Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008)

In this case, plaintiff (a lawyer) brought claims under the Ohio Consumer Sales Practices Act based upon emails he received.  Because only the unsolicited emails plaintiff received would support his claim under the Act, it was necessary for the parties to ascertain which of the emails plaintiff received were unsolicited.  Plaintiff's computer systems contained the only available documentary evidence that could show the pathways taken by plaintiff to solicit the emails or the absence of those pathways.

Defendants requested an inspection of plaintiff's computer systems so as to ascertain whether plaintiff's efforts with respect to receiving the emails and visiting the websites (that were at the heart of the action) constituted a consumer transaction under the OCSPA, or whether plaintiff's opening of the emails and any attempts to obtain free merchandise were part of a business designed to profit from email litigation

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In re Flash Memory Antitrust Litig., 2008 WL 1831668 (N.D. Cal. Apr. 22, 2008)

The court's order, in its entirety, provides:

All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action.  The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action.  "Documents, data, and tangible things" shall be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice mail, E-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, check statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition.  Until the parties reach an agreements on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation.  In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure.

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Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008)

In this decision, District Judge Robert S. Lasnik denied defendants’ motion for a protective order which asked the court to shift the costs of producing ESI to the plaintiff.  Relying on Fed. R. Civ. P. 26(b)(2), defendants argued that searching through their ESI would generate substantial costs and yield cumulative results.

Finding that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c), the court denied the motion on that basis.  The court then went on to consider the merits of the motion.  It found that defendants had also failed to demonstrate that plaintiff's discovery requests were unduly burdensome and/or cumulative, or that the requested ESI was “not reasonably accessible because of undue burden or cost.”  The court explained:

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Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008)

In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information.  Plaintiff knew about the existence of the DSFG Reports because he had received a facsimile of the June 2004 DSFG Report before he was terminated.  The fax was sent anonymously but the fax number was from defendant's Stamford, Connecticut office.  The June 2004 DSFG Report revealed that plaintiff was leading his division in sales performance.  After nine months of discovery, defendant had produced only four additional DSFG Reports.  In October 2007, plaintiff moved to compel production of the remaining seven DSFG Reports from the year prior to plaintiff's termination.

The court held a telephone conference to discuss the motion to compel and the whereabouts of the seven remaining DSFG Reports.  During the conference the attorneys maintained their respective positions on the matter:  plaintiff’s attorney believed that the defense attorneys were hiding or had deleted the DSFG Reports, and defense counsel gave assurances that such reports could not be located.  The court proposed that defendant permit a forensic computer consultant to inspect its computers, to which the attorneys agreed.  The court entered an inspection order, which included the following provisions:

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ClearOne Communications, Inc. v. Chiang, 2008 WL 920336 (D. Utah Apr. 1, 2008)

This decision further refines the search protocol to be used to search data from computers used by certain defendants, which were imaged pursuant to two court orders issued in 2007.  The second imaging order sought to establish a protocol for searching the mirror images to identify relevant and responsive documents.  That protocol was refined in a November 5, 2007 order.  The protocol in place required keyword searches by technical experts; review of search result reports by defense counsel for facial claims of privilege; delivery of the reports to plaintiff’s counsel for preliminary assertion of responsiveness; defense counsel's review for responsiveness and privilege; and delivery of documents and privilege logs.

The parties had agreed on many search terms.  Plaintiff had accepted, with five additions, the search terms proposed by defendants in September 2007.  The issue decided on this motion related to the five additional search terms proposed by plaintiff, and the conjunctive or disjunctive use of the terms in the searches to be conducted.

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Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008)

Plaintiff, an employee in the New York State Department of Environmental Conservation (“DEC”), alleged that defendants failed to promote him to the position of Captain in retaliation for having exercised his constitutional rights.  Plaintiff moved to compel the production of email between and among the parties, challenging the adequacy of defendants’ production.

Following oral argument on the motion, the court directed defendants to submit an affidavit describing the search undertaken to locate the requested emails.  In response, defendants filed an affidavit of the Director of the DEC's Division of Information Services.  Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources.  Although the director evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than 12 months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit did not address what efforts, if any, were employed to search for such emails from accessible sources.  For example, the affidavit did not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.

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Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 902957 (N.D. Ill. Apr. 2, 2008)

In this trademark infringement litigation, defendant sought to compel Autotech to produce an electronic copy of a word processing document entitled “EZTouch File Structure.”  Autotech had already produced the document in both .PDF format on a compact disc and paper format, and had also provided a “Document Modification History” representing a chronological list of all changes made since the “EZTouch File Structure” document was created.  Defendant argued that the  production was not acceptable, because the document existed in its “native format” on a computer at Autotech's offices in Bettendorf, Iowa.  Defendant wanted the “metadata” -- information it claimed was within the electronic version of the document including when the document was created, when it was modified, and when it was designated “confidential.”

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Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008)

In this employment discrimination case, defendants sought a forensic examination of plaintiff’s home computers.  Defendants explained that the inspection would focus on information relating to Coburn's employment with defendants, the termination of that employment, allegations or claims Coburn was making in this action, and damages resulting from the actions or inactions of defendants.  Plaintiff did not object generally to a “limited, focused” inspection, but opposed the request because defendants had not set forth a protocol or methodology that would protect her against violations of privilege, privacy and confidentiality interests.

The court found that the burden on plaintiff of such an inspection would be minimal.  It noted that defendants sought only a mirror image or “clone copy” of the hard drive or drives in question, and that defendants had agreed to bear the entire cost of the forensic inspection.  The court cited approvingly the protocol adopted in Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1054-55 (S.D. Cal.1999), finding that it offered “a suitable approach for protecting Coburn's communications with her attorney, and her privacy interests as well as the confidentiality interests of her new employer.”

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Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008)

In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a "smear campaign" that destroyed plaintiff's career as a securities analyst.  He asserted claims of defamation, tortious interference with prospective economic advantage and civil conspiracy.  In February 2006, as previously summarized here, Magistrate Judge James C. Francis, IV declined to enter a preservation order and ordered defendants to answer a “document retention questionnaire” and produce documents in native format.  In response that order, Biovail proceeded with the search protocol it had previously proposed, using the search terms (i) Treppel, (ii) Jerry, (iii) Bank of America, (iv) Banc of America, (v) BAS, and (vi) BofA.  Biovail searched the individual emails and files of certain key players, as well as the shared file drives of relevant departments.  It conducted the search by accessing certain backup tapes it had preserved, and images of the custodians' hard drives.

Subsequently, plaintiff requested that Biovail expand its search for electronic documents by adding some 30 search terms and numerous individual custodians to the original search.  Biovail declined on the grounds that plaintiff's request came too late and was overbroad.  Biovail produced the results of its search in May 2006.  After some additional discovery relating to Biovail's preservation of electronic data, discovery closed in December 2007.

Plaintiff then moved for an order compelling Biovail to search for additional ESI and imposing sanctions, alleging that the defendants did not adequately preserve evidence.  Defendants opposed both applications, contending that their production was complete and that their steps to preserve evidence were sufficient.

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Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008)

In this case, the State of Texas sought a declaratory judgment and the court's protection from a general litigation hold request, initiated by a letter sent by the City of Frisco.  The letter asked the Texas Department of Transportation to generally preserve all electronic data associated with a particular highway toll project, and referred to potential litigation regarding the environmental evaluation of the toll project.  The State speculated that the City would likely bring suit pursuant to the National Environmental Policy Act and the Administrative Procedures Act; however, at the time the complaint was filed, no claims had been brought.  Thus, the State asked the court to enter a declaratory judgment ruling that the City's preservation letter "violates the Federal Rules of Civil Procedure and is contrary to rules governing a NEPA/APA claim in federal court."  The request for declaratory relief was the sole count made against the City of Frisco in the complaint.

The City of Frisco moved to dismiss, arguing that the State failed to plead the elements of any viable claim and was essentially asking the court for an advisory opinion concerning what action it must take to properly preserve those documents subject to the litigation hold.  The court agreed, and dismissed the complaint.  The court's analysis is set out below:

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Flagg v. City of Detroit, 2008 WL 787061 (E.D. Mich. Mar. 20, 2008)

Plaintiff in this case is the minor son of a murder victim, whose murder remains unsolved.  The complaint alleges that the defendants engaged in a laxity in investigation, deliberately ignored and actively concealed material evidence, and deprived the plaintiff of an opportunity to bring a wrongful death suit against the murderer.

In a separate order on March 20, 2008, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of certain text messages.  The court found that the plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City of Detroit (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel.  The court observed that the relevance (and hence discoverability) of the text messages necessarily turned upon the content of the communications.  Thus, it was essential to establish a procedure for the review of the content of each such communication.  Moreover, because a communication might be relevant, but not subject to discovery, e.g., protected by a privilege, the court stated that the procedure must be capable of addressing such issues and objections to production.

Accordingly, the court issued this order establishing a protocol for review and production of text messages, and assigning two magistrate judges to perform the review.

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In re World Trade Ctr. Disaster Site Litig., 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008)

This litigation concerns claims relating to respiratory injuries suffered by rescue and clean-up workers as a result of exposure to toxins and other contaminants in the aftermath of the September 11, 2001 terrorist attacks.  Approximately 10,000 cases are before the court.

In this decision, the court approved the Special Masters’ recommendation that Technology Concepts & Design, Inc. ("TCDI") be retained to build, maintain and operate a database, to store the “Core Discovery” that the parties had begun to produce, and will continue to produce, pursuant to the court’s “Core Discovery Order" of November 27, 2007.  The court explained that the “Core Discovery” will create a substantial amount of information, including insurance data from scores of contractors and subcontractors, and basic details concerning each plaintiff's claim.  The court continued:

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Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 538 F. Supp. 2d 1032 (N.D. Ohio 2008)

In this case, an automobile dealer brought suit alleging that DaimlerChrysler had breached a settlement agreement when it refused to grant the dealer a Chrysler franchise.  During the two years of discovery that followed, Schmidt alleged that DaimlerChrysler knowingly and intentionally destroyed relevant evidence.  Specifically, Schmidt alleged that DaimlerChrysler failed to implement a litigation hold to prevent the destruction of evidence after the complaint was filed in October 2004, and replaced or altered certain employees' hard drives days before Schmidt made forensic images of the drives as part of its discovery process.  Further, Schmidt alleged that DaimlerChrysler attempted to hide the extent and significance of its misconduct.  As a result, Schmidt sought to add a spoliation of evidence claim to the litigation.

The court observed that, under Ohio law, the elements for a spoliation of evidence cause of action are:

1) ... pending or probable litigation involving the plaintiff; 2) knowledge on the part of the defendant that the litigation exists or is probable; 3) willful destruction of the evidence by the defendant designed to disrupt the plaintiff's case; 4) disruption of the plaintiff's case; and 5) damages proximately caused by the defendant's actions.

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Xpel Techs. Corp. v. Am. Filter Film Distribs., 2008 WL 744837 (W.D. Tex. Mar. 17, 2008)

In this brief order, the magistrate judge granted plaintiff’s motion for expedited computer forensic imaging, finding that good cause had been established.  The magistrate judge ruled that the costs of the forensic imaging would be borne by the plaintiff, and articulated a number of protocols for the parties to follow:

• Computer forensic analysis will be performed by Digitalworks, located at 13333 N. Central Expy., Ste. 201, Dallas, Texas 75243 (the "Forensic Examiner").
• All Forensic Examiners utilized must agree in writing to be bound by the terms of this Order prior to the commencement of their services.
• Within two days of this Order or at such other time agreed to by the parties, defendants shall make its Computer(s), Server(s), and any other electronic storage devices located at Defendants' place of business at 1385 Westpark Way, Euless, Texas, including but not limited to Brett Wassell's laptop, which may be located at a different location, available to the Forensic Examiner to make mirror images of those devices as set out below:
  

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Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008)

In this case involving claims of misappropriation of trade secrets, defendants objected to an order of a magistrate judge requiring them to disclose "forensically sound" images of certain data storage devices (Thermax's India and Michigan servers) to plaintiffs' counsel without any limitation as to the scope of the disclosure or prior filtering for privileged or work-product materials that the images might hold.  The production was required to permit a determination of whether defendants had violated an earlier stipulation and order that had imposed an ongoing obligation on defendants to return to plaintiffs any of plaintiffs’ files in their possession, and then to purge such files from their possession, custody and/or control.

The magistrate judge’s order had issued in the context of a dispute around the deposition of Stephen Wolfe, an employee of Huron Consulting Group, a computer forensic services firm relied on by defendants for both testifying and consultative expert work.  Wolfe testified that, at Thermax’s direction, he had performed two distinct tasks.  The first was to produce an expert report regarding whether an array of plaintiff’s information identified by plaintiff’s expert was located on a discrete set of data storage devices, after performing all necessary searches of images of the devices.  This set of devices did not include the India or Michigan servers.  The second task was to conduct electronic searches of images of Thermax’s India and Michigan servers for evidence of plaintiff’s files therein (which, in accordance with the parties' earlier stipulation and order, already should have been disclosed to plaintiffs and purged).  The two tasks were different in several ways, as each task involved searches of different devices, with the searches involved in the former task providing the exclusive basis of Wolfe's expert report, and the searches of the India and Michigan servers not informing his report in any respect.  In other words, Wolfe performed the former task in his capacity as a testifying expert, and performed the latter task in his capacity as a consulting expert.

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Clearone Communications, Inc. v. Chiang, 2008 WL 704228 (D. Utah Mar. 10, 2008)

In this case involving claims of misappropriation of trade secrets, breach of contract and conversion, plaintiff sought sanctions for two claimed wrongs:  (1) defendants’ belated production of, and misrepresentations about, source code complete with developer comments; and (2) defendants’ failure to produce “smoking gun” email, which was produced by another party who was the recipient of the email.

The so-called “smoking gun” email was written by defendant Lonny Bowers on September 5, 2005.  Bowers was one of the founders and principals of defendant WideBand.  The email was only discovered in documents produced by defendant Biamp, the recipient of the email, not in any discovery from the WideBand defendants.  The WideBand defendants explained that the computer system used by Bowers did not retain copies of email sent by Bowers.  On this point, the court observed:

For any business this is a significant irregularity; almost unimaginable for a technology company; and even more unlikely for a person of Bowers' importance in such a company.  Nonetheless, it does not appear that the September 5, 2005, email was withheld by WideBand Defendants -- they did not have any copies of emails sent by Bowers.

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Equity Analytics, LLC v. Lundin, 2008 WL 615528 (D.D.C. Mar. 7, 2008)

In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired.  Defendant explained that another Equity employee had granted him permission to use the employee’s username and password to access a particular Equity computer system.  Defendant admitted that he had accessed the system some 18 times over a 90-day period, and had used his Macintosh computer to do it.

In November 2007, the district court issued a TRO prohibiting defendant from “accessing or attempting to access Equity Analytics, LLC's data on Salesforce.com for any purpose.”  The judge initially struck from the TRO a requirement that defendant permit Equity to have a computer forensic expert examine his computer to ascertain:  (1) whether defendant accessed Equity's confidential customer data and/or trade secrets; (2) whether the data has been forwarded to defendant’s new employer an Equity competitor; and (3) whether the data was purged or overwritten.  The parties subsequently agreed that a computer forensic specialist should be permitted to examine defendant’s Macintosh computer, but they could not reach agreement on the search protocol.

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City of Seattle v. Prof'l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)

The discovery dispute in this decision involved the City of Seattle's request to have defendant Professional Basketball Club, LLC (“PBC”) search for and produce responsive emails for six of its eight members.  In January 2008, PBC produced approximately 150,000 emails from two members of PBC.  It objected to producing emails for the remaining six PBC members because such a search would “increase the universe exponentially” and would generally produce irrelevant documents.  The City moved to compel production of the requested emails.

The court first considered whether the requisite principal-agent relationship existed to establish that PBC had the legal right to obtain documents upon demand from its members.  The court analyzed PBC’s operating agreement under Oklahoma law, and concluded that the City had met its burden in establishing that PBC had “possession, custody, or control” over the at-issue documents for purposes of Fed. R. Civ. P. 34(a).

Next, the court found that the substance of the requested emails – information regarding the formation of PBC and the Sonics' finances – may be relevant to the underlying issues.  Given the liberal discovery rules, the court declined to limit the City's inquiry on relevancy grounds.  It stated that, whether such evidence warrants admissibility is a distinctly separate question that would be addressed at the appropriate time.

Finally, the court observed that the Federal Rules contemplate a specific requirement when a party objects to the production of electronically stored information, citing Fed. R. Civ. P. 26(b)(2)(B).  The court faulted PBC’s lack of specificity, stating that PBC had not explained why producing the emails at issue would be unnecessarily burdensome.  It continued:

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Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008)

In this employment discrimination case, the court had previously ordered defendant to produce computer-generated reports of attempts by its employees to access adult websites at two of its branches during the relevant time period.  Although the court had denied plaintiffs' request for email messages with adult content, it gave plaintiffs the option to file a motion for reconsideration after they had been given an opportunity to obtain evidence regarding defendant’s burden of production.  This opinion addresses plaintiffs’ renewed motion, in which they requested that defendant produce “at a minimum, documents showing any emails of a sexual or gender derogatory nature sent from 1998 through 2006.”

Evidence relating to defendant’s burden was as follows:

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Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008)

In this case, plaintiff claimed that defendant wrongfully terminated her disability benefits in violation of ERISA.  Plaintiff also alleged that Hartford violated her right to privacy by causing its agent Dempsey Investigators to trespass onto her land and videotape her and her roommate through the kitchen window of plaintiff’s home.

When Hartford served its Rule 26(a)(1) initial disclosures, it indicated it was disclosing a copy of the administrative record related to plaintiff’s disability claim, and produced among other things copies of the claim file, electronic notes and surveillance videos conducted by Dempsey.  Due to what Hartford calls an "administrative oversight," the videos produced did not contain the footage of plaintiff in her kitchen.  Hartford later produced the “kitchen video” in a supplemental disclosure under Rule 26(e).  Hartford argued that it complied with its usual procedure and that a reasonable search was done, and that as soon as it discovered that the full video had not been disclosed it complied with Rule 26(e) and supplemented its earlier disclosure.

Plaintiff sought sanctions, alleging that Hartford failed to disclose the kitchen video in violation of Rule 26(a); that Hartford's attorney certified Hartford's initial and incomplete disclosure in violation of Rule 26(g); and that Hartford failed to produce the kitchen video in response to a particular request for production.  Plaintiff sought sanctions in the amount of the costs and attorney's fees she spent taking the depositions of Dempsey witnesses and retaining the services of an expert.  She argued that she took these depositions and engaged this expert solely because defendant did not produce the kitchen video in a timely manner, and that she would not have otherwise engaged the expert, or taken the depositions.

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Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008)

This Fair Labor Standards Act overtime collective action was brought on behalf of approximately 422 plaintiffs who worked as "loan consultants" for defendants.  After defense counsel objected to plaintiffs' requests to produce emails of the several hundred individual plaintiffs and their 32 team leader managers, plaintiffs agreed to limit the relevant time period to the months of April, May and June of 2004.  They proposed that, after they reviewed all the emails and narrowed them down to those they thought were relevant, they would give defendants an opportunity to review this reduced set of emails and raise any attorney client privilege or other objections they might have and retrieve items that should be protected.  Fearing that this "claw back" provision could be deemed a waiver of the privilege in some states, defense counsel was relunctant either to agree to the provision or to produce the relevant back up tapes because of the exceedingly expensive process of defense counsel screening them for privilege before production.

Plaintiffs filed a motion to compel to resolve the dispute and a hearing was held.  The court established a protocol that was intended to balance the concerns and needs of both sides at what was hoped to be manageable costs.  Under the protocol, plaintiffs' computer forensic expert, Mark Lanterman, was to retrieve from defendants' computer back up tapes all of the emails for the months of April, May and June of 2004.  Based on search terms and methods to be worked out by the attorneys for both sides, Mr. Lanterman, "at Plaintiffs' reasonable expense for his services and the electronic copying expenses," was to filter this database for the team leaders and hundreds of plaintiffs.  Mr. Lanterman was to act under the "direction and control" of defense counsel in retrieving the requested emails from the backup tapes.  The searching and filtering of defendants' database by Mr. Lanterman would be limited to the terms agreed upon by the parties.  Further, Mr. Lanterman was required to sign a declaration agreeing to the agency relationship with and under the direction and control of defense counsel, to be bound by the court's orders and to maintain confidentiality.  At the hearing, while plaintiffs' counsel agreed to pay the reasonable expenses of Mr. Lanterman, he expressed a desire to limit the costs to no more than what was needed and not to be giving defense counsel a "carte blanche" to run up the costs of the screening procedure at plaintiffs' expense.

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On January 29, 2008, attorneys James R. Batchelder, Adam A. Bier, Kevin K. Leung, Christian E. Mammen, Lee Patch and Stanley Young, as well as certain Qualcomm in-house attorneys, appeared before United States Magistrate Judge Barbara L. Major, as directed in her January 7, 2008 Order.  Also appearing were outside counsel for Qualcomm, counsel for some of the sanctioned attorneys, and counsel for Broadcom.  The attorneys spent the day working to develop a comprehensive Case Review and Enforcement of Discovery Obligations ("CREDO") protocol, and at the end of the day, several attorneys appeared before the court again to report on their progress.  After reviewing counsel’s draft protocol and hearing their plans for developing it further, Magistrate Judge Major scheduled a status hearing for February 19, 2008 at 11 a.m.

Also on January 29, 2008, United States Senior District Judge Rudi M. Brewster issued an order requesting that the parties provide him with courtesy copies of all their filings related to the Magistrate Judge’s January 7, 2008 Order, in light of the objections and requests for reconsideration that were timely filed by the sanctioned attorneys.  (Qualcomm itself did not file a written objection to the January 7, 2008 Order.)  View the attorneys’ objections here:  Batchelder, Mammen & Leung Objection; Young Objection; Patch Objection; Bier Objection.

View Broadcom’s response to the attorney objections.

The court has not yet set a hearing date on the attorneys' objections and requests for reconsideration.

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D'Onofrio v. SFX Sports Group, Inc., 2008 WL 189842 (D.D.C. Jan. 23, 2008)

In this contentious employment discrimination case, Magistrate Judge John M. Facciola resolved a number of discovery disputes relating to the production of electronically stored information.

Among other relief, plaintiff sought the production of a certain business plan in its original electronic format, with accompanying metadata.  Plaintiff argued that Fed. R. Civ. P. 34 permits the production of documents outside of their original format only "if necessary," and that in this case, there was no such necessity.  Defendants responded that:  (a) plaintiff did not request that the Business Plan or any other documents be produced in a specific format; (b) production in original electronic format with metadata is not required by the Federal Rules of Civil Procedure or in the absence of a clear agreement or court order, neither of which were present here; and (c) plaintiff had not demonstrated the relevance of the metadata.

The court rejected plaintiff’s interpretation of Rule 34:

Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request.  Consequently, the "if necessary" clause seized upon by plaintiff is actually a constraint on the requesting party rather than the responding party.  In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium.  If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a "reasonably usable form."  Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done "if [the translation is] necessary."  It is not the case that this clause requires the responding party to produce data in its original form unless "necessary" to do otherwise.

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Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 8, 2008)

This case involves a claim by the National Security Archive (“the Archive”) and Citizens for Responsibility & Ethics in Washington that several million email messages were improperly deleted from White House computer servers.  Plaintiffs have requested that the court compel expedited discovery and a Rule 26(f) conference, and defendants have moved to dismiss the case.  On Tuesday, January 8, 2008, Magistrate Judge John M. Facciola ordered the White House to provide additional information about the backup media it is preserving in the litigation pursuant to an earlier court order.  The court explained the relevance of the information to its decision on plaintiffs’ pending discovery motion:

To the extent that the missing emails are contained on the back-ups preserved pursuant to Judge Kennedy’s order, there is simply no convincing reason to expedite discovery – particularly where, as here, there is a pending motion to dismiss.  If the missing emails are not on those back-ups, however, the relief likely to be requested by the Archive will be beyond the scope of the present Motion – and, indeed, beyond the scope of this referral.  The request for that relief will also be time-sensitive:  emails that might now be retrievable from email account folders or “slack space” on individual workstations are increasingly likely to be deleted or overwritten with the passage of time.

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Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

On Monday, January 7, 2008, United States Magistrate Judge Barbara L. Major issued her Order on Broadcom’s Motion for Sanctions related to Qualcomm’s failure to produce tens of thousands of documents that Broadcom had requested in discovery.  (A copy of the January 7 order downloaded from Westlaw is available here.)  Additional background regarding the sanctions motion is available in our previous posts on the case on September 20, 2007, August 29, 2007 and August 13, 2007.

In this most recent order, the judge ordered Qualcomm to pay Broadcom $8,568,633.24 for its “monumental and intentional discovery violation,” representing all of Broadcom’s attorneys’ fees and costs incurred in the litigation.  (Because the trial judge had already awarded these costs and fees to Broadcom in its Exceptional Case Order, the court directed that Qualcomm receive credit toward this penalty for any money it paid to Broadcom to satisfy the exceptional case award.)

The court also found that six of Qualcomm’s outside attorneys “assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate.”  The court observed that these six attorneys “then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.”  As such, the court found that the attorneys had violated their discovery obligations and also may have violated their ethical duties.  Accordingly, the court concluded that sanctions against the six named outside attorneys were also warranted.

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In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Defendants in underlying real estate litigation sought a writ of mandamus compelling the trial court to set aside a discovery order that required them to permit a forensic expert to create a mirror image of each of the computer hard drives in their office in an effort to locate two particular documents or iterations of those documents.  The documents were two drafts of a partial assignment of a real estate contract, and served as the basis for the underlying suit.  Plaintiff A & W Development, LLC had sought the metadata because it wanted to identify the points in time when the partial assignment draft was modified in relation to a particular diary entry.   The evidence related to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement.

The Honzas contended that the court abused its discretion because:  (1) the discovery order was overbroad and authorized an improper "fishing expedition"; (2) the order authorized the disclosure of information protected by the attorney-client privilege; and (3) the order authorized the disclosure of confidential information pertaining to the Honzas' other clients who had no connection to the underlying lawsuit.

The appellate court denied the petition for writ of mandamus, finding that the order was not overbroad and was appropriately tailored to prohibit the unauthorized disclosure of privileged or confidential information.  In reaching its decision, the appellate court noted that there was no Texas authority directly on point, and described the relevant state and federal decisions:

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Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007)

In this case, plaintiffs alleged that their civil rights had been violated when the defendants denied them the opportunity to purchase real estate at auction.  The email dispute was first brought to the court's attention in August 2006, when the plaintiffs moved to compel supplemental discovery responses from the County.  Plaintiffs’ counsel argued that the County had failed to perform a diligent search for responsive documents, evidenced by the fact that it had only produced two emails.  During a conference with the court on the matter, counsel for the County suggested that since it was "more the exception than the rule," that employees were "communicating be email," a further search was unlikely to uncover additional emails.  However, because it became clear that the County had failed to conduct a system wide search for responsive emails, the court directed the County to have its Information Technology Department search the County's servers for responsive emails.

In October 2006, plaintiffs moved for sanctions, contending that the County had willfully failed to comply with the court's order.  In response, the County submitted an affidavit from its Director of Management Information Services, explaining that the County lacked the resources to perform the court-ordered search for additional emails.  He estimated that the cost to restore the County’s backed up data would be roughly $36,000, and that the process would take as much as 1,700 man hours.

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Columbia Pictures Inc. v. Bunnell, No. 2:06-cv-01093 (C.D. Cal. Dec. 13, 2007) (Order Granting Plaintiffs’ Motion for Terminating Sanctions)

The court imposed terminating sanctions and entered default judgment against defendants in this copyright litigation as a result of defendants’ willful spoliation of key evidence.  The court found that defendants had deleted and/or modified relevant TorrentSpy user forums postings, deleted directory headings that referenced copyrighted works, destroyed user IP addresses and withheld the identities and addresses of site moderators.  The court concluded that defendants’ misconduct had “inalterably prejudiced” plaintiffs’ ability to prove their case, and that terminating sanctions were the only effective recourse.

A copy of the decision is available here.

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Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. Nov. 30, 2007)

This insurance coverage litigation stemmed from property damage caused by Hurricane Katrina in 2005.  Plaintiff Great American contended that there was a mutual mistake of fact in connection with the formation of the insurance contract, arguing that the parties, acting through their agents, understood that wind damage coverage was excluded.  In this decision, the court ruled on plaintiff’s motion for sanctions for the destruction of a laptop computer by defendant’s insurance agent (Groves), who was also a defendant in the case.

During the summer of 2006, Groves disposed of a personal computer which may have contained information relevant to the issues in dispute.  Although the specific contents of the computer’s hard drive were unknown, the court found that there was evidence in the record that Groves used the computer to prepare correspondence and emails related to the purchase of the policy at issue.  Plaintiff argued that these computer records may have shed considerable light on the question whether Groves believed, at the time he negotiated the purchase of the policy, that the policy would provide coverage for wind damage.  That disputed issue of fact was at the heart of the defense of mutual mistake Great American sought to establish.

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Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007)

In this letter opinion, the court ruled upon a number of discovery disputes, including one relating to the format of production.  Plaintiff sought an order compelling a defendant to respond to documents requests “in native file format, with original metadata, but without a separate production of metadata.”  Granting that portion of plaintiff’s motion, the court explained:

[M]etadata may be especially relevant in a case such as this where the integrity of dates entered facially on documents authorizing the award of stock options is at the heart of the dispute.  This relevance is further illustrated by the fact that Maxim's special committee, as well as Deloitte & Touche, undoubtedly reviewed metadata as part of their investigation into the backdating problems at Maxim.  This latter fact also undermines the asserted burdensomeness of producing documents in native file format.  Maxim need not produce metadata separately, but the Court does order the production of documents identified in plaintiffs' July 3rd motion to compel in a format that will permit review of metadata, as plaintiffs have clearly shown a particularized need for the native format of electronic documents with original metadata.

A copy of the full decision is available here.

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W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

In this case, plaintiffs sued the third-party administrator of their employee medical benefits plans, alleging that it breached its fiduciary duty and the underlying contract by failing to perform its duties in a reasonably prudent manner.  In an earlier motion to compel, plaintiffs had sought, among other things, to compel BeneFirst to produce all medical claims files, including the actual medical bills in BeneFirst's custody or control.  The court ruled that BeneFirst was to provide those files and bills.  BeneFirst sought reconsideration of that ruling, arguing that the requested claims forms were not reasonably accessible within the meaning of FRCP 26(b)(2)(B) because of the high cost to retrieve such information (both in monetary terms and in terms of the man hours it would require to retrieve the information).

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Orrell v. Motorcarparts of Am., Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007)

In this sexual harassment and gender discrimination case, plaintiff sued her former employer, alleging a hostile work environment, wrongful discharge, and retaliation.  Plaintiff alleged that she was sexually harassed by several male co-workers and/or supervisors, as well as some of the defendant's customers.  Most significantly for the purposes of the pending discovery motions, plaintiff contended that some of the harassment was in the form of "pornographic" and "offensive" emails that she was sent by co-workers and customers.  Plaintiff testified at her deposition that she had received an "overwhelming number" of those emails, "even hundreds" of them.  Although plaintiff received these emails on the laptop computer that defendant provided, she testified that it was her practice was to forward those emails to her home email address and store them on her home computer.  Plaintiff also testified that she forwarded some of these offensive emails to her husband, some of which he received on his computer at his job with the Bendix corporation, a non-party.

Shortly after receiving notice of her termination, but prior to returning her work laptop computer to defendant, plaintiff, with the aid of her husband, had the laptop's hard drive "wiped."  (Defendant later performed a forensic examination of the laptop, which confirmed that no information could be retrieved from the hard drive.)  Plaintiff testified that her purpose in "wiping" the hard drive was to prevent any of her personal information being returned to defendant.  However, plaintiff’s husband presented a slightly different version of events at his deposition, testifying that although he ultimately took the computer to an information technology consultant who "wiped" the computer with a program entitled "Evidence Eliminator," he initially contemplated taking the computer to a "shooting gallery" where it would be destroyed.

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Palgut v. City of Colo. Springs, 2007 WL 4277564 (D. Colo. Dec. 3, 2007)

In this employment discrimination litigation, the magistrate judge made a number of findings and conclusions relevant to several outstanding e-discovery disputes.  Among other things, the judge found:

• That defendant conducted “an adequate and full search of all ESI formatted documents that may be relevant to the issues before this court and which are in [defendant’s] possession.”  Nevertheless, defendant agreed to conduct an additional search, in accordance with the parties’ stipulation, a copy of which is available here.  Among other things, defendant agreed to conduct an additional electronic search of ESI, using keyword searches agreed upon by the parties.
• “That the 2006 Amendments to Fed. R. Civ. P. 34 simply clarify 'that discovery of electronically stored information stands on equal footing with discovery of paper documents.'  See Advisory Committee's Note on 2006 Amendments.  Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant's electronic information storage systems than to defendant's warehouses storing paper documents[.]”

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Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 247 F.R.D. 567 (D. Minn. 2007)

Best Buy sued its landlords for fraud, breach of contract, breach of fiduciary duty and declaratory judgment, claiming that they overcharged insurance and maintenance costs for common areas.  On September 5, 2007, the magistrate judge ruled on a number of discovery motions filed by the parties.  (A copy of the September 5, 2007 Order is available here.)  Among other things, the magistrate judge concluded that a database prepared by Best Buy in the case of Odom v. Microsoft Corp. (the "Odom database") was reasonably accessible despite a cost of at least $124,000 to restore the data to searchable form.  The magistrate judge found that $124,000 was a reasonable cost considering the potential breach of contract damages exceeding $800,000, the potential for enhanced damages associated with Best Buy’s fraud claims, and the potential long-term economic impact of the outcome of the litigation on all parties.  Further, the magistrate judge noted that "discovery in the Odom case is complete [and] the database has ... been archived by an e-discovery vendor."  Thus, the magistrate judge ordered Best Buy to restore the Odom database to permit discovery by defendants in this case.

Best Buy objected, explaining that discovery in the Odom litigation was not complete, the database had not been archived, and "the data can only be restored from original sources such as backup tapes."  Thus, Best Buy argued that the magistrate judge clearly erred in determining that the Odom database was reasonably accessible and ordering its discovery.

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John B. v. Goetz, No. 07-6373 (6th Cir. Nov. 26, 2007 and Dec. 7, 2007)

This case is a class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services, including early and periodic screenings for their physical well being, and dental and behavioral health needs.  Defendants in the case include Tennessee state officials who are in charge of the state programs for these services.

On October 9 and 10, 2007, following a series of conferences and hearings (including a one-week evidentiary hearing on e-discovery issues), the district court issued a 187-page Memorandum and accompanying Order granting plaintiffs’ motion to compel defendants to produce various electronically stored information (“ESI”).  The district court’s Memorandum and Order addressed search terms, key custodians, claims of undue burden and privilege, spoliation, sanctions and cost-shifting.  The district court also sharply criticized the defendants’ preservation and production methods, and ordered the production of all metadata and deleted information.  Further, the district court ordered that plaintiffs’ computer expert “shall be present for the [d]efendants’ ESI production and shall provide such other services to the defendants as are necessary to produce the metadata, as ordered by the Court.”  Additional background on the district court’s October 9 and 10 Memorandum and Order, with links to the 187-page Memorandum, is available in our