Archive: 2007

1
Court Orders Re-Production of ESI at Producing Party’s Expense Where Vendor’s Processing Error Caused Thousands of Emails to be Separated from Their Attachments
2
Court Grants Plaintiffs’ Motion for Preservation Order
3
Defendant Not Required to Re-Produce Entire Document Production in Native Electronic Format
4
Judge Orders White House to Preserve Backup Media
5
International Institute for Conflict Prevention and Resolution Presents “E-Discovery Orientation and Training For Neutrals”
6
David R. Cohen to Speak at Pennsylvania Bar Institute E-Discovery CLE
7
Court Orders Defendant Tennessee State Agencies to Produce Responsive ESI, Including All Metadata and Deleted Information; Potentially Shifts Costs to Defendants as Sanction for Failure to Implement Effective Litigation Hold and Other Discovery Miscues
8
Email Communications Between Physician and His Attorney Exchanged Over Hospital’s Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine
9
Public Policy Dictates that Web-Based Privileged Emails Be Protected, Notwithstanding Employer’s Right to Inspect Laptop Contents under Email Policy
10
Defendants Granted Opportunity to Review and Object to Proposed Search Terms and Parameters Before Searches are Executed on Mirror Images of Defendants’ Hard Drives

Court Orders Re-Production of ESI at Producing Party’s Expense Where Vendor’s Processing Error Caused Thousands of Emails to be Separated from Their Attachments

PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007)

Magistrate Judge Randolph F. Treece began his memorandum decision and order in this construction litigation with these introductory remarks:

With the rapid and sweeping advent of electronic discovery, the litigation landscape has been radically altered in terms of scope, mechanism, cost, and perplexity.  This landscape may be littered with more casualties than successes and the discovery imbroglio in this case is a prime example of this observation.  For nearly six months, the parties and the Court have been grappling with an electronic discovery monstrosity with the hope that it could be corralled and definitively resolved, thereby obviating the need for motion practice.  Alas, attempts to resolve the issue in lieu of briefs fell woefully beyond the parties’ grasp and, as the last straw, they have set the matter at our feet for appropriate resolution.

The parties’ electronic discovery dispute arose when numerous emails being produced by PSEG were “divorced” from their attachments due to a technical glitch in the software used by PSEG’s e-discovery vendor.  (None of the raw data had been lost, and all 750 gigabytes of unfiltered data remained intact and in its original format.)  Upon discovering the problem, the parties attempted to determine whether a reasonable solution was feasible.  However, it became apparent that remarrying the emails to their attachments would be “formidable and costly.”  A number of potential solutions were attempted, none of which proved successful.

Read More

Court Grants Plaintiffs’ Motion for Preservation Order

In re Nat’l. Security Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007)

In this brief order, Chief Judge Vaughn R. Walker granted plaintiffs’ motion for an order prohibiting the alteration or destruction of evidence during the pendency of the action.  Among other things, the court ordered:

Counsel are directed to inquire of their respective clients if the business practices of any party involve the routine destruction, recycling, relocation, or mutation of such materials and, if so, direct the party, to the extent practicable for the pendency of this order, either to

(1) halt such business processes;

(2) sequester or remove such material from the business process; or

(3) arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested.

Read More

Defendant Not Required to Re-Produce Entire Document Production in Native Electronic Format

Schmidt v. Levi Strauss & Co., 2007 WL 2688467 (N.D. Cal. Sept. 10, 2007) (Not for Citation)

Plaintiffs brought this action under the Sarbanes-Oxley Act, claiming they were terminated in retaliation for filing complaints about defendants’ alleged tax fraud and other accounting irregularities.  Among other relief requested in their motion to compel, plaintiffs asked the court to order defendants to reproduce, in native electronic format, all documents which they had produced over the course of the litigation.  The court noted that the precise documents plaintiffs were seeking, and the reasons why electronic versions were being sought, “have been somewhat of a moving target in their papers.”  The court observed that plaintiffs had originally suggested that certain (unidentified) documents had been edited or altered by defendants or by their attorneys.  However, the court found no indication in the record that defendants’ documents had been altered in any way – except to the extent that defense counsel added document production numbers, confidentiality labels and, in some instances, indicated that certain information had been redacted.

In their reply papers, plaintiffs explained that they needed the electronic versions of (unidentified) emails and attachments as well as all documents which contained information that did not fit on a standard 8.5″x11″ page.  They further claimed that they were unable to track which attachments were sent with any given email, and argued that they were unable to properly analyze hard-copy spreadsheets (some of which reportedly were hundreds of pages long) that contained financial information that ran over the margins of a standard page. Read More

Judge Orders White House to Preserve Backup Media

Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Nov. 12, 2007)

On Monday, November 12, 2007, Judge Henry H. Kennedy, Jr. adopted the Report and Recommendation of Magistrate Judge John M. Facciola and ordered the White House to:  “preserve media, no matter how described, presently in their possess[ion] or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction.”  Judge Kennedy further ordered:  “Defendants shall preserve the media under conditions that will permit their eventual use, if necessary, and shall not transfer said media out of their custody or control without leave of this court.” 

In this consolidated action, Citizens for Responsibility & Ethics in Washington ("CREW") and The National Security Archive are seeking to preserve for history the records of the Bush presidency.  The organizations challenge as contrary to law "the knowing failure of the defendants to recover, restore and preserve certain electronic communications created and/or received within the White House."  The plaintiffs further allege:

The e-mails at issue were improperly deleted from servers maintained by the Executive Office of the President and currently exist only on back-up tapes, if at all.  Unless relief is granted and the e-mail expeditiously restored from the back-up tapes, these federal and presidential records may be lost forever.  This action also challenges the failure of the Archivist and the head of the Office of Administration to take enforcement action to ensure adequate preservation of all federal records.

[] In addition, this lawsuit seeks an order requiring the defendants to implement an adequate electronic records management system in compliance with federal law.  The current administration abandoned the previous electronic records management system in 2002 and has failed to implement another system, creating a situation in which emails that should have been preserved as either federal or presidential records were instead improperly deleted.  Moreover, in the absence of an adequate electronic records management system, e-mails continue to be deleted improperly from the servers. . . .

Complaint, at pp. 2-3.  Defendants have stated they intend to file a motion to dismiss for lack of subject matter jurisdiction.

A copy of today’s order is available here, and a copy of Magistrate Judge Facciola’s October 19, 2007 Report and Recommendation is available here.

An article about the ruling is available here.

CREW has also moved for expedited discovery and has asked the court to compel a Rule 26(f) conference.  A copy of the memorandum in support of that motion is available here.

David R. Cohen to Speak at Pennsylvania Bar Institute E-Discovery CLE

E-Discovery
Friday, November 16, 2007
9 a.m. – 4:30 p.m.

Koppers Building, Ninth Floor
436 Seventh Avenue
Pittsburgh, PA

This program, sponsored by the Pennsylvania Bar Institute, will explore current and future discovery rules and their impact on e-discovery; impart techniques technologists employ to find electronic information; describe the types of information available for discovery and the formats in which one can obtain electronic documents, and describe how cost-shifting can impact expenses.

K&L Gates Partner David R. Cohen will speak at the 10:05 a.m. session on the topic of collecting and processing electronically stored information.

Click here for more information about the program.

Court Orders Defendant Tennessee State Agencies to Produce Responsive ESI, Including All Metadata and Deleted Information; Potentially Shifts Costs to Defendants as Sanction for Failure to Implement Effective Litigation Hold and Other Discovery Miscues

John B. v. Goetz, 2007 WL 3012808 (M.D. Tenn. Oct. 10, 2007)

This case is a class action on behalf of roughly 550,000 children who are entitled under federal law to medical services that include early and periodic screenings for their physical well being, including their dental and behavioral health needs, along with any necessary follow-up medical services.  Through this action, plaintiffs seek to enforce their rights to such services under various federal statutes.  Defendants in the case include Tennessee state officials who are in charge of the state programs for these services.  To assist it in providing these services, the State enters into contracts with a number of Managed Care Contractors (“MCCs”).  The MCCs are not parties in the suit.

Contemporaneous with the filing of the complaint, plaintiffs requested class certification and the parties agreed to entry of a Consent Decree to remedy plaintiff’s complaints and to certify the class.  Lengthy and complex proceedings followed, including several show cause and contempt hearings.

In the latter half of 2006 and in early 2007, the court held a series of hearings and conferences on the parties’ discovery disputes, and ordered the production of certain electronically stored information (“ESI”) from the defendants.  The court also held that the MCCs’ responsive records and ESI were within the possession, custody, and control of defendants, and required the defendants to obtain such information from the MCCs and produce it as well. Read More

Email Communications Between Physician and His Attorney Exchanged Over Hospital’s Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine

Scott v. Beth Israel Med. Center Inc., 2007 WL 3053351 (N.Y. Sup. Ct. Oct. 17, 2007)

Plaintiff is a physician who sued for breach of contract based upon his termination from defendant hospital (“BI”).  Under the contract at issue, BI agreed to pay Dr. Scott $14 million in severance pay if he was terminated without cause.  BI asserted that Dr. Scott was terminated for cause, while Dr. Scott believed he was terminated without cause and without receiving any severance pay.

In August 2005, BI’s counsel wrote Dr. Scott’s counsel stating that BI was in possession of email correspondence between Dr. Scott and his counsel pertaining to Dr. Scott’s dispute with BI, as well as emails written between Dr. Scott and another attorney regarding a separate dispute.  The letter stated that, although no one at BI had read the emails yet, BI believed that any potential privilege attached to the communications had been waived by use of BI’s email system.  Dr. Scott’s counsel responded, asserting that the emails were privileged communications for which there had been no waiver, and requesting their immediate return.  BI refused to return the emails, and the parties called the judge’s court attorney, who instructed BI to provide copies of the emails to Dr. Scott, place copies of the documents into a sealed envelope and bar anyone from reviewing the emails pending a decision by the court.  Thereafter, Dr. Scott filed a motion for a protective order seeking the return of the emails.
Read More

Public Policy Dictates that Web-Based Privileged Emails Be Protected, Notwithstanding Employer’s Right to Inspect Laptop Contents under Email Policy

Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. Sept. 20, 2007)

In this employment discrimination case, defendant Lakeside sought an order from the court allowing the review of a hard drive image of a laptop computer furnished to plaintiff while he was employed at Lakeside.  After plaintiff’s counsel raised an objection to the imaging of the hard drive, Lakeside agreed not to review its contents, and the parties attempted to resolve the issue on their own.  When the parties were unable to reach agreement, Lakeside moved to compel the review of the image.

The court granted the motion in part, and denied it in part.  The court found that the plaintiff had no reasonable expectation of privacy in the contents of the laptop that was furnished by Lakeside, including emails he sent and received on his Lakeside email account.  However, the court ruled that web-based emails generated by plaintiff, and any material he created to communicate with his attorney and his spouse, were protected under the attorney-client privilege and the marital communications privilege.

The court explained that Lakeside’s employee manual was “unequivocally clear” in stating that user accounts were the property of Lakeside School, and that they were to be used for academic and administrative purposes only.  “Furthermore, where an employer indicates that it can inspect laptops that it furnished for use of its employees, the employee does not have a reasonable expectation of privacy over the employer-furnished laptop.”  There was no dispute that plaintiff received a copy of this policy and signed an acknowledgment that he read and reviewed the policy.  Consequently, the court held that plaintiff was on notice that he did not possess a reasonable expectation of privacy in the contents of his laptop, or in the emails he sent and received using Lakeside’s accounts.

The court viewed web-based emails differently:
Read More

Defendants Granted Opportunity to Review and Object to Proposed Search Terms and Parameters Before Searches are Executed on Mirror Images of Defendants’ Hard Drives

Verigy US, Inc. v. Mayder, 2007 WL 3144577 (N.D. Cal. Oct. 24, 2007) (Not for Citation)

In this misappropriation of trade secrets case, plaintiff had been granted leave to conduct some expedited discovery prior to the court’s hearing on plaintiff’s motion for preliminary injunction.  In addition, defendants had been ordered to preserve all evidence, including all information contained on their computer hard drives.

In this order, the court resolved plaintiff’s expedited motion to compel certain defendants to produce “bit-for-bit copies (i.e., mirror images) of all hard drives.”  The parties disagreed about how such inspection and production should proceed, and submitted differing proposed discovery protocols for the court to consider.

The court noted that, for the most part, the parties’ protocols were virtually identical, and it appeared that defendants had adopted many of plaintiff’s proposed provisions verbatim.  The main point of contention was whether defendants should be permitted an opportunity to review and object to any searches that plaintiff may wish to have the third party expert conduct.  Defendants proposed a two-tier protocol which (a) would permit discovery in areas that defendants deemed presumptively relevant; and (b) would allow plaintiff to request that the expert conduct other searches, subject to an opportunity by defendant to review and object to the proposed search requests.  Defendants expressed concern that plaintiff would propound unduly burdensome or otherwise abusive searches beyond the scope of permissible discovery under Rule 26:

At the motion hearing, it was suggested, somewhat facetiously, that Verigy might attempt to request a search for all documents with the letter "A." Indeed, documents submitted on supplemental briefing indicate that Verigy apparently has previously requested a search for all documents containing the letter "V" – a request which strikes this court as being patently overbroad.

Read More

Copyright © 2018, K&L Gates LLP. All Rights Reserved.