Analysis by Digital Discovery CLE Teaching Fellow Matt Delmero


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 D's 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.

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

P & G sued competitor and competitor's distributors for spreading rumors of P & G's 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 Defendant's database on issues concerning agency or control in general, but limited search so that it would not yield general commercial or competitive information.

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 Wyeth's destruction of emails. Refers to "inexcusable conduct" by Wyeth several times.

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.

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 attorney's 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.

Carlucci v. Piper Aircraft Corp 102 F.R.D. 472 (S.D. Fla., 1984)

Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998)

In re Prudential Insurance Co. Sales Practices Litigation

U.S. v. Lundwall 1 F. Supp. 2d 249 (S.D.N.Y., 1998)

Turner v. Hudson Transit Lines Inc



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

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

Grady, Patrick R. "Discovery of computer stored documents and computer based litigation support systems: Why give up more than necessary?" John Marshall Journal of Computer and Information Law 14 (Spring 1996), 523.

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