Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

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E-Discovery (Re)sources Abound
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Indian Legal Services Company Moves to Dismiss Anti-Outsourcing Lawsuit
3
Court Denies Spoliation Sanctions for Destruction of ESI Pursuant to Document Retention Policy, Citing FRCP 37(e) Safe Harbor Provision
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No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations
5
Magistrate Judge “Clearly Erred” by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test
6
Production of ESI in Paper Format Does Not Comply with Rule 34 Option to Produce ESI in Reasonably Usable Form; Court Orders Re-Production of Certain ESI in Native Format
7
Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction
8
Right to Specify Form of Production of ESI Does Not Authorize Requesting Party to Dictate Organization of Opposing Party’s Production under Rule 34(b)(2)(E)
9
Court Denies Motion to Compel Production of Email from Backup Tapes
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Court Issues Fourth Order Regarding Forensic Inspection of Defendant’s Computer Systems; Finds Defendant’s Behavior Fell “Just Shy” of Conduct Befitting Default Judgment

E-Discovery (Re)sources Abound

By K&L Gates attorneys Todd L. Nunn and Trudy D. Tessaro

This article appears in the August 2008 edition of the King County Bar Bulletin, and begins:

Want to understand more about e-discovery, other than that the “e” stands for “excitement?”  Need a little light summer reading?  Well, you are in luck.  Never before have there been so many sources of e-discovery law.

In the old days (a few years ago), only case law dealt with the important issues that are central to e-discovery: preservation, collection, search/review, protection of privilege and production.  Now these issues are addressed by federal rules, state rules, numerous scholarly best practices and guidelines, model rules and guides for judges, not to mention (and this article really doesn’t with one exception) innumerable articles and blogs.

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Indian Legal Services Company Moves to Dismiss Anti-Outsourcing Lawsuit

Newman McIntosh & Hennessy v. Bush, Civ. No. 08-00787 (CKK) (D.D.C.)

This lawsuit seeks declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted.  See our original post about the lawsuit here, which includes a link to the Amended Complaint.

Acumen Legal Services, the India-based legal services company named as a defendant in the case, has now filed a motion to dismiss for lack of subject matter and personal jurisdiction.  In the motion, Acumen argues:

NMH’s requested declaratory and injunctive relief, in addition to having no legal or factual justification, would reach far beyond NMH’s obviously intended target, namely, low-cost foreign legal outsourcing companies, which NMH apparently perceives as competition.  The requested relief could have a substantial adverse effect on the operations of all U.S. law firms that have foreign offices, and all U.S. corporations that need to use foreign counsel to transact business abroad.  NMH’s requested ruling that any foreign electronic transmission of data between clients and attorneys, or between attorneys, constitutes a waiver of constitutional rights and discovery privileges, would amount to an untenable and unwarranted interference with global commerce.

Moreover, NMH’s request for an order requiring all attorneys in the United States, not excluding in-house counsel, (a) to search for every instance in which they ever transmitted any kind of data to any foreign national, and (b) to send a notification regarding the same in every case, presumably to the owner of the data, would amount to one of the most onerous and unjustified burdens ever imposed by any court in a civil proceeding.

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Court Denies Spoliation Sanctions for Destruction of ESI Pursuant to Document Retention Policy, Citing FRCP 37(e) Safe Harbor Provision

Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008)

In this case, plaintiff alleged that UPS fired him because of his age (reportedly, he was about 44 years old at the time).  UPS contended that Gippetti’s termination had nothing to do with his age.  It maintained that he was fired for “stealing time” (i.e., sleeping on the job during periods he claimed to be working, taking excessive rest breaks and inaccurately recording meal and rest breaks) and because he did not properly complete truck safety inspections required by UPS and government regulations.

In discovery, plaintiff sought production of “tachograph records,” which were records that showed a vehicle’s speed and the length of time it is moving or stationary.  UPS produced tachographs from 2007 and 2008, and agreed to produce the records on an ongoing basis.  However, UPS stated it was not able to locate any other responsive tachographs because its practice is, and since 2002 has been, to preserve such records for only 37 days due to the large volume of the data.

Plaintiff moved for spoliation sanctions, arguing that the destroyed tachograph records “would support that Plaintiff did not drive Route SU09 any differently than employees who were under the age of 40 years old.”  UPS responded that, until recently in this litigation, it had no reason to believe that all tachographs had any bearing on plaintiff’s age discrimination claim before those records were destroyed years ago in accordance with the company’s retention policy.

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No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations

In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008)

In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions.  The court rejected defendants’ argument that Rule 26(a)(2)(B) required that the plaintiffs’ experts produce all drafts of their reports:

The Court is not convinced that the plain language of Rule 26(a)(2)(B) imposes an obligation on a party or its experts to preserve and produce drafts of an expert’s report.  See, e.g., Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 142 n. 7 (3d Cir. 2001) (“The Supreme Court and this Court have repeatedly held that the Federal Rules of Civil Procedure, like any other statute, should be given their plain meaning.”).  The Rule does not expressly include draft opinions in the list of what the expert must disclose.  Instead, the Rule requires that an expert’s report contain a list of the data and other information on which he relied.  Fed. R. Civ.P . 26(a)(2)(B).  It does not seem logical that the Rule would require the final report to include a list of all the drafts of that report.  Further, because most experts now draft their reports on the computer, adding to and subtracting from the document, it would be impractical to require the production of all drafts.  For example, any time an expert added or subtracted a section, a paragraph, a sentence or even a word, the Defendants’ reading of the Rules would require the expert to save the draft and preserve it for production later.  This is a completely unworkable reading of the Rules and would mire the courts in battles over each draft of an expert’s report.  The Court concludes that this interpretation comports with neither the plain meaning of the Rule nor its policy.

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Magistrate Judge “Clearly Erred” by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test

Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008)

In this wage and hour employment case, plaintiff sought documents about class members’ employment and salary history, terminations, performance evaluations, discipline, certain communications, and personnel files.  Rite Aid had demanded that plaintiff either travel to its various district office locations throughout California and copy the documents, or pay the copying expenses, which it estimated at $104,178.84.  The dispute was presented to the magistrate judge.  After weighing the factors set out in Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 322 (S.D.N.Y. 2003), the magistrate judge required Rite Aid to produce the documents at its own expense.

Rite Aid objected to the magistrate’s ruling, arguing that Fed. R. Civ. Pro. 34 requires plaintiff, not Rite Aid, to bear the costs of photocopying.  The district judge agreed, concluding that the magistrate judge had “clearly erred” by analyzing the dispute under Zubulake:

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Production of ESI in Paper Format Does Not Comply with Rule 34 Option to Produce ESI in Reasonably Usable Form; Court Orders Re-Production of Certain ESI in Native Format

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008)

In this wrongful termination case, plaintiff moved for an order compelling defendants to, among other things, provide complete information on defendants’ document retention policy and how such policy may have affected ESI responsive to certain discovery requests, and re-produce certain electronic documents in their native format.  The court denied the former, but granted the latter request.

Information on Defendants’ Document Retention Policy

Plaintiff’s discovery requests had asked defendants to identify any computer or electronic devices used by its management or human resources department in the years 2003 or 2004, and whether the device had been search or analyzed to determine if any files, notes, or documents related to plaintiff were contained on the device.  Plaintiff also asked that defendants identify and produce any documents related to plaintiff found on the device.

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Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008)

In this case, plaintiff alleged that she slipped on drops of "a thick, pink liquid" while shopping at defendant supermarket, sustaining injuries to her left leg and ankle.  She sued for negligence, bodily injury, medical expenses, lost income and lost future earning capacity.  Defendant moved for summary judgment contending that it did not have notice of the spill which may have caused plaintiff’s injuries.  The trial court granted the motion, holding that, because plaintiff failed to provide any evidence that defendant knew or should have known about the substance on the floor, no reasonable jury could find that defendant had breached its duty to plaintiff as a matter of law.  Plaintiff appealed, and the Supreme Court of the Virgin Islands reversed and remanded, finding that there was a genuine issue of material fact as to constructive notice.

Plaintiff’s fall was captured on defendant’s closed-circuit video surveillance system, which was comprised of both a digital hard drive that records only a finite amount of data before reusing itself and a video recorder.  The digital footage was automatically recorded over every few weeks unless it is manually copied from the digital hard drive to the video recorder.  The supermarket’s manager testified that he examined the footage of plaintiff’s fall immediately after being notified of her fall, and the video failed to show anything visible on the floor at the time of the fall.  Concluding that plaintiff "probably tripped on herself," the manager testified that he elected not to review or copy any of the footage prior to or after the fall.  He also testified that the store had no set procedure for retaining video footage of slip and fall accidents and that the store simply retained the footage of the actual fall in plaintiff’s particular circumstance.

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Right to Specify Form of Production of ESI Does Not Authorize Requesting Party to Dictate Organization of Opposing Party’s Production under Rule 34(b)(2)(E)

Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D. Wash. July 17, 2008)

In this trademark infringement case, Suarez moved to compel Earthwise to organize and correlate responsive documents and ESI to Suarez’s 136 or more requests for production.  Earthwise had produced “55,000 emails, six boxes of documents consisting of approximately 8,700 pages in .pdf form as [Suarez] requested, and nine CDs of data in native format that contain hundreds-if not thousands-of individual files.”  Suarez claimed that Earthwise’s production was essentially a “document dump” without any cognizable organization.

Rule 34(b)(2)(E) provides:

Producing the Documents or Electronically Stored Information.  Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i)  A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii)  If a request does not specify a form for producing electronically stored information, a party must produced it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii)  A party need not produce the same electronically stored information in more than one form.

There was no evidence that Suarez had requested that responsive ESI be produced in a specific form or that Earthwise had objected to that requested form, if any.  However, it was also unclear how Earthwise determined what documents were responsive to Suarez’s requests.

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Court Denies Motion to Compel Production of Email from Backup Tapes

Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D. Pa. July 21, 2008)

In this case, plaintiffs had requested that they be allowed to search the defendants’ backup tapes in an attempt to discover whether other complaints were made to the district about the teacher who was at the center of the case.  After examining the relevant case law, the court concluded that it lacked sufficient information on the process of recovering deleted emails, the time required to do so, and the potential costs of that recovery.  As a result, the court ordered defendants to supply the information and delayed a decision on plaintiffs’ motion until it had the information.

Defendants complied with the court’s request, and provided the following information:

(1) the district already possessed the equipment necessary to gain access to materials preserved on the backup tapes;
(2) the cost of the search would be a minimum of $10,000;
(3) a week would be needed to rebuild and restore the e-mail program, and additional time would be needed to access the emails;
(4) there were easily millions of emails stored on the server, and a precise number could not be reported until the server was rebuilt; and
(5) once the emails were restored, they could be searched by date, recipient, sender, subject or keywords.

The court concluded that the burden and expense of rebuilding the district’s email system in order to provide the requested discovery, along with the additional and less expensive means available for plaintiffs to get this material, made the plaintiffs’ discovery request impractical.  Accordingly, the court denied plaintiffs’ motion.

The court rejected plaintiffs’ offer to have their own expert search the tapes: 

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Court Issues Fourth Order Regarding Forensic Inspection of Defendant’s Computer Systems; Finds Defendant’s Behavior Fell “Just Shy” of Conduct Befitting Default Judgment

Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008)

In June 2007, the court had ordered, among other things, that defendant Globe Electric Supply Co. “submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe’s sole expense and cost."  In November 2007, after finding Globe in contempt of court and considering that "the information at issue is important to the public health and safety in that the counterfeit circuit breakers represent a potential danger to unknowing consumers," the court again addressed the issue of the forensic inspection.  At that time, the court ordered Globe to:

submit to an inspection by Square D (including its attorneys), at Globe’s expense, of its inventory of Square D circuit breakers as well as Globe’s offices, warehouses, storage containers or facilities where Square D circuit breakers are or may be located, and also submit to a forensic inspection of its computer systems which records its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe’s sole expense and cost.

The court further ordered that said inspection occur within thirty days, or on or before December 14, 2007.

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