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In This Issue:
 RECENT
E-DISCOVERY AND COMPUTER FORENSIC COURT DECISIONS
Court Evaluates Multiple Claims Relating to Production of Electronic Data
The Ponca Tribe of Indians of Okla. v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11. 2006). In a tort action, the plaintiffs filed several motions requesting the production of various electronic documents. After the defendant's initial production of documents, the plaintiffs filed motions to: compel mirror images of various databases; produce native file formats of e-mails; and create a more organized and understandable database of electronic documents already produced. The defendant argued the cost of providing a mirror image database to the plaintiff would exceed $10,000. The court found the large cost of production did not outweigh the plaintiffs' interest in having the documents. The court noted, however, the parties could negotiate production of the database without the court's assistance if the plaintiffs desired to pay the costs associated with obtaining the data. In arguing for the native production of e-mails, the plaintiffs claimed the defendant merely provided "pictures" of the requested e-mails and did not provide them in an easily searchable format. The court found the plaintiffs' discovery requests did not specifically ask for the e-mails in a particular format, and the defendant had provided documents as asked for in the discovery requests. Lastly, the plaintiffs argued the production of e-mails and other documents were "produced as single page documents with no consideration of the organization." The plaintiffs requested the electronic documents be provided in an "un-shuffled" manner and produced in a more easily readable method. Refusing to place such a burden on the defendant, the court ruled the production followed accepted industry practices and the plaintiffs possessed the capabilities to organize the produced documents.
Court Refuses to Issue Spoliation Sanctions Where Deleted Records Were Recovered
Crandall v. The City and County of Denver, 2006 WL 2683754 (D.Colo. Sept. 19, 2006). In a case involving exposure to harmful chemicals, the plaintiffs sought sanctions against the defendant for deleting e-mail before and during the litigation. Specifically, the defendant's e-mail protocol automatically deleted e-mails every seven days. The defendant did not change the server's protocol until six months after litigation started, resulting in the deletion of many relevant e-mails. However, the defendant purchased data recovery software and recovered 91,000 deleted e-mails. The plaintiffs still alleged several relevant e-mails were destroyed which could never be recovered and the missing e-mails severely prejudiced their case. The defendant argued no relevant e-mails were destroyed and it took substantial steps to recover any deleted e-mails. The plaintiffs urged the court to "create a presumption in favor of spoliation whenever a moving party can prove that records that might have contained relevant evidence have been destroyed." The court declined to create a legal presumption in favor of spoliation. Instead, it re-opened discovery and allowed the plaintiffs to depose two persons having knowledge of the e-mail system. It also allowed the plaintiffs to have a computer expert examine the defendant's e-mail system. The court found that because the plaintiffs were not prejudiced by loss of the alleged data, sanctions in the form of adverse inferences and fees and costs would not be assessed on the defendant. The court stated the defendant may file another motion if new evidence was discovered.
Mere Suspicion of Discovery Misconduct is Insufficient to Order Computer Examination
Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006). In a claim brought by a law student under a state Persons With Disability Act, the plaintiff sought to examine the defendant's computer system with her computer forensics expert. The plaintiff claimed her poor scores on final tests were attributed to faulty software provided by the law school to assist the plaintiff with her vision disability while taking tests. The plaintiff originally sought the production of several work orders from the law school relating to the software but the school changed computer systems and during the switch some documents were deemed unrecoverable. The plaintiff argued the defendant used the system changeover as an excuse not to produce relevant documents. The defendant argued it already produced every work order they were able to recover and the other work orders could not be retrieved from the old computer system. The court found for the defendant, stating "[t]his court is therefore loathe to sanction intrusive examination of an opponent's computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information."
Canceling YAHOO! Account Justifies Sanctions for Destruction of E-mail
Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. Sept. 28, 2006). The plaintiff sought sanctions against the defendant for bad faith destruction of relevant documents and e-mails. The defendant in this case was a competitor of the plaintiff in the sporting goods business. The defendant hired a former employee of the plaintiff after he voluntarily ended his employment with the plaintiff. When the employee left the company, he forwarded several confidential documents from the plaintiff's company e-mail account directly to his personal Yahoo! account. A computer forensics expert determined the employee opened the documents on his home computer, and several of the confidential documents were also found on a computer issued to the employee from his new employer. Upon the filing of the plaintiff's lawsuit, the employee cancelled his Yahoo! e-mail account, thereby causing all e-mails stored on the account to be destroyed and unrecoverable. The plaintiff motioned the court to issue sanctions in the form of dismissal for bad faith destruction of key documents after litigation commenced. The defendant argued no knowledge of the stolen trade secrets from the plaintiff and alleged the employee transferred and deleted the files on his own. The court found the employee destroyed wrongfully obtained records when he cancelled his personal e-mail account with Yahoo!. The court did not find enough evidence to prove the defendant willfully and in bad faith supervised or instructed the destruction of the trade secrets. However, the court did find the defendant negligent in its failure to preserve relevant evidence from its employee. The negligence by the defendant did not warrant a dismissal of the case as the plaintiff urged, but the court ruled a negative inference may be allowed at trial because it "should have done more to detect and preserve relevant data under [the employee's] control."
Failure to Produce E-mail under Informal Agreement Does Not Warrant Sanctions
Marwaha v. SBC Global Services, Inc., 2006 WL 2882854 (N.D. Ohio Oct. 6, 2006). In an employment discrimination suit, the plaintiff motioned the court to sanction the defendant for failure to produce a particular e-mail during discovery. The plaintiff attempted to negotiate with the defendant about the production of an e-mail not originally demanded by the plaintiff in initial discovery requests. The plaintiff stated they would not file a motion to compel the production of the relevant e-mail if the defendant stipulated to certain facts, which would be proven by the e-mail. The defendant did not stipulate to the agreement and the plaintiff brought a motion for sanctions based on the defendant's failure to follow thorough with the "informal agreement." The court ruled there was no evidence the defendant agreed to the informal agreement and even if they had agreed, the court stated they "cannot be called upon to police such ambiguous agreements." The court also stated the request for the e-mail was beyond the scope of the plaintiff's discovery requests, and it could not be compelled for production.
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: SPECIAL MASTERS CAN SIMPLIFY E-DISCOVERY ISSUES
In a case from earlier this year, Eastman Kodak Co. v. Sony Corp., 2006 WL 2039968 (W.D.N.Y. July 20, 2006), the court adopted the Special Report and Recommendation of a special master in dismissing the defendant's motion compelling the plaintiff to supplement its initial production. The court accepted the conclusion that the computer server the plaintiff provided to the defendant was organized in a usable format after the special master was able to retrieve responsive documents by performing simple keyword searches.
Judges generally have a basic understanding of the technical issues surrounding e-discovery and routinely rely on counsel to settle disputes without involving the court. When counsel cannot reach an agreement, courts often find themselves in the midst of e-discovery warfare, with parties contesting numerous issues surrounding the costs and burdens in locating, reviewing and producing electronic data. However, by employing the use of a special master, the court in this case was able to timely rule on the defendant's motion by relying on the observations of an impartial and knowledgeable expert.
Under Rule 53 of the Federal Rules of Civil Procedure, federal courts may appoint special masters to "address pretrial and post-trial matters that cannot be addressed effectively and timely" by the judge or a magistrate. Assessing the circumstances of a particular case, the court may appoint a special master at its own discretion, or at the request of either or both parties. Under the Federal Rules of Evidence 706, a court also can appoint a special master as a technical expert to testify at trial or provide assistance to the court on complex technical matters of which either the judge or the parties lack sufficient knowledge.
In light of the complexity and expense posed by e-discovery, courts are increasingly relying on the expertise of special masters to settle disputes involving several electronic evidence issues. Special masters can offer assistance by:
- Identifying sources of relevant electronic information
- Offering technical assistance to the court
- Specifying the format or adequacy of electronic production
- Determining the burden and costs of searching for electronic data
- Comprising a list of search terms
- Implementing litigation holds and “claw-back” agreements for privileged documents
- Establishing when to shift discovery costs
- Calculating damages
- Ensuring compliance with protective orders
Although both parties must bear the costs of employing a special master, this can be greatly offset by avoiding the unnecessary expense involved in litigating drawn-out discovery battles. In addition, special masters can use their expertise to solve complex technical pre-trial issues without court intervention, allowing judges to efficiently and fairly rule on e-discovery matters while focusing primarily on a case's merits.
KROLL
ONTRACK NEWS & EVENTS
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KROLL
ONTRACK REQUESTS YOUR INPUT
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 800 347 6105 or http://www.krollontrack.com
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