ESI Case Law
Recent Case Law Citing ESI and Backup Tape Discovery

New rules and regulations, such as the Federal Rules of Civil Procedure (FRCP), focus on data that is burdensome to collect, including offline tape data, and instituting requirements to produce this content which in the past has been ignored.  In fact, recent court cases have validated the issue and imposed fines and penalties for those parties who have not effectively collected evidence from old archives.  See a list of representative cases below.

 

Goshawk LTD &  Kite LTD v. American Viatical Services LLC
(ND GA, December 8, 2009)

Index Engines cited as the technology used in the Search and ESI Retrieval Procedure to collect responsive ESI from  backup tapes.

 

Kilpatrick v. Breg, Inc., 2009
(S.D. Fla. June 22, 2009)

The court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes was not reasonably accessible.

 

Phillip M. Adams & Associates, L.L.C., v. Dell, Inc.
(D.Utah March 30, 2009)

Sanctions ordered for ESI spoliation because ASUS did not implement a litigation hold and start preserving email until start of the litigation even though there was a known issue.

 

Qualcomm Inc. v. Broadcom Corp.
(S.D. Cal. Jan. 7, 2008)

Plaintiff was ordered to pay $8.5 million in attorney fees and costs.

 

PML North America, LLC v. ACG Enterprises of NC, Inc.
(E.D. Mich. Jul. 26, 2007)

Company CEO added as a defendant to assume personal liability for electronic discovery abuses by his company.

 

United Medical Supply Co. v. United States
(Fed. Cl. June 27, 2007)

Finding of bad faith not prerequisite for imposing sanctions for spoliation.

 

Wachtel v. Health Net, Inc.
(D.N.J. June 19, 2007)

Discovery abuses resulted in $6.72 million in fees and costs.

 

In re September 11th Liability Insurance Coverage Cases 
(S.D.N.Y. June 18, 2007)

Sanctions totaling $1.25 million were imposed after a key document was eliminated.

 

Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc.
(D. Kan. Apr. 9, 2007)

Failed to provide an adequately prepared Rule 30(b)(6) witness. The CEO could not answer questions about servers and retention policies.

 

Exact Software North America, Inc. v. Infocon, Inc.
(N.D. Ohio Dec. 5, 2006)

“Defects" in key search words not a valid excuse for failing to respond to discovery.

 

Optowave Co. v. Nikitin
(M.D. Fla. Nov. 7, 2006)

Sanctioned defendant knowledgeable about computers but who allowed destruction of critical email.

 

Quintus Corp. v. Avaya, Inc. 
(Bankr. D. Del. Oct. 27, 2006)

$1.88 million judgment as a spoliation sanction

 

Oved & Associates Construction Services, Inc. v. Los Angeles County Metropolitan Transportation Authority
(Cal. App. Jun. 22, 2006)

Default judgments for $5.2 million and $978,958 against a party that destroyed the integrity of its financial data.

 

DaimlerChrysler Motors v. Bill Davis Racing, Inc.

(E.D. Mich. Dec. 22, 2005)

Failure to suspend normal procedures for destruction resulted in sanctions even though document destruction was negligent rather than willful.