Archive: June 2007

1
RAM and FRCP 34 Lock Horns
2
2006 E-Discovery Amendments Do Not Require Forensic Computer Search as a Matter of Course; Court Orders Parties to Meet and Confer on Certain Issues
3
RAM Ruling Portends a New E-Discovery Brawl
4
Court Enters Detailed Agreed Order Regarding Preservation of ESI, Documents and Other Tangible Items
5
Magistrate Judge Facciola Orders Production of Email from Backup Tapes in Light of Party’s Failure to Suspend Email System’s Automatic Deletion Feature
6
Court Denies Plaintiff Direct Access to Mirror Images of Defendants’ Hard Drives; Defense Expert to Conduct Forensic Search with Ongoing Input from Plaintiff and Plaintiff’s Expert
7
U.S. District Court for the Northern District of Ohio Adopts Default Standards for E-Discovery
8
Electronic Delivery of Consumer Disclosures – New Rules Go Back to the Future

RAM and FRCP 34 Lock Horns

In a June 19, 2007 article in the New York Law Journal (subscription required), and a June 27, 2007 article appearing on www.law.com, K&L Gates partner Kelly D. Talcott writes:

A recent e-discovery decision from the U.S. District Court for the Central District of California provides an opportunity to reflect a bit on the permanence of storage media.  It has also inspired debate as to when temporarily stored information becomes "electronically stored information" that needs to be preserved and, where relevant, produced in response to discovery requests.

The May 27, 2007, order directs defendants in an ongoing copyright infringement lawsuit to collect and produce information stored in the random-access memory of their servers.

Depending on the ideological and topical bent of the commentator, this decision (a) heralds a substantial victory in the war against copyright infringement; (b) sounds the death knell for Internet user privacy, or (c) could require anyone involved in a lawsuit to turn over information stored by their computers’ RAM hardware.  Closer inspection of the federal magistrate judge’s decision reveals the correct answer is probably (d) none of the above.

The article relates to the case of Columbia Pictures Industries v. Bunnell, CV 06-1093 FMC (JCx), U.S. District Court for the Central District of California. 

For those interested in reading the Court’s now-unsealed order that is the subject of the article, it is available here.

2006 E-Discovery Amendments Do Not Require Forensic Computer Search as a Matter of Course; Court Orders Parties to Meet and Confer on Certain Issues

Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007)

In this case, plaintiff asked the court to enter a discovery order to "ensure the production of all electronically stored information in an acceptable format as required by law and the most recent amendments to the Federal Rules of Civil Procedure."  Plaintiff also sought to compel the re-production of ESI previously produced by defendant in hard copy form, and to compel the production of deleted documents.

Forensic Search 
Plaintiff first contended that, pursuant to the 2006 amendments to Fed. R. Civ. P. 34, it was entitled to an order that would require defendant to allow a forensic expert to search defendant’s computer systems, network servers and databases and would require defendant to provide back up tapes of certain information systems.  Plaintiff offered to pay the cost of the forensic expert and to allow defendant ten days to review the data for privilege before any production was made.  Defendant objected, arguing that the 2006 amendments required no such discovery order as a matter of course.  The court agreed with defendant, and observed:
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RAM Ruling Portends a New E-Discovery Brawl

By Jesse Seyfer from The Recorder:

A federal magistrate’s order that stops a Web site from routinely tossing relevant data could, if replicated, carry broad e-discovery implications.

Magistrate Judge Jacqueline Chooljian’s May 29 order requires TorrentSpy to turn over customer data only ephemerally kept in its computers’ random access memory, or RAM. It could result in floods of similar requests in other civil cases, according to Ira Rothken, the Novato, Calif.-based attorney for the TorrentSpy site.

The Los Angeles magistrate’s order also has privacy watchdogs concerned.

Click here to read the entire article on Law.com.

Court Enters Detailed Agreed Order Regarding Preservation of ESI, Documents and Other Tangible Items

In re Genetically Modified Rice Litig., 2007 WL 1655757 (E.D. Mo. June 5, 2007)

This order constitutes the parties’ Agreed Order Regarding Preservation of Communications, Documents, Electronic Data, and Other Tangible Items, intended to govern the parties’ preservation efforts in these consolidated MDL proceedings.  The Agreed Order contains two parts: a lengthy definitional section and a section setting out specific preservation obligations.  The latter section provides that the preservation obligations set forth in the Order apply to currently-existing evidence within the parties’ possession, custody, or control, as well as evidence "generated, produced, or otherwise created in the future during the pendency of this Action until an agreement can be reached among the Parties regarding a cutoff date.”  It further provides:  “Notwithstanding any other provision of this Order, persons may generate business documents without preserving dictation, drafts, interim versions or other temporary compilations of information if such documents would not have been preserved in the ordinary course of business.” 

The Agreed Order further provides:

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Magistrate Judge Facciola Orders Production of Email from Backup Tapes in Light of Party’s Failure to Suspend Email System’s Automatic Deletion Feature

Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007)

In this case, disabled plaintiffs claimed that WMATA failed to provide adequate paratransit services through the MetroAccess program and that the service provided was materially inferior to the services available to people without disabilities.  Discovery was heavily litigated, and Magistrate Judge John M. Facciola addressed several discovery motions in this opinion, one of which related to the production of email from backup tapes.

Specifically, plaintiffs sought an order requiring WMATA to produce backup tapes of certain electronic documents written and received since the filing of the lawsuit.  Plaintiffs argued that WMATA had failed to properly instruct employees to retain potentially responsive electronic documents and therefore should pay to create the backup tapes.  “Remarkably, although the complaint in this case was filed on March 25, 2004, WMATA acknowledges it did nothing to stop its email system from obliterating all emails after sixty days until, at the earliest, June of 2006.”  WMATA presented testimony that its email system was programmed with an automatic deletion feature that deleted any email after it had been in existence for sixty days, without regard to whether the email was unread, in a folder that the sender or recipient has created, or in the user’s "Sent" or "Trash" folders.  Further, while the user could defeat the feature by archiving the email, i.e., placing it in a location of the user’s choosing in an encrypted format, the majority of WMATA employees apparently did not do this.  “As a result, with the exception of three individuals, there has been a universal purging of all possibly relevant and discoverable emails every sixty days at least since the complaint was filed three years ago.” Read More

Court Denies Plaintiff Direct Access to Mirror Images of Defendants’ Hard Drives; Defense Expert to Conduct Forensic Search with Ongoing Input from Plaintiff and Plaintiff’s Expert

Calyon v. Mizuho Secs. USA Inc., 2007 WL 1468889 (S.D.N.Y. May 18, 2007)

This case involved claims against former employees (the “Individual Defendants”) and their new employer for the misappropriation of confidential business information.  According to Calyon, the Individual Defendants used email and small, hand-held computer storage devices to remove vast quantities of Calyon’s business data and documents.  Plaintiff and the Individual Defendants reached an agreement to preserve the hard drives of the Individual Defendants’ personal computers and computer storage devices by creating “mirror images” of them.  However, the parties were unable to reach agreement on the protocol for reviewing the mirror images, and sought the court’s assistance.
Read More

U.S. District Court for the Northern District of Ohio Adopts Default Standards for E-Discovery

Effective June 4, 2007, the U.S. District Court for the Northern District of Ohio has incorporated a Default Standard for Discovery of Electronically Stored Information ("E-Discovery") as Appendix K to its Local Civil Rules.  Although the Court expects parties to cooperatively reach agreement on how to conduct e-discovery, in the event that such agreement has not been reached by the time of the Fed. R. Civ. P. 16 scheduling conference, the default standards will apply until such time, if ever, the parties reach agreement and conduct e-discovery on a consensual basis.  The newly adopted default standard is available on the court’s website, at: http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/AppendixK.pdf

The Court has also revised its Local Civil Rule 16 regarding case management.  Among other revisions, LR 16.3(b)(2)(F) now specifically includes discussion of electronic discovery as an agenda item for the Case Management Conference.  Revised LR 16.3 is available at: http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/lr16.3redline6-4-07.pdf

For a complete listing of local federal rules and guidelines addressing electronic discovery, see our recent post on the subject here.

Electronic Delivery of Consumer Disclosures – New Rules Go Back to the Future

On April 20, 2007, the Federal Reserve Board (the “FRB”) issued a proposal to withdraw portions of five interim final rules that address the electronic delivery of required consumer disclosures. The regulations are: B (implementing the Equal Credit Opportunity Act), E (implementing the Electronic Funds Transfer Act), M (implementing the Consumer Leasing Act), Z (implementing the Truth in Lending Act) and DD (implementing the Truth in Savings Act).

The withdrawal means that those who have attempted to comply with the interim rules, and those who ignored them, can and should now focus their attention on the requirements of the federal Electronic Signatures in Global and National Commerce Act (“E-Sign”). This creates both benefits and new ambiguities for financial institutions.

Click here to read the entire story by K&L Gates partners Jonathan Jaffe and Holly Towle.

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