DEFENDANTS' BRIEF IN SUPPORT OF PROPOSED ORDER REGARDING PRESERVATION by yzc11728

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									                                    UNITED STATES DISTRICT COURT
                                    SOUTHERN DISTRICT OF INDIANA
                                        INDIANAPOLIS DIVISION


In re BRIDGESTONE/FIRESTONE, INC., )
ATX, ATX II, and WILDERNESS TIRES    )                           Master File No. IP 00-9373-C-B/S
PRODUCTS LIABILITY LITIGATION        )                           MDL No. 1373
_____________________________________)                           (centralized before Hon. Sarah Evans
                                     )                           Barker, Judge)
THIS DOCUMENT RELATES TO ALL         )
ACTIONS                              )



       DEFENDANTS’ BRIEF IN SUPPORT OF PROPOSED ORDER REGARDING
                   PRESERVATION OF ELECTRONIC DATA


         Defendants Ford Motor Company (“Ford”) and Bridgestone/Firestone, Inc. (“Firestone”)

(collectively “Defendants”) hereby submit this brief in support of their proposed Order

Regarding Preservation of Electronic Data, which is attached hereto.1

         Defendants have taken appropriate actions to ensure that documents, including electronic

documents, relevant to the subject matter of this action have been preserved and will be

identified, reviewed, and produced consistent with Defendants’ obligations under Fed. R. Civ. P.

34. In fact, Defendants believe that the steps that they have already taken to preserve, locate,

review, and produce responsive documents substantially exceed their obligations. For example,

Ford has taken a number of actions, starting in August, 2000, to inform all employees likely to

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         Defenda nt Bridges tone Cor poration (“ Bridgesto ne”) believ es that other tha n the genera l obligation to
preserve e vidence, no suppleme ntal Order is either necessa ry or appro priate at this time. T he obligatio ns Plaintiffs
seek to impose upon Bridgestone, a foreign corporation challenging the jurisdiction of this Court, are overly broad
and unduly burdensome. Plaintiffs’ proposed Order, if adopted, would impose upon Bridgestone obligations that
Bridgestone cannot satisfy with the technology and systems it currently has in place. Bridgestone does not, for
example , have capa city on its existing serv er(s) to imple ment an O rder that wo uld require Bridgesto ne to alter its
existing business practices, including the routine operation of deleting emails. In addition, given the fact that the
Order w ould app ly only to prosp ective emails, the re is no legitimate reason to b elieve disco verable ev idence wo uld
be preserved with respect to any of Plaintiffs’ claims. Bridgestone also believes that a requirement of individual
employee certifications is beyond the scope of applicable law, is unduly burdensome and is unnecessary in any
event.


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have discoverable information of their obligation to retain such information. As an added

measure of protection, Ford took a "snapshot" of the backup tapes from its primary, worldwide

e-mail system in September 2000, and has retained backup tapes from September 2000

containing an estimated 28 terrabytes of information from its primary U.S. engineering

operations. While Ford, because of the extent of its preservation and retrieval actions, does not

expect to need to review the materials on these backup tapes, this information is being retained

in an abundance of caution. Shortly following the announcement of the voluntary recall,

Firestone took similar measures to preserve electronic data for discovery in this action. In short,

Defendants are dedicating massive resources to identifying, locating, retrieving, and reviewing

potentially relevant materials, including electronic records.

         Defendants believe that continuing their present practices would be more than adequate
to meet their obligations under the rules to preserve documents, including electronic documents.
However, in the spirit of cooperation, Defendants have incorporated several other provisions in
the order to address concerns raised by the Plaintiffs. First, Defendants have agreed to expand
their future notifications to employees likely to have discoverable information to include specific
instructions concerning (1) procedures to be followed when reformatting or disposing of hard
drives that are likely to contain discoverable information, (2) retention of "special" back-ups, and
(3) maintenance of ability to retrieve and read discoverable electronic documents when
applications containing such documents are decommissioned during the pendency of this
litigation. Defendants also have agreed to make best efforts to obtain, within 90 days from the
date of this order, certifications from employees likely to have discoverable electronic
documents, verifying that the employees have taken appropriate steps to preserve such materials
and to inform Defendants’ counsel of the existence of such documents.
         Defendants believe that their proposed order is a more reasonable approach than the one
suggested by Plaintiffs, and provides the necessary safeguards to ensure that Defendants meet
their obligations to preserve responsive documents. Plaintiffs' proposed order imposes
unreasonable burdens on the defendants – burdens which substantially outweigh the potential
benefits. Plaintiffs’ allegations relate primarily, if not exclusively, to events that have occurred
in the past, some in the distant past, yet their proposed electronic document preservation order
would impose substantial obligations upon the Defendants to put in place onerous procedures to
ensure that documents created in the future are not inadvertently discarded. Given the numerous
procedures in place to protect and preserve responsive documents, including electronic
documents, coupled with the diminished volume and value of electronic documents created in
the future to this litigation, it does not make sense from the standpoint of judicial economy or
any other perspective to impose burdens such as retention of repetitive back-ups. Moreover,
Ford’s back-up processes for data files and distributed applications is generally decentralized,



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and the frequency and method of backing up individual data files and distributed applications
depends on the particular needs of the activity. To impose a requirement upon Ford to identify
processes for each and every one of its applications, networks and computer systems in the
world that could contain relevant documents, and then to preserve repeated back-ups of each
such application, network or computer system on the chance that a back-up could contain some,
unspecified information that Ford is unable to gather through other means is both unreasonable
and unnecessary.
         To the extent that Plaintiffs’ proposal contemplates the entry of yet another document
preservation order following the entry of this one, Defendants believe that their proposal
adequately addresses the issue of electronic document preservation and should be modified only
if particular issues arise later in the litigation.
         Because of the complex nature of this issue, if the Court does not intend to adopt
Defendants' proposed order, Defendants respectfully request that they be permitted to present
oral argument in support of their position.

Dated: February 15, 2001                               Respectfully submitted,
_________________________                              _________________________
Hugh R. Whiting                                        John H. Beisner
Mark Herrmann                                          Stephen J. Harburg
JONES, DAY, REAVIS & POGUE                             O’MELVENY & MYERS LLP
North Point                                            555 13th Street, N.W., Suite 500 West
901 Lakeside Avenue                                    Washington, DC 20004-1109
Cleveland, OH 44114                                    (202) 383-5300
(216) 586-3939

_________________________                              _________________________
Mark J.R. Merkle                                       Randall R. Riggs
KREIG DEVAULT ALEXANDER                                LOCKE REYNOLDS LLP
& CAPEHART, LLP                                        1000 Capital Center South
One Indiana Square, Suite 2800                         201 N. Illinois Street
Indianapolis, IN 46204-2017                            Indianapolis, IN 46204
(317) 636-4341                                         (317) 237-3814

ATTORNEYS FOR DEFENDANT                                ATTORNEYS FOR DEFENDANT
                                                       FORD MOTOR COMPANY
BRIDGESTONE/FIRESTONE, INC.




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_________________________
Thomas S. Kilbane
Robin G. Weaver
Joseph C. Weinstein
SQUIRE SANDERS & DEMPSEY LLP
4900 Key Tower
127 Public Square
Cleveland, OH 44114
(216) 479-8500

_________________________
Thomas G. Stayton
Ellen E. Boshkoff
BAKER & DANIELS
300 North Meridian Street, Suite 2700
Indianapolis, IN 46204
(317) 237-0300

ATTORNEYS FOR BRIDGESTONE
CORPORATION

479710_1




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