HOT ISSUES

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

Original E-discovery Proposal Pushed in California   By a unanimous vote on April 25, 2008, the Judicial Council of California approved proposed legislation regarding civil discovery of "electronically stored information" which is likely to be enacted in the next few months. With minor exception, public comments and suggestions for improving the original version were rejected. Highlights of the proposed legislation include the following:

New Terms, e.g. a definition of the subject: “ 'Electronically stored information' means information that is stored in an electronic medium.”
Burden Objection. While California courts have long recognized objections to discovery based upon undue burden or oppression, the legislation adds a new rule relating to “electronically stored information” that allows an objection or protective order to oppose discovery of such information if the objecting party shows that it is “from a source that is not reasonably accessible because of undue burden or expense”. As with existing law, the objecting party bears the burden of proof of demonstrating inaccessibility due to undue burden.    C.C.P. §2031.310(d)
Good Cause. In California, a party seeking to compel production of any document or thing must show “good cause”. C.C.P. §2031.310(b). The proposed legislation adds a new  "good cause" requirement that permits a court to order production of “electronically stored information” that is “from a source that is not reasonably accessible” “if the court finds good cause for the production”. Proposed C.C.P. §2031.310(e).
Cost Shifting. California (1) recognizes cost shifting for discovery in general in approppriate circumstances like other jurisdictions and (2) has provided in §2031.280(b) of the Discover Act for over 20 years for cost shifting for production of electronic data. In one appellate case, the court held cost shifting to be mandatory if within that California statute. The proposed legislation adds a new section 2031.310(f) that allows the court, in its discretion [“may”], to allocate discovery expenses for “electronically stored information” that it has found to be “from a source that is not reasonably accessible because of undue burden or expense” if “the court finds good cause for the production.” Proposed §§2031.310(d)-(f).
Form of Production. A benefit of the proposed legislation is that it clarifies that a requesting party may, but is not required to, specify the form of production of “electronically stored information”.

Generally, the new terms and provisions are based on the discovery rule amendments to the F.R.C.P. effective in 2007 some of which are the subject of comments to those rules and/or have been interpreted by federal trial courts.  The proposal and a spreadsheet “summarizing all the comments and the committee's responses” covers 147 pages and was posted on April 18, 2008  at http://courtinfo.ca.gov/jc/documents/reports/042508item4.pdf.  The audiocast and agenda of the Judcial Council presentation and discussion may be found at http://www.courtinfo.ca.gov/jc/meetings.htm.

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

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

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

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

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

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

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

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

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

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

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

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

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

“Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources. (Docket # 97). Although Brennan evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than twelve months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit does not address what efforts, if any, were employed to search for such emails from accessible sources. Id. For example, Brennan's affidavit does not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.”
“As noted by this Court during oral argument, insufficient information had been presented at that time to determine the adequacy of defendants' search for the requested emails from accessible sources. Regrettably, the record is no more fully developed now than it was then. Although it is clear that some email communications have been turned over,FN2 the source or sources of those communications is not clear. For example, it is unknown whether those emails were recovered from existing hard drives, backup hard drives or traditional files used to maintain paper records. It is likewise unknown whether computer and/or paper files have been searched for all defendants, some of whom are no longer employed by the DEC, but some of whom are.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chronology

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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