documents. First, the court set forth the party’s document collection and
production obligations and ordered that all documents be produced in a TIFF format and have
Bates numbering. Additionally, specific metadata fields for the documents were to be produced if
practicable to the parties. The court also addressed costs and held that each party shall bear its
own costs for the production of accessible data. Inaccessible data and data contained in databases
were only to be produced after consultation between the parties.
� Balfour Beatty Rail, Inc. v. Vaccarello, 2007 WL 169628 (M.D. Fla. Jan. 18, 2007). In a suit
alleging that the defendants conspired to compete and steal information from their former
employer, the plaintiff brought a motion requesting the defendants produce any hard drives used in
connection with their competing business. The defendants argued the request was overly broad
and that confidential information, not relevant to the lawsuit, would be disclosed to the plaintiff. The
plaintiff argued a confidentiality agreement would protect any potential confidential information from
being used and that the hard drives should be produced. The court denied the plaintiff’s motion
because there was no indication as to specific information the plaintiff sought to gain from the hard
drive data, only that the entire hard was requested. The court further stated the plaintiff did not
argue that the defendants failed to produce any information necessitating the production of the
hard drives. To allow the plaintiffs access to the defendant’s entire hard drive without limits as to
the information to be obtained would “permit Plaintiff to engage in a fishing expedition.”
� Optowave Co. v. Nikitin, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006). In a contract dispute, the
plaintiff alleges that the defendant deleted relevant e-mails with bad faith. The e-mails were saved
on the hard drives of several workplace computers and contained evidence relevant to the contract
dispute. After litigation started the defendant reformatted the company server using an outside
consultant who erased several relevant e-mails. Evidence also showed that several e-mails in a
key employees’ “sent box” were deleted. The court determined that the loss of evidence could have
only come about through the intentional acts of the defendant. The court ordered adverse jury
instructions at trial as a sanction for intentional spoliation of evidence.
� Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL 2038534 (M.D. Fla. July 19, 2006). In
this suit filed to enforce a patent infringement settlement agreement, the court granted the plaintiff’s
motion for Rule 37 sanctions against the defendant for failing to comply with the court’s order to
produce responsive documents. In seeking sanctions, the plaintiff argued the defendant’s
production efforts were “sparse at best,” having received only a limited number of financial
documents and no e-mail. While admitting to only producing five e-mails during the initial
disclosure, the defendant maintained it had since provided the plaintiff with 2,000 pages of
301

electronic documents from its e-mail system. The defendant argued the documents had been
obtained after a detailed and exhaustive keyword search resulting in over 17,000 potentially
relevant documents which had to be “organized, compiled, reviewed, Bates stamped and
converted into the appropriate format.” However, the defendant failed to provide sworn affidavits
supporting its assertion that the delay in production was necessary to avoid undue burden and
expense. The court found the defendant’s argument without substantial justification, and issued a
sanction in the amount of $1,500 against the defendant as a reminder for parties and their counsel
to cooperate when conducting litigation.
� Floeter v. City of Orlando, 2006 WL 1000306 (M.D. Fla. Apr. 14, 2006). In a sexual harassment
case, the plaintiff requested, inter alia, production of e-mails and a computer printout of e-mails
containing sexually explicit or pornographic materials. The plaintiff also sought to inspect computer
hard drives of the defendant, his former employer. Objecting, the defendant claimed searching for
this information would be unduly burdensome. The district court granted the plaintiff’s requests in
part, limiting production to all relevant e-mails contained on the computer of a specified individual.
In addressing the plaintiff’s request to inspect the defendant’s hard drives, the court concluded the
plaintiff failed to demonstrate that the defendant had withheld relevant documents stored on the
computers in question. The court observed that Fed.R.Civ.P. 34 permits a party to request
documents but “does not give the requesting party the right to conduct the actual search.”
� Martin v. Northwestern Mut. Life Ins. Co., 2006 WL 148991 (M.D. Fla. Jan. 19, 2006). The
defendant sought to dismiss a disability benefits lawsuit on the grounds that the plaintiff, a former
trial lawyer, failed to meet his discovery obligations. During discovery, the defendant suspected the
plaintiff failed to produce all requested information. Upon subpoenaing the plaintiff’s employee and
fiancée, the defendant received electronic documents the plaintiff previously claimed did not exist.
The plaintiff claimed the omission was innocent and stated he had directed his accountant to
gather the requested documents and give the defendant “everything.” According to the plaintiff, the
accountant either failed to understand the scope of the demand or the obligations it imposed. In
addressing the dispute, the court declared the plaintiff’s claim “that he is so computer illiterate that
he could not comply with production is frankly ludicrous.” The court asserted the plaintiff, as an
attorney, should have understood his obligations and should not have relied on his accountant to
fulfill his duties. Although declining to dismiss the case, the court directed the plaintiff to reimburse
the defendant its reasonable expenses, including attorney’s fees.
� AutoNation, Inc. v. Hatfield, 2006 WL 60547 (Fla.Cir.Ct. Jan. 4, 2006). In a case involving a trade
secret theft action, the plaintiff sought, and the court issued, an injunction against the defendant.
The injunction required the defendant to return hard copy files, electronic files, computer disks and
other computer storage media relating to the plaintiff’s business. In addition, the court ordered a
third party to make her personal computer available to the plaintiff for forensic examination by an
expert. The expert was to determine whether the plaintiff’s material existed on the computer and if
e-mails the defendant had sent to the third party’s address were forwarded, altered or used. The
court permitted the expert to copy any of the plaintiff’s material on the computer and then delete all
such material from the computer. Finally, the court authorized the defendant and the third party to
have an independent forensic expert in attendance at the inspection.
� Menke v. Broward County Sch. Bd., 916 So.2d 8 (Fla. Ct. App. 2005). Alleging a teacher
exchanged sexually explicit e-mails with students and made derogatory comments about school
staff, a school board sought to compel production of all computers in the teacher’s household.
Additionally, the Board sought to have its own computer expert search the computers in the
expert’s laboratory for the alleged messages between the teacher and students. Objecting to the
302

order, the teacher declared the production would violate his right against self-incrimination, his right
of privacy, and would disclose privileged communications. An administrative law judge ordered
production of the computers and sought to protect the teacher’s right by allowing the teacher to
have his own expert present at the inspection and by requiring the Board’s expert “not to retain,
provide, or discuss with counsel for the Board the existence of any communications which might be
deemed privileged.” In quashing the order, the court declared it was overbroad and would allow “an
agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the
computers [the teacher] has been ordered to produce, combing through every byte, every word,
every sentence, every data fragment, and every document, including those that are privileged or
that may be part of privileged communications, looking for ‘any data’ that may evidence
communication between [the teacher] and his accusers."
� Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct.
Mar. 1, 2005). In a suit alleging a fraudulent sale of stock, the plaintiff filed a motion for an adverse
inference instruction against the defendant for destroying e-mails and failing to comply with a court
order to compel e-mail discovery. Despite an SEC regulation requiring e-mail retention for two
years, the defendant continued its practice of overwriting e-mails every 12 months. Based on this,
the court ordered the defendant to produce backup tapes, review e-mails, conduct searches,
produce responsive e-mails and a privilege log, and certify compliance with the order. The
defendant issued the compliance certification in spite of having more than 1,400 backup tapes
containing data not yet processed or produced. Throughout the discovery process, the defendant
overwrote e-mails, failed to notify and timely process hundreds of DLT and 8mm tapes, and failed
to produce e-mails and attachments. The court found the plaintiff did not receive relevant e-mail
due to the defendant’s discovery tactics and granted the motion for an adverse inference
instruction noting “[t]he conclusion is inescapable that [the defendant] sought to thwart discovery.”
The court ordered the defendant to continue complying with the earlier discovery order and to pay
costs associated with the plaintiff’s motion. The court also noted the defendant “gave no thought to
using an outside contractor to expedite the process of completing the discovery, though it had
certified completion months earlier; it lacked the technological capacity to upload and search the
data at that time, and would not attain that capacity for months.” See also Coleman (Parent)
Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla. Cir. Ct. Mar. 23, 2005);
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. CA 03-5045 AI (Fla. Cir. Ct.
Jun. 23, 2005)(awarding prejudgment interest of $207 million).
� Four Seasons Hotels and Resorts v. Consorcio Barr, 267 F. Supp. 2d 1268 (S.D.Fla. 2003),
aff’d in part and rev’d in part, 138 Fed.Appx. 297 (11th Cir. 2005). The plaintiff brought an action
against the defendant licensee alleging, among other things, violations of the Computer Fraud and
Abuse Act, Electronic Communications Privacy Act, and Uniform Trade Secrets Act. A computer
forensic investigation revealed that the defendant accessed the plaintiff’s computer network,
downloaded confidential data onto backup tapes, fabricated electronic evidence, and deleted files
and overwrote data prior to his computer being turned over for inspection to the plaintiff. The court
held that the defendant acquired the plaintiff’s confidential customer information through improper
means, namely, by theft and by espionage through electronic means. The court issued a judgment
for the plaintiff and ordered monetary damages, among other relief.
� Southern Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002). The
appellate court quashed an order against Southern Diagnostic, a non-party in an insurance suit
brought by Bencosme, compelling discovery of certain contents of its computer system. The
appellate court held that that trial court’s order was overly broad, setting no parameters or
303

limitations on the inspection of Southern Diagnostic’s computer system and make no account that
the computer system contained confidential and privileged information. The appellate court
directed the trial court to craft a narrowly tailored order that accomplishes the purposes of the
discovery requests and provides for confidentiality.
� Bowe v. State, 785 So.2d 531 (Fla. Dist. Ct. App. 2001). “An e-mail ‘statement’ sent to another is
always subject to the limitations of the hearsay rule.”
� Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. Dist. Ct. App. 1996). The court ruled that the trial
court’s discovery order should be quashed because (1) unrestricted access to the defendant’s
entire computer system was overly broad and would pose a threat to confidential records and (2)
there was little evidence that the purged documents could be retrieved.
� Carbon Dioxide Indus. Antitrust Litig., 155 F.R.D. 209 (M.D. Fla. 1993). “[D]epositions to
identify how data is maintained and to determine what hardware and software is necessary to
access the information are preliminary depositions necessary to proceed with merits discovery.”
Georgia
� Stanfill v. Talton, 2012 WL 1035385 (M.D.Ga. Mar. 29, 2012). In this discovery dispute, the
plaintiff sought an adverse inference sanction stemming from the defendants detention center’s
failure to preserve video recordings relevant to plaintiff’s allegations of excessive force resulting in
the death of an inmate. The defendants contended that their conduct—failing to make copies of
video recordings before the recordings were automatically overwritten (ordinarily a two to three
month window)—was not sanctionable. They argued that they could not have reasonably
anticipated litigation at the time of deletion. Alternatively, the defendants argued that they lacked
requisite bad faith culpability. Applying federal law, the court reasoned that while the excessive
force incident was immediately subject to independent review by the state investigation bureau,
that alone was not enough to trigger a duty to preserve the tapes for a claim filed over two years
after the death of the inmate. Further, the court found that even if the defendants owed a duty to
preserve to this particular plaintiff, the defendants’ failure to copy the video recordings only
amounted to negligence. Therefore, there was insufficient evidence to warrant an adverse
inference sanction.
� In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 WL 360509 (N.D. Ga. Feb. 3, 2012). In
this antitrust case, the plaintiffs moved for sanctions for the defendant’s alleged failure to make a
reasonable inquiry before certifying responses to discovery requests. Despite the defense
counsel’s repeated, “forceful” assurances that they had fully complied with production requests, the
defendant discovered and produced 60,000 pages of missing responsive documents. The
documents were located in backup tapes found in an evidence locker controlled by IT and hard
drives that were not uploaded into the defendant’s search platform. Although the defendant
remedied its mistake and the data sources were devoid of any “smoking gun” documents, the court
found that the defendant’s lackluster communication with IT, empty reassurances of a seamless
production and failure to correct false statements fell short of the certification requirements under
Fed.R.Civ.P. 26(g). The court also noted that the defendant’s late discovery was sanctionable
under Fed.R.Civ.P. 37(c)(1) and Fed.R.Civ.P. 26(e) (collectively requiring timely supplementation).
The court cited the same general lack of diligence by the defendant and awarded reasonable
attorney fees resulting from the delay.
� Sitton v. Print Direction, Inc., 2011 WL 4469712 (Ga. App. Sept. 28, 2011). In this privacy rights
dispute, the plaintiff appealed the trial court’s determination that the defendant-employer’s
304

investigation of the plaintiff’s computer for evidence of involvement with a competing business did
not constitute an invasion of privacy. The defendant conducted its investigation by entering the
plaintiff’s office, moving the computer’s mouse, clicking on the e-mail listing which appeared on the
screen and printing e-mails related to a competing job after catching wind the plaintiff had been
improperly competing with the defendant’s business. Notably, the e-mails were on a separate email
address on the plaintiff’s personal computer that he used for work with the defendant and his
own personal use over the company’s systems. Addressing the plaintiff’s arguments, the court
determined the defendant’s conduct did not constitute an “unreasonable intrusion” or “surveillance”
under OCGA § 16-9-93, which addresses computer theft, trespass and invasion of privacy. Further,
the court cited the defendant’s computer usage policy (noting it was not limited to only work-issued
technology) and the employee manual which clearly stated that communications transmitted over
the company’s systems should not be regarded as “private or confidential,” and affirmed the trial
court’s ruling.
� CBT Flint Partners, LLC v. Return Path, Inc., 2011 WL 3487023 (C.A.Fed. (Ga.) Aug. 10, 2011).
Previously in this patent infringement litigation, the Northern District of Georgia court granted
summary judgment of invalidity regarding the patent dispute. In addition, the district court
determined $268,311.22 in costs related to e-discovery were properly taxable. See CBT Flint
Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009). On appeal, the
Court of Appeals overturned the root issue in the underlying patent litigation, vacated the ruling
regarding costs as the defendant was no longer the prevailing party and remanded to the district
court for further proceedings.
� In re Delta/AirTran Baggage Fee Antitrust Litig., 2011 WL 915322 (N.D. Ga. Feb. 22, 2011). In
this antitrust litigation, the plaintiffs sought spoliation sanctions alleging the defendant failed to
suspend the automatic deletion procedures of its e-mail and backup tapes. Although the defendant
issued a written litigation hold to 22 custodians after being served a Civil Investigative Demand
(CID) from the Department of Justice (DOJ), the plaintiffs argued the defendant failed to apply this
hold to its e-mail servers and backup tapes for three months. Reviewing the elements necessary to
support a spoliation claim, the court found the defendant’s preservation obligation upon receipt of
the CID extended only to the DOJ and that it was not expected to anticipate the filing of a civil suit
three months later. Refusing to substitute speculation for actual proof, the court determined that
even if a duty to preserve had existed, the plaintiffs failed to demonstrate any evidence of
prejudice. Finally, the court found the defendant’s actions constituted at most negligence and not
the bad faith conduct required to support spoliation sanctions in the Eleventh Circuit. Accordingly,
the court denied the motion for sanctions.
� Autry Petroleum Co. v. BP Prods. N. Am., Inc., 2010 WL 3239010 (M.D. Ga. Aug. 16, 2010). In
this contract dispute, the plaintiffs moved to review taxation of costs by the clerk following
affirmation of summary judgment on appeal. The plaintiffs contended that both parties agreed to
bear their own expenses for e-discovery, objecting to taxation of certain costs as unauthorized and
unnecessary. Finding the parties never entered into a cost allocation agreement as alleged, the
court addressed the plaintiffs’ objections and found expenses relating to preparation of the
defendant’s privilege log, costs for hard copy prints of electronic images, e-discovery costs postdating
the defendant’s final production and costs incurred in transferring data to a different
electronic format for document review to be necessary and properly taxable. Based on these and
non-electronic discovery findings, the court adjusted the final recovery to the amount of
$147,967.74.
305

� Edelen v. Campbell Soup Co., 2010 WL 774186 (N.D.Ga. Mar. 2, 2010). In this race and gender
discrimination litigation, the plaintiff filed several objections to a magistrate judge’s discovery order
which denied the plaintiff’s motion for sanctions and directed the plaintiff pay the defendants
attorneys’ fees associated with the defendants’ previous motion to narrow the scope of ESI
discovery requests. The plaintiff argued for sanctions alleging the defendants excessively
designated documents as confidential, voluntarily produced privileged documents and failed to
meet and confer with the plaintiff. Regarding the plaintiff’s ESI discovery request, the defendants
claimed the plaintiff’s proposal spanned a three year period and would produce 474,456
documents for one year alone since it encompassed 50 custodians and more than 55 search
terms. Adopting the magistrate’s discovery recommendations in full, the court dismissed the
plaintiff’s sanctions claims and noted the plaintiff repeatedly failed to comply with court’s orders to
narrow the scope of the ESI production requests. Thus, the court found the magistrate’s
recommendation, which awarded attorneys’ fees based on the plaintiff’s noncompliant behavior in
the discovery process, to be reasonable.
� CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009). In
this patent infringement action, the defendants filed a motion to tax the costs associated with using
an e-discovery vendor to aid in the production of 1.4 million electronic documents and six versions
of source code. Objecting, the plaintiff argued that fees associated with the collection of documents
for production are not taxable under 28 U.S.C. § 1920. Although noting that a judicial division of
opinion exists as to whether U.S.C § 1920 allows recovery, the court cited the highly technical
nature and necessity of e-discovery services in the electronic age to overrule the plaintiff’s
objection and hold the $268,311.22 in costs to be recoverable. In supporting its finding, the court
reasoned that the "[t]axation of these costs will encourage litigants to exercise restraint in
burdening the opposing party with the huge cost of unlimited demands for electronic discovery."
� Kipperman v. Onex Corp., 2009 WL 1473708 (N.D.Ga. May 27, 2009). In this constructive
transfer and fraud case, the plaintiff sought sanctions in the form of a default judgment against the
defendant for discovery abuses. The plaintiff asserted that the defendant repeatedly defied court
orders, unilaterally narrowed the scope of restoration and production of court-ordered backup
tapes, unilaterally redacted court-ordered produced documents to the point that such documents
became unusable and misrepresented to the court the likely relevance of e-mails sought. The
defendants maintained that their redactions were in compliance with the court’s orders and insisted
that the broad discovery requested by the plaintiff would likely be fruitless. The court agreed with
the plaintiffs that the defendant had blatantly disregarded court orders by making
misrepresentations during discovery and stated it was deeply disturbed by the defendant’s
discovery conduct in what it regarded as "a textbook case of discovery abuse." However, the court
declined to order default sanctions, citing novel issues of liability and noting that granting a default
judgment in this case might be a grant of the largest default judgment sought in United States
history. The court alternatively awarded $1,022,700 in monetary sanctions against the defendant to
be paid to the plaintiff.
� Kipperman v. Onex Corp., 2008 WL 4372005 (N.D.Ga. Sept. 19, 2008). In this litigation, the
defendants sought relief from having to review and produce all results from an e-mail search on the
defendants’ backup tapes, arguing that the broad search terms resulted in thousands of irrelevant
hits. The defendant asked to be excused from producing (1) irrelevant documents, (2) documents
responsive to one specific transaction, and (3) documents captured from the e-mail boxes of one
specific subsidiary company. Finding the documents referred to in the second and third objections
were “highly unlikely” to garner relevant information, the court granted the requested relief.
306

Regarding the defendants’ relevancy and volume objections, the court noted the defendants
previously had the opportunity to narrow the search terms and provide a list of people that could
help reduce the number of e-mail boxes searched, which they did not take advantage of. The court
therefore refused relief stating, “Defendants must now lie in the bed that they have made.”
� Connor v. Sun Trust Bank, 2008 WL 623027 (N.D.Ga. Mar. 5, 2008). In this litigation alleging
interference and retaliation claims under FMLA, the plaintiff filed a motion for sanctions based on
the defendant’s failure to produce a highly relevant e-mail during discovery. The plaintiff located,
through other means, a relevant e-mail that explained her dismissal to other employees. The
defendant moved for summary judgment relying on their 30-day e-mail destruction policy which
automatically deleted e-mails that were thirty days old, unless they were first archived by the user.
The court, un-persuaded by the defendant’s reasoning, granted the plaintiff’s motion for sanctions
and issued an adverse jury instruction.
� Arista Records LLC v. Does 1-7, 2008 WL 542709 (M.D.Ga. Feb. 25, 2008). In this copyright
infringement suit, the plaintiffs filed a motion seeking expedited discovery to obtain basic
information about the alleged infringers from the third-party Internet Service Provider. The plaintiffs
sought the name, current and permanent address, phone number, e-mail address and Media
Access Control address for the individuals linked to the Internet Protocol addresses involved in the
alleged distribution of the copyrighted materials over the peer-to-peer file sharing network at issue.
The court granted the motion based on good cause established by the lack of other means to
obtain the information and the prima facia showing of copyright infringement, combined with the
expediency created by the limited retention of user activity logs.
� Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D.Ga. Feb. 25, 2008). In this
employment discrimination suit alleging company-wide sexual harassment, the plaintiffs filed a
renewed motion to compel the defendants to produce documents, including e-mails, that were
sexual or of a gender derogatory nature from 1998 through 2006. The defendants claimed the email
was not reasonably accessible due to undue burden and cost as it required the restoration of
numerous backup tapes and claimed fees of $79,300 for e-mail restoration from a single employee
over a two year period. Agreeing with the defendants, the court found the burden of the request to
outweigh the likely benefit and limited the retrieval to two narrow categories of e-mail: (1) undeleted
e-mail of current employees specifically named by the plaintiffs; and (2) any relevant e-mails of the
nature cited by the plaintiff of which the defendants were aware of and had retained. Additionally,
the court denied the plaintiffs’ request for spoliation sanctions, finding the defendants’ document
destruction policy reasonable.
� Barton v. State, 2007 WL 1775565 (Ga.App. June 21, 2007). In a suit charging the defendant of
knowingly possessing child pornography, the Georgia Court of Appeals reversed the jury trial
conviction based in large part on computer forensic evidence. A computer forensic analyst testified
that computers store information viewed over the internet on the hard drive in temporary internet
cache files and that there is nothing the user can do to prevent this. The computer forensic expert
further explained that there is no way to determine if the stored files were affirmatively sought after
by the user or were pop-ups. Additionally, a user is not able to retrieve these files without special
forensic software, which was not present on the defendant’s computer. As knowing possession of
child pornography requires proof of an affirmative step to save or download images to the
computer and knowledge of their existence, the defendant did not have the required culpability to
be held guilty of the crime.
� Williams v. Taser Int’l Inc., 2007 WL 1630875 (N.D.Ga. June 4, 2007). In a wrongful death action,
the plaintiffs brought three motions before the court to resolve numerous discovery disputes. The
307

parties disagreed about the manner in which the searches for responsive documents contained
within the defendants’ electronic databases were to be performed, specifically focusing on the
timing of production, the specific search terms to be used, and the extent to which the plaintiffs
would be allowed to participate in the search process. The plaintiffs requested that they be
permitted to actively participate in the search process at the defendants’ facility. The defendants
opposed this request and stated if the search terms can be agreed upon in advance via email, the
defendant will locate the documents, conduct a privilege review, and produce responsive
documents. Finding both proposals deficient, the court, being frustrated with the delay and inability
of the parties to reach an agreement, entered an extensive discovery protocol and ordered the
defendants to use a specified list of keyword search terms. The court also ordered a protocol to be
followed regarding inadvertent disclosure of privileged information and set a deadline for
completion of discovery.
� Georgia Dept. of Agric. v. Griffin Indus., 2007 WL 805795 (Ga. App. Mar. 19, 2007). In this case
the Georgia Department of Agriculture appealed a court order granting the requestor access to emails
stored on disaster recovery back-up tapes under the Georgia Open Records Act. The
appellate court found the Department had not been afforded proper notice to defend its position
regarding several key issues including the costs and burdens of production, the proper allocation of
costs between the parties and whether the e-mails were “open source records” under the Act. The
appellate court reversed the order and remanded the issue to the trial court.
� Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007). In a product liability case, the
plaintiff motioned the court to compel the defendant to produce a copy of its litigation hold notice as
part of discovery. The litigation hold notice had a list of the documents the defendant wanted its
employees to preserve for the pending litigation. The court ordered the document did not have to
be produced to the plaintiff since it was closely related to attorney-work product material. The court
noted that litigation holds are often over inclusive and the documents on the notice often do not
bear any relevance to the actual litigation. The court also cautioned that compelled production of
this notice would encourage other companies from not issuing litigation hold notices under fear of
possible disclosure and adverse consequences.
� Frey v. Gainey Transp. Servs., Inc., 2006 WL 2443787 (N.D. Ga. Aug. 22, 2006). The plaintiff in
a personal injury suit filed a motion for sanctions against defendant for failing to preserve satellite
tracking information despite plaintiff’s preservation letter to defendant before litigation started. The
plaintiff’s attorney sent defendant a 15-page letter 10 days after his client’s accident demanding
that defendant preserve certain evidence despite the fact that litigation had not started. Plaintiff
claims that defendant failed to preserve electronic satellite information that tracks the location of
defendant’s drivers. The information is automatically deleted 90 days after it is saved on a server,
and the requested information was deleted in the normal course of business. The court held that
sanctions should not be issued because plaintiff was not prejudiced by lacking the evidence and
that defendant did not destroy the evidence with “bad faith” even though it received plaintiff’s letter.
The court stated that it is “difficult to allow a potential plaintiff to make an end run around the
Federal Rules of Civil Procedure by filing a preemptive ‘spoliation’ letter.”
� Dikeman v. Stearns, 2002 WL 203766 (Ga. Ct. App. Feb. 11, 2002). Where law firm sued a client
to collect unpaid legal bills, client then requested production of a wide range of information,
including: calendars, a timekeeping computer database, a full and complete copy of the law firm’s
hard drive, copies of all bills sent, and all documents or notes reflecting communications within the
firm. The court upheld the trial court’s finding that these discovery requests were overbroad,
oppressive, annoying, and required undue burden and expense.
308

� ABC Home Health Servs. v. IBM Corp., 158 F.R.D. 180 (S.D. Ga. 1994). In action for breach of
contract, the court sanctioned IBM for destroying computer files in anticipation of litigation.
� Easley, McCaleb & Assoc., Inc. v. Perry, No. E-2663 (Ga. Super. Ct. July 13, 1994). The court
ordered that deleted files on the defendant’s computer hard drive are discoverable, and the
plaintiff’s expert must be allowed to retrieve all recoverable files. The court issued an order
detailing the protocol for reviewing the electronic data.
Other Jurisdictions
Court of International Trade
� Heveafil Sdn. Bhd. v. United States, 2001 WL 194986 (Ct. Int’l Trade Feb 27, 2001). In an action
challenging a U.S. Department of Commerce administrative review of an “antidumping order”, the
court determined that the plaintiff failed to act to the best of its ability where six months after
receiving notice about maintaining its source documents, it deleted relevant data from its computer
system. The court found that the plaintiff “did not cooperate to the best of its ability because after
receiving notice from [the Department of Commerce], it knew or should have known to maintain
th[is] source document.”
� Torrington Co., v. United States, 786 F. Supp. 1027 (Ct. Int’l Trade 1992). The plaintiff requested
access to confidential materials contained on a computer tape. The plaintiff also requested hard
copies of the data. The court refused to order the defendant to create the computer tapes from
scratch where the plaintiff had already received the documents in paper form. In reaching its
decision, the court stated, “Where the burden, cost and time required to produce the tapes is
virtually equal on both parties, then the burden of producing the tapes falls on the party requesting
the information.”
� Timken Co. v. United States, 659 F. Supp 239 (Ct. Int’l Trade 1987). The court ordered
production of data stored on computer tape even though it had been previously produced in a
paper format.
� Daewoo Elecs. Co. v. United States, 650 F. Supp. 1003 (Ct. Int’l Trade 1986) rev’d on other
grounds 6 F.3d 1511 (Fed. Cir. 1993). The court rejected the government’s narrow discovery
position, stating that disclosure orders should be construed liberally and should not be impeded by
technical objections. The court further explained, “[I]t would be a dangerous development in the law
if new techniques for easing the use of information become a hindrance to discovery of disclosure
in litigation.”
Federal Claims Court
� Pitney Bowes Gov’t Solutions, Inc. v. United States, 2010 WL 3278402 (Fed. Cl. Aug. 19,
2010). In this government contract award protest, the plaintiff sought sanctions alleging the
contracting officer for the Department of Justice spoliated evidence by inappropriately ordering the
destruction of the evaluation data used in the bidding process. Although the information was
successfully recovered from backup tapes, the plaintiff maintained the government deserved
sanctions for the order given to destroy the documents. The plaintiff also challenged the veracity of
the recovered data, claiming that an analysis of the metadata revealed the documents were not the
same documents the contracting officer destroyed. Denying the request for sanctions, the court
held there is no question of spoliation when "backup tapes have been retained and can be
309

provided in discovery," and further rejected the challenge to the documents’ veracity as meritless,
finding the discrepancy in authorship was accounted for by the bidding review process.
� United Med. Supply Co. Inc., v. United States, 2007 WL 1952680 (Fed.Cl. June 27, 2007). In
this contract dispute, the plaintiff sought spoliation sanctions based on the defendant’s failure to
preserve and produce relevant evidence. The defendant argued that as it acted in good faith, albeit
negligently, the court was precluded from imposing such sanctions. For over four years, the
defendant had neglected to contact the proper custodians to notify them of the litigation, let alone
inform them of the preservation requirement. The court held that an injured party need not
demonstrate bad faith in order for the court to impose spoliation sanctions, as the spoliation
doctrine was not designed solely to punish those who consciously destroy documents, but also to
address the manifest unfairness in the loss of relevant information. Therefore, based on the
defendant’s reckless disregard of its preservation duty, the court ordered a two facet sanction.
First, the defendant was prohibited from cross-examining the plaintiff’s expert regarding gaps in the
record. Second, the defendant was ordered to reimburse the plaintiff for any additional discovery
related costs because of the defendant’s malfeasance and misrepresentations as well as costs
incurred with this motion.
� AAB Joint Venture v. United States, 2007 WL 646157 (Fed. Cl. Feb. 28, 2007). In this
construction litigation case, the plaintiff moved to compel discovery of e-mails from the defendant.
The defendant listed several individuals who were known to have generated e-mail related to the
subject matter of the litigation. However, the defendant produced e-mail from only a few of the
individuals, and the production from those individuals revealed insufficiency and gaps in the
production. The defendant argued that it produced thousands of e-mails already and that further
production required restoration of back-up tapes that would cost between $85,000 and $150,000.
The defendant further argued that many of the e-mails were protected as privileged
communications. The plaintiff argued the defendant had a duty to preserve e-mail and costs should
not have any bearing on whether the documents should be produced. The court agreed with the
plaintiff and ruled that the defendant’s production of e-mails was far from adequate. The court
further ruled that cost is only one factor in ordering a motion to compel and that the court “cannot
relieve Defendant of its duty to produce those documents merely because Defendant has chosen a
means to preserve the evidence which makes ultimate production of relevant documents
expensive.” As such, the defendant was ordered to restore a portion of its back-up tapes from time
periods specified by the plaintiff and was ordered to bear the costs of the initial sampling. Any
further production and cost allocation would be determined by the sample production.
� United Medical Supply Co. v. United States, 73 Fed.Cl. 35 (Fed. Cl. 2006). The Federal Claims
Court reviewed a motion requesting an order commanding a government entity to preserve
documents. The plaintiff claimed an order was necessary to preserve documents since evidence
revealed that the government allowed several boxes of relevant documents stored in warehouses
to be destroyed. The court noted that it need not issue a preservation order to prevent spoliation
since most parties understand the obligation to preserve relevant evidence. However, the court
found that the risk of future document destruction was high and steps to prevent the possible
destruction would not be overly broad or burdensome on the government, therefore, granting the
preservation order. Although the destruction of documents involved paper documents stored in a
warehouse, the court extended the preservation order to include all electronic documents, including
computer hard drives and servers.
� The Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (Fed. Cl. 2004). The plaintiff, who
alleged that the government mismanaged Indian tribe trust funds and other properties, moved for a
310

document preservation order. The requested order would require the government to index
electronic documents and would allow the plaintiff limited inspection of the documents. The
government contended that the proposed order was unnecessary and overly burdensome, in part
because document retention policies were already in place at the government agencies likely to be
implicated in the suit. The court held that the plaintiff was required to demonstrate “that absent a
court order, there is significant risk that relevant evidence will be lost or destroyed.” Additionally,
the plaintiff “must show that the particular steps to be adopted will be effective, but not overbroad.”
The plaintiff was able to produce evidence that the government had lost and destroyed documents
in the past, including electronic records containing potentially relevant information. Based on this
evidence, the court ordered the government to preserve all documents, including electronic
information, e-mail, and metadata that contained relevant information or that might lead to the
discovery of relevant information. The court further required the government to index all the
documents and to report any documents that were destroyed. The court indicated that the
possibility of sanctions “which the case law suggests may be severe…provides the
incentive…needed to effectuate this preservation plan.”
� Renda Marine v. United States, 58 Fed.Cl. 57 (Fed. Cl. 2003). In a government contract suit, a
dispute arose regarding both parties’ duties to preserve evidence. Specifically, the plaintiff moved
the court to compel access to the defendant’s hard drives, backup tapes, and e-mail systems,
alleging that the defendant did not search any hard drives or backup tapes in preparing its
response to the plaintiff’s document production requests. The defendant denied these allegations.
The plaintiff further alleged that the defendant routinely deleted e-mail even after commencement
of the suit and moved the court to sanction the defendant for such spoliation of evidence. The court
held that, upon notice that litigation might occur, the defendant had a legal obligation to preserve
evidence related to the plaintiff’s claim. The court directed the defendant to produce, at its
expense, backup tapes created after such notice and to provide the plaintiff with access to the
requested hard drive. The court further ordered the defendant to produce backup tapes pre-dating
notice of the suit at the plaintiff’s expense. In a subsequent decision, Renda Marine v. United
States, 62 Fed. Cl. 371 (Fed. Cl. 2004), the court determined e-mails sent to and from an attorney
in the defendant’s general counsel office were privileged even after they were forwarded to nonattorneys
in the agency.
United States Air Force Court of Criminal Appeals
� United States v. Sanchez, 59 M.J. 566 (A.F. Ct. Crim. App. 2003), aff’d in part and rev’d in part,
60 M.J. 329 (A.F. Ct. Crim. App. 2004), aff’d by 61 M.J. 330 (U.S. Ct. App. A.F. 2005). A federal
appellate military judge determined that the government produced sufficient evidence to prove that
the defendant knowingly possessed child pornography images stored in his computer’s temporary
Internet files. After making a mirror image of the computer’s hard drive, investigators used a
software program called "Carve This" to uncover remnants of files that were overwritten or deleted
from the hard drive. The program found that the presence of the images on the hard drive was
consistent with someone viewing them on the Internet and the images then being automatically
saved to the hard drive by the web browser. Combining this with evidence of the defendant’s
subscriptions to nude teen websites, the court determined that the evidence supported the
allegation that the defendant knowingly possessed the pornographic images.
United States Tax Court
311

� Hambarian v. C.I.R., 118 T.C. 35 (U.S. Tax Ct. June 13, 2002). For use in connection with a
criminal tax proceeding, the defendants’ attorney created searchable, electronic databases
containing documents turned over by the Prosecutor during discovery. The Respondent, in the civil
tax proceeding at bar, sought a motion to compel discovery of these electronic document
databases from the Petitioners/defendants. The court stated that “As the Petitioner failed to make
the requisite showing of how the disclosure of the documents selected would reveal the defense
attorney’s mental impressions of the case, the requested documents and computerized electronic
media are not protected by the work product doctrine.”
Virgin Islands
� Richards v. Legislature of the Virgin Islands, 2009 WL 174959 (D.Virgin Islands Jan. 9, 2009).
In this tort and civil rights litigation, the defendants sought the return of privileged information
inadvertently produced. The plaintiffs argued the attorney-client privilege was waived when the
documents were produced. Agreeing with the plaintiff, the court denied the motion as the
defendants did not review the documents prior to production.
� Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008). In this slip and fall case, the
plaintiff appealed the trial court’s grant of summary judgment in favor of the defendant. The trial
court held that the plaintiff failed to provide any evidence that the defendant had constructive
knowledge of the liquid spill which allegedly caused the plaintiff to fall. The plaintiff argued she was
entitled to a spoliation inference based on the defendant store manager’s decision to preserve the
digital surveillance video of the actual fall but not the footage immediately prior to or subsequent to
the fall. The defendant countered that the plaintiff was not entitled to a spoliation inference because
the evidentiary destruction was a matter of routine practice and was devoid of fraudulent intent.
After noting the store manager’s, “conscious and intentional choice not to review or retain the
recorded footage,” the court determined that the defendant “both intentionally and fraudulently
destroyed relevant evidence.” The court also stated that the manager’s failure to retain the footage
“shocks the conscience of the court and creates a presumption of fraud.” Accordingly, the court
granted a spoliation inference against the defendant for the purpose of summary judgment, but
noted that whether a jury would actually draw a spoliation inference was a matter left for trial and
remanded the case.
Other Countries
England
� Digicel v. Cable & Wireless PLC, [2008] EWHC 2522 (CH) (23 October 2008). In this breach of
statutory duty litigation, the Claimants (plaintiffs) applied (moved) for restoration of back-up tapes
and the use of additional search terms. Previously, the law of the multiple jurisdictions in which the
Claimants and Defendants conducted business changed to increase competition by statutorily
requiring surrender of Defendant’s exclusive telecommunication licenses, giving rise to the
Claimants allegation of deliberate delay and damages. During initial disclosures, the Defendants
unilaterally declined to restore or search back-up tapes and chose 10 search terms with 6 similar
stem words, for which it was criticized by the Claimants. Balancing Paragraph 2A of Part 31
Practice Decision calling for early discussion of issues with Rule 31.7 requiring a “reasonable
312

search,” the court ordered the Defendant to restore backup tapes of relevant employees’ e-mail
and employ a select few additional search terms that were requested by the Claimant. The court
noted that, “the rules do not require that no stone should be left unturned,” but was unwilling to
allow one party to unilaterally decide which searches should be conducted.
This document is neither designed nor intended to provide legal or other professional
advice but is intended merely to be a starting point for research and information on the
subject of electronic evidence. While every attempt has been made to ensure accuracy of
this information, no responsibility can be accepted for errors or omissions. Recipients of
information or services provided by Kroll Ontrack shall maintain full, professional, and
direct responsibility to their clients for any information or services rendered by Kroll
Ontrack.
For more information on electronic discovery, paper discovery and computer
forensics, contact
Kroll Ontrack, Inc.
1-800-347-6105
313