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Electronic Discovery
Case Law
Discovery of
Electronic Evidence Allowable
Adams v. Dan River Mills, Inc., 54 F.R.D. 220,
222 (W.D. Va. 1972)
Discovery of computer tapes is proper
Anti-Monoply, Inc. v. Hasbro, Inc., 94 Civ.2120,
1995 U.S. Dist. LEXIS 16355 (S.D.N.Y. 1995)
"today it is black letter law that computerized
data is discoverable if relevant."
Armstrong v. Executive Office of the President,
821 F. Supp. 761, 773 (D.D.C. 1993)
Armstrong v. Executive Office of the President,
1 F.3d 1274 (D.C. Cir. 1993)
Government email is covered as a record under
the Federal Records Act; electronic version of
email must be maintained and produced
Ball v. State of New York, 101 Misc. 2d 554, 421
N.Y.S. 2d 328 (Ct.Cl. 1979)
State had to produce information contained on
computer tape
Bills v. Kennecott, 108 F.R.D. 459, 462 (D. Utah
1985)
City of Cleveland v. Cleveland Electric
Illuminating Co., 538 F. Supp. 1257 (N.D. Ohio
1980)
Testifying expert's computer data and
calculations discoverable
Daewoo Electronics Co. v. United States, 650
F.Supp. 1003, 1006 (Ct.Int'l Trade 1986)
The normal and reasonable translation of
electronic data into a form usable by the
discovering party should be the ordinary and
foreseeable burden of a respondent in the
absence of a showing of extraordinary hardship.
Easley, McCaleb & Associates, Inc. v. Perry, No.
E-2663 (Ga. Super. Ct. July 13, 1994)
Plaintiff's expert allowed to recover deleted
files on defendant's hard drive
First Technology Safety Systems, inc. v. Depinet,
11 F. 3d 641 (6th Cir. 1993)
Trial court can issue ex parte electronic
evidence seizure order
Gates Rubber Co. v. Bando Chemical Industries,
Ltd, 167 F.R.D. 90, 112 (D. Colo. 1996)
Site inspection and evidence preservation order.
"Expert" criticized for procedures. A party has
"a duty to utilize the method which would yield
the most complete and accurate results."
In re BRAND NAME PRESCRIPTION DRUGS ANTITRUST
LITIGATION 1995 WL 360526 (N.D.Ill.)
"Nevertheless,
relevant case law instructs that the mere fact
that the production of computerized data will
result in a substantial expense is not a
sufficient justification for imposing the costs
of production on the requesting party. Rather,
in addition to considering whether the amount of
money involved in producing the discovery is
inordinate and excessive, the court may consider
factors such as whether the relative expense and
burden in obtaining the data would be greater to
the requesting party as compared to the
responding party, and whether the responding
party will benefit to some degree in producing
the data in question. See Bills v. Kennecott
Corp., 108 F.R.D. 459, 464 (D.Utah 1985)."
"On the other hand,
if a party chooses an electronic storage method,
the necessity for a retrieval program or method
is an ordinary and foreseeable risk. Faced with
considerations similar to the ones presently
confronting us, the United States Court of
International Trade remarked:
It would be a
dangerous development in the law if new
techniques for easing the use of information
became a hindrance to discovery or disclosure in
litigation. The use of excessive technical
distinctions is inconsistent with the guiding
principle that information which is stored,
used, or transmitted in new forms should be
available through discovery with the same
openness as traditional forms.
***
The normal and
reasonable translation of electronic data into a
form usable by the discovering party should be
the ordinary and foreseeable burden of a
respondent in the absence of a showing of
extraordinary hardship.
Daewoo Electronics
Co. v. United States, 650 F.Supp. 1003, 1006 (Ct.Int'l
Trade 1986).
Here, CIBA argues
that devising and paying for a retrieval program
is an extraordinary hardship which it should not
be forced to bear. While we agree that an
estimated retrieval cost of $50,000 to $70,000
is expensive, we do not believe that it is a
burden that the Class Plaintiffs should bear,
particularly where, as here, "the costliness of
the discovery procedure involved is ... a
product of the defendant's record-keeping scheme
over which the [plaintiffs have] no control."
Delozier, 109 F.R.D. at 164 (citing Kozlowski v.
Sears Roebuck & Co., 73 F.R.D. 73
(D.Mass.1976))."
Pearl Brewing Co. v. Joseph Schlitz Brewing Co.,
415 F. Supp. 1122 (S.D. Tex. 1976)
Entire system documentation required to be
produced
PHE, Inc. v. Department of Justice, 139 F.R.D.
249, 257 (D. D.C. 1991)
Objection to discovery being burdensome denied
Pink v. Oregon State Board of Higher Education,
816 F.2d 458 (C.A. 9, 1987)
tapes of faculty data were business records and
useful for statistical analysis by experts
Playboy Enterprises, inc. v. Terry Welles, 60 F.
Supp 2 1050; 1999 U.S. Dist. LEXIS 12895 (S.D.
Cal. 1999)
Court can appoint neutral expert to recover
deleted email
Quotron v. Automatic Data Processing Inc., 141
F.R.D.
Ex Parte order granted for conducting raid in
software piracy case
R.J. Reynolds, et al v. Minnesota, et al, U.S.
Court Docket number 95-1611, cert. Denied May
28, 1996
Reynolds compelled to turn over their litigation
support database
Santiago v. Miles, 121 F.R.D. 636, 640 (W.D.N.Y.
1998)
"A request for raw information in computer banks
is proper and the information is obtainable
under the discovery rules."
Seattle Audubon Society v. Lyons, 871 F. Supp.
1291 (W.D. Wash. 1994)
Simon Property Group v. mySimon, Inc., 2000 WL
963035 (S.D. Ind)
court ordered special master for electronic
discovery
Williams v. E.I. du Pont de Nemours and Co., 119
F.R.D. 648 (W.D. Ky. 1987
DuPont provided plaintiff with substantial
employment data. Plaintiff created a database
from the employment data. Court ruled that
plaintiff had to provide the database to DuPont.
Discovery of
Electronic Evidence Denied
Fennell v. First Step Design, Ltd, 83 F.3d 526
(1st Cir. 1996)
Plaintiff's electronic discovery request was
denied by Court, as plaintiff did not establish
a "particularized likelihood of discovering
appropriate information."
Hoffman v. United Telecommunications, Inc., 117
F.R.D. 436 (D. Kan 1987)
Work-product doctrine protected discovery of
computer file
IBM Peripherals EDP Devices Antitrust
Litigation, MDL #163-RM (ND Cal Feb. 10, 1975)
Work-product material not discoverable
International Business Machines v. Comdisco,
Inc., 91-C-67-194, 1992 Del. Super LEXIS 67 Mar
11, 1992
Email between client and attorney privileged
Lawyers Title Ins. Co. v. U.S.F. & G., 122 F.R.D.
567 (N.D.Cal. 1988)
Wholesale electronic discovery not allowed
unless shown that it would lead to material not
previously produced
Leeson v. State Farm Mutual Automobile Insurance
Company, 190 Ill. App. 3rd 359, 546 NW2d 782,
(1989, 1st Division)
production of overly burdensome electronic
discovery not required
Munoz-Santana v. U.S. Immigration and
Naturalizaton Service, 742 F.2d 561 (C.A. 9,
1984)
expensive and substantial improvements to
computer system necessary to retrieve data in
format requested by plaintiffs would not be
required
Strausser v. Yalamachi, 669 So.2d 1142, 1144-45
(Fla. App. 1996)
Discovery request denied. Court determined the
likelihood of recovering information was very
small. Further, the system contained
confidential patient records. The appeals court
ruled that the request was overbroad.
U.S. v. Kupka, 57 F.3d 1078 (C.A. 9, California
1995)
access to FBI computer system denied for failure
to show nexus with allegations
Sanctions for Failing
to Produce Electronic Evidence
ABC Home Health Services, Inc. v. International
Business Machines Corp., 158 F.R.D. 180 (S.D.
Ga. 1994)
Defendant sanctioned for failing to maintain
electronic evidence
American Banker Insurance Co. v. Caruth, 786
S.W. 2d 427 Texas Ct. App. 1990 & 430
Default judgment entered against defendant who
twice failed to produce electronic evidence
Computer Associates International v. American
Fundware, Inc., 133 F.R.D. (D. Colo. 1990)
Defendant sanctioned for failing to maintain
electronic evidence
Crown Life Insurance Company v. Kerry P. Craig,
US Court of Appeals, 7th Circuit #92-3180
Sanctions imposed for failing to produce
requested electronic evidence
Lauren Corp v. Century Geophysical Corp., 1998
Colo. App. LEXIS 12 (No. 96CA0554, Jan. 22,
1998)
Sanctions imposed for failing to preserve
requested electronic evidence
Linnen v. A.H. Robins Co. Inc., 10 Mass. L. Rptr.
189 (1999)
Sanctions imposed for failing to preserve
requested electronic evidence
National Association of Radiation Survivors v.
Turnage, 115 F.R.D. 543 (N.D. Cal. 1987)
Sanctions imposed for allowing alteration and
destruction of electronic evidence
Prudential Ins. Co. of America Sales Practices
Litigation, 169 F.R.D. 598 (1997)
Sanctions imposed for failing to preserve
requested electronic evidence
Shaw v. Hughes Aircraft, Orange County Superior
Court (1996)
Sanctions imposed for failing to preserve
requested electronic evidence
Wm. T. Thompson Co. v. General Nutrition Corp.,
593 F.Supp. 1443 (1984)
Sanctions imposed for failing to preserve
requested electronic evidence
Form of Electronic
Production
Adams v. Dan River Mill, Inc. 54 F.R.D. 220 (W.D.
Va. 1972)
computer file must be produced in addition to
the printout
Greyhound Computer Corp., Inc v. IBM 3 Computer
L. Serv. Rep. 138, 139 (D. Minn. 1971)
Material must be produced in a "reasonably
usable form"
In re Air Crash Disaster, 130 F.R.D. 634 (E.D.
Mich. 1989)
computer file must be produced in addition to
the printout
State of New York and UDC-Love Canal Inc. v.
Hooker Chemicals and Plastics Corp, Order,
CIV-79-990 (W.D.N.Y. Nov. 30, 1989)
Material must be produced in a "reasonably
usable form"
Minnesota v. Philip Morris Inc., No. CI-94-8565
(Dist. Ct. Minn.)
Printing out large amounts of data results in
receiving party spending considerable time
analyzing the information. Receiving the data in
electronic form allows the receiving party to
conduct necessary analysis
National Union Electric Corp. v. Matsushita
Electric Industrial Co., 494 F. Supp. 1257 (E.D.
1980)
Electronic evidence can be required to be
produced in electronic form
Williams v. Owens-Illinois, Inc., 665 F.2d 918
(C.A. 9, 1982)
defendant required to process computer runs
requested by plaintiff
Employee Email
Blakey v. Continental Airlines (2000) 751 A.2d
538 (NJ Sup. Ct.)
employer potentially liable for employee's
harassing email
Bourke v. Nissan Motor Corp., No. B068705 (Cal.
Ct. App. July 26, 1993)
Employees had no reasonable expectation of
privacy in their company email
Smyth v. Pillsbury Co., 1996 WL 32892 (E.D.Pa.
1/23/96 Weiner J.)
Employee had no reasonable expectation of
privacy in company email
Admissibility of
Electronic Evidence
7 ALR 4th 8, Admissibility of Computerized
Records
8 Federal Procedural forms Section 23:277
12 Federal Procedural Forms Section 45:122
16 AM JUR Proof of Facts Section 273
32B AM JUR 2nd Federal Rules of Evidence Section
235
Acierno v. New Castle County, 1997 U.S. Dist.
LEXIS 11437, Robinson, J. (D. Del. May 28, 1997)
Email admissible
Burleson v. Texas, 802 S.W.2d 329 (Tx. App. 2d
Dist. 1991)
computer generated report admissible
Casey v. Zeneca Inc., 1995 U.S. Dist. LEXIS
5656, Schwartz, J. (D. Del. Mar 31, 1995)
Email admissible
Hahnemann University Hospital v. Dudnick, 292
N.J. Super. 11 (App. Div. 1996)
electronic evidence is generally reliable
Harley v. McCoach, 928 F.Supp. 533 (E.D. Pa.
1996)
Email admissible
Knox v. State of Indiana, 93 F. 3d 1327 (7th
Cir. 1996)
Email admissible
Mesquite v. Moore, (1990 Texas App. Dallas) 800
SW2nd 617
ordinary evidentiary rules apply to electronic
evidence
The Monotype Corporation, PLC v. International
Typeface Corp., 41 F.R. Evid Serv. 86 (9th Cir.
1994)
Email message of non-party inadmissible- not a
business record (Federal Rule 803(6))
National Union Electric Corp. v. Matsushita
Electric industries Co., 494 F. Supp. 1257
copying a computer disk is equivalent to
photocopying a paper document
N.C. Electric Membership Corp. v. CP&L Co. 110
F.R.D. 511, 517 (M.D.N.C. 1986)
internal, non-legal, business email not
privileged
Parsons v. Jefferson Pilot Corp., 141 F.R.D. 408
(M.D.N.C. 1992)
privilege lost when email shared via the
Internet with a third party
People v. Holuwko, 109 Ill.2d 187, 486 N.E.2d
877 (1985)
computer printouts of telephone traces not
hearsay; admissible
Quality Auto Serv. V. Fiesta Lincoln-Mercury
Dodge, Inc., No. 04-96-00967-CV, 1997 WL 563176
(Tex. App. Sept. 10, 1997)
Computer generated compilations of invoices
qualify as business records
Somerset Pharmaceuticals, Inc. v. Shalala, 1997
U.S. Dist. LEXIS 11461, Robinson, J. (D. Del.
June 13, 1997)
Email admissible
Stender v. Lucky Stores, Inc., 803 F. Supp. 259
(D.C. N.D., California 1992)
tapes from computerized payroll system
considered to be authentic business records for
expert to analyze
Wesley College v. Pitts, 874 F. Supp. 375 (D.
Del. 1997)
Email admissible
U.S. v. Catabran, 836 F.2d 453 (9th Cir. 1988)
Printouts from accounting software qualify as
business records
U.S. v. Kim, 595 F.2d 755 (D.C. Cir. 1979)
"critical factor in determining whether the
document satisfied the 'business purpose'
requirement lies in the reason that the message
was prepared and sent, not the means by which it
was transmitted."
Costs
In re BRAND NAME PRESCRIPTION DRUGS ANTITRUST
LITIGATION 1995 WL 360526 (N.D.Ill.)
See "Discovery of Electronic Evidence Allowable"
section
Penk v. Oregon State Board of Education, 99
F.R.D. 504, 505 (D. Or. 1982)
Both sides share cost of updating database for
trial
Miscellaneous
Alexander v. Federal Bureau of Investigation,
188 F.R.D. 111, 117 (1998 D.C. Cir.)
Examination of a single computer hard drive
would take approximately 265 hours (note: based
on outdated analysis methods and well inflated)
Douglas v. Glacier State Telephone Company, 615
P.2d 580 (Alaska, 1980)
where computerized records existed, court
refused to require cumbersome production of
underlying records
Illinois Tool Works, Inc. v. Metro Mark
Products, Ltd, 43 F.Supp.2d 951, 954 (E.D. Ill
1999)
parties should stipulate to preservation of
evidence
Public Citizen Inc. v. Carlin, No. 96-2840 (PLF)
(D. D.C. Oct 22, 1997)
"Simply put, electronic communications are
rarely identical to their paper counterparts;
they are records unique and distinct from
printed versions of the same records."
U.S. v. International Business Machines Corp.,
76 F.R.D. 97 (S.D.N.Y. 1977)
Judge appointed expert to ensure IBM complied
with electronic discovery
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