Diamond Post

Electronic Discovery Newsletter

FEATURE ARTICLE:

From Landlines to Landmines; the legal perils of new media.

Technology can be a wonderful thing. While iPhones, RSS, MMS, Facebook, texting, tweeting, and VoIP have revolutionized communication, these devices and services create significant carnage in the legal arena. Discovery, challenging enough before Web 2.0, is more of a mine-field than it ever was.  Careful planning and a common-sense grasp of the challenges inherent in these new technologies, however, can help you emerge from the fray unscathed.

Once you are in litigation and discovery begins, you will need to accumulate all the relevant documents, if you have not done so already, for review by your attorney.  Emerging technology, however, can complicate this once straight-forward process, since the new methods of communication mentioned above can produce and contain discoverable data. Your electronic discovery plan should therefore address at least the following sources of electronic data:

Email: The beginning of every electronic discovery request.  Preserving and maintaining relevant emails from appropriate people is e-discovery 101. Email retention and purging policies, as well as the right software, can streamline the collection of appropriate emails.

Databases: Many companies use databases with proprietary architecture or that require specially licensed software to access and read, adding potential cost to any request to review the information stored within.

Individual workstations: Depending on your IT structure, individual workstations may contain a lot or a little electronically stored information. Every business should have a strong policy in place regarding what can be stored locally, as opposed to on a network.  Also keep in mind the emerging trend of requesting information stored in RAM (random-access memory) on individual workstations.

Blackberry/iPhones: More than a business person's lifeline, these devices store volumes of information that can be discoverable: emails, call-logs, text messages, instant message logs, calendar data, voicemails. The data on these devices must be subject to the same policies as email and other electronic information.

Voice mail: Software that converts voicemail to mp3 or wav files that are then sent as email attachments to the recipient creates data that must be preserved in litigation.  Consider this reality when you decide not to send an email, and instead pick up the phone to tell someone state secrets.

VoIP: Voice over internet protocol provides telephone service over the internet, foregoing traditional land-line based telephony.  Unfortunately, like all internet-based communications, VoIP leaves a digital footprint which can be subject to discovery.

Instant messaging: If email has been the most common source of damaging documents in recent litigation, instant messaging cannot be far behind. Instant messages can be archived in any number of places such that "conversations" flash on an off a user's screen can be preserved forever to be enlarged and put in front of a jury at the worst possible time.

Text messaging: See messaging, instant.

Multi-function office machines: While not traditional "communications" devices, these devices have hard drives, and hard drives store data. An email purged from the server as part of a routine document preservation plan may still reside in the memory of the printer to which it was sent.

Cloud computing: Rather than buying expensive software to run office applications locally, business buy "software as a service" without ever actually having to install something on their machines. Since your data and documents actually reside on your provider's server rather than your own, this system can cause delay-and added expense-in terms of retrieving and accessing documents in litigation.

The Solution
Like most issues in business and litigation, planning and awareness are key to navigating electronic discovery.  Businesses must coordinate with their IT departments to be aware of all potential sources of electronic information. They should know who has which devices, and must have policies in place to govern what is done with those devices. Businesses and their IT departments should coordinate with legal counsel to develop a document preservation plan to fall back on when litigation arises

CASE LAW UPDATES:

Waiver of Attorney Client Privilege

In re Intel Corp. Microprocessor Anti-Trust Litigation, 2008 WL 2310288 (D.Del. 2008)

The court granted Plaintiffs' motion to compel the production of Defense counsel's notes of interviews taken of employees who deleted emails.  Defendant's preservation procedure included allowing an auto-delete to remain enabled and entrusting its employees with its retention obligations.  As a result of insufficient preservation procedure, lapses in the preservation plan occurred and additional outside counsel was hired to interview each of Defendant's 1,023 custodians for the purpose of determining compliance with the litigation hold.  Subsequent to the interviews, Defendant informed Plaintiff of the preservation lapses.  Plaintiff then asked for all documents related to the failure to comply with the litigation hold, including the attorneys' notes.  The court held that Plaintiffs demonstrated a special need for non-core work-product because they were entitled to test Defendant's version of what went wrong, should not be forced to rely on Defendant's descriptions of what custodians reported, and should not be restricted to Defendant's assertions during the adversary proceeding.

Stanley v. Pipe, 250 F.R.D. 251 (D.Md 2008)

The court held that any attorney-client privilege or work product protected status had been waived for 165 documents that had been stored electronically and voluntarily produced pursuant to a document request.  Defendant produced the privileged documents and Plaintiff contacted the Defendants about potential privilege issues.  Defendant allowed a significant amount of time to elapse before claiming privilege. The court held that the elapsed time and inattentiveness by Defendant constituted a wavier of the privileges.  The court held that inadvertent production of privileged material waives the privilege under the following test: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice.  Defendant could not point to any overriding interests in justice that could excuse his actions and the precautions taken were admittedly inadequate.  

Form of Production

Covad Communications Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008)
   
Defendant was required to produce emails in native format although Plaintiff did not clearly designate the form in which e-mails should be produced.  Defendant converted emails from their native format to hard-copies because Plaintiff did not specify how the emails were to be reproduced.  Plaintiff expected electronic form because Defendant hired a company to collect electronically stored information. Defendant assumed it had to produce 35,000 pages of emails in hard copy because Plaintiff produced its documents in that format.  The court reasoned that no reasonable person could have believed that hard copy was an acceptable format, especially since Defendant submitted no evidence suggesting that their standard operation was to print their emails.  The court further reasoned that Defendant faced no real burden since printing and converting the files, presumably, cost more than maintaining them in their native format and copying them to a CD.  The court relied on a rule stating that "the production of information in 'hard copy' documentary form does not preclude a party from receiving that same information in computerized/electronic form." The court further noted that better communications between the parties could have prevented the dispute in the first place. 

D'Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43 (D.D.C. 2008)

Plaintiff's instructions in her requests for production directing that documents be produced in a manner to preserve and identify the file from which they were taken did not constitute a request that Defendant produce electronic data in its original form with metadata, and thus Defendant could not be compelled to do so.  The court noted that a motion to compel is appropriate only when an appropriate request is made to the responding party.  The court found that Plaintiff's discovery requests did not ask for the documents to be produced in their original format with accompanying metadata per their discovery instructions.

GP Industries, LLC v. Bachman, 2008 WL 1733606 (D.Neb. 2008).

Defendant produced 3,000 unstapled pages of documents in a "jumbled fashion" to Plaintiff after being asked to produce the documents as they were kept in the usual course of business or organized and labeled to correspond with categories in Plaintiff's requests.  The court held that "a party who [chose] the Rule 34(b) option to produce documents as they [were] kept in the ordinary course of business [bore] the burden of showing that the documents were in fact produced in that manner."  Defendant made no such showing and the court granted Plaintiff's motions to compel and for sanctions.

Scope of Production

Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Security, 255 F.R.D. 350 (S.D.N.Y. 2008)

The timing of a request for metadata may be important in analyzing the obligation to produce it.  The court identified two lines of case law: (1) courts ordering production of metadata when it was sought in the initial document request and the producing party had not yet produced the documents in any form; and (2) if the metadata was not sought in the initial request and the producing party had already produced the documents in another form, then the courts tended to deny the requests based on irrelevancy.  Plaintiffs and Defendant held their first discovery conference on January 18, 2008.  The first request for production was made on February 15, 2008; Plaintiffs, however, did not ask for metadata.  They asked for metadata in passing on March 18, then formally on May 22, 2008, after the Defendants had produced most of their electronic documents in searchable PDF format.  The court granted in part and denied in part the Plaintiff's motion to compel production of metadata.  The court strenuously noted that this lawsuit demonstrated why it is important for parties to fully disclose their ESI early in a case in order to avoid bogging the case down in expensive and time consuming litigation of electronic discovery tangentially related the merits of the case.   

Spieker v. Cherokee, 2008 WL 4758604 (D. Kan. 2008)

The court denied without prejudice Plaintiff's motion to compel the production of ESI because the Plaintiff did not demonstrate the relevance of the ESI to issues of class certification.  The court held that Plaintiff's assertion that Defendant was obligated to incur expensive discovery costs simply because the complaint alleged class certification was not persuasive.  The court similarly held as unpersuasive the Defendant's assertion that discovery expenses should only be evaluated by referencing the value of the individually named plaintiff.  The parties were ordered to develop a plan to allow relevant ESI discovery as to issues of class certification and leave to file a renewed motion to compel was granted.  

Cason-Merenda v. Detroit Medical Center, 2008 WL 4901095 (E.D. Mich. 2008).

The court held that notice that a discovery response was deficient with regard to the documents produced only occurred when Defendants produced actual data and documents.  Defendant argued that the court should have denied Plaintiffs' motion to compel because it was not filed within the 14-day rule - file or waive - agreed upon by the parties.  The court held the rule recognized two types of disputes in connection with requests for production: "(i) disputes 'concerning written responses to a request for production' and (ii) disputes 'concerning the general objections and actual production of documents...in response to a request for production.'"  Notice in each of the circumstances differ; but essentially, notice occurred in the first situation with a written response and notice occurred in the second with receipt of documents or data believed to be insufficient, initiating a meet-and-confer process, and "exhausting this process without securing a supplemental production that resolve[d] the party's concerns."  The court concluded that the discovery dispute ripened only when the Defendants prepared to produce the documents and data.  

White v. Graceland College Center for Profession Development & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. 2009)

When the creation dates of emails and attachments were in dispute, the court was willing to order production of those emails in electronic and native format from the inbox of employees, even though they had been produced from the sent box of the employees already.  The court granted in part and denied in part Plaintiff's motion to compel the production of documents, images, and information related to certain electronic documents.  The court ordered Defendants to reproduce electronic and native copies of emails and attachments from the recipients' inbox folders because the creation dates were in dispute. Second, for the aforementioned reason, the court ordered Defendants to produce the non-duplicative PST or OST files of Outlook mailboxes that either sent or received emails that were necessary for Plaintiff's expert to determine the creation dates and the possible reasons for the noted discrepancies in creation dates of the emails and attachments.  

Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008)

Where an additional search of a hard drive for ESI would probably produce irrelevant ESI, the court utilized a burden versus benefit analysis and was unwilling to compel discovery and impose sanctions.  Plaintiff moved to compel production of additional ESI after the parties completed discovery because Plaintiff claimed the discovery responses were inadequate.  The court granted in part and denied in part Plaintiffs motion to compel additional searches and denied Plaintiff's motion for sanctions for inadequately preserving evidence.  The court did not grant the motion to compel searches on servers already searched because it was unlikely that relevant documents were created that had not already been recovered.  The court ordered the production of emails because they could have mentioned Plaintiff and the search of backup servers that had not yet been searched.  Although the court found that Defendant inadequately preserved evidence after it had a duty to preserve and amidst a company policy where the documents should have been preserved, and that Defendant possessed a culpable state a mind for spoliation because it was negligent in preserving records in the backup server, the court decided not to award sanctions because the spoliated information was probably irrelevant.  The court, relying on past authority, granted the Plaintiff's request to conduct a forensic examination of one of the officer's laptops to recover deleted ESI at the Defendant's expense and the opportunity to conduct additional discovery with the possibility to shift costs.

Cost Shifting

Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E. D. Mich. 2008)

Relief from a burdensome production in the form of cost shifting must be requested prior to any such production occurring under Rules 26(b)(2)(B) and 26(c) even if the parties had otherwise agreed to share costs.  Defendant produced requested discovery to Plaintiff and sought the court's aid in reapportioning the costs of discovery to Plaintiff.  The two parties had previously agreed to share discovery costs in their discovery plan.  The court read rules 26(b)(2)(B) and 26(c) of the Federal Rules of Civil Procedure, however, as mandating that a party must move for protective relief from the court - which included cost shifting - before producing the requested items.  Additionally, the reading of this rule superseded the discovery arrangement of the parties because the court was of the opinion that parties could not contract out of their scheduling obligations as this would have undercut the purpose of the rule, which is the avoidance of undue burden or cost.  The court stated that had Defendants filed a timely motion, i.e. asking the court to find undue burden before asking for cost shifting, more options would have existed.  The court could have imposed conditions on Plaintiff or the Plaintiff could have forgone the discovery as a consequence of the conditions imposed, both of which would have resulted in saving Defendants from undue burden or expense.