Archive: 2007

1
Sixth Circuit Stays District Court’s Order Allowing Plaintiffs’ Computer Expert, Escorted by United States Marshall, to Inspect and Forensically Image Tennessee State Agencies’ Computer Systems
2
Avoiding E-Discovery Disasters
3
Court Sets Protocol for Production of ESI by Non-Party Individual
4
Sanctions Warranted for Failure to Comply with Court’s Production Order and Failure to Implement Litigation Hold
5
The Biggest Data Disaster Ever
6
Court Defers Ruling on Defense Request to Inspect Hard Drives and for Sanctions, Ordering Plaintiff to Submit Affidavit Detailing Why Certain Emails were “Unloadable” and Efforts Taken to Retrieve the Information
7
Plaintiffs Fail to Establish that Email in LotusNotes Format was “Not Reasonably Accessible Because of Undue Burden or Cost”
8
Head of Rove Inquiry in Hot Seat Himself
9
Plaintiff Ordered to Preserve Graphic Images Stored on Cell Phone
10
Sanctions Not Warranted for Failure to Produce ESI in Native Format with Intact Metadata

Sixth Circuit Stays District Court’s Order Allowing Plaintiffs’ Computer Expert, Escorted by United States Marshall, to Inspect and Forensically Image Tennessee State Agencies’ Computer Systems

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 previous blog entry. The district court subsequently appointed a monitor (former United States Magistrate Judge Ronald J. Hedges of the District of New Jersey) to oversee the court-ordered ESI production.

Defendants moved for reconsideration and/or clarification of various issues addressed in the district court’s October 9 and 10 Memorandum and Order, including the plaintiffs’ expert’s role in the defendants’ production efforts.  On November 15, 2007, the district court issued an Order (dated November 14) directing that plaintiffs’ expert and the court-appointed monitor shall “forthwith inspect the State’s computer systems and computers of the fifty (50) key custodians that contain information relevant to this action.”  The district court further directed that plaintiffs’ expert or his designee “shall make forensic copies of any computer inspected to ensure the preservation of all existing electronically stored information (“ESI”).”  Finally, the district court ordered that the United States Marshall or his designated deputies should accompany the plaintiffs’ expert to “ensure that this Order is fully executed.”  A copy of the district court’s November 15 Order is available here; a copy of the Order from Westlaw is now available here.

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Avoiding E-Discovery Disasters

Tuesday, December 11, 2007
12 p.m. Luncheon & Program

Sheraton Station Square
300 West Station Square Drive
Pittsburgh, PA 15219

K&L Gates partner David R. Cohen will discuss how to avoid the pitfalls in litigation surrounding e-discovery requests at an upcoming program hosted by the Pittsburgh Chapter of Risk and Insurance Management Society, Inc. (“RIMS”).  The program will be of particular interest to general counsel, compliance officers and CIOs.  Registration begins at 11:45 a.m., and the cost is $30.

Click here to register for the program.

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

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Sanctions Warranted for Failure to Comply with Court’s Production Order and Failure to Implement Litigation Hold

Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007)

In this patent and licensing litigation, the court had previously ordered plaintiff to produce “development documents” related to the project at issue in the litigation.  According to defendant, plaintiff produced 1,737 pages of documents by the order’s deadline in February 2006, but then later produced more than 11,000 pages of new responsive documents in the final days of discovery in the fall of 2007.  Defendant argued that these late-produced documents fell squarely within the ambit of the court’s order and should have been produced 18 months earlier.  Defendant also argued that plaintiff had failed to meet its preservation obligations.

At his deposition, one of the key players employed by plaintiff testified that he was not specifically directed by plaintiff’s counsel to search for electronically stored documents; he was asked to produce “all documents” related to his research, and he produced only hard copy documents without examining his electronic files.  In addition, the witness stated that during 2005 the University changed the storage system for the archiving of electronically produced information, from a University-wide archiving system to a more localized, “individual computer” storage system.  As part of that process the witness reviewed his computer-stored information and preserved what he deemed was important.  Conversely, of course, and without guidance, he deleted what he viewed as unimportant.  He testified that, in that process, neither the University nor counsel directed that electronically stored information pertaining to the relevant project be preserved in any form.  Further, the University’s computer system was such that some emails would be automatically deleted “at some point” if not preserved.

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The Biggest Data Disaster Ever

From The Red Tape Chronicles, Posted:  Friday, November 30 at 05:15 am CT by Bob Sullivan:

"It’s being called the worst data leak of the information age.  Earlier this month, U.K. officials had to admit they’d lost hard drives containing personal information on almost half the country’s population, including nearly all families with children.  If that’s not bad enough, the databases included the worst kind of information to lose — consumer bank account numbers.

It’s a data scandal fit for tabloids.  The price tag put on the loss is already $500 million.  Prime Minister Gordon Brown had to issue a public apology, and the head of Britain’s Revenue and Customs office was forced to resign.  The U.S. audience might have missed the initial news because the story broke during the Thanksgiving holiday.  But the obvious question floating across the Pond is this:  Could something that dramatic happen in the United States?

Yes, most experts say.  And the consequences here would be even worse."

Click here to read the full article. 

Court Defers Ruling on Defense Request to Inspect Hard Drives and for Sanctions, Ordering Plaintiff to Submit Affidavit Detailing Why Certain Emails were “Unloadable” and Efforts Taken to Retrieve the Information

U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D. Fla. Nov. 26, 2007)

In this breach of contract case, plaintiff sought a protective order blocking the production of documents by a non-party in response to defendant’s subpoena.  The court found that plaintiff had not established good cause for the protective order, in part because the time frame of the requests was reasonable.  The court also noted that, because plaintiff’s 2004 emails were allegedly unavailable (discussed below), defendant had no other way to obtain some of the information.  The court thus denied the motion for protective order; it also denied the non-party’s motion to quash, which was based on general relevancy and (unsupported) undue burden arguments.

At the same time, defendant sought an order compelling plaintiff to produce the hard drives of certain employees for inspection by an independent expert, and to produce all responsive 2004 emails.  Defendant also sought various sanctions for plaintiff’s alleged failure to produce the material in accordance with the court’s prior order on the subject.

Plaintiff responded that it had produced all responsive documents in its possession.  However, it explained that, due to a computer error following a server change that occurred prior to litigation, its 2004 emails were "unloadable.”  It also claimed that it had no hard copies of any 2004 emails.  As such, plaintiff contended that it could not produce any 2004 emails.

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Plaintiffs Fail to Establish that Email in LotusNotes Format was “Not Reasonably Accessible Because of Undue Burden or Cost”

Parkdale Am., LLC v. Travelers Cas. and Sur. Co. of Am., Inc., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007)

In this case, Carolina corporations that manufacture and sell cotton yarn sought a declaratory judgment that, pursuant to an insurance contract, the defendant was obligated to defend and indemnify plaintiffs concerning claims in ten underlying antitrust lawsuits.  Plaintiffs also asserted state claims for breach of contract, bad faith denial of insurance claims, and unfair and deceptive trade practices.  The court in this opinion resolves a number of discovery disputes, one of which related to the production of email by plaintiffs.

Plaintiffs had raised an objection in their briefs to producing unidentified but admittedly non-privileged emails on the grounds of undue burden and expense ($20,000 to convert the emails into a searchable format).  However, at the hearing the parties’ counsel explained to the court that those emails were a key player’s emails which were subsequently produced at a lesser (and shared) cost.  When defense counsel argued that there was “very little useful information in those emails,” plaintiff’s counsel renewed plaintiffs’ objection as to other emails on the grounds of relevance and the burden and cost of searching them for privileged information.

The court cited Fed. R. Civ. P. 26(b)(2)(B) and 26(b)(2)(C), and found that the disputed discovery requests sought evidence that was relevant, and in some cases, “pivotal” to the issues in the case.  It stated: “In other words, absent a valid privilege or an undue burden or expense in production sufficient to override the Defendant’s right to conduct otherwise reasonable discovery, the Plaintiffs must respond fully to those discovery requests.”

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Head of Rove Inquiry in Hot Seat Himself

From the Wall Street Journal, November 28, 2007, Page A6, by John R. Wilke:

"The head of the federal agency investigating Karl Rove’s White House political operation is facing allegations that he improperly deleted computer files during another probe, using a private computer-help company, Geeks on Call.

Scott Bloch runs the Office of Special Counsel, an agency charged with protecting government whistleblowers and enforcing a ban on federal employees engaging in partisan political activity.  Mr. Bloch’s agency is looking into whether Mr. Rove and other White House officials used government agencies to help re-elect Republicans in 2006.

At the same time, Mr. Bloch has himself been under investigation since 2005.  At the direction of the White House, the federal Office of Personnel Management’s inspector general is looking into claims that Mr. Bloch improperly retaliated against employees and dismissed whistleblower cases without adequate examination.

Recently, investigators learned that Mr. Bloch erased all the files on his office personal computer late last year.  They are now trying to determine whether the deletions were improper or part of a cover-up, lawyers close to the case said."

Click here to read the full article.  (Subscription may be required.)

Plaintiff Ordered to Preserve Graphic Images Stored on Cell Phone

Smith v. Cafe Asia, 246 F.R.D. 19 (D.D.C. 2007)

Plaintiff was formerly employed as a host and waiter at Café Asia, a restaurant located in Washington, D.C.  Plaintiff claimed that he was the victim of discrimination based on his sexual orientation, and that he was the subject of assault and battery in the form of unwanted touching.  Among other things, plaintiff alleged that the kitchen staff routinely harassed him, that management tolerated and encouraged the verbal and physical harassment, and that one manager had sent him an email containing pornographic images portraying homosexual acts.  The defendant restaurant responded that all of the alleged incidents were welcomed, encouraged and instigated by plaintiff.

Defendant requested that it be permitted to inspect and make copies of images stored on plaintiff’s cell phone.  Defendant alleged that the images portray plaintiff’s genitalia at various states of arousal, and graphic images of other men purported to be plaintiff’s sexual partners.  Defendant argued that the images were relevant to whether plaintiff invited a hostile work environment and whether he was subjectively offended by defendant’s alleged conduct.

Plaintiff conceded that his cell phone contained “intimate, highly personal” and “unclothed images,” but denied having willingly shared the images with his co-workers.

Magistrate Judge John M. Facciola ruled that, balancing defendant’s need for the images against plaintiff’s valid privacy concerns, plaintiff would be required to preserve the images and permit inspection by one attorney designated by defendant only so far as necessary to fully inform its discovery and trial preparation. Read More

Sanctions Not Warranted for Failure to Produce ESI in Native Format with Intact Metadata

Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007)

In May 2007, the court entered an order granting plaintiff’s motion to compel discovery and directing defendant to supplement its discovery responses specifically with regard to electronically stored documents.  In its initial objections to the discovery requests, defendant had objected to the request that it produce records "as they are maintained in the ordinary course of business in their ‘native format,’ along with the intact metadata."  Specifically, defendant objected to the request as "unduly burdensome" and "impos[ing] obligations on Cumis beyond those permissible under the Federal Rules of Civil Procedure."  When defendant served the supplemental responses required by the court’s May order, it produced the material on CD-ROMs in readable PDF form, but did not include metadata or provide the material in native format.

Plaintiff moved for sanctions, arguing that the production violated the court’s May order.

The court concluded that, because its May order did not address the issue of metadata or "native format" files, it could not be said that defendant’s failure to produce that information was a violation of that order.  As such, there was no basis to sanction the defendant.  Further, after considering the submissions and arguments of the parties, the court found that defendant’s objections to the production of metadata were well founded, and clarified its May order to reflect that defendant shall not be required to produce its electronically stored documents in "native format" or to produce metadata. Read More

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