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Electronic Discovery Case Law

(Note: confirm all citations- do not rely on this document)

 If you are aware of citations that are not included below, please email them to us for inclusion

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 (6^th 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 (1^st 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. 3^rd 359, 546 NW2d 782, (1989, 1^st 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, 7^th 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 4^th 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 2^nd 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 (7^th 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 (9^th 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 (9^th 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."

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