Courts weigh in on accessing ephemeral data for e-discovery.

• Position: E-DISCOVERY

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Courts are increasingly dealing with cases where parties seek access to the opposing side's ephemeral data, such as a computer's unallocated space, temporary Internet files, timestamp data, and other fragile data that requires extraordinary measures to preserve and collect.

In a recent article in Law Technology News, attorneys Brian Esser and Judy Selby cited two cases showing how the courts have applied the Zubulake vs. UBS Warburg framework for preservation and collection of ephemeral data.

In Nacco Materials Handling Group v. Lilly Company, the defendants improperly accessed a website that housed proprietary information about Nacco's forklift trucks. The court held that the defendant's duty to preserve evidence of the unauthorized access began the day it received the complaint because that was the earliest date the defendant could reasonably anticipate litigation.

The court relied on the Zubulake standard that "[a] party has a duty to preserve all evidence, including electronically stored information ('ESI'), that it knows or should know is relevant to any present or future litigation." The court did not discuss the ephemeral nature of the evidence sought, but by ordering forensic experts, it implied its understanding of the measures needed for locating the evidence.

The court also found that Lilly did not sufficiently preserve evidence. To wit, Lilly did not preserve e-mails, backup tapes, Internet histories, or server logs. The court ordered Lilly to reimburse Nacco's costs for forensic examination and for imaging and analyzing Lilly's hard drives. It held that because these steps were needed due to Lilly's poor preservation efforts, it was fair for Lilly to assume the costs.

In Tener v. Cremer, a...