Gathering digital data: understanding the defendant's computer system and sending clear instructions for preservation can help you get the electronic evidence you need.
'As individuals and corporations increasingly do business electronically--using computers to create and store documents, make deals, and exchange e-mails--the universe of discoverable material has expanded exponentially ex·po·nen·tial
1. Of or relating to an exponent.
a. Containing, involving, or expressed as an exponent.
b. ," stated the U.S. District Court for the Southern District of New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of in one of a series of important decisions regarding electronic evidence in Zubulake v. UBS UBS Union Bank of Switzerland
UBS United Bible Societies
UBS United Blood Services
UBS United Buying Service
UBS Used Bookstore
UBS University Business Services
UBS Universal Building Society (UK)
UBS Ulaanbaatar Broadcasting System Warburg LLC (Logical Link Control) See "LANs" under data link protocol.
LLC - Logical Link Control . (1) Today's breadth of discoverable material, even in cases of modest complexity, makes it more difficult for plaintiff counsel first to ensure that defendants preserve evidence and then to review voluminous discovery responses.
To conduct discovery effectively in the age of digital evidence, you must understand the law applicable to preservation obligations, the defendant's computer and storage system, and what to include in initial communications with the defense requesting preservation of electronic documents.
The discovery rules that apply to paper documents apply equally to electronic evidence. It is well accepted that parties have preservation obligations:
* Independent of a court order, "a litigant litigant n. any party to a lawsuit. This means plaintiff, defendant, petitioner, respondent, cross-complainant, and cross-defendant, but not a witness or attorney.
LITIGANT. One engaged in a suit; one fond of litigation. is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action." (2)
* "While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duly to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence admissible evidence n. evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay , is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request." (3)
* "[A] party is on notice [of a duty to preserve relevant evidence] when it receives a complaint and/or a discovery request." (4) Further, "given notice and understanding of the obligations to preserve all discoverable hard copy and electronic data, one would expect that [the defendant's] next step would have been to implement a comprehensive written document preservation plan with specific criteria for finding and securing ... relevant evidence for the litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. ." (5)
The laws and rules prohibiting the destruction of discoverable material apply to electronic data. (6) Indeed, the obligation to preserve electronic documents is greater:
[I]n the world of electronic data, the preservation obligation is not limited simply to avoiding affirmative acts of destruction. Since computer systems generally have automatic deletion features that periodically purge electronic documents such as email, it is necessary for a party facing litigation to take active steps to halt that process. (7)
You must convey these obligations early to defense counsel to ensure that electronic evidence is preserved properly and to make known your own command of information technology and the law of electronic discovery.
When electronic evidence will be an integral part of the litigation, you should gather information about the defendant's computer and storage systems as soon as possible. Seek this information at the initial Rule 26(f) "meet and confer meet and confer n. a requirement of courts that before certain types of motions and/or petitions will be heard by the judge, the lawyers (and sometimes their clients) must "meet and confer" to try to resolve the matter or at least determine the points of conflict. " session, where you and your opponent will develop a discovery plan. This knowledge will allow you to more fully articulate your discovery needs, make intelligent production requests, and help fashion a discovery schedule. It may also be the basis for a request to take more depositions than the 10 allowed by Rule 30.
Argue that defense counsel should provide this information informally; this will give the court an opportunity to streamline the litigation and avoid wasting resources on needless discovery disputes, which can be costly for the defendant. If informal production is not possible for whatever reason, consider deposing the defendant's employee most knowledgeable about its information technology process.
Regardless of how the information is gathered, you need to know
* the identity of all company departments, employees, and outside consultants who had responsibility for the maintenance, expansion, or upkeep of the defendant's computer systems and network
* the defendant's policies and practices concerning the management, backup, deletion deletion /de·le·tion/ (de-le´shun) in genetics, loss of genetic material from a chromosome.
Loss, as from mutation, of one or more nucleotides from a chromosome. , and preservation of electronic data
* the steps taken to identify and preserve any electronic data in connection with the litigation, including communications to the defendant's employees, agents, consultants, and contractors concerning preservation of such data
* the defendant's policies concerning the oil:site use of electronic data by its employees, agents, consultants, and contractors, including policies relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc telecommuting telecommuting, an arrangement by which people work at home using a computer and telephone, transmitting work material to a business office by means of a modem and telephone lines; it is also known as telework. or laptop usage, and the preservation and deletion of data
* the defendant's policies concerning employees' use of e-mail, including but not limited to its management, preservation, and deletion
* any preservation or destruction of electronic media, including the "routine" destruction of replaced computer memories, hard drives, and laptops, and any steps the defendant took to ensure that electronic data was not lost or overwritten or was otherwise protected.
Under proposed changes to Rule 26 (see sidebar (1) A Windows Vista desktop panel that holds mini applications (gadgets) such as a calendar, calculator, stock ticker and Vonage phone dialer. It is the Windows counterpart to the Dashboard in the Mac. See Windows Vista and gadget. on page 22), the parties would be specifically required to discuss "any issues relating to disclosures or discovery of electronically stored information, including the form in which it should be produced" and "whether, on agreement of the parties, the court should enter an order protecting the right to assert privileges alter production of privileged information." (8)
This new requirement dovetails nicely with plaintiff counsel's request for information about the defendant's computer and storage system.
The preservation letter
To ensure that the defendant is aware of its obligations to preserve electronic evidence--and to establish a solid basis for spoliation Any erasure, interlineation, or other alteration made to Commercial Paper, such as a check or promissory note, by an individual who is not acting pursuant to the consent of the parties who have an interest in such instrument. claims and requests for adverse-inference instructions should the defendant fail to do so (9)--you should send a letter to defense counsel insisting on certain safeguards. In complex litigation, the parties may negotiate and draft stipulated protective orders that incorporate many of the points outlined in the initial letter.
Send the preservation letter as soon as your client is ready to notify the defendant that he or she has hired you to pursue a claim. Request that defense counsel send a copy of the letter to everyone whose job responsibilities cover the matters addressed.
Sending a comprehensive preservation letter to defense counsel gives you tactical as well as procedural advantages. It sets the appropriate tone at the outset of litigation, clearly demonstrating that you understand the technical issues involved in the case.
A well-drafted preservation letter signals a well-informed, aggressive adversary adversary
traditional appellation of Satan [O.T.: Job 1:6; N.T.: I Peter 5:8]
See : Devil who will not let the defendant "hide the ball." Establishing this credibility up front can encourage early settlement or reasonable concessions in later discovery disputes.
The letter should cover the following points:
* Electronic data to be preserved. The defendant and its subsidiaries, divisions, agents, and employees should preserve electronic mail (including message contents, header information, and logs of e-mail system usage); data in the information management system, containing the indexes of all databases; the databases themselves, including all records and field and structural information in them; logs of activity on any computer system that may have processed or stored electronic data containing litigation information; word-processing files and file fragments; data created by financial, accounting, billing, and spreadsheet programs; files and file fragments from electronic calendars and scheduling programs; and all other electronic data containing information about the litigation.
* Online data storage. The defendant should not modify or delete any pertinent information stored online--generally, "live" data that is actively in use--and in direct-access storage devices (hardware) Direct-Access Storage Device - (DASD) IBM mainframe terminology for a disk drive, in contrast with a tape drive which is a sequential access device. , that is, those attached to its mainframe and minicomputer (1) An earlier medium-scale, centralized computer that functioned as a multiuser system for up to several hundred users. The minicomputer industry was launched in 1959 after Digital Equipment Corporation introduced its PDP-1 for $120,000, an unheard-of low price for a computer in hard drives, personal computers (PCs), and laptops. If the files must be altered, a true and correct copy of each data file pertinent to the litigation should be made, and the copy should be preserved and made accessible.
* Off-line data storage. The defendant should stop any activity that may result in the loss of pertinent data from "off-line," or removable, data storage--such as backups and archives, floppy diskettes, zip drives See Zip disk.
(hardware, storage) Zip Drive - A disk drive from Iomega Corporation which takes removable 100 megabyte hard disks. Both internal and external drives are manufactured, making the drive suitable for backup, mass storage or for moving files between computers. and zip files (1) A file that contains one or more files that have been compressed into the ZIP format. Also called a "ZIP archive," "zipped file" or "zipped archive," the ZIP algorithm is the most popular compression method in use.
Not Just the . , optical disks, tapes, compact disks or diskettes, laptops, handheld devices, disconnected hard drives, and other removable electronic media. The defendant should not perform rotation, destruction, overwriting Overwriting
An options strategy that involves the sale of call or put options on stocks that are believed to be overpriced or underpriced. The options are not expected to be exercised.
Also referred to as overriding. , or erasure ERASURE, contracts, evidence. The obliteration of a writing; it will render it void or not under the same circumstances as an interlineation. (q.v.) Vide 5 Pet. S. C. R. 560; 11 Co. 88; 4 Cruise, Dig. 368; 13 Vin. Ab. 41; Fitzg. 207; 5 Bing. R. 183; 3 C. & P. 65; 2 Wend. R. 555; 11 Conn. of these media, nor should it dispose of any electronic data storage devices or media that failed or had to be replaced for other reasons.
* Fixed drives. If pertinent information is on the "fixed" (or hard) drives of stand-alone PCs A desktop or laptop computer that is not permanently connected to a local area network (LAN) or a wide area network (WAN). Throughout the 1990s, millions of stand-alone PCs were networked in offices, but it is no longer uncommon to find computers networked in the home so that family and network workstations, the defendant should not alter or erase data or perform other procedures (such as data compression data compression
Process of reducing the amount of data needed for storage or transmission of a given piece of information (text, graphics, video, sound, etc.), typically by use of encoding techniques. , disk refragmentation, or optimization routines) without creating and preserving true and correct copies of active files. The defendant should also save true and correct copies of completely restored versions of deleted electronic files and file fragments, as well as directory and subdirectory A disk directory that is subordinate to (below) another directory. Also called a "subfolder." In order to gain access to a subdirectory, the path must include all directories above it. See path. lists, including hidden files.
* Programs and utilities. The defendant should preserve copies of all application programs and utilities that process pertinent information.
* Logs of system modifications. The defendant should keep an activity log that documents modifications made by employees--as well as contractors, vendors, and any other third parties--to any electronic data-processing system that may affect the system's capability to process data pertinent to the litigation. In the course of business processing, systems are routinely edited for proper business purposes. Keeping a log of modifications prevents a defendant from being hamstrung ham·string
1. Any of the tendons at the rear hollow of the human knee.
2. or hamstrings The hamstring muscle.
3. The large tendon in the back of the hock of a quadruped.
tr.v. by preservation obligations--and also provides evidence to the requesting party of how to access pertinent data.
* Evidence created later. The defendant should take appropriate steps to avoid destruction of evidence created after the preservation letter is received.
Requests for production
Once you have determined where electronic evidence might be found, you should use a broad definition of "documents" in your requests for production to explicitly include those that are stored electronically.
If your opponent objects when you request electronic documents, ask defense counsel to clarify the specific bases for the objection. For example, an objection based on overbreadth must substantiate To establish the existence or truth of a particular fact through the use of competent evidence; to verify.
For example, an Eyewitness might be called by a party to a lawsuit to substantiate that party's testimony. that claim, unless the request "appears overly broad on its face. (10) The defendant must demonstrate that the time or expense involved in responding to the request would be unduly burdensome. (11)
A party opposing discovery on the grounds of undue burden must "provide sufficient detail and explanation about the nature of the burden in terms of time, money, and procedure, which would be required to produce the requested documents." (12) This information enables the court to "balance the burden on the interrogated party against the benefit to the discovering party of having the information." (13) Discovery should be allowed unless the hardship is unreasonable in the light of the benefits to be secured from the discovery." (14)
Here is where discovery costs come into play:
The presumption is that the responding party must bear the expense of complying with discovery requests, but [that party] may invoke the district court's discretion under Rule 26(c) to grant orders protecting [it] from 'undue burden or expense' in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery. (15)
Applying these discovery rules "is particularly complicated where electronic data is sought because otherwise discoverable evidence is often only available from expensive-to-restore backup media." (16) To determine whether the normal discovery rules apply, the court must assess whether the requested data is "accessible" or "inaccessible inaccessible Surgery adjective Unreachable; referring to a lesion that unmanageable by standard surgical techniques–eg, lesions deep in the brain or adjacent to vital structures–ie, not accessible. See Accessible. ."
The cost-shifting analysis
In Zubulake, the court set forth a seven-factor test for discovery cost-shifting. The plaintiff-employee had requested relevant electronic documents, including e-mails that had been deleted and resided only on backup disks A disk used to hold duplicate copies of important files. A variety of removable media are used for backup, including floppy, Zip and Jaz disks, CD-Rs, CD-RWs and DVD-RAMs. See backup. . In a series of published opinions, the Zubulake court dealt with the associated discovery disputes. It defined "accessible" and "inaccessible" data, stating that "in the world of electronic data, thanks to search engines, any data that is retained in a machine-readable format is typically accessible" and "whether electronic data is accessible or inaccessible turns largely on the media on which it is stored." (17)
The court explained that "information deemed 'accessible' is stored in a readily usable format." (18) It stated that regardless of whether "the time it takes to actually access the data ranges from milliseconds to days, [accessible] data does not need to be restored or otherwise manipulated to be usable." (19) Examples of "accessible" data include "active, online data" (such as hard drives), "near-line data" (stored on-site on removable media In computer storage, removable media refers to storage media which can be removed from its reader device, conferring portability on the data it carries. A removable drive is a reader device for such media. like diskettes, magnetic tape, and CDs), and "off-line storage/archives" (stored off-site on removable media) (20)
"'Inaccessible' data, on the other hand, is not readily usable," the court said. (21) Examples are "backup tapes See tape backup. ," which may require a specialized tape reader to retrieve the data, and "erased e·rase
tr.v. e·rased, e·ras·ing, e·ras·es
a. To remove (something written, for example) by rubbing, wiping, or scraping.
b. , fragmented, or damaged data" that "can only be accessed "after significant processing." (22)
The Zubulake court concluded that for "data that is kept in an accessible fop mat, the usual rules of discovery apply" and "the responding party should pay the costs of producing responsive data. A court should consider cost-shifting only when electronic data is relatively inaccessible, such as in backup tapes." (23)
After Zubulake, you may find yourself saddled with substantial discovery costs if the information you seek is deemed to be "inaccessible." To avoid such costs, carefully draft discovery requests that comport See COM port. with the court's seven-factor cost-shifting test.
The test considered:
1. The extent to which the discovery request is specifically tailored to discover relevant information.
2. The availability of such information from other sources.
3. The total cost of production compared to the amount in controversy.
4. The total cost of production compared to the resources available to each party.
5. The relative ability of each party to control costs, and its incentive to do so.
6. The importance of the issues at stake in the litigation.
7. The relative benefits to the parties of obtaining the information." (24)
The Zubulake court posed the central question this way: "[D]oes the request impose an 'undue burden or expense' on the responding parties? Put another way, How important is the sought-after evidence in comparison to the cost of production?" (25) The seven-factor test, it said, provides guidance in answering these questions but cannot be mechanically applied. It urged judges to weigh the factors according to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. their importance.
The court noted that the first two factors are the most important--comprising a "marginal utility marginal utility
In economics, the additional satisfaction or benefit (utility) that a consumer derives from buying an additional unit of a commodity or service. The law of diminishing utility implies that utility or benefit is inversely related to the number of units " test:
The more likely it is that the backup tape contains information that is relevant to a claim or defense, the fairer it is that the [responding party] search at its own expense. The less likely it is, the more unjust it would be to make the [responding party] search at its own expense. (26)
Likewise, if the information is within the custody and control of the responding party and not available from other sources, the fairer it is to make the responding party search at its own expense.
Factors three to five, addressing how expensive the production will be and who can handle the expense, rank next in importance, according to the Zubulake court.
The sixth factor--the importance of the litigation itself--"stands alone" and is rarely relevant, the court said. "But where it does [come into play], this factor has the potential to predominate over the others." (27)
The court said the last factor--the relative benefits to the requesting and producing parties--is the "least important because it is fair to presume pre·sume
v. pre·sumed, pre·sum·ing, pre·sumes
1. To take for granted as being true in the absence of proof to the contrary: We presumed she was innocent. that the response to the discovery request generally benefits the requesting party." (28)
As a practical matter, the court suggested that judges require the responding party to produce a small sample of electronic documents as a factual basis to which the judge will apply the seven-factor analysis.
The state appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. in Toshiba America Electronic Components, Inc. v. Superior Court of Santa Clara County The Superior Court of Santa Clara County is the Superior Court located in Santa Clara County. Judges
The current judges are:
The statute--California Code of Civil Procedure [section] 2031 (g)(1)--states that "the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form." The parties agreed that the backup tapes were "data compilations" but debated whether the phrase "at the reasonable expense of the demanding party" was a mandatory cost-shifting provision. (30)
Applying well-established rules of statutory construction and rejecting the plaintiff's reliance on federal jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. , including Zubulake, the court ruled that [section] 2031 (g) (1) was "unequivocal," requiring the demanding party to pay for the costs of recovery. It stated that while the cost-shifting provision of the section "conflicts with the federal rule," the section is "a legislatively determined exception to the general rule that the responding party should bear the cost of responding to discovery." (31)
The court, however, stated that its conclusion did not mean that the demanding party "must always pay" all the costs associated with retrieving usable data from backup tapes: "Section 2031 (g) (1) is clear that the demanding party is expected to pay only its reasonable expense for a necessary translation. Reasonableness and necessity are purely factual issues (undoubtedly there are others), which, when disputed, are properly submitted to the discretion of the trial court." (32)
Litigants in state court, therefore, need to be aware of any potential cost-shifting state statutes that are contrary to the rules articulated in Zubulake.
The 2003 Zubulake cost-shifting decision hardly settled the matter. Over the next two years, the Years, The
the seven decades of Eleanor Pargiter’s life. [Br. Lit.: Benét, 1109]
See : Time federal court tot the Southern District of New York issued six more rulings in the case, five of them wrestling with new legal questions related to the emergence of electronic evidence in litigation. In one of the later opinions, it wrote: "The subject of the discovery of electronically stored information is rapidly evolving. When this case began more than two years ago, there was little guidance from the judiciary, bar association, or the academy as to the governing standards. Much has changed in that time." (33)
The court went on to say, "Now that the key issues have been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information." (34)
To effectively represent clients in the age of digital evidence, you need to understand the defendant's computer and storage system, draft appropriate preservation letters, tailor discovery requests, and keep abreast Verb 1. keep abreast - keep informed; "He kept up on his country's foreign policies"
keep up, follow
trace, follow - follow, discover, or ascertain the course of development of something; "We must follow closely the economic development is Cuba" ; "trace the of this rapidly changing area of law. Doing so will ensure that you obtain all relevant and discoverable electronic evidence without having to share the cost of production.
RELATED ARTICLE: Civil rules for e-discovery may be changed.
On September 20, as this issue of TRIAL went to press, the Judicial Conference of the United States--the body that governs the federal courts--considered proposed amendments to the Federal Rules of Civil Procedure The Federal Rules of Civil Procedure (FRCP) are rules governing civil procedure in United States district (federal) courts, that is, court procedures for civil suits. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved that would govern electronic discovery.
Throughout the amendment process, ATLA ATLA Association of Trial Lawyers of America
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender argued strongly that three proposed changes were unnecessary and would give an advantage to discovery-producing parties. The changes also would go beyond procedure into the realm of substance, invade in·vade
v. in·vad·ed, in·vad·ing, in·vades
1. To enter by force in order to conquer or pillage.
2. the province of the state courts, and further erode Erode (ĕrōd`), city (1991 urban agglomeration pop. 361,755), Tamil Nadu state, S India, on the Kaveri River. The city is located in a cotton-growing region, and its industries include cotton ginning and the manufacture of transport equipment. the system of notice pleading and liberal discovery that served plaintiffs so well in the second half of the 20th century.
If adopted, the three proposals would give discovery-producing parties an initial exemption from their current obligation to turn over e-discovery material by claiming that it is "not reasonably accessible" and allow these parties an extra chance to assert claims of privilege for information they have already produced. The amendments would also exempt parties from sanctions in some cases when they destroy electronic files through "routine" use of their document-retention systems--even those systems set up with short time periods for destruction.
The text of the proposed amendments is available at the Judicial Conference's Web site at www.uscourts.gov/ rules/Prelim_draft_proposed_pt2.pdf. Comments regarding the proposed changes (including those of more than 80 ATLA members) are available at www. uscourts.gov/rules/e-discovery.html. The direct link to ATLA's comments is www.uscourts.gov/rules/e-discovery/04-CV-012.pdf.
Any rule amendments the Judicial Conference accepted at its meeting on September 90 will be submitted to the U.S. Supreme Court with a recommendation that they be approved. If the Court approves them, they will be transmitted to Congress for its review, probably in April 9006.
These new rules would then take effect on December 1, 2006, unless Congress enacts legislation to reject, modify, or defer them.
(1.) 217 F.R.D. 3119, 311 (S.D.N.Y. 2003).
(2.) Baliotis v. McNeil, 870 F. Supp. 1285, 1290 (M.D. Pa. 1994) (citation and internal quotation marks quotation marks
the punctuation marks used to begin and end a quotation, either `` and '' or ` and '
quotation marks npl → comillas fpl
omitted); see also Vazquez-Corales v. Sea-Land Serv., Inc., 172 F.R.D. 10, 13 (D.P.R. 1997) (citation omitted).
(3.) Win. T. Thompson Co. v. Gen'l Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) (citation and internal quotation marks omitted).
(4.) Danis v. USN Communications, Inc., No. 98 C 7482, 2000 WL 1694325, at *36 (N.D. Ill. Oct. 20, 2000) (citation omitted).
(5.) M. at *37.
(6.) Wiginton v. Ellis, No. 02 C 6832, 2003 WL 22439865, at *4 (N.D. Ill. Oct. 27, 2003).
(7.) Convolve con·volve
v. con·volved, con·volv·ing, con·volves
To roll together; coil up.
To form convolutions. , Inc. v Compaq Computer Corp., 223 F.R.D. 162, 175-76 (S.D.N.Y. 2004).
(8.) The report on the proposed amendments by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States The Judicial Conference of the United States formulates the administrative policies for the federal courts. The Judicial Conference also makes recommendations on a wide range of topics that relate to the federal courts. The conference is chaired by the chief justice of the U.S. can be viewed at www.uscourts.gov/rules.
(9.) United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. v. Philip Morris USA Philip Morris USA is the United States tobacco division of Altria Group, Inc. General information
On January 27, 2003, Philip Morris Companies Inc. changed its name to Altria Group, Inc. Even under this new name, Altria continues to own 100% of Philip Morris USA. , Inc., 327 F. Supp. 2d 21, 25 (D.D.C. 2004) ("There is no doubt that the court has the authority to impose such a sanction sanction, in law and ethics, any inducement to individuals or groups to follow or refrain from following a particular course of conduct. All societies impose sanctions on their members in order to encourage approved behavior. for a discovery violation as serious and irremediable ir·re·me·di·a·ble
Impossible to remedy, correct, or repair; incurable or irreparable: irremediable errors in judgment.
ir as ]the defendant's] e-mail destruction.").
(10.) Super Film of Am., Inc. v. UCB UCB - University of California at Berkeley Films, Inc., 219 F.R.D. 649, 1551 (D. Kan. 2004) (citing Etienne v. Wolverine wolverine or glutton, largest member of the weasel family, Gulo gulo, found in the northern parts of North America and Eurasia, usually in high mountains near the timberline or in tundra. Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999)).
(12.) Black & Veatch Int'l Co. v. Foster Wheeler Energy, Corp., No. 00-2402-JAR, 2002 WL 1071932, at *3, *4 (D. Kan. May 10, 2002) (citing Beach v. City of Olathe, Fan., 203 F.R.D. 489, 493 (D. Kan. 2001)).
(13.) Id. at *4.
(14.) Id. (citing Snowden v. Connaught Labs., Inc., 137 F.R.D. 325, 333 (D. Kan. 1991)).
(15.) Oppenheimer, Inc. v. Sanders, 437 U.S. 340, 358 (1978).
(16.) Zubulake, 217 F.R.D. 309, 316.
(17.) Id. at 318.
(18.) Id. at 320.
(20.) Id. at 318-20.
(21.) Id. at 320.
(22.) Id. at 319.
(23.) Id. at 324 (emphasis in original).
(24.) Id. at 322.
(25.) Id. at 322-23.
(26.) Id. at 323 (citing McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 20011).
(29.) 21 Cal. Rptr. 3d 532 (Ct. App. 2004).
(30.) Id. at 536-37.
(31.) Id. at 540.
(32.) Id. at 541.
(33.) No. 02 CIV JUS AQUAEDUCTUS, CIV. law. The name of a servitude which Lives to the owner of land the right to bring down water through or from the land of another, either from its source or from any other place.
2. . 1243, 2004WL 1620866, at *15 (S.D.N.Y. July 20, 2004).
(34.) Id. at *16.
RICHARD J. ARSENAULT is senior partner at Neblett, Beard & Arsenault in Alexandria, Louisiana Alexandria is a city in Louisiana and the parish seat of Rapides Parish.   It lies on the south bank of the Red River in almost the exact geographic center of the state. . JOHN RANDALL People with the name John Randall