In this breach of contract litigation, the plaintiff moved to compel restoration and production of e-mails contained on backup tapes at the defendant's expense and to comply with the terms of a non-executed e-discovery stipulation regarding search terms. The defendant's e-mails were stored on backup tapes pursuant to an internal data retention policy. The court denied the plaintiff's motion to compel backup tape restoration and to shift costs to the defendant, finding that data stored on backup tapes are not necessarily non-reasonably accessible and that the defendant had not adequately demonstrated that the e-mails were not reasonably accessible. However, the court was not convinced that relevant data would be retrieved from restoration of the backup tapes. Accordingly, the court ordered production from the defendant's active data stores in order to assess the likelihood of finding relevant data on the backup tapes, noting that it found no impropriety in the defendant's data retention policy. Turning to the search term dispute, the court declined to resolve the issue as it had not been adequately informed about the dispute and lacked a sufficient basis to resolve the parties' impasse. The court noted the search term dispute may best be resolved by "a neutral third party with recognized expertise in searching complex databases." 



In this ongoing trade secrets misappropriation litigation, the plaintiff sought forensic images of the defendant's drives and computers as well as forensic searches of its database and e-mail servers. The defendant argued that its servers were too fragile for forensic images and that imaging constituted an undue burden. The defendant also objected to the forensic search of its servers, claiming it may reveal information that the defendant is obliged by contract to keep confidential. Disregarding the defendant's arguments, the court granted the plaintiff's request for forensic imaging, finding the imaging would not stress the servers any more than day-to-day use. The court also ordered the forensic search of the defendant's servers, stating that no alternative way existed and that any confidential material could be safeguarded by a protective order. Regarding the e-mail servers, the court determined insufficient authority existed to conclude ESI deficiency allegations automatically warranted forensic searches. The court reserved decision on whether forensic examination was appropriate until the plaintiff's expert's report was submitted. The court also ordered a comparison between servers to determine what data existed on non-operational servers that did not exist on the remaining operational one.





In this constructive transfer and fraud case, the plaintiff sought sanctions in the form of a default judgment against the defendant for discovery abuses. The plaintiff asserted that the defendant repeatedly defied court orders, unilaterally narrowed the scope of restoration and production of court-ordered backup tapes, unilaterally redacted court-ordered produced documents to the point that such documents became unusable and misrepresented to the court the likely relevance of e-mails sought. The defendants maintained that their redactions were in compliance with the court's orders and insisted that the broad discovery requested by the plaintiff would likely be fruitless. The court agreed with the plaintiffs that the defendant had blatantly disregarded court orders by making misrepresentations during discovery and stated it was deeply disturbed by the defendant's discovery conduct in what it regarded as "a textbook case of discovery abuse." However, the court declined to order default sanctions, citing novel issues of liability and noting that granting a default judgment in this case might be a grant of the largest default judgment sought in United States history. The court alternatively awarded $1,022,700 in monetary sanctions against the defendant to be paid to the plaintiff.    


 

In this civil rights action, both parties filed a "slew of pretrial motions." The defendants argued the court should bar the plaintiffs' expert from testifying unless discovery was re-opened. The plaintiffs requested an examination of the defendants' computer system by their expert to determine if any deleted ESI was backed up. The plaintiffs also sought default judgment sanctions based on the defendants' destruction of an audio recording, failure to preserve data on computers and hard drives, and failure to back up relevant ESI. Addressing the defendants' motion, the court found the defendants' discovery failures and withdrawn expert statement that certain hard drives were not wiped clean necessitated testimony from the plaintiffs' expert, and thus allowed a short deposition from the plaintiffs' expert at cost to the defendants as a "fair discovery sanction for defendants' failure to follow the rules." Turning to the plaintiffs' motions, the court denied the examination request as expensive and futile. Regarding sanctions, the court rejected the defendants' arguments that evidence erasure was inadvertent and found the defendants breached their preservation obligations. The court determined an adverse inference sanction was appropriate, using the plaintiffs' expert's identification of e-mail chains suggesting relevant documents were destroyed accidentally or intentionally as partial justification.