Not Going Back

Calixto v. Watson Bowman Acme Corp.

Case: Calixto v. Watson Bowman Acme Corp., No. 07-60077, 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009).

Topic:  E-Discovery Limitations


Plaintiff entered into a licensing agreement with a subsidiary of a larger multi-national conglomerate. Another entity within the conglomerate allegedly infringed the agreement.  Because of the complexities of the conglomerate's corporate structure, the entity ultimately holding the original licensing agreement did not initially receive the plaintiff's communication regarding potential infringement.  As a result, discoverable email and other electronically stored data were destroyed as part of defendant's regular data maintenance program.  Plaintiff requested that the court order the defendant to recover the data off compressed back-up tapes and pay significant costs to do so.  The court refused.  It found that the plaintiff had not sufficiently demonstrated that the information which would be obtained was relevant and non-duplicative.  The court did order the restoration of a single back-up tape because it contained email of a former key corporate employee whose account was inadvertently destroyed after the start of litigation. However, the court refused to award spoliation sanctions because discovery revealed the destruction occurred as part of normal data maintenance practices-obviating any finding of bad faith.

BuLITS Points

  • Materials on backup tapes may be deemed not reasonably accessible due to undue burden and/or cost, but that burden must be proved with specific, concrete facts by the party asserting the burden.
  • To avoid spoliation sanctions, a company must be able to demonstrate that its actions were reasonable under the circumstances. Matter-of-fact explanations and detailed descriptions from legal and IT resources make the best evidence of reasonableness.
  • Typical company courses of conduct (such as procedures surrounding ESI maintenance or destruction) are most defensible when they are documented-and then systematically followed.

And Remember

E-discovery is still discovery.  Convince the court that it can reasonably anticipate the production of information that is both relevant and non-duplicative or it will mostly likely deny your request to compel production, regardless of what "medium" the information is in.

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