Our Insights on eDiscovery

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212. Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data. Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case. But, do you understand just how many groundbreaking opinions resulted from that case? For those who aren’t aware, let’s take a look back.

As noted in Law Technology News (N.Y. Appellate Division Continues to Press ‘Zubulake’ EDD Standard) recently, the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212 in two case rulings within a month’s time.

In Davids v. Novartis Pharm. Corp., No. CV06-0431, (E.D.N.Y. February 24, 2012), the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

In the case In re Delta/AirTran Baggage Fee Antitrust Litig., U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that Ramona Fricosu must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. Naturally, the defendant appealed. On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu’s case must first be resolved in District Court before her attorney can appeal. She would have been required to turn over the unencrypted contents of the drive as of March 1. However, at the last minute, Colorado federal authorities decrypted the laptop.