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In This Issue:
 RECENT
E-DISCOVERY AND COMPUTER FORENSIC COURT DECISIONS
Court Finds Defendant Acted in Bad Faith by Failing
to Halt Email Destruction Policy
Broccoli v. Echostar Communications Corp., 2005 WL 1863176
(D. Md. Aug. 4, 2005). In an employment discrimination case, the
plaintiff filed a motion for sanctions against the defendants for
failing to preserve electronic documents and for spoliating email
evidence. Citing Zubulake, the court addressed the defendants’
duty to preserve emails and other relevant documents. The evidence
showed the defendants were on notice of the lawsuit long before
they halted their data destruction policy. In fact, the defendants
admitted they never issued a company-wide instruction regarding
suspension of their data destruction policy and they did not save
the plaintiff’s emails relating to the harassment incidents
or his termination. Based on this evidence, the court granted the
plaintiff’s motion for sanctions and issued an adverse inference
jury instruction relating to spoliation of the emails. The court
declared the defendants acted in bad faith by failing to suspend
their email and data destruction policy and by failing to preserve
essential personnel documents in order to comply with their preservation
obligations. The court further stated, “Given [the defendants’]
status as a large public corporation with ample financial resources
and personnel management know-how, the court finds it indefensible
that such basic personnel procedures and related documentation were
lacking.”
Court Adopts mySimon Framework and Orders Independent
Expert to Mirror Image Hard Drives
Experian Info. Solutions, Inc. v. I-Centrix, L.L.C., No.
04 C 4437 (N.D. Ill. July 21, 2005). Claiming breach of contract
and misappropriation of trade secrets, the plaintiffs filed suit
against the defendant, a former employee, and his new company, formed
after he stopped working for the plaintiffs. During discovery, the
plaintiffs sought to obtain mirror images of the defendant’s
computers. The defendant argued the request was overbroad, would
capture proprietary information, and would hinder his business operations.
Alternatively, if the court decided the mirror images were discoverable,
the defendant proposed that it use the standards set forth in Simon
Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind.
2000). In mySimon, an independent expert created and examined a
mirror image of the defendant’s hard drive and then submitted
potentially relevant documents to the defendants. The plaintiffs
argued the method was too narrow as it would not allow them to evaluate
“relevant contextual data” and “metadata”
found in the mirror image. The court adopted a modified version
of the mySimon framework, adding a provision to facilitate
the recovery of metadata specified in a list generated by the plaintiffs.
The court ordered “an independent expert [to] review the bitstream
copy for contextual information and metadata that falls within the
scope of this list, as well as for documents relevant to Plaintiff’s
discovery requests.”
Attorney-Client Privilege Applies to Password-Protected
Electronic Documents Contained on Work Computer
People v. Jiang, 31 Cal.Rptr.3d 227 (Cal Ct. App. 2005).
In an appeal from a rape conviction, the defendant argued, inter
alia, that password-protected documents contained on his employer-issued
laptop in a folder marked “Attorney” were protected
by the attorney-client privilege. The trial court had previously
determined these documents were not subject to the attorney-client
privilege because the defendant had no reasonable expectation of
privacy in documents on an employer-issued laptop computer. On appeal,
the state argued the defendant did not have a reasonable expectation
of privacy based on the terms of an employment agreement in which
the defendant acknowledged he had no expectation of privacy for
any company-owned property. The appellate court reversed the trial
court’s holding and found the defendant “made substantial
efforts to protect the documents from disclosure by password-protecting
them and segregating them in a clearly marked and designated folder.”
The appellate court further declared the prosecution failed to prove
the documents were not confidential and noted the employment agreement
did not prevent the defendant from using the laptop for personal
use.
Court Denies Plaintiff’s Request to Search Defendant’s
Laptop
Wild v. Alster, 377 F.Supp.2d 186 (D.D.C. 2005). In a medical
malpractice lawsuit, the plaintiff moved for a new trial after the
jury found in favor of the defendant. The plaintiff alleged the
court erroneously denied a request for an expert examination of
the defendant’s computer. In particular, the plaintiff sought
to discover if certain dates, specifically the date photographs
of her face were taken, could be retrieved from the defendant’s
hard drive. The original photographs were lost during a computer
system conversion; however, the defendant was able to recover some
of the photos with the assistance of a data recovery service. The
recovered photos only displayed the dates on which the photos were
imported into the new system and not the dates on which they were
originally taken. Despite this, the plaintiff asserted the defendant’s
computer consultant testified in a deposition that the original
dates were retrievable. In reviewing the deposition testimony, the
court determined the expert actually stated it would be impossible
to print any of the photographs with dates indicating when they
were originally taken. In denying the motion for a new trial, the
court concluded the plaintiff was not prejudiced by being prohibited
from presenting the import date information to the jury and further
stated that the court was well within its bounds to prevent further
discovery of the computer system given the plaintiff’s request
was made a year and a half after the discovery period closed.
Appellate Court Declares Instant Messages Properly Authenticated
In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005). The defendant
appealed from an assault conviction, asserting the trial court erred
in admitting improperly authenticated computerized instant messages
into evidence. The defendant argued the messages should have been
authenticated by either the source Internet Service Provider or
computer forensic expert testimony. Rejecting this argument, the
appellate court declared the circumstantial evidence properly rendered
the instant messages admissible. The court noted the defendant’s
argument would require it to “create a whole new body of law
just to deal with e-mails or instant messages.” The court
further stated it found “no justification for constructing
unique rules for admissibility of electronic communications such
as instant messages.” In this case, the instant messages were
properly authenticated based on the following factual circumstances:
the defendant referred to himself by name, his testimony mirrored
some of the comments in the instant messages, and he referenced
one of the instant messages in a conversation with school authorities.
A current and comprehensive archive of case law summaries pertaining
to electronic discovery and computer forensics is available at http://www.krollontrack.com/case-summaries/.
PRACTICE
POINTS: FEDERAL RULES OF CIVIL PROCEDURE – PROPOSED AMENDMENTS
UPDATE
For the past several years, a working group of judges, lawyers,
professors, and other legal thought leaders have been convening
to consider whether the Federal Rules of Civil Procedure should
be modified given the impact of electronically stored information
on civil litigation.
In August 2004, an Advisory Committee, chaired by Judge Lee Rosenthal,
released a draft of the proposed rule modifications. In late 2004
and early 2005 the Committee held three public hearings in various
locations and also solicited written comments from the public relating
to the draft amendments. In May 2005, the Advisory Committee released
revisions to the draft rule proposals based on public comment.
In June 2005, the Standing Committee on Practice and Procedure,
chaired by Judge David Levi, approved the proposed amendments with
only minor edits. In September 2005, the full Judicial Conference,
chaired by Chief Justice William Rehnquist, is expected to review
the rule proposals. After being approved by the U.S. Supreme Court
and Congress, the Rule amendments could go into effect as early
as December 2006.
The proposals include amendments to Rules 16, 26, 33, 34, 37, and
45, along with a related amendment to Form 35. These amendments
are summarized below, complete with up-to-date information regarding
the Advisory and Standing Committees’ recent revisions:
- Early Discussion of Electronic Discovery Issues.
Proposed Rule 16(b), Rule 26(f), and Form 35 direct counsel to
discuss early on how to handle e-discovery issues, including decisions
relating to privilege claims. The latest draft also requires counsel
to address protection claims for trial-preparation materials.
- Definition of Electronically Stored Information.
In addition to clarifying that electronically stored information
is subject to production and discovery, the new Rule 34(a) establishes
the requesting party’s right to test and sample electronic
data. Under this Rule, however, routine and direct access to the
opposing party’s system is not guaranteed, although such
access might be appropriate in some circumstances.
- Production Format. Proposed Rule 34(b) allows
the requesting party to specify production format for electronic
documents (i.e. native format, tiff or in an online repository).
When the production format is not specified or if the responding
party objects to the requested format, the responding party must
state its preferred production format. According to the Rule,
the default production format may be either a form (or forms)
in which the information is “ordinarily maintained”
or in a “reasonably usable” form.
- Producing Electronically Stored Information in Response
to Interrogatories. Under the new version of Rule 33,
the responding party is allowed to produce electronic data when
responding to interrogatories. If direct access to the responding
party’s system is the only option a requesting party has
for locating and identifying the information, the responding party
may choose to derive or ascertain the answer itself.
- Production of Reasonably Accessible Information.
Draft Rule 26(b)(2)(B) mandates that a party does not have to
produce electronic information that is “not reasonably accessible.”
After much public commentary on this amendment, the Committees
amended the Rule to include a test for reasonable accessibility
based on the “undue burden or cost” of producing the
information.
- Belated Assertion of Privilege. Proposed Rule
26(b)(5)(B) addresses inadvertent production of privileged or
trial-preparation information. Under the revised Rule, the receiving
party may not use the data until the waiver claim has been resolved.
If the information was disclosed before the receiving party was
notified, the receiving party must take reasonable steps to retrieve
it.
- “Safe Harbor” from Sanctions. The
original draft version of the proposed Rule 37(f) gave parties
reprieve from judicial sanctions for failing to produce electronically
stored information in cases where the information was destroyed
during routine operations and where the parties took reasonable
steps to preserve the information. However, the revised version
modified this standard to apply to information lost as a result
of the “routine, good-faith operation of an electronic information
system.” Under the new revision, even if parties act in
good-faith, sanctions still may be permitted in “exceptional
circumstances.”
- Subpoena for Electronically Stored Information.
Finally, the rule changes would include an amendment to Rule 45
that would allow parties to subpoena electronically stored information
pursuant to the changes in the rest of the amended Rules.
The adoption of these Rules will help shape civil practice with
regards to digital data, and counsel must be aware of the changes
in this fast-changing area of law. Stay tuned to Kroll Ontrack’s
Case Law Update for the latest information relating to the pending
Federal Rule changes. A copy of the draft Rules (incorporating the
Standing Committee’s June 2005 changes) is available at: http://www.krollontrack.com/rules-statutes/.
KROLL
ONTRACK NEWS & EVENTS
Kroll Ontrack Named Most Used Electronic Discovery Service
Provider In Two Major Industry Surveys
The American Lawyer's 10th Annual AmLaw Tech Survey has
identified Kroll Ontrack as the industry's most used electronic
discovery provider among leading law firms. This year's survey marks
the fourth year in a row that Kroll Ontrack has been recognized
as the clear winner in the electronic discovery provider category.
The survey also identified Kroll Ontrack’s online review software,
ElectronicDataViewer™, as the industry’s second most
used online document repository tool in discovery. The annual survey
tracks technology trends as well as which products and services
the country’s top 200 law firms are using. The AmLaw Tech
Survey can be found as a supplement to the September issue of The
American Lawyer.
Law Office Computing’s 11th Annual Reader’s
Choice Awards recently recognized Kroll Ontrack as one of the most
used service providers in the electronic discovery category. Electronic
discovery has been its own category in the annual survey for two
years and this marks the second year in a row that Kroll Ontrack
has been chosen by the readers of Law Office Computing
as their electronic discovery provider of choice. Results were taken
from a nationwide survey of 2,000 randomly selected Law Office
Computing subscribers in which readers were asked to select
which technology services they use the most. Look for the winners
and finalists in each category in a special feature in the August/September
2005 issue.
Growth of Legal Technology Industry Fuels Job Opportunities
As a result of the growth in the legal technologies industry, Kroll
Ontrack is seeking qualified candidates for several available Discovery
Services Project Manager positions. Among other duties, these individuals
will be responsible for managing multiple projects from lead to
close-out and assisting with project scoping, conference calls,
and customer presentations.
For more information about these opportunities and other open positions
at Kroll Ontrack, visit: http://www.krollontrack.com/job-search/.
Meet Kroll Ontrack Representatives at the Following Events:
Visit http://www.krollontrack.com/upcoming-events/
for more information on these events and others.
KROLL
ONTRACK REQUESTS YOUR INPUT
This newsletter is written by Michele C.S. Lange, staff attorney
with Kroll Ontrack, with assistance from Charity J. Delich, a Kroll
Ontrack law clerk. 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, contact Kroll Ontrack at 1-800-347-6105 or www.krollontrack.com
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