By Brad Harris
In our recently published white paper, Preservation and Proportionality, Ron Hedges and I solicited input from industry thought leaders on the current debate over the rising costs of data preservation and the call for proportionality through cooperation, court order or rule changes. A particularly relevant opinion was issued from the Southern District of New York on October 7, 2011, which directly posed the applicability of proportionality, and Pippins v. KPMG was prominent in several of the contributed essays for our paper.
We provided highlights of the case and included as reference the complete amicus brief filed by the U.S. Chamber of Commerce in response to U.S. Magistrate Judge James L. Cott’s findings. The debate over Pippins v KPMG continues, and we wanted to post two additional briefs as an addendum to our paper that shed additional light on the ongoing discussion.
The Defendants submitted their objections to the finding of the magistrate judge on October 28, arguing that a district court should modify or set aside the order. In their brief, they articulate KPMG’s position with respect to their prior good faith efforts to preserve potentially relevant information (including HR personnel records and time records, in addition preserving “computer hard drives of departing employees who are putative class members in New York”). They argue that the magistrate judge erred in holding “that every potential member of the putative class and FLSA potential opt-in plaintiff is a ‘key player’ whose hard drives must be preserved” (and therefore they should not have incurred a duty to preserve). They further argue that denying the motion for a protective order was in err when the judge failed to determine “whether the cost of preserving the hard drives is proportional to their likely benefit” and unreasonably burdensome (arguing instead for a reasonable sample).
In response, the Plaintiff submitted a memorandum on November 30 in opposition to the Defendant’s objections, citing a lack of cooperation and arguing that the disputed hard drives are likely to contain useful information (having not had an opportunity to examine any hard drives to suggest otherwise). They go on to argue that the Defendants had failed to sufficiently establish an undue burden nor demonstrate with any certainty that the drives should be destroyed without knowing their contents.
Both briefs make interesting reading, and are included here for your reference. If you haven’t already done so, please download our Proportionality and Preservation Signature Paper. We welcome your thoughts and feedback!