Gibbons Law Alert

Gibbons Law Alert

Tagged: Hard Drives

Play Nice or Pay the Price: Failing to Cooperate in Creating Preservation Protocols Can Result in Significant Consequences

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 20, 2012

The dual issues of over-preservation and proportionality took center stage in a recent Southern District of New York class and collective action litigation, leading to a Magistrate’s opinion in Pippins v. KPMG, No. 11-377 (S.D.N.Y. Oct. 7, 2011), and a District Court’s affirmance in Pippins v. KPMG, Civ. No. 11-377 (S.D.N.Y. Feb. 3, 2012), which are sending shock waves through the e-discovery community. The effect of those shock waves here is particularly acute for FLSA and other employment-related class action defendants where the targeted company often possesses and controls ESI pertaining to sometimes thousands of potential plaintiffs.

Hard Drive of a Key Non-Party Witness is Searchable in Response to Subpoena

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 28, 2012

A key non-party fact witness is fairly the target of a subpoena seeking production of ESI. In Wood v. Town of Warsaw, North Carolina, the United States District Court for the Eastern District of North Carolina held that ESI preserved on a former town manager’s personal computer must be made available for a search by a forensic expert in response to the Plaintiff’s subpoena.

Orbit One: Inadequate ESI Preservation Does Not Merit Sanctions Absent Evidence That Relevant Information Has Been Destroyed

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 14, 2011

Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010) represents a dichotomy in jurisprudence on ESI preservation efforts and the imposition of automatic sanctions. In Orbit One, Magistrate Judge James C. Francis, IV found that regardless of how inadequate a litigant’s preservation efforts may be, sanctions are not appropriate without proof that “information of significance” has been lost. The court determined that the threshold determination must be “whether any material that has been destroyed was likely relevant even for purposes of discovery.” In so holding, the court discussed and diverged from Judge Shira A. Scheindlin’s decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, which earlier held that sanctions may be warranted for inadequate preservation efforts even if no relevant evidence is lost. 685 F. Supp.2d 456, 465 (S.D.N.Y. 2010).

You Want Discovery of an Adversary’s Computer? Better Have a Good Reason.

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 24, 2011

That was the lesson of a recent case out of the New York State Supreme Court, Nassau County, where the court refused to order a forensic examination of a plaintiff’s personal computer hard drive. DeRiggi v. Krischen arose out of the death of a woman during a routine surgical procedure to treat lower back pain. Plaintiffs alleged that her death was the result of perforation of the left common iliac vein by a “Spine Jet HydroDisectomy” system utilized during the procedure. Plaintiffs further alleged, among other things, that the manufacturer of the system misrepresented the risks affiliated with its use, and one of the plaintiffs, the decedent’s husband, testified at deposition that he and his wife visited the manufacturer’s website prior to the surgery and read that the procedure “felt like a bee sting and nothing more.”

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