In This Issue:

	RECENT E-DISCOVERY AND COMPUTER FORENSIC COURT DECISIONS
	TALKING TECHNOLOGY: OBJECTING TO NATIVE FILE PRODUCTION REQUESTS
	KROLL ONTRACK NEWS & EVENTS

Plaintiff Ordered to Pay Percentage of Defendant's Production Costs
Quinby v. WestLB, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006). In an employment discrimination suit, the defendant sought a court order requiring the plaintiff to bear a portion of the costs for restoring and searching backup tapes. The defendant hired Kroll Ontrack to restore and search data from the following locations: 171 backup tapes; Kroll Ontrack’s archives from a previous matter; and backup tapes containing e-mail for employees who worked outside the United States. The plaintiff argued the costs should not be shifted since the defendant had a duty to preserve the requested e-mail in an accessible format. The defendant argued its only duty was to preserve the evidence, it had no duty to preserve the data in a particular format, and a restoration of so many documents should fall on the plaintiff. The court agreed in part, holding the producing party does not have an explicit duty to preserve evidence in an accessible format. However, the producing party will bear the cost of producing any evidence preserved in an inaccessible format after litigation is reasonably anticipated. The court stated this would “[P]revent parties from taking unfair advantage of a self-inflicted burden by shifting part of the costs of undoing the burden to an adversary.” However, it if was not reasonably foreseeable that the evidence at issue would have to be produced, the responding party who converts the evidence into an inaccessible format after the duty to preserve evidence arose, could still seek to shift the costs associated with restoring and searching that evidence. For a small portion of the defendant’s inaccessible data that the defendant could not have reasonably anticipated producing, the court relied on the Zubulake seven-factor cost-shifting test and ruled the plaintiff should share 30 percent of the production costs.

Searching and De-Duplication Process Deemed Acceptable in Discovery Production
In re CV Therapeutics, Inc., 2006 WL 2458720 (N.D. Cal. Aug. 22, 2006). In a securities litigation, the plaintiff claimed the defendant failed to follow a judge’s order compelling the defendant to produce documents found on various backup tapes and employee hard drives. The plaintiff claimed the defendant’s non-compliance came from their failure to produce documents determined as invalid through a de-duplication software filter. The defendant claimed approximately 423,000 documents were discovered during their initial search. Upon using various search terms and a de-duplication process the number was reduced to 125,000 documents, of which only 4,000 were relevant. The plaintiff motioned the court to discover all 423,000 documents before the filter process was applied. The court held that the search terms chosen by the defendant were proper and the de-duplication process was an acceptable method for narrowing the document set. However, the defendant agreed to provide additional cataloging information to the plaintiff for the non-produced documents and relieved the court of deciding on this issue.

Plaintiff Not Obligated to Convert Electronic Files for Defendant's Convenience
OKI Am., Inc. v. Advanced Micro Devices, Inc, 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006). In a patent infringement case, the defendant filed a motion to compel the production of electronic documents. The defendant claimed the plaintiff produced a disk of information containing 29,000 pages of material that were not in a proper electronic format and not searchable. The court noted the defendant’s motion was ironic since earlier in the litigation the defendant produced a similar disk of information to the plaintiff that contained the same unsearchable electronic formatting. The plaintiff claimed it bore the cost of converting the files into a searchable database because the defendant refused to produce the information in a searchable format. The court stated the defendant’s own prior refusal to convert its documents should not be rewarded in this situation by forcing the plaintiff to again expend costs in converting electronic documents. The court denied the defendant’s motion.

Sanctions Issued for Faulty Litigation Hold and Discovery Misconduct
3M v. Tomar Elec., 2006 WL 2670038 (D. Minn. Sept. 18, 2006). In a patent infringement case, the district court upheld the magistrate’s decision to award sanctions based on the defendant’s discovery insufficiencies. In this case, the defendant repeatedly gave false testimony regarding the existence and content of relevant e-mails of employees within his company. In addition, the defendant failed to inquire into whether other employees had potentially relevant material, but merely looked at his own e-mail and files. The court found the defendant “should have conducted a reasonable inquiry into whether employees … had documents or information responsive to 3M's request” and that he “should have instigated a litigation hold after being notified of this litigation.” The court held that such deliberate failure to comply with any rules of discovery warranted sanctions that included: adverse jury instructions, negative inferences to the jury and monetary sanctions to cover the costs of the plaintiff in bringing the motions related to the discovery and any future depositions needed to correct the defendant’s withholdings.

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/.

TALKING TECHNOLOGY: OBJECTING TO NATIVE FILE PRODUCTION REQUESTS

A number of recent cases demonstrate that parties increasingly are requesting production of electronic documents in the native file format during legal discovery. In the majority of these cases, courts have held that native file production will be required unless the opposing party has a substantial basis for the objection. See Treppel v. Biovail Corp., 2006 WL 278170 (S.D.N.Y. Feb. 6, 2006) (requiring defendant to produce native file documents since there was no reasonable basis for an objection); Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 2006 WL 524708 (N.D. Cal. Mar. 6, 2006) (ordering a native production set because defendants failed to offer relevant reasons why the documents should not be produced in their native format). As illustrated by cases like Treppel and Nova, merely objecting to a native file production request without offering concrete reasons for the objection is insufficient. Rather, attorneys must be prepared to articulate specific technical limitations associated with native file production and why those limitations are not an issue with converted file formats (such as TIFF images). When crafting an objection to a native file production request, consider the following:

• Alterability and Spoliation . Once files are converted to TIFF images, they cannot be altered. Native files, however, can be changed very easily – either intentionally or unintentionally. For example, simply opening a document can change the metadata of a native file.

• Bates Numbering . Tracking documents in a native production can be costly, inefficient and unmanageable. Native file productions make it impossible to Bates number documents, precluding parties from having an effective audit trail of the documents produced. Some parties add Bates numbers to the header or footer of a native document; however, in addition to being time-consuming, this modifies the document from its original form. In contrast, a TIFF production allows for Bates numbering and accurate tracking of produced documents.

• Creating Redactions . A TIFF review and production allows parties to redact confidential or privileged information. When documents are produced natively, however, there is no effective way to place a redaction on the native file. Thus, a native file production can undermine and compromise a party’s efforts to protect proprietary or privileged information.

• Searching Text. Documents that have been converted to TIFF images easily can be searched and reviewed in one comprehensive search query. In a native file document set, this task is very difficult because few applications exist for searching across thousands or millions of native files in different formats from multiple computer users. Counsel should also be aware that producing TIFF images with corresponding searchable text and metadata has been found acceptable by courts nationwide.

• Metadata. If producing native files, all associated metadata, embedded data, and hidden information will be handed over to the opposing party. Parties should be aware of this if required to produce native files, especially if any of the behind-the-scenes data contains privileged information. Parties producing TIFF images, text, and selected relevant metadata fields, on the other hand, have greater control over what information is exactly being conveyed to the other side.

The bottom line: regardless of which production format is ultimately used in a case, counsel should not agree to a native production without being informed about the implications it will have on the effort, the time and the expense associated with the review and production process.

KROLL ONTRACK NEWS & EVENTS

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This newsletter is written by Michele C.S. Lange, 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, contact Kroll Ontrack at 1-800-347-6105 or www.krollontrack.com