Magazine article Information Management

Cost-Shifting Denied despite Discovery Errors

Magazine article Information Management

Cost-Shifting Denied despite Discovery Errors

Article excerpt

In a long-running battle over the production of electronically stored information (ESI) in Malone v. Kantner Ingredients Inc., the U.S. District Court for the District of Nebraska issued a memorandum and order saying that although the defendants may have made mistakes in their 2012 manual review of their ESI, they did not have to pay for the forensic review of their servers and external hard drive the plaintiffs conducted in an attempt to prove information had been withheld.

This ruling came in response to the plaintiffs' motion to show cause alleging that the defendants had destroyed or tampered with evidence, lied to the court regarding its existence, and failed to comply with an earlier court order that they were to locate and determine if the server imaging they had performed at the outset of the case was full and complete; produce invoices located on the server, the names of those who had access to the server, and all metadata related to the server; and produce sent e-mail recovered from their servers that was responsive. The plaintiffs also requested an order requiring the defendants to reimburse them for the forensic analysis. …

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