Court Sets Protocol for Production of ESI by Non-Party Individual

In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL 4208555 (E.D.N.C. Nov. 26, 2007)

In this decision, the district court adopted the Memorandum and Recommendation of Magistrate Judge James E. Gates which resolved a dispute centered around a subpoena issued in a case pending in the Southern District of Mississippi.  Plaintiffs in that case sued Forensic Analysis & Engineering Corp. ("FAEC") and others for alleged fraud related to investigation of plaintiffs’ insurance claims for damages caused by Hurricane Katrina.

In August 2007, the plaintiffs issued a subpoena duces tecum to nonparty Robert K. Kochan, a Virginia resident and the president of FAEC.  The subpoena directed Mr. Kochan to produce for inspection and copying the following information:

1.  As related or pertaining to Hurricane Katrina, to produce and permit inspection and copying through drive imaging, all electronically stored information created, stored or maintained on or after August 29, 2005, on any laptop computer ever utilized by Adam Sammis in the state of Mississippi at any time on or after August 29, 2005.  This request applies but is not limited to the laptop computer(s) utilized by Adam Sammis while working in the mobile R/V office Forensic Analysis & Engineering deployed to the Mississippi Gulf Coast before, on or after September 26, 2005; and

2.  As related or pertaining to Hurricane Katrina, to produce and permit inspection and copying through drive imaging, all electronically stored information created, stored or maintained on or after August 29, 2005, on any desktop or laptop computer utilized remotely or otherwise by Nellie Williams on or after August 29, 2005, and located in Forensic Analysis & Engineering’s Raleigh, North Carolina office(s).  This request applies but is not limited to the desktop or laptop computer(s) located in Forensic Analysis & Engineering’s Raleigh, North Carolina office(s) and assigned to and/or accessed by Nellie Williams while utilizing GoToMyPC or other similar program(s), from computer stations located at Nellie Williams’ residence in Reno, Nevada.

The night before the requested production was to be made, at 6:47 p.m., Kochan’s attorneys electronically filed written objections to the subpoena on behalf of Kochan in the Mississippi case.  No other notice of the objections was provided to plaintiffs’ counsel.  The next morning, plaintiffs’ counsel and a forensic computer consultant arrived at FAEC’s office for inspection and copying after having traveled the previous day from Mississippi and New Mexico, respectively.  Kochan refused to allow plaintiffs’ counsel access to the requested information and advised plaintiffs’ counsel that his attorneys had filed objections to the subpoena.

Plaintiffs moved for an order compelling compliance with the subpoena and holding Kochan and his lawyers in contempt pursuant to Fed.R.Civ.P. 45.  Plaintiffs sought costs and expenses associated with the travel to Raleigh for the production sought, and for any future trip to Raleigh for production of the sought information.

The court found that the objections were timely served, and that Kochan and his attorneys were not in contempt:

While Kochan’s attorneys’ filing of objections after the close of business the day before the time specified for compliance may have technically adhered to the letter of Rule 45, it is difficult to conclude that such conduct was intended to be condoned by the spirit of the Rule.  That said, however, the court must also question the reasonableness of plaintiffs’ counsel’s decision to travel from Mississippi to North Carolina and have their expert travel here from New Mexico without any advance confirmation that the discovery was going to be allowed in what appears to a rather contentious case.  Accordingly, despite the court’s displeasure with the lack of at least a courtesy phone call to opposing counsel, the court does not believe that the conduct of Kochan or his attorneys amounts to a violation of Rule 45.

The court went on to decide the merits of the motion to compel against Kochan, however.  The court rejected Kochan’s contention that the subpoena should have been addressed directly to FAEC because it was a named defendant in the Mississippi action and the subpoena sought FAEC materials.  Kochan argued that he did not individually have custody or control of the laptops and computer devices referenced in the subpoena.  Plaintiffs countered that there was nothing improper in seeking the materials directly from Kochan because as the president of FAEC, an S corporation founded and owned solely by him, he had legal control over the materials sought.  The court agreed with plaintiffs, stating:  “Here, there can be no question that Kochan, as president and sole owner of FAEC, has control over the material sought.  The material consists of data stored on computers apparently owned by FAEC and used by employees of FAEC to perform their duties.”

The court rejected Kochan’s other objections that the subpoena, finding that Kochan had presented “little or no information to support almost all of the contentions he makes regarding the scope of the production.  Instead, both in his filings and at the hearing, he relied primarily on bald assertions that the production sought is impermissible.”  The court explained that courts have “time and time again held that such reliance on naked contentions is inadequate.”

The magistrate judge articulated a number of specific protocols for the production, including the following:

4.  Kochan shall produce to counsel for plaintiffs and their expert, Jon Hill, no later than 5:00 p.m. today the material sought in the subpoena at issue.  Production shall occur at the offices of plaintiffs’ local counsel or, if plaintiffs’ counsel elects, at the Raleigh office of FAEC.  If plaintiffs are unable to meet this schedule and the parties are unable to agree on different arrangements, plaintiffs may move for appropriate relief.

5.  In conducting the inspection and copying authorized by this order, plaintiffs shall make reasonable efforts to utilize a computer search methodology to inspect and copy only that information which is identified in the subpoena as subject to such inspection and copying.  Upon determining that information on the computers in issue is outside the scope of the subpoena or otherwise privileged, plaintiffs, their counsel, their experts, and anyone else working on plaintiffs’ behalf in this case shall undertake no further inspection or copying of such information.  The search methodology used by plaintiffs may include, but is not limited to, the following techniques:

(a) surveying various file "directories" and the individual files they contain (analogous to looking at the outside of a file cabinet for the markings it contains and opening a drawer believed to contain pertinent files);
(b) "opening" or cursorily reading the first few "pages" of such files in order to determine their precise contents;
(c) "scanning" storage areas to discover and possibly recover recently deleted data;
(d) scanning storage areas for deliberately hidden files; or
(e) performing key word searches through all electronic storage areas to determine whether occurrences of language contained in such storage areas exist that are intimately related to the subject matter of the investigation.

Further, the court required that the production proceed later that same day, in order to accommodate plaintiffs’ counsel from Mississippi and expert from New Mexico, who indicated at the hearing that they were remaining in Raleigh overnight in anticipation of the possible entry of the order that day.  The court noted that the schedule “should not represent a burden to Kochan and his counsel because of their awareness from the hearing of the time sensitivity of the production.”  It further observed that plaintiffs’ counsel had represented (without challenge from Kochan) that the production and copying could be competed by plaintiffs’ expert in a matter of minutes.

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