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In This Issue:
 Recent ESI Court Decisions
Court Denies Motion to Suppress E-mail Evidence Obtained from Internet Service Providers
United States v. Ferguson, 508 F.Supp.2d 7 (D.D.C. Sept. 10, 2007). In this drug trafficking prosecution, the defendant moved to suppress Yahoo! and MSN Hotmail e-mail evidence obtained by the government, which was seized pursuant to the magistrate judge's order under the Stored Communications Act (SCA). The defendant challenged the SCA's constitutionality, and in turn, the government argued that the constitutionality of the SCA had no bearing on whether the evidence warranted suppression. Denying the defendant's motion to suppress, the court found that the SCA does not provide a suppression remedy and concluded that the government's reliance on the SCA was objectively reasonable.
Court Denies Request for Re-Production in Native Format Where Party Failed to Specify Form of Production
Schmidt v. Levi Strauss & Co., 2007 WL 2688467 (N.D.Cal. Sept. 10, 2007). In this action brought under the Sarbanes-Oxley Act, the plaintiffs, former employees of the defendant, claimed they were wrongfully terminated. The defendant counterclaimed, alleging that the plaintiffs took confidential company documents. In the discovery dispute at issue, the plaintiffs moved for an order requiring the defendant to reproduce its entire document production in native electronic format. As the plaintiffs' initial discovery request occurred prior to the 2006 Fed. R. Civ. P. amendments and did not specify the form in which the documents should be produced, the court held that the defendant's burden to reproduce documents in native electronic format would far outweigh any benefit to be gained by the plaintiffs.
Court Orders Preservation of Images Stored on Cell Phone
Smith v. Cafe´ Asia, 2007 WL 2849579 (D.D.C. Oct. 2, 2007). In this suit alleging sexual discrimination, assault and battery, the defendant, a former employer of the plaintiff, sought images stored on the plaintiff's cell phone to prove the plaintiff invited the treatment that incited the suit. The case was referred to United States Magistrate Judge Facciola for resolution. Judge Facciola stated that Fed. R. Civ. P. 26 is not an "all-or-nothing proposition" and the probative value of the sought-after materials must outweigh their prejudice. After conducting a Rule 26 and Federal Rule of Evidence 412 analysis, Judge Facciola ordered the plaintiff to preserve the stored images. Additionally, Judge Facciola allowed the defendant to designate one attorney to inspect the stored images in order to provide the trial judge with a fully informed debate regarding the images' admissibility.
Court Orders Defendant to Comply with ESI Production Requests
John B. v. Goetz, 2007 WL 3012808 (M.D.Tenn. Oct. 10, 2007). In this discovery dispute, the court granted the plaintiffs' motion to compel and ordered the defendants to provide complete responses to the plaintiffs' ESI requests, including all metadata and deleted information for any of the defendants' key custodians. Additionally, the court ordered the defendants to file certifications regarding whether ESI was removed from any state computer or personal computer provided by the state. Any managed care contractors (MCCs) were ordered to respond to ESI requests and if production was found inadequate, the plaintiffs were allowed to renew their motion to compel further production. Addressing the plaintiffs' spoliation concerns, the court allowed the plaintiffs' ESI expert to oversee the defendants' production and inspect whether any changes were made to the defendants' computer(s). Finally, the court ordered the defendants to respond as to why they should not be required to pay all production costs and attorney fees as provided in the order.
Court Denies Employee's Claim of Privilege in E-mail Sent from Employee E-mail Account over Employer Server
Scott v. Beth Israel Med. Ctr., Inc., 2007 WL 3053351 (N.Y.Supp. Oct. 17, 2007). In this case, a former doctor-employee sought contractual damages arising from the defendant's alleged termination without cause. On remand following reversal of the district court's earlier summary judgment order, the plaintiff sought a protective order requiring the return of e-mail correspondence between himself and his attorney claiming attorney client privilege and the work product doctrine. The defendant argued that their e-mail policy states that company e-mail is to be used solely for business purposes and that employees have no personal privacy rights in any material created or communicated on the company computer systems. The court agreed and denied the plaintiff's motion since the defendant notified the plaintiff of the use and monitoring policies.
Court Denies Motion to Comply with Delaware's Default Standard for E-Discovery
RLI Ins. Co. v. Indian River Sch. Dist., 2007 WL 3112417 (D.Del. Oct. 23, 2007). In this case, the plaintiff filed a motion requesting the court to order the defendant to comply with the district of Delaware's default standard for the discovery of electronic documents. The motion was filed over one year after fact discovery ended per the scheduling stipulation. The plaintiff argued that the defendant failed to provide full and complete e-discovery based on the lack of computer generated documents relative to the overall volume of documents produced. Relying on Fed. R. Civ. P. 26(f)(3) which requires parties to discuss the form and scope of e-discovery prior to the Rule 16 conference, the court denied the plaintiff's motion which was filed months after the close of discovery and lacked a compelling reason to reopen.
Court Denies Claim for Spoliation Sanctions Based on Insufficient Evidence
Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 3171299 (M.D.Fla. Oct. 25, 2007). In this case, the defendant moved to impose sanctions for spoliation and discovery abuses against the plaintiff or in the alternative, to reopen discovery. The plaintiff claimed that an employee deleted relevant e-mail and therefore they could not produce e-mails responsive to the discovery requests. The employee claimed to have not received the litigation hold notice. The employee also claimed he deleted some e-mail in his inbox to clean it up but was unable to recall the subject matter of the deleted e-mails. The plaintiff then conducted a forensic search of the employee's hard drive and produced responsive e-mails not earlier produced. The court therefore denied the motion as the defendant failed to establish two elements of a spoliation claim, 1) the deleted e-mail was relevant to the litigation and 2) that it had not been already produced.
Court Imposes Adverse Inference Sanction for Willful Destruction of Evidence
Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., 2007 Bankr. LEXIS 3679 (Bankr.D.Haw. Oct. 30, 2007). In this trade secret misappropriations claim, the plaintiff motioned the court to sanction the defendant, alleging deliberate destruction of evidence that the defendant had a duty to preserve. Before the complaint was filed, the defendant's top officer installed program deletion software on his home computer and two laptops that permanently eliminated the residue of previously deleted files and changed the system clock. The court found the destruction to be intentional, deliberate, willful and in bad faith. Therefore, the court found spoliation and ordered an adverse inference that the evidence destroyed was unfavorable to the defendant.
Court Orders Monetary Sanctions for Discovery Abuses
Bd. of Regents of the Univ. of Nebraska v. BASF Corp., 2007 WL 3342423 (D.Neb. Nov. 5, 2007). In this breach of contract case, the defendant moved to impose sanctions against the plaintiff for violation of an earlier court order compelling document production. The defendant's request included full compliance by continued search and production of employee files, certification of full compliance by plaintiff, reproduction of witnesses for deposition as well as reasonable fees and expenses. The record revealed that the plaintiff continued to produce documents following the discovery deadline and an additional 6,000 pages following the deposition of the plaintiff's witnesses. In fact, one of the plaintiff's witnesses testified during his deposition that while the litigation was pending, he had not received a litigation hold notice but was rather encouraged to review and eliminate as many files as he could. The court determined that such lack of compliance with the motion to compel was not willful but that the plaintiff's counsel was far from diligent in complying with the order. The court held that as the litigation was pending at the time of the destruction, bad faith was not required for sanctions and ordered the plaintiff to pay for all costs and expenses associated in re-deposing witnesses and the filing of this motion.
Court Orders Production of Relevant Material in Spite of Alleged Computer Incompetence
Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D.Colo. Nov. 13, 2007). In this lawsuit, the plaintiff brought a bad faith claim against her disability insurer. During discovery, the defendant sought a DVD produced by the University of Denver containing over 4,000 e-mails with 1,500 attachments sent or received by the plaintiff while she was at the University. In response, the plaintiff produced a mere ten e-mail strings and a privilege log of 135 additional e-mails off the DVD. The plaintiff blamed the discrepancy on a lack of computer expertise and argued against production of the entire DVD as irrelevant and privileged. The court found the entire DVD relevant to the underlying claim of long term disability and ordered that it be produced by the plaintiff, subject to the provisions of FRCP 26(b)(2)(B).
Court Finds Production of Metadata Overly Burdensome
Michigan First Credit Union v. Cumis Ins. Soc'y, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007). In this suit, the plaintiff sought sanctions based on the defendant's alleged failure to comply with a previous court order pertaining to production of ESI. The plaintiff claimed the defendant's production contained no metadata and was not in native format as requested. The defendant claimed that the information was not stored in a way that allowed for easy retrieval of metadata, if any metadata even existed. Because the previous court order did not address the issue of metadata or native files, the court held that the defendant's failure to produce that information did not violate the order. Further, agreeing with the defendant's argument that production of metadata would be overly burdensome, the court concluded that no evidentiary value would be gained from the metadata to warrant imposing the significant burden on the defendant.
Other New Case Summaries Added to the Kroll Ontrack Case List This Month:
- Court Declines to Impose Sanctions for Spoliation Absent Preservation Order — Marketfare Annunciation, LLC v. United Fire & Cas. Ins. Co., 2007 WL 3273440 (E.D.La. Nov. 5, 2007).
To view additional case summaries visit: http://www.krollontrack.com/case-summaries/
Practice Points: ESI and Politics: E-mail Retention and the White House
A recent Federal District Court Order (District of Columbia) recognizes that issues regarding technology and electronically stored information (ESI) are politically charged. The Order, No. 1:07-cv-01707-HHK (D.D.C. Nov. 12, 2007), authored by Judge Henry H. Kennedy stems from a complaint filed on September 25, 2007 by the Citizens for Responsibility and Ethics in Washington (CREW). The Complaint alleges the Executive Office of the President and the National Archive and Records Administration knowingly failed to recover, restore and preserve millions of e-mails and the White House failed to implement an adequate electronic record retention system. The Complaint further alleges that if any of the deleted e-mails still exist, they would only exist on backup tapes. CREW sought a temporary restraining order to require the preservation and restoration of the missing e-mails and the implementation of an adequate records management system.
Back in 1994, the Clinton administration established a records management system that preserved and categorized e-mails but that system was discontinued and not replaced in 2002. The missing e-mails in question were deleted between 2003 and 2005. Their existence was first exposed during the CIA leak investigation and received further attention during the congressional inquiries into the firings of several US attorneys.
Magistrate Judge Facciola, who is widely recognized as an expert in the area of electronic discovery, recommended that Judge Kennedy grant the Order because of public interest and the potential that important historical information might be contained on the backup tapes. Although the Justice Department attempted to claim they are not subject to the law of the judiciary, the argument failed. The White House was ordered to preserve the media and prohibited from transferring it out of their custody and control without the permission of the Court.
News & Events
Kroll Ontrack Issues Another "ESI Report" on the Legal Talk Network
Recently, Kroll Ontrack 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 is split into three segments: the Spotlight, the Buzz and Bits and Bytes Legal Analysis. The Spotlight and Buzz sections concentrate on hot topics in the area of electronic discovery and give listeners a snapshot into important issues facing practitioners. Former guests include Ken Withers, Ralph Losey, Judge James Francis and others discussing data accessibility, the revised Sedona principles and a law school course focused on teaching electronic discovery to future lawyers. The Bits and Bytes Legal Analysis segment focuses on late-breaking cases, including Columbia Pictures v. Bunell, Qualcomm v. Broadcom, and the Citizens for Responsibility and Ethics in Washington v. The Executive Office of the President. With thousands of listeners to date, be sure to listen and stay up to date by visiting: http://legaltalknetwork.com/modules.php?name=News&new_topic=17
Federal Rules of Civil Procedure Update: Numbering Scheme Changes as of December 1, 2007
The Supreme Court recently approved amendments to the Federal Rules of Civil Procedure as proposed by the Rules Committee, slated to take effect on December 1, 2007. Most of the changes are hardly substantive and are the result of efforts to improve the style of the rules from long convoluted paragraphs into smaller subparts. Many were re-worded and shortened, essentially removing unnecessary words, and headings were added to each subpart. To view the amended rules, visit: http://www.uscourts.gov/rules/supct1106/CV_CLEAN_FINAL5-30-07.pdf.
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This newsletter is written by Joni Shogren, a Kroll Ontrack staff attorney with assistance from Gina Jytyla, also a Kroll Ontrack staff attorney. 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 http://www.krollontrack.com.
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