• October 24, 2011

It is a story of missing ESI (electronically stored information) apparently sold untraceably in Mexico, an inconveniently timed operating system replacement, and other potential misconduct — too many details that, independently, might not raise suspicion but collectively suggest intentional destruction of evidence.  (The case was previously covered by Minnesota Litigator here.)

Now defendant SMS is ordered to pay for restoration of back-up tapes at a cost their expert has estimated at $36,000,000.  (The opposing expert, Mark Lanterman, would jump at the opportunity to perform the work for a mere $360-$720,000, apparently.)

Defendants Gonzalez and SMS, Service Management Systems, Inc., pled with U.S .District Court Judge Ann D. Montgomery that Magistrate Judge Janie S. Mayeron’s discovery order was “frankly” impossible.  (Style comment:  did insertion of the word, “frankly,” make that claim more persuasive or less?  Less.  It seems like a “wiggle word” that implicitly states the opposite of what it explicity says (compare: “I hate to say this but…”)).

Frankly, the Court did not buy the impossibility argument for the most part.  (All apparently concurred, however, that back-up data only contains “live data” and there is no “deleted data” on back-up tapes.)

SMS argued that another part of Judge Mayeron’s order was “flatly” impossible.

The Court roundly rejected that argument.  The Court suggested “overtime,” apparently a means of getting more work done over a shorter period of time, could make the “flatly impossible” doable.

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