Zubulake Decisions

Adverse Inference Instruction issued for Destruction of E-mail in Billion Dollar Case.

Big Four Accounting Firm Defaulted

In re Telxon Corp. Securities Litigation, CIV.01-1078, 2004 WL 3192729, at *33 (N.D. Ohio, July 16, 2004). The Court recommended default judgment on liability against , Pricewaterhouse-Coopers, LLP, stating, "PwC failed at the start of discovery to check thoroughly its local servers and its archives for relevant documents, failed to compare the various versions of relevant documents on those databases, failed to produce documents as they were kept in the ordinary course of business, and failed to reproduce thoroughly and accurately all documents and their attachments. Prior to litigation PwC had permitted destruction of documents despite committing to their preservation. Despite these failures, PwC time and time again told the court and the parties that it had made a complete disclosure of all relevant documents and attachments and that it had produced them in the order in which they were stored by PwC. The only conclusion the court can reach is that PwC and/or its counsel engaged in deliberate fraud or was so recklessly indifferent to their responsibilities as a party to the litigation that they failed to take the most basic steps to fulfill those responsibilities."

Evidence Eliminator Not Enough

DirecTV, Inc. v. Randy Borow, CIV. 03-2581, 2005 WL 43261, at *6 (N.D. Ill. Jan 06, 2005).
Plaintiff DirecTV filed complaint alleging that defendant pirated its TV satellite signal. The Court granted DirecTV's motion for summary judgment, in part, because of defendant's use of the software program "Evidence Eliminator" to delete data from his computer. DirecTV's forensic expert was able to "recover some of the files that were used to help him pirate DT's signal . . . The fact that Borow deleted certain files on his computer only five weeks after the start of this litigation creates an inference that he destroyed evidence that would have been harmful to his defense."

Rowe Ends at the Trial Stage
 
Rowe Entm’t, Inc. v. The William Morris Agency, Inc., CIV. 98-8272, 2005 WL 22833 (S.D.N.Y. Jan. 5, 2005).  The infamous cost-shifting Rowe case has been laid to rest in the trial court by the granting of summary judgment against the plaintiffs who were concert promoters claiming that booking agencies and other promoters had engaged in discriminatory and anti-competitive practices. Of note, the Court found that the plaintiffs had violated Judge Francis's order by searching employee's mailboxes without permission and failed to produce for foundational purposes hard copies of e-mails allegedly supporting an exhibit used to counter the summary judgment motion.