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who reasonably anticipates litigation should not destroy unique, relevant evidence, even if such evidence exists only on backup tapes, if that party can identify where the particular documents are stored on the backup tapes and such documents are not otherwise available elsewhere. Increasingly, this may be the exception that swallows the rule. Experts predict that technology will soon permit what Zubulake may then require – a search through any accessible backup tape, even if the search still consumes millions of dollars. As noted above, however, the new rule amendments seem not to include this prior common law exception to the general rule regarding inaccessible data, and it likely will not apply once the new rules take effect.

Thus, while the rules enunciated in Zubulake add needed clarity and define the parameters of cost-shifting, they also emphasize the need for efficient management of data before and during litigation to lower the costs that the producing party may not succeed in shifting under the Zubulake rules.

Finally, in Zubulake V, re-depositions of several key employees uncovered the fact that some of them had deleted e-mails relevant to the claims even after a litigation hold was in place. The plaintiff also discovered that some responsive documents were produced two years late because UBS’s counsel had never specifically asked for their production from certain key employees. Plaintiff moved for sanctions and an adverse inference instruction. Having concluded that relevant e-mails were deleted willfully, the court found the request warranted. First, the court allowed the jury to be given the following adverse inference instruction:

“If you find that UBS could have produced this evidence, and that the evidence was within its control, and that the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS.”

Second, UBS was ordered to pay the costs of any depositions or re-depositions required by the late production of relevant documents. Third, UBS was ordered to pay for the costs of the motion.

b. Toshiba

The recent Toshiba case15 has become a leading case on electronic discovery in California. Although the court’s opinion is based on the California Rules of Civil Procedure, many of the same issues regarding electronic discovery are present in the case.

In Toshiba, plaintiff, Lexar Media, Inc., sued Toshiba for misappropriation of trade secrets, breach of fiduciary duty, and unfair competition. Plaintiff served a request for production which included a request for all relevant e-mails or electronic information from the period 1994 to 2002. Toshiba produced 20,000 pages of documents from what it asserted as its “readily available” sources. However, it acknowledged that it had more than 800 backup tapes from the relevant time period which would be unduly burdensome and costly to restore since some of the tapes were now obsolete and some had deteriorated from age. Toshiba hired a consultant who concluded that a complete restoration, search and review of the backup data would cost between $1.5 and $1.9 million. A dispute then arose about which party should pay for restoration and production of the additional electronic data.


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