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CMU ISR 08732 - Electronic_Discovery_2004

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A Practical Introduction to Electronic Discovery aka e-data discovery; digital discovery; computer discovery How to discover what you cannot see Hazards of electronic discovery.....................................................................................................................................1 Invisible data can be seen..............................................................................................................................................2 How do we find e-data?.................................................................................................................................................5 The duty to preserve invisible data................................................................................................................................6 Should e-discovery be permitted?..................................................................................................................................8 How to acquire and deliver e-data.................................................................................................................................9 A party’s business technology policy does not establish a litigation standard ............................................................10 . . . as to data retention and preservation: ................................................................................................................10 . . . as to data retrieval:.............................................................................................................................................11 Who bears the cost of e-data discovery? .....................................................................................................................13 Practice tips .................................................................................................................................................................14 Utah e-data cases.........................................................................................................................................................15 Resources.....................................................................................................................................................................15 David Nuffer U.S. Magistrate Judge Utah State Bar March 2004 St. George, UtahPage 1 Hazards of electronic discovery Danis v. USN Communications, 2000 WL 1694325 (N. D. Ill.). An exhaustive opinion scorches counsel for both parties engaged in a major discovery dispute: Sorting out what happened here has been a challenging task not only due the complexity of some of the issues presented, but -- regrettably -- due to assertions of counsel that often have confused [rather] than clarified the issues. On a number of occasions, plaintiffs have asserted that certain documents were not produced, when in fact it later turned out that the documents long ago had been produced. Conversely, defendants have on occasion informed the Court that they have produced certain documents, when in fact it turned out that they had not. Moreover, throughout these proceedings, the submissions by the lawyers too often have offered overblown rhetoric rather than accurate information and careful reasoning. In the Court's judgment, there are several reasons why-- despite the high level of experience and quality of the attorneys -- this has occurred. [***] As a result, both sides were the losers. They lavished huge sums of time and money on an issue that did not remotely justify the expenditure, and which would have been more profitably spent focusing on the merits of this case. [***] 5. The Court recommends that no attorneys' fees and costs be assessed in connection with the prosecution or defense of this motion. Plaintiffs claim that their fees and costs on the sanctions issue total $757,559.61, and (not to be outdone) the individual defendants assess their fees and costs at $767,202.42. Viewed separately, not to mention collectively, these statements of fees and costs are nothing short of shocking: they are wholly disproportionate to what the evidence has disclosed. Because the conduct of each side has contributed to an excessive expenditure of fees and costs, the Court considers the fees and costs incurred to be a self-inflicted wound by each side, and that neither side should be forced to pay the costs and fees of the other side. Gates Rubber v. Bando Chemical Industries, 167 F.R.D. 90 (D. Colo. 1996). A bitter trade secret case morphed into a data discovery disaster: The sanctions hearing itself consumed a total of six weeks of evidence and testimony, and the hearing was conducted in several sections over a period of a year. I viewed countless hours of segments of video deposition testimony, covering approximately 20 witnesses; I listened to testimony from 20 witnesses who were called to court to testify live; and I received thousands of pages of pleadings, exhibits, documents and deposition excerpts. These materials were presented to me in 3-ring binder notebooks, and by the conclusion of the sanctions hearing I had received 50 of them. As of the time of the writing of this order, there are over 1,500 docket entries in the clerk's office, the vast majority of the entries relating to the sanctions proceedings. [***] The lawyers for Gates have delayed this case for the better part of three and one-half years over an exaggerated concern with minutiae. They had little idea what they were looking for during the site inspection. They copied very little of the type of materials which they now complain were destroyed by the defendants. They admit that they have not examined any of the large quantity of boxes of documents which they did copy and preserve. In fact, the lawyers for Gates have argued vociferously that they have not yet even started discovery on the merits of this controversy. Harm from the alleged destruction of documents must be measured in light of what is produced, as well as what is not produced. Capellupo v. FMC Corp., 126 F.R.D. at 553. Gates has no idea what has been produced. GTFM v. Wal-Mart Stores, 2000 WL 335558 (S.D. N.Y.). Defendant’s counsel provided inaccurate information to the plaintiffs about computer records early in discovery, and discoverable computer records were later destroyed. Therefore, defendant is ordered to pay all plaintiffs' expenses and legal fees unnecessarily


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CMU ISR 08732 - Electronic_Discovery_2004

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