Defense counsel was sanctioned by a federal court in Washington for bringing a motion to compel in bad faith, with the court finding that defense counsel’s citation of case law analyzing a prior version of the Federal Rules of Civil Procedure was “inexcusable.”
Production of documents in their “native file format” is gaining traction in litigation.
A federal court in Washington recently denied a motion to compel the production of archived emails stored on backup tapes, rejecting the plaintiffs argument that the defendants culpability in failing to preserve the emails in a more accessible format outweighed the burden and cost to the defendant of restoration.
With 4 million patient records exposed, this was the largest fine to date for breach of ePHI (electronic Protected Health Information) which included “demographic information, clinical information, health insurance information, patient names, addresses, credit card numbers and their expiration dates, and dates of birth.”
Even though “…Yandex retains more than 50 percent of the market for internet search, according to industry statistics”, Russia fined Google because “Google’s rivals had not been able to include their own offerings, like digital maps or search.”
Unsupported and Exaggerated Assertions Regarding the Burden of Production Will Not Persuade the Court
By now we’re all familiar with the language recently implemented in the Federal Rules of Civil Procedure, providing employers with some protection against unreasonable demands related to ESI: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
It’s hard not to feel a bit embarrassed for all the bloggers who await, and write about, nearly everything Magistrate Judge Andrew Peck (S.D.N.Y.) writes about the search for and production of electronically stored information (ESI).
The New York Times reported “at least 858 cancellations and 7,359 delays across the global industry on Monday morning” in less than 5 hours based on a power outage at 2:30am EDT.
Recently, two separate New York courts (the First Department and the Southern District) issued decisions imposing sanctions upon litigants who failed to comply with preservation obligations.
A federal court in Virginia recently granted a plaintiff’s motion to compel the defendant to search its computer systems for electronically stored information, rejecting the defendant’s argument that the requested ESI was “inaccessible” due to burden and cost and that the requested discovery was not proportional to the needs of the case.