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.

The court further ordered that the "most senior lawyer or lead trial counsel representing each party" must, not later than December 14, 2007, submit to the court under seal and pursuant to FRCP 11, a statement that the court’s above-quoted directive has been carried out.

The court instructed that the phrase “documents, data and tangible things" was to be interpreted broadly to include the following:

writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voicemail, e-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, disks and cards, printouts, document image files, web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes.  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.

The court further advised that the term “preservation" was to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible things reasonably anticipated to be subject to discovery, and that it “includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.”