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In This Issue:
 DEDICATION TO DEAN SCHMIDT, KROLL ONTRACK OPERATIONS DIRECTOR
The June 2007 issue of Kroll Ontrack?s Case Law Update is dedicated to the memory of Dean Schmidt, Director of Electronic Discovery Operations Engineering at Kroll Ontrack in Eden Prairie, Minnesota. Dean passed away recently after succumbing to a battle with cancer. He was an esteemed friend in the Kroll Ontrack family and will be greatly missed by all of his colleagues and many clients that had the opportunity to work with him.
In the five years that Dean was with Kroll Ontrack, the Legal Technologies business experienced tremendous growth. His operations organization grew into a solid, professional and efficient team. This team provided world-class service and timely deliveries to electronic discovery clients.
Dean faced his illness with the same dignity and determination with which he lived his life. He continued to give back to the community that embraced him; having served as a volunteer firefighter, councilman, mayor and very active in youth hockey around the state.
Dean left an indelible mark on our organization and his legacy will live on in those who worked with him. Dean, with his wit, positive attitude and optimistic nature will be deeply missed within the Kroll Ontrack family. Dean is survived by his devoted wife, four sons and a large extended family.
RECENT E-DISCOVERY AND COMPUTER FORENSIC COURT DECISIONS
Magistrate Finds E-mail Exhibits Inadmissible and Outlines Standards for Electronic Evidence Admissibility
Lorraine v. Markel Am. Ins. Co. , 2007 WL 1300739 (D. Md. May 4, 2007). In this action, the plaintiffs brought suit to enforce an arbitrator's award determining that damages to their yacht were the result of a lightning strike and motioned the court to award a judgment of $36,000. The defendant's insurer counterclaimed, seeking to enforce part of the arbitrator's award which concluded that damages were limited to $14,100. Both parties filed cross-motions for summary judgment but each party failed to support their motions with admissible evidence as required under the Rules of Evidence. Specifically, both parties offered copies of e-mail as parol evidence which were attached as exhibits to the summary judgment motions and not authenticated properly. The magistrate judge dismissed both parties' summary judgment motions without prejudice to allow resubmission with proper evidentiary support. The magistrate observed that unauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues. The magistrate stated the admissibility of ESI as evidence is determined by "a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence." He found there were "five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence." The five issues may not apply to every exhibit, but the magistrate held that each must be considered. The magistrate held that ESI must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the "best evidence", and 5) not unduly prejudicial before it can be found to be admissible evidence. Regarding the five issues, the magistrate found the parties' e-mail exhibits were relevant to the suit. However, both parties failed to authenticate the e-mail exhibits because they "simply attached the exhibits" and the "complete absence of authentication stripped the exhibits of any evidentiary value because the Court could not consider them as evidentiary facts." Additionally, the magistrate found that the parties failed to address the last three hurdles of admissibility. They did not resolve any potential hearsay issues that were likely to arise, nor did they comply with the original writing requirement or demonstrate the absence of unfair prejudice. After explaining the legal standard for each step of ESI admissibility, the magistrate stated "it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try."
Court Implements Maryland's Suggested Protocol for Discovery of ESI and Provides Specific ESI Discovery Guidelines for Class Action Parties
O'Bar v. Lowe's Home Centers, Inc. , 2007 WL 1299180 (W.D.N.C. May 2, 2007). In this class action suit, the plaintiffs alleged the defendant engaged in employment discrimination because they are not females or minorities. Having addressed whether the plaintiffs had standing to represent a class, the court determined the time ripe for the parties to begin precertification discovery. The plaintiffs claimed they were entitled to broad discovery of electronic documents, including e-mail, relating to all employees, in all positions, in every store owned by the defendant. The defendant disagreed with this contention. The court held that the plaintiffs could not obtain discovery for every person employed by the defendant, and limited the discovery to managers and officers at the regional, district and national level. The court noted that although the precertification discovery was limited, it was still very broad and the court was in "no way condoning or encouraging broad, unduly burdensome, or irrelevant discovery requests." The court instructed the parties to construct a Rule 26(f) discovery plan. Anticipating the potential conflicts of discovering electronically stored information (ESI), the court ordered the parties to follow the "Suggested Protocol for Discovery of Electronically Stored Information" as set forth by the United States District Court for the District of Maryland. The court noted that although these guidelines provide a comprehensive list of ESI discovery issues, it was not meant to be an inflexible list. Moreover, the court set forth an extensive list of issues to be addressed by the parties in their joint discovery plan.
Court Orders Production of All Archived E-mail for Party's Employees
Metro Wastewater Reclamation Dist. v. Alfa Laval, Inc. , 2007 WL 1160012 (D. Colo. Apr. 19, 2007). In a case involving claims of breach of contract, the defendant sought an order to compel the plaintiff to produce certain data in electronic format and all electronic documents, including archived or back-up e-mails and electronic files. The defendant specifically wanted electronic data for the plaintiff's personnel identified in its responses to the defendant's discovery requests. Although the plaintiff argued that the requested information was overly broad, unduly burdensome, and costly, the court succinctly referred to Fed. R. Civ. P. 26 and held that the requested documents were relevant to the issues of the case and were discoverable. The plaintiff was required to produce all electronic documents, including the archived and back-up e-mails for every employee referred to in their discovery responses.
Court Permits Deposition of Corporate Representative to Provide Information Regarding Party's E-Mail Deletion Policies
Wells v. Xpedx , 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007). In this employment discrimination suit, the plaintiff sought production of e-mail from seven of the defendant's employees. The plaintiff also submitted that the defendant implemented a new e-mail deletion policy where e-mails were deleted within 90 days of creation, unless designated for retention. Accordingly, the plaintiff sought permission from the court to take the deposition of the defendant's IT representative to determine if the defendant had any of the requested e-mail and if the defendant destroyed any relevant evidence. In response, the defendant argued that it had produced all relevant email and that a deposition to inquire about its email deletion policy would be redundant and unnecessary. Although the court deferred ruling on the motion to compel the e-mail, the court granted the plaintiff permission to depose the defendant's representative. The court referred to the committee notes of Fed. R. Civ. P. 34, which states that "[d]eleted emails are, in most cases, not irretrievably lost." The court held the record was insufficient to determine whether the defendant produced all responsive documents to the plaintiff's requests and whether responsive documents exist elsewhere in the defendant's records which may be accessed electronically. The court also noted the defendant did not provide adequate information regarding its e-mail deletion policy which further warranted granting the plaintiff's deposition request. The court also ordered that after the deposition, the parties should confer in good faith and if a resolution concerning the e-mail discovery requests cannot be reached, the plaintiff should notify the court.
Court Denies Motion to Compel Deleted E-mail Stored on Back-Up Tapes
Oxford House, Inc. v. City of Topeka , 2007 WL 1246200 (D. Kan. Apr. 27, 2007). In this case, the plaintiffs brought suit against the defendant for denying several conditional housing permits. The plaintiffs brought a motion to compel the defendant to comply with several discovery requests and produce all electronically stored information (ESI), including e-mail and instant messages, relating to any ex parte communications regarding the denial of the plaintiffs' permits. The defendant contended that all requested ESI was automatically deleted and overwritten by the defendant's archiving system on its disaster back-up tapes. The plaintiffs disputed the defendant's contention and argued that even if the disputed ESI was deleted, the defendant still had a duty to preserve the potential evidence and argued that the defendant should be sanctioned for failure to preserve the data. The court found that the defendant fulfilled its discovery obligations and adequately explained the non-existence of any ESI requested by the plaintiff. The defendant provided several affidavits from witnesses stating there was no ESI to produce to the plaintiffs. Furthermore, the court found the failure to preserve the e-mail evidence was reasonable since the duty to preserve the documents and the likelihood of litigation did not arise until well after the documents were overwritten on the back-up tapes. Moreover, the court used a cost-benefit balancing test called the "marginal utility test" to find that the production of the requested ESI would be unduly burdensome and costly since the "likelihood of retrieving these electronic communications is low and the cost high."
OTHER NEW CASE SUMMARIES ADDED TO THE ONTRACK DISCOVERY CASE LIST THIS MONTH:
- Court Finds "Cut-and-Paste" Chat Room Transcript Inadmissible Evidence — United States v. Jackson, 2007 WL 1381772 (D. Neb. May 8, 2007).
- Court Orders Monetary Sanctions and Adverse Instructions After Party's Husband Destroys Hard Drive — World Courier v. Barone, 2007 WL 1119196 (N.D. Cal. Apr. 16, 2007).
- Court Denies Cost-Shifting for Production of Videos Published on Website — IO Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007).
- 8th Circuit Refuses Sanctions For Destruction of Electronic Data Stored In Vehicle — Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. Apr. 24, 2007).
To view additional case summaries visit www.krollontrack.com/case-summaries/
NEWS & EVENTS
Advisory Committee Approves Amendments to Evidence Rule 502
The Advisory Committee on Evidence Rules met on April 12th and 13th and recently issued its final report and recommendation for amendments to Federal Rule of Evidence 502. Among its provisions, Federal Rule of Evidence 502 addresses waiver of attorney-client privilege and work product protections during civil discovery. The Advisory Committee recommended that the Standing Committee on Rules of Practice and Procedure approve the proposed rule and submit it to the Judicial Conference with a recommendation that it be approved by Congress. The Advisory Committee's report to the Standing Committee can be accessed at: www.uscourts.gov/rules/Reports/EV05-2007.pdf.
New Job Opportunity with Kroll Ontrack: Senior Technical Consultant
Kroll Ontrack is currently seeking qualified candidates for several Senior Technical Consultant positions that will form a new group focused on helping corporations and outside counsel navigate technical intricacies and legal standards associated with the accessibility of electronically stored information (ESI) and other technical issues relating to electronic discovery. Ideal candidates will possess a Bachelor's degree and a minimum of five years in a technical advisory or professional services consulting role. They will have a strong technical aptitude and advanced understanding of storage technologies and procedures, document management systems, e-mail and messaging systems and network administration. Knowledge of electronic discovery and/or computer forensics technologies is highly desired. We are looking for candidates in major metropolitan areas, and relocation to Minnesota is not required. For more information about these opportunities and other open positions at Kroll Ontrack visit: http://www.krollontrack.com/job-search/.
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This newsletter is written by Michele C.S. Lange, a staff attorney with Kroll Ontrack. Ms. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics, and technology's role in the law. She can be contacted by writing to mlange@krollontrack.com.
For more information about electronic discovery and computer forensics services, please call 800 347 6105 or visit www.krollontrack.com.
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