Lost Hard Drives in the Mail: An e-Discovery Nightmare

The facts sound like a typical e-Discovery case, but quickly you feel very sick.

Two employees were accused of misappropriation of trade secrets.  A Federal lawsuit was filed in Florida.  As one can guess, electronically stored information would be key evidence in the lawsuit.  Dana Ltd. v. Am. Axle & Mfg. Holdings, 2010 U.S. Dist. LEXIS 88474 (W.D. Mich. Aug. 26, 2010).

The Plaintiffs retained an expert and shipped the computer hard drives for forensic examination to Michigan and forwarded them onto their Florida office. 

The hard drives went missing sometime after they were shipped.  Dana Ltd., at *2-3.

The Plaintiffs filed four subpoenas duces tecum to be issued by the United States District Court for the Southern District of Florida against their own expert’s firm.  Dana Ltd., at *3.

Three days before the depositions, the expert’s attorneys filed a motion to quash or modify the subpoenas in Federal Court in Michigan, because the expert was going to be out of the state on the designated deposition date.  Dana Ltd., at *3-4. 

The Court attempted to contact the moving party’s attorneys to see if motion practice could be avoided, only to learn that both attorneys left the state.  As the Court noted, “It ill-behooves an attorney to ask the court to drop everything to attend an eleventh-hour request for relief and then leave town.” Dana Ltd., at *4.

The Court addressed the motion without a hearing, given the unavailability of counsel.   

The Court stated it would be exceeding its authority to quash a subpoena issued by the Federal Court in Florida.  In short, the motion was filed in the wrong Federal Court.  Dana Ltd., at *4-5. 

Bow Tie Thoughts

The idea of hard drives being lost in the mail sends fear into attorneys and service providers alike.  A shipping accident can happen to anyone.  Moreover, sending hard drives is a common practice, because sending evidence via a personal courier across the country is often not practical, unless there is truly highly sensitive material. 

A possible best practice is to have the vendor to make a copy before shipping any data.  Alternatively, if multiple hard drives are being shipped, they can be sent separately and staggered out over several days.  This can help ensure if there is a shipping problem, not all the data is lost.

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