And so the divorce case winds up generating massive demands for hard drive contents and other electronic discovery. Draconian spoliation sanctions, as exemplified in the Morgan Stanley-Perelman and Zubulake-UBS Warburg cases, make a potentially fatal trap for the unwary:
Defense lawyers complain that their clients often are forced to supply voluminous information at great cost with little benefit. And because there is so much more information potentially subject to a discovery order, the chances are greater that a client might violate the order by inadvertently deleting data.
“Does this enhance justice? Not usually,” said Tess Blair, a partner at Morgan, Lewis & Bockius L.L.P., who heads the 1,350-lawyer firm’s electronic-data-discovery unit. “It becomes a weapon in many cases.”
(Chris Mondics, “Ediscovery profoundly changing lawyering”, Philadelphia Inquirer, Jun. 8).
Reader Mickey Ferguson writes: “I just wanted to follow up on the original message I sent which you posted Apr. 14. On Jun. 20 I was notified that as a result of the settlement of this class action I am now the proud owner of the right to download free (and nearly worthless) hard disk drive backup and recovery software. Woo-hoo! Meanwhile, the lawyers win again. Details here.” More on the case: Adrian Kingsley-Hughes, “Attention hard drive manufacturers! Most people believe that a kilobyte is 1,024 bytes!”, ZDNet, Jun. 29.
Two readers have written in to call attention to the terms of a settlement by Western Digital of a class action over the disparity between the announced size of its hard drives and the amount that is usable (settlement notice/FAQs). Reader Bill Evans says the settlement will “affect only aftermarket drives, class members to get $7.50 for each drive and will be able to download backup software. Lawyers get $485,000 plus $15,000 for expenses.”
Reader Mickey Ferguson writes:
Some months ago I bought a Western Digital hard drive. I now see that a class action suit was brought against WD, claiming that they misrepresented their drive capacities. What was the remedy? They offered me software – EMC Dantz Retrospect Express version 7.0 for Windows users and version 6.1 for Mac users – for which I have no use or interest. I have much better backup software that I’ve already purchased. Plus, it has been reported in various locations on the network to be incompatible with Microsoft Windows .NET 2.0 framework, a common component in many recent software programs.
There are no other remedies. Either I take the software, which has very little commercial value and none to me personally, or I write a letter to the court, voicing my concerns above, that will immediately be trampled by both plaintiff and defense attorneys, who both want the settlement to go through because the settlement essentially costs WD very little (useless software that they OEM anyway), and the plaintiff attorneys get their percentage of the settlement. As usual, the plaintiff attorneys make huge sums of money, and the actual victims get nothing of any particular value.
P.S. Just to be clear, I don’t feel like I’ve been harmed in any way, nor do I feel entitled to any settlement. I knew ahead of time exactly the game they play. All drive manufacturers have played the game, and this is just a way for an attorney to make a lot of money over nothing. If it were my preference, I’d rather the judge throw the entire suit out and sanction the lawyers for a frivolous lawsuit, but I know that would never happen, and frankly, there are some people out there who don’t know the difference between 1 GB and 1 billion bytes, to whom there is a claim of (very slight) harm.
Update: Jul. 3.