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	Recent ESI Court Decisions
	Practice Points: Review and Production Considerations for Multilingual E-Discovery - Part III
	News & Events

Recent ESI Court Decisions

Court Refuses to Apply Zubulake Cost Shifting Factors to Paper Discovery
Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D.Cal. July 31, 2008). In this class action employment litigation, the defendant objected to the magistrate judge's order that required them to pay the costs of copying responsive paper documents. The court stated, "the seven-factor Zubulake test which [the magistrate judge] applied is intended solely for electronic discovery, not for discovery of paper documents." According to the court, the rule for paper documents is that "[a] party producing documents will ordinarily not be put to the expense of making copies for the requesting party." Relying on these rules, the court held that the magistrate judge clearly erred by analyzing the cost-shifting dispute under Zubulake, but granted the plaintiffs an opportunity to brief the cost-shifting issue on other grounds. See also Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003).

Court Imposes Spoliation Inference for the Failure to Preserve Digital Surveillance Video
Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008). In this slip and fall case, the plaintiff appealed the trial court's grant of summary judgment in favor of the defendant. The trial court held that the plaintiff failed to provide any evidence that the defendant had constructive knowledge of the liquid spill which allegedly caused the plaintiff to fall. The plaintiff argued she was entitled to a spoliation inference based on the defendant store manager's decision to preserve the digital surveillance video of the actual fall but not the footage immediately prior to or subsequent to the fall. The defendant countered that the plaintiff was not entitled to a spoliation inference because the evidentiary destruction was a matter of routine practice and was devoid of fraudulent intent. After noting the store manager's, "conscious and intentional choice not to review or retain the recorded footage," the court determined that the defendant "both intentionally and fraudulently destroyed relevant evidence." The court also stated that the manager's failure to retain the footage "shocks the conscience of the court and creates a presumption of fraud." Accordingly, the court granted a spoliation inference against the defendant for the purpose of summary judgment, but noted that whether a jury would actually draw a spoliation inference was a matter left for trial and remanded the case.

Court Finds Voluntary Consent to Computer Search Waives Attorney-Client Privilege
United States v. General Maritime Mgmt., 2008 WL 2810594 (S.D.Tex. July 21, 2008). In this criminal prosecution, the government's material witness filed a motion to assert attorney-client privilege and for reconsideration of the court's previous order to disclose a mirror image of the witness' computer hard drive. The witness previously provided the government with voluntary consent to search and create a forensically sound image of his computer's hard drive. Subsequent to this search, the government provided the defendants with all material relevant to this case. The defendants argued for disclosure of the imaged hard drive claiming the witness' voluntary consent waived the attorney-client privilege. Agreeing with the defendants, the court held that the voluntary disclosure of the hard drive to the government resulted in waiver of any attorney-client privilege and ordered the government to produce the mirror image in its entirety.

Court Denies Motion Seeking Restoration and Search of Backup Tapes
Young v. Pleasant Valley Sch. Dist., 22008 WL 2857912 (M.D.Pa. July 21, 2008). In this civil rights case, the plaintiffs requested production of e-mail stored on backup tapes. The defendants objected, arguing the request was unduly burdensome and unlikely to produce relevant material. In response to a previous court order, the defendant provided an estimate that the search's cost would be a minimum of $10,000. The court analyzed the factors laid out in Fed.R.Civ.P. 26(b)(2) and cited three factors that weighed against requiring production: (1) the burden and expense of the proposed discovery outweighed its likely benefit; (2) the needs of the case limit the usefulness of the information sought as it could be accessed in a more cost-efficient and less burdensome manner; and (3) the resources of the parties involved and the amount in controversy were relatively small. The court also rejected the plaintiffs' offer to have their own expert search the backup tapes finding the request unduly burdensome, impractical and contrary to the spirit of the Federal Rules, noting that privacy concerns would undoubtedly require the defendant to closely supervise the plaintiff's search thus creating unnecessary costs.

Court Declines to Allow One Party to Mandate the Organization of the Opposing Party's Production
Suarez Corp. Indus. v. Earthwise Technologies, Inc., 2008 WL 2811162 (W.D.Wash. July 17, 2008). In this litigation involving trademark infringement, inter alia, the plaintiffs filed a motion to compel seeking electronic documents. Unsatisfied with the defendants' production, the plaintiffs asserted the production was a disorganized "document dump" and that they should be able to specify production format with regard to the organization of production. Finding the plaintiffs' argument unpersuasive, the court determined the plaintiffs were without authority to mandate the defendants' production organization under Fed.R.Civ.P. 34(b). The court also determined the advisory committee comments to that rule do not specify the term "form" as referring to the organizational mandates found in Fed.R.Civ.P. 34(b)(2)(E). Nevertheless, the court required the defendants to "convey some information as to how the documents were determined to be responsive or how the documents were kept in the normal course of business." Accordingly, the court granted the motion to compel in part.

Court Declines to Require Reasonable Suspicion for Border Laptop Searches
United States v. Arnold, 22008 WL 2675794 (Cal. July 10, 2008). In this suit charging the defendant with transporting child pornography, the government appealed the district court's ruling granting the defendant's motion to suppress evidence seized from his laptop computer by Customs customs and Border border Patrol patrol officers. The defendant argued that laptops were more analogous to a home and the human mind rather than closed containers, because of the computer's ability to record ideas, e-mails, chats and web habits. Conversely, the government argued reasonable suspicion was not required under the Fourth Amendment when dealing with border searches due to, "a sovereign�s inherent authority to protect its territorial integrity." Finding the district court's decision erroneous, the court held that reasonable, particularized suspicion is not required for customs officials to search a laptop or other personal electronic storage devices at the border.

Magistrate Judge Denies Cost-Shifting Motion Due to Untimeliness
Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E.D.Mich. July 7, 2008). In this antitrust litigation, the defendant requested an order under Fed.R.Civ.P. 26(c) requiring the plaintiffs to share its third party vendor e-discovery costs for discovery already completed. The defendant supported their motion with several arguments, including: that the Federal Rules of Civil Procedure do not envision a ruling on cost shifting early in the case; that a previously stipulated order reserved the unrestricted right for the parties to later seek a cost-shifting order; and that cost-shifting is not restricted to "inaccessible data." Disagreeing with the defendant's arguments, the court denied the order. The court stated the Federal Rules "plainly contemplate that a motion for protective relief (including cost shifting) is to be brought before the court in advance of the undue burden, cost or expense from which protection is sought." The court reasoned any other interpretation would offend "common sense" since the rule must be interpreted as a "means of avoiding undue burden or cost, rather than simply distributing it."

Court Requires Evidence of Intent to Deprive Opposing Party of Useful Information for Spoliation Claim
Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D.Ohio July 7, 2008). In this breach of contract suit, the plaintiff sought summary judgment on its spoliation claim. The plaintiff alleged that the defendant engaged in spoliation of electronic evidence by failing to issue a litigation hold, thereby neglecting to retain relevant evidence as well as the destruction of relevant hard drive data. The plaintiff argued this failure resulted in the destruction of potentially relevant data, in addition to destruction of evidence contained on computer hard drives. The court found no direct evidence that the defendant deleted data with an intent to avoid disclosure to the plaintiff. Determining a genuine dispute of material fact to exist regarding intent with each aspect of the plaintiff's spoliation claim, the court denied the plaintiff's motion.

Court Unwilling to be Lenient Towards Pro Se Defendant on Discovery Matters
United States v. Two Bank Accounts, 2008 WL 2696927 (D.S.D. July 2, 2008). In this litigation seeking forfeiture of two specific bank accounts, the government filed a motion to compel seeking production of requested electronic information and production of specified computers used in transactions alleged in the complaint for imaging. Appearing pro se, the defendant, who asserted an interest in some of the potentially forfeited accounts, filed a motion to deny requests for production, claiming undue expense. Finding insufficient facts to establish undue burden or expense given the government's ability to travel to the relevant computers and willingness to copy the relevant documents at their own expense, the court granted the motion to compel. Additionally the court sternly reminded the defendant that discovery is "not a game" but is a "two-way street" that must be diligently followed. See also United States v. 11 Bank Accounts, 2008 WL 2660969 (D.S.D. July 2, 2008).

To view additional case summaries visit www.krollontrack.com/case-summaries/.

Practice Points: Review and Production Considerations for Multilingual E-Discovery - Part III

The era of globalization is colliding with the complexity of e-discovery. To illustrate, an order entered earlier this year by Magistrate Judge Matsumoto in Strauss v. Credit Lyonnais compelled a French bank to produce documents to American victims of a terrorist attack in Israel. In this dynamic virtual global courtroom, the necessity of comprehensive and defensible multilingual e-discovery is clear. Parts one and two of this three-part series on multilingual e-discovery focused on important considerations during data collection, filtering and processing (You may review parts one and two of this article concerning international collection considerations by visiting  www.krollontrack.com/clu/. When it comes to multilingual electronic document review and production, the message is clear - plan ahead or pay later!

Document Review: After multilingual data is collected and potentially responsive documents have been identified through the filtering process, a legal team is ready to begin review. At this point of in the process, the documents are still in their native language. A legal team has the option of using native speaking attorneys to review the documents, translating the documents into English for review or using a hybrid of these methods. As a general rule, using a native speaker is more accurate than translation, but is also more expensive. Moreover, human translation is generally more accurate than computer translation, but likewise more costly.

When deciding on which review method to utilize, the prudent practitioner must consider the importance and the volume of the multilingual documents that need to be reviewed. Review by native speaking attorneys or human translation may not be practical to complete within discovery deadlines, financially feasible or necessary. On the other hand, in many jurisdictions the producing party has the burden of proving their privilege review was reasonable for purposes of assessing whether they waived attorney-client privilege in the event of inadvertent disclosure. Deliberately choosing the review method (native review, human translation or computer translation) for multilingual documents increases the defensibility of the review. In other words, the ability to articulate reasons why one review method was chosen over another strengthens the "reasonableness" argument.

Document Production: Several unique considerations arise in the context of multilingual e-discovery production. First, agreeing with opposing counsel early on regarding production language is crucial. A document may either be produced in its native language, in English or both. Moreover, parties should also agree on production format. Production format options for multilingual data are the same as for other electronically stored information: native format, a load file, an online repository or print. Last, parties should agree in advance on production ordering and sequencing. Multilingual documents can be organized for production solely by custodian irrespective of the document's primary language, or can be further organized by both custodian an language. The old saying is true: an ounce of prevention is worth a pound of cure and the key to managing each of these production considerations is the same – agree in advance! The ideal time to discuss and reach an agreement on multilingual e-discovery production options is during a Rule 26(f) conference. Early party consensus on production language, format, and ordering and sequencing is crucial to developing your discovery plan, and may avoid costly disputes and potential re-dos later in litigation.

Furthermore, when producing redacted documents in their native language with searchable text, it is important to verify that your service provider offers optical character recognition (OCR) support for languages included within the document production. Because OCR output from redacted documents with disparate language families may contain incoherent text, you will want to verify that any non-redacted text is OCR'd in the redacted document's identified native language.

The bottom line is that a legal team should plan ahead by choosing defensible review methodologies and conferring early on with their opponent regarding production issues in order to avoid common pitfalls during the final stages of multilingual e-discovery. Moreover, a legal team can avoid discovery disasters and leverage opportunities throughout the process by educating themselves about the process, planning ahead for the inevitable and partnering with an experienced e-discovery service provider that possesses the technological tools and expertise necessary to navigate the waters of multilingual e-discovery when involved in complex litigation, investigations or compliance matters.

News & Events

Kroll Ontrack Offers Redesigned Certification Course for 2008
The industry's legal technology thought leader has revamped its E-Discovery Certification Course for 2008 with updated topics, additional speakers, and dual track, customizable sessions to appeal to beginner, intermediate and advanced learners. The redesigned course curriculum is ideal for legal and technical professionals of all levels, including in-house counsel, law firm attorneys, litigation support professionals, paralegals and IT staff. For more information and to register, visit: www.krollontrack.com/certification-courses/.

Kroll Ontrack Issues Another "ESI Report" on the Legal Talk Network
Kroll Ontrack has partnered with the Legal Talk Network to discuss cutting-edge issues and judicial opinions relating to electronically stored information. Michele Lange, Director of the Legal Technologies product line for Kroll Ontrack, hosts the radio show entitled "The ESI Report." The show's segments, the Spotlight, the Buzz and Bits and Bytes Legal Analysis, concentrate on hot topics in the area of electronic discovery and give listeners a snapshot into important issues facing practitioners, including rapidly evolving case law. The upcoming edition will bring to light important issues relating to data security in the healthcare industry. Additionally, listeners will be briefed by Kroll Ontrack's legal correspondent on the important order issued in the case of Keithley v. Homestore.com, Inc. regarding spoliation sanctions. Become a part of the over 10,000 listeners to date by visiting: http://www.krollontrack.com/legal-technologies-podcasts/.

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This newsletter was written by Gina Jytyla and Joni Shogren, Kroll Ontrack Staff Attorneys, with assistance from Kelly Kubacki and Meredith Socha, Kroll Ontrack Law Clerks. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.