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Duties Respecting Electronic Evidence > Production, Backup Tapes
Helmert v. Butterball, LLC, 2010 U.S. Dist. LEXIS 60777 (E.D. Ark. May 27, 2010).
Defendant did not have to restore and search for responsive data on backup tapes because plaintiff had "no idea what, if any, discoverable information may be obtained" from the search.
Defendant did not have to restore and search for responsive data on backup tapes because plaintiff had "no idea what, if any, discoverable information may be obtained" from the search.
In re Subpoenas, 2010 U.S. Dist. LEXIS 21947 (W.D. Va. Mar. 10, 2010).
A multinational drug company was ordered to produce email of three employees over seven years in response to a government subpoena. Any undue burden of the company in restoring backup tapes preserved for other litigation in order to produce the subpoenaed email was the result of the company's "policy or practice of retaining documents … in a format that shrouds them in practical obscurity."
A multinational drug company was ordered to produce email of three employees over seven years in response to a government subpoena. Any undue burden of the company in restoring backup tapes preserved for other litigation in order to produce the subpoenaed email was the result of the company's "policy or practice of retaining documents … in a format that shrouds them in practical obscurity."
Thompson v. Quorum Health Resources, LLC, 2009 U.S. Dist. LEXIS 113479 (W.D. Ky. Dec. 7, 2009).
Defendant did not have to produce records from backup tapes maintained by defendant's former parent company that had been dissolved. Defendant had made a good faith and specific claim of undue burden and costs, and plaintiff had not presented any evidence that defendant's estimates were not accurate.
Defendant did not have to produce records from backup tapes maintained by defendant's former parent company that had been dissolved. Defendant had made a good faith and specific claim of undue burden and costs, and plaintiff had not presented any evidence that defendant's estimates were not accurate.
Calixto v. Watson Bowman Acme Corp., 2009 U.S. Dist. LEXIS 111659 (S.D. Fla. Nov. 16, 2009).
The court determined without the need for Zubulake-type analysis that defendant should not be required to restore backup tapes. Plaintiff had not made the preliminary showing required under Fed. R. Civ. P. 26(b)(2)(B) that whatever the type of discovery sought, it would be relevant and non-duplicative. The court also denied plaintiff's request for letters of request under the Hague Convention because information sought from overseas likely was duplicative of information already obtained by plaintiff.
The court determined without the need for Zubulake-type analysis that defendant should not be required to restore backup tapes. Plaintiff had not made the preliminary showing required under Fed. R. Civ. P. 26(b)(2)(B) that whatever the type of discovery sought, it would be relevant and non-duplicative. The court also denied plaintiff's request for letters of request under the Hague Convention because information sought from overseas likely was duplicative of information already obtained by plaintiff.
MRT, Inc. v. Vounckx, 2009 Tex. App. LEXIS 8351 (Tex. App. Dallas Oct. 30, 2009).
Defendants had no duty under Texas discovery rules to disclose the existence of backup tapes and then to object that the backup tapes or electronic documents on the tapes were not reasonably available because plaintiffs "did not initially specifically request production of the backup tapes or documents that resided only on" the backup tapes.
Defendants had no duty under Texas discovery rules to disclose the existence of backup tapes and then to object that the backup tapes or electronic documents on the tapes were not reasonably available because plaintiffs "did not initially specifically request production of the backup tapes or documents that resided only on" the backup tapes.
Kilpatrick v. Breg, Inc., 2009 U.S. Dist. LEXIS 52723 (S.D. Fla. June 22, 2009).
Based on a record indicating that documents responsive to plaintiff's discovery requests had not been produced, plaintiff was allowed to search five of defendant's backup tapes for email of seven key employees using limited search terms. However, the search would be at plaintiff's cost because trial was about to begin and the court questioned the likelihood that any relevant documents that had not been produced would be found.
Starbucks Corp. v. ADT Security Services, Inc., 2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009).
The court ordered production of archived email despite defendant's contention that an estimated $834,285 cost made the email not reasonably accessible. After reviewing actual proposals obtained by plaintiff's counsel for the discovery ranging up to about $30,000, the court concluded defendant's estimate was exaggerated.
The court ordered production of archived email despite defendant's contention that an estimated $834,285 cost made the email not reasonably accessible. After reviewing actual proposals obtained by plaintiff's counsel for the discovery ranging up to about $30,000, the court concluded defendant's estimate was exaggerated.
Bank of Mongolia v. M&P Global Financial Services, Inc., 2009 U.S. Dist. LEXIS 39239 (S.D. Fla. Apr. 24, 2009).
After plaintiff obtained electronic documents from third parties that should have been produced by defendant, the court ordered appointment of an independent expert as an officer of the court to retrieve deleted files from defendants’ records.
After plaintiff obtained electronic documents from third parties that should have been produced by defendant, the court ordered appointment of an independent expert as an officer of the court to retrieve deleted files from defendants’ records.
Forest Laboratories, Inc. v. Caraco Pharm. Laboratories, Ltd., 2009 U.S. Dist. LEXIS 31555 (E.D. Mich. Apr. 14, 2009).
Although Zubulake established a general rule that a party did not have to preserve “inaccessible” information on backup tapes beyond normal retention times established by company policy, an exception to that rule for email and other documents of key employes that could be located on backup tapes and were not otherwise available was applied by the court.
Although Zubulake established a general rule that a party did not have to preserve “inaccessible” information on backup tapes beyond normal retention times established by company policy, an exception to that rule for email and other documents of key employes that could be located on backup tapes and were not otherwise available was applied by the court.
Amasia Acoustics, LLC v. GN Hearing Care Corp., 2008 Minn. App. Unpub. LEXIS 1430 (Minn. Ct. App. Dec. 9, 2008).
A trial court did not abuse its discretion in granting summary judgment to defendant while plaintiff’s experts attempted unsuccessfully to access backup tapes produced by defendant because plaintiff apparently did not “act diligently to ascertain the contents of the backup tapes.”
A trial court did not abuse its discretion in granting summary judgment to defendant while plaintiff’s experts attempted unsuccessfully to access backup tapes produced by defendant because plaintiff apparently did not “act diligently to ascertain the contents of the backup tapes.”
State ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 2008 Ohio 6253 (Ohio Dec. 9, 2008).
A local government was ordered to restore and allow inspection by a newspaper of email that officials deleted in violation of a public record retention schedule. Also, the government was ordered to pay the cost of the restoration because the newspaper sought inspection but not production of the email.
A local government was ordered to restore and allow inspection by a newspaper of email that officials deleted in violation of a public record retention schedule. Also, the government was ordered to pay the cost of the restoration because the newspaper sought inspection but not production of the email.
Shirk v. Fifth Third Bancorp, 2008 U.S. Dist. LEXIS 85793 (S.D. Ohio Sept. 26, 2008).
A court’s order to produce documents from two years of backup tapes before deciding whether to order production from backup tapes of later years did not excuse defendant from producing documents from additional backup tapes for the initial two years that defendant acknowledged only after the court’s order.
A court’s order to produce documents from two years of backup tapes before deciding whether to order production from backup tapes of later years did not excuse defendant from producing documents from additional backup tapes for the initial two years that defendant acknowledged only after the court’s order.
Baker v. Gerould, 2008 U.S. Dist. LEXIS 28628 (W.D.N.Y. Mar. 27, 2008).
Before requiring defendant to restore deleted electronic communications, the court ordered plaintiff to depose a representative of defendant concerning defendant’s search for such communications that were accessible. The court could then determine whether a further search of other sources that were not reasonably accessible remained necessary within the meaning of Advisory Committee notes to the 2006 amendments to Fed. R. Civ. P. 26(b)(2).
Before requiring defendant to restore deleted electronic communications, the court ordered plaintiff to depose a representative of defendant concerning defendant’s search for such communications that were accessible. The court could then determine whether a further search of other sources that were not reasonably accessible remained necessary within the meaning of Advisory Committee notes to the 2006 amendments to Fed. R. Civ. P. 26(b)(2).
Commerce Benefits Group, Inc. v. McKesson Corp., 2008 U.S. Dist. LEXIS 17372 (N.D. Ohio Mar. 6, 2008).
Plaintiff's motion to compel was denied because plaintiff did not establish that the relevance and necessity of further discovery into email backup tapes outweighed the burden and expense of the additional discovery or that the discovery would assist plaintiff regarding the core issues of the case.
Plaintiff's motion to compel was denied because plaintiff did not establish that the relevance and necessity of further discovery into email backup tapes outweighed the burden and expense of the additional discovery or that the discovery would assist plaintiff regarding the core issues of the case.
Petcou v. C.H. Robinson Worldwide, Inc., 2008 U.S. Dist. LEXIS 13723 (N.D. Ga. Feb. 25, 2008).
Defendant met its burden pursuant to Fed. R. Civ. P. 26(b)(2)(B) to show that deleted email was not reasonably accessible because the cost of retrieving about two years' worth of email for just one employee was about $79,300. The court ordered only production of email that was unlikely to cause undue burden and decided that a search of backup tapes would not be required.
Defendant met its burden pursuant to Fed. R. Civ. P. 26(b)(2)(B) to show that deleted email was not reasonably accessible because the cost of retrieving about two years' worth of email for just one employee was about $79,300. The court ordered only production of email that was unlikely to cause undue burden and decided that a search of backup tapes would not be required.
National Union Fire Ins. Co. v. Clearwater Ins. Co., 2007 U.S. Dist. LEXIS 52770 (S.D.N.Y. Jul. 21, 2007).
The cost of up to $80,000 to restore back-up tapes to find email relating to a reinsurance settlement outweighed likely benefits of the discovery because the tapes were for time periods from 7 to 22 months after the settlement. The electronically stored information thus was not reasonably accessible within the meaning of Fed. R. Civ. P. 26(b)(2), and plaintiff did not have to restore the back-up tapes.
The cost of up to $80,000 to restore back-up tapes to find email relating to a reinsurance settlement outweighed likely benefits of the discovery because the tapes were for time periods from 7 to 22 months after the settlement. The electronically stored information thus was not reasonably accessible within the meaning of Fed. R. Civ. P. 26(b)(2), and plaintiff did not have to restore the back-up tapes.
Puckett v. Tandem Staffing Solutions, Inc., 2007 U.S. Dist. LEXIS 47287 (N.D. Ill. June 27, 2007).
Defendant was ordered to restore backup tapes despite having produced hard copies of documents on the backup tapes because defendant's usual course of business was to maintain documents in their electronic format.
Defendant was ordered to restore backup tapes despite having produced hard copies of documents on the backup tapes because defendant's usual course of business was to maintain documents in their electronic format.
Oxford House, Inc. v. City of Topeka, 2007 U.S. Dist. LEXIS 31731 (D. Kan. Apr. 27, 2007).
The court denied a motion to compel further production that would have required spending up to $100,000 to search backup tapes on which responsive email was likely to have been overwritten and was no longer recoverable.
The court denied a motion to compel further production that would have required spending up to $100,000 to search backup tapes on which responsive email was likely to have been overwritten and was no longer recoverable.
Wachtel v. Health Net, Inc., "Wachtel II", 2007 U.S. Dist. LEXIS 26308 (D.N.J. Apr. 10, 2007).
A stay pending review of discovery orders was denied because defendants' assertions that the orders would require restoration and review of the equivalent of 14 billion documents were made "on purely conclusory terms, with utterly no explanation."
A stay pending review of discovery orders was denied because defendants' assertions that the orders would require restoration and review of the equivalent of 14 billion documents were made "on purely conclusory terms, with utterly no explanation."
Quinby v. Westlb AG,, 2005 U.S. Dist. LEXIS 35583 (S.D.N.Y. Dec. 15, 2005).
Sanctions were not warranted for defendant's failure to produce email accessible from sources other than more expensive backup tapes because the backup tapes would produce the most complete results, and defendant and its consultant were thus correct to focus on the backup tapes as the primary method of production.
Sanctions were not warranted for defendant's failure to produce email accessible from sources other than more expensive backup tapes because the backup tapes would produce the most complete results, and defendant and its consultant were thus correct to focus on the backup tapes as the primary method of production.
Renda Marine v. United States, 2003 U.S. Claims LEXIS 260 (Fed. Cir. Aug. 29, 2003).
Government fails to preserve evidence after notice of litigation. Court orders production of backup tapes and allows plaintiff direct access to hard drive of key witness.
Government fails to preserve evidence after notice of litigation. Court orders production of backup tapes and allows plaintiff direct access to hard drive of key witness.
Zubulake v. UBS Warburg LLC,, 2003 U.S. Dist. LEXIS 12643 (S.D.N.Y. July 24, 2003).
Follow up decision to Zubulake I, extending court's analysis of cost-shifting in cases involving information from backup tapes or other "inaccessible" data.
Follow up decision to Zubulake I, extending court's analysis of cost-shifting in cases involving information from backup tapes or other "inaccessible" data.
Armstrong v. Armsted Indus., Inc.(In re Amsted Indus., Inc., 2002 U.S. Dist. LEXIS 24332, 29 Employee Benefits Cas. (BNA) 2319 (N.D. Ill. Dec. 17, 2002), Motions Ruled Upon, 2003 U.S. Dist. LEXIS 11477 (N.D. Ill. July 1, 2003).
Motion to compel search of backup tapes for email messages granted; request not so burdensome as to require limitation of discovery.
Motion to compel search of backup tapes for email messages granted; request not so burdensome as to require limitation of discovery.
Zubulake v. UBS Warburg LLC,, 2003 U.S. Dist. LEXIS 7939, 91 Fair Empl. Prac. Cas. (BNA) 1574 (S.D.N.Y. May 13, 2003).
Court considers the extent to which "inaccessible" electronic data is discoverable, and who should pay for its production. Three-step analysis established for deciding disputes regarding the scope and cost of electronic discovery.
Court considers the extent to which "inaccessible" electronic data is discoverable, and who should pay for its production. Three-step analysis established for deciding disputes regarding the scope and cost of electronic discovery.
McPeek v. Ashcroft,, 212 F.R.D. 33, 2003 U.S. Dist. LEXIS 172 (D.D.C. Jan. 9, 2003).
Court sets forth analysis for determination of when backup tapes must be searched for relevant evidence.
Court sets forth analysis for determination of when backup tapes must be searched for relevant evidence.
In re CI Host, Inc., 92 S.W.3d 514, 2002 Tex. LEXIS 189, 46 Tex. Sup. Ct. J. 199 (Tex. Nov. 21, 2002).
Party failed to meet burden to show why backup tapes should not be produced pursuant to Tex. R. Civ. P. 193.4(a).
Party failed to meet burden to show why backup tapes should not be produced pursuant to Tex. R. Civ. P. 193.4(a).
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 2002 U.S. App. LEXIS 20422, 53 Fed. R. Serv. 3d (Callaghan) 1105 (2d Cir. Conn. Sept. 26, 2002).
Sanctions for negligence in failing to produce electronic information, including information from backup tapes.
Sanctions for negligence in failing to produce electronic information, including information from backup tapes.
Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2002 U.S. Dist. LEXIS 8308; 53 Fed. R. Serv. 3d (Callaghan) 296, 2002-1 Trade Cas. (CCH) P73, 677 (S.D.N.Y. May 8, 2002).
Judge upholds earlier Rowe order shifting costs of tape restoration.
Judge upholds earlier Rowe order shifting costs of tape restoration.
Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2002 U.S. Dist. LEXIS 8308 (S.D.N.Y. May 8, 2002).
Court considers factors determining whether to shift costs of backup tape restoration to requesting party; determines requesting party should pay.
Court considers factors determining whether to shift costs of backup tape restoration to requesting party; determines requesting party should pay.
McPeek v. Ashcroft,, 202 F.R.D. 31, 2001 U.S. Dist. LEXIS 12061, 50 Fed. R. Serv. 3d (Callaghan) 528 (D.D.C. Aug. 1, 2001).
Court applies "marginal utility" analysis to question whether to order restoration of backup tapes; orders restoration of sample to inform further ruling.
Court applies "marginal utility" analysis to question whether to order restoration of backup tapes; orders restoration of sample to inform further ruling.
Kleiner v. Burns, 2000 U.S. Dist. LEXIS 21850, 48 Fed. R. Serv. 3d (Callaghan) 644 (D. Kan. Dec. 22, 2000).
Court granted motion to compel electronic data, including email, voicemail, web pages, and all other forms of electronic data in defendant's possession, including deleted emails and other information from backup tapes.
Court granted motion to compel electronic data, including email, voicemail, web pages, and all other forms of electronic data in defendant's possession, including deleted emails and other information from backup tapes.
Linnen v. A.H. Robins Co., 1999 Mass. Super. LEXIS 240, 10 Mass. L. Rep. 189 (Mass. Super. Ct. June 16, 1999).
Court acknowledges significant expense in restoring backup tapes, but orders restoration, reasoning that such is a risk undertaken by companies choosing electronic storage media.
Court acknowledges significant expense in restoring backup tapes, but orders restoration, reasoning that such is a risk undertaken by companies choosing electronic storage media.
Applied Telematics v. Sprint Communs. Co., L.P., 1996 U.S. Dist. LEXIS 14053 (E.D. Pa. Sept. 17, 1996).
Court allowed monetary sanctions for spoliation of evidence when backup information was destroyed during routine deletions of computer information. Court refused to allow adverse inference instruction, finding that plaintiff had not been sufficiently prejudiced to require such a ruling.
Court allowed monetary sanctions for spoliation of evidence when backup information was destroyed during routine deletions of computer information. Court refused to allow adverse inference instruction, finding that plaintiff had not been sufficiently prejudiced to require such a ruling.
Armstrong v. Executive Office of the President, Office of Admin., 303 U.S. App. D.C. 107, 1 F.3d 1274, 1993 U.S. App. LEXIS 20527 (Aug. 13, 1993).
Printouts of emails did not adequately preserve records under Federal Records Act because of loss of meta data. Damage of backup tapes during transfer to archive, and lack of stated intent to repair backup tapes, constituted civil contempt of court's order.
Printouts of emails did not adequately preserve records under Federal Records Act because of loss of meta data. Damage of backup tapes during transfer to archive, and lack of stated intent to repair backup tapes, constituted civil contempt of court's order.
