Analysis by Digital Discovery CLE Teaching Fellow Tom Brown


U.S. v. Koch Industries, Inc. 1998 WL 1744497, N.D.Okla., 1998. See also, U.S. ex rel. Koch v. Koch Industries, 197 F.R.D. 488 (N.D.Okla.,1999) (sanctions)

Detailed analysis and discussion of digital discovery issues and problems. Shareholders filed claim under False Claims Act, alleging that oil company understated quantity of oil produced from federal and Indian lands. Plaintiffs claimed that company thwarted discovery attempts by destroying backup tapes and files. Court found that Plaintiffs had failed to show that Defendant engaged in willful acts to thwart discovery, but the Defendant failed in its duty to preserve evidence that it should have known was relevant, and many files which should have been preserved were destroyed due to Dıs negligence. Court did not allow adverse inference instruction to jury, but did allow Plaintiffs to inform jury which tapes were destroyed and the impact of the destruction on their case.

Linnen v. Robins 1999 WL 462015, 10 Mass.L.Rptr. 189 (Mass Super. Court, 1999)

Fen-Phen litigation. Defendant Wyeth fails to preserve emails and then fails to turn over all emails and database info requested in discovery and subject to court order. This memo orders production of relevant emails by Wyeth and imposes costs of production on Wyeth. Also sanctions Wyeth and allows spoliation inference to jury for Wyethıs destruction of emails. Refers to ³inexcusable conduct² by Wyeth several times.

Procter & Gamble Co. v. Haugen 179 F.R.D. 622, D.Utah, 1998.

P & G sued competitor and competitorıs distributors for spreading rumors of P & Gıs Satanism, specifically alleging defamation, unfair competition, violations of Lanham act, Utah Truth in Advertising Act, etc. Judge Kimball dealt with various motions here, including sanctioning P&G for failing to preserve relevant emails, and allowed P&G to do a keyword search of Defendantıs database on issues concerning agency or control in general, but limited search so that it would not yield general commercial or competitive information.

Telecom Intern. America, Ltd. v. AT & T Corp. 189 F.R.D. 76, S.D.N.Y., 1999.

In discrimination claim, order sanctioning AT&T for failing to preserve records of long-distance calls in its database after specific discovery request had been made. Court ruled that specific request put AT&T on notice of relevance of records and thereafter, AT&T had a duty to preserve. Ordered further evidentiary hearing to determine whether inference of discrimination was appropriate given destruction of records.

Lexis-Nexis v. Beer 41 F.Supp.2d 950 (D.Minn., 1999)

Employer sued employee for misappropriation to trade secrets. Following temporary restraining order requiring employee to turn over copy of database he made when he resigned, employer moved for sanctions, claiming employee had destroyed critical parts of database to avoid discovery and in violation of TRO. Court found that sanction of drawing inferences against employee for missing info was not appropriate, but imposed monetary sanctions against employee for violating TRO.

Mathias v. Jacobs 197 F.R.D. 29, S.D.N.Y., 2000.

Spoliation of information in Palm Pilot. Court ruled that Plaintiff had duty to preserve info in Palm Pilot that she knew might be relevant. But info is still discoverable, albeit in a more difficult way, so does not warrant dismissing case of allowing adverse inference. However, monetary sanctions imposed from costs as a consequence of spoliation.

Danis v. USN Communications, Inc. 2000 WL 1694325, N.D.Ill., 2000.

Rather amusing memo and order describing an apparently ugly, mean-spirited discovery process. Ultimately court finds that Defendantıs failed to properly preserve information on their databases, but that Plaintiffs vastly overstated the significance of this. Allowed trial judge to inform jury that some gaps in Plaintiffıs case were caused by Defendantıs failure to turn over tapes and documents, fined officer of company for failing to properly preserve tapes and documents, but denied Plaintiffıs motion for default judgment.

Smith v. Texaco, Inc. 951 F.Supp. 109, E.D.Tex.,1997.

Employee sued employer on race discrimination claim. Judge had entered a TRO enjoining employer from removing certain records from the state or from deleting certain records. This order, in part, amends the TRO, allowing employer to delete or move certain records accumulated in the ordinary course of business, provided it makes database backups of all relevant material.

Crown Life Ins. Co. v. Craig 995 F.2d 1376, C.A.7 (Ill.),1993

Insurer brought action against agent, and agent counter-claimed against insurer, claiming he was owed commissions. Affirms trial courtıs decision to sanction insurer and enter default judgment against insurer when it failed on several occasions to comply with discovery order requesting raw data from database.

Gates Rubber Co. v. Bando Chemical Industries, Ltd. 167 F.R.D. 90, D.Colo., 1996.

Gates alleged chronic and continuous destruction of evidence and other violations. Court dismisses most of its claims, but does find that defendant destroyed word processing files that warranted sanction of ten percent of attorneyıs fees. The case has a long discussion of the elements of spoliation and the need for evidence of what was spoliated as a basis for drawing inference, and finds no spoliation.


Delaney, Timothy Q. "E-mail discovery: The duties, danger and expense." Federal Lawyer 46 (January 1999), 42.

Lacouture, Peter V. "Discovery and the use of computer-based information in litigation." Rhode Island Bar Journal 45 (December 1997), 9.

Aragon, Lawrence. "E-mail is not beyond the law." PC Week. 6 October 1997, 111. Advice on data preservation policies.

Ballon, Ian C. "Spoliation of e-mail evidence: Proposed intranet policies and a framework for analysis." Cyberspace Lawyer 4 (March 1999), 2.

Cotton, Christopher V. "Document retention programs for electronic records: Applying a reasonableness standard to the electronic era." Journal of Corporation Law 24 (Winter 1999), 417.

Ogg, Randell C. and Matthew P. Maloney. "Agressive pursuit of spoliation reaps rewards." Product Liability Law and Strategy 15 (January 1997), 4.

Ziegler, Richard F. and Seth A. Stuhl. "Spoliation issues arise in digital era." National Law Journal 20 (16 February 1998), B09;

The Linnen Story: Excerpt from Mundy, Alicia. "Dispensing with the Truth"