May 2009 – Electronic Discovery Law

Court Rules Office of Administration Not Covered by Freedom of Information Act, Records Related to White House Email Management Systems Need not be Produced

May 27 2009

Citizens for Responsibility and Ethics in Washington v. Office of Admin., 566 F.3d 219 (D.C. Cir. 2009)

Citizens for Responsibility and Ethics in Washington (“CREW”) alleged that “entities in the Office of Administration (OA) discovered in October 2005 that entities in the Executive Office of the President (EOP) had lost millions of White House emails.” In April 2007, CREW filed a Freedom of Information Act (“FOIA”) request seeking OA’s production of “records related to the EOP’s email management system, reports analyzing problems with the system, records of retained e-mails and possibly missing ones, documents discussing plans to fine the missing e-mails, and proposals to instate a new e-mail records system.” The OA initially agreed to produce the records but asked for an extended deadline to do so. Upon missing the extended deadline, OA argued for the first time that it was not covered by FOIA “because it provides administrative support and services directly to the President and the staff in the EOP, putting it outside of FOIA’s definition of ‘agency.’” Despite its resistance, the OA produced some records as a matter of “administrative discretion.”

Court Finds Delay in Objecting to a Failure to Produce in Native Format Was “Patently Unreasonable” and Denies Defendant’s Motion to Compel Production; Court Also Denies Motion to Confirm Adequacy of Defendant’s Manual Search

May 27 2009

Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418 (D.N.J. 2009)

In this case, arising from allegations surrounding contaminated concrete following the demolition of a Ford plant in New Jersey, defendant Edgewood Properties (“Edgewood”) brought several motions before the court, including a motion to compel production of documents in their native format (or documents containing metadata) and a motion for an order granting Edgewood the right to confirm the adequacy of Ford’s manual collection process by searching the electronic systems of certain custodians. Finding Edgewood had waived its objection to the format of Ford’s production by failing to object within a reasonable time period, the court denied Edgewood’s motion to compel. The court also denied Edgewood’s motion to allow access to certain of Ford’s electronically-stored records citing inter alia the burden to Ford and Edgewood’s failure to make a showing of Ford’s purposeful or negligent withholding of documents.

Preliminary Injunction against Publication and Dissemination of Documents Received in Public Records Request Violates First Amendment

May 20 2009

Council of the City of New Orleans v. Washington, 13 So.3d 662 (La. Ct. App. 2009)

In this case, Relator Tracie Washington, a Louisiana attorney, and others, appealed the trial court’s issuance of a preliminary injunction which prevented them from publishing or disseminating documents received in response to a public records request and required that all documents be returned, among other restrictions. The request at issue sought email records from a number of City Council members from 2006 to the present. The documents produced were not reviewed for privilege prior to production. Accordingly, the City Council sought and received a preliminary injunction to prevent their dissemination and require their return. Relators appealed and the trial court was reversed upon the appellate court’s finding that the trial court’s injunction violated the Relators’ First Amendment rights.

Granting Motion to Compel, Court Orders Appointment of Independent Expert “to Retrieve any Deleted Responsive Files from Defendants’ Computers”

May 06 2009

Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009)

In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely respond to plaintiff’s requests for production of documents and failed to offer adequate justifications or explanations for such behavior. Additionally, despite initial representations that certain documents had been produced or were not in their possession, at hearing it became clear that such representations were not true. For example, despite claiming that all responsive documents had been produced, defense counsel admitted at hearing that defendants had not performed a search of all deleted and unsaved electronic documents. For defendants’ discovery failures, the court granted plaintiff’s motion to compel and ordered an independent forensic expert be allowed access to defendants’ computer systems to search for “deleted responsive files.” The court also granted plaintiff’s motion for attorney’s fees.

Federal Court Defers Final Ruling on Attorneys’ Fees Motion Related to Forensic Examination

May 05 2009

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. May 1, 2009)

In ongoing litigation over sales commissions, Plaintiff Technical Sales Associates, Inc. ("TSA") claims that Defendant Ohio Star Forge Comapny ("OSF") breached two separate sales representative agreements. After a protracted discovery dispute, TSA and OSF agreed to a forensic examination of OSF’s computers to search for a particular e-mail. The forensic examination was performed by a company hired by TSA called Midwest Data Group LLC ("Midwest"). During the forensic examination, Midwest found evidence that certain files had been deleted by OSF. Midwest’s reporting of its findings to TSA became the subject of cross-motions for sanctions which were ruled upon by the court on March 19, 2009. (See summary of March 19, 2009 opinion available here.)

Archive - May 2009