Archive - December 2007

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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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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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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