In the Southern District of New York it’s easy to get eclipsed (in the electronic discovery world at least) by the Honorable Shira A. Scheindlin (of Zubulake fame). And yet, the latest case out of this district was penned by Magistrate Judge William H. Pauley and contains one of the most memorable preambles to a case that I’ve read in a while:
“Electronic discovery requires litigants to scour disparate data storage mediums and formats for potentially relevant documents. That undertaking involves dueling considerations: thoroughness and cost. This motion illustrated the perils of failing to strike the proper balance.”
In Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010), aside from the stellar opening, Magistrate Pauley illustrates that the culpability standard for certain technology companies may actually be higher than for their low tech counterparts. The discovery dispute began after the plaintiffs claimed that the defendant Sandisk failed to produce their former laptops and corporate email. When the underlying action (for failure to pay the plaintiffs their “earn outs” after an acquisition) began to heat up the plaintiffs wisely sent Sandisk a preservation letter.
Sandisk, upon the receipt of the letter sent a “Do-Not-Destroy” memorandum as well as securing the laptops issued to plaintiffs. After some time, the laptops were imaged and the data was saved on a file server. Unfortunately, this is where things took a turn for the worse.
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Source: eDiscovery 2.0
By: Dean Gonsowski
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