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Feb
28
Court denies request for production in native format where requestor failed to ask for native initially and motion to compel is untimely
February 28, 2010 | Leave a Comment
Secure Energy, Inc. v. Coal Synthetics, 2010 U.S. Dist. LEXIS 13532 (E.D. Mo. Feb. 17, 2010)
Requestor initially served their discovery requests on producer on December 31, 2008. Requestor asked for “[a]ll documents relating to engineering plans and drawings developed as a result of the equipment bidding process for the Coal Synthetics Project(s).” On February 2, 2010, requestor filed their motion for leave to file motion to compel and their motion to compel, asking for production of the plans and drawings in native format. The discovery deadline was November 20, 2009 and all motions to compel were due by December 1, 2009. Requestor sought the drawings in native format because the metadata would show who created the drawings and whether they were created from another file, which would support requestor’s claim that the drawings were misappropriated.
Feb
21
ZL Technologies’ Unified Archive allows end-to-end e-discovery
February 21, 2010 | Leave a Comment
I have pointed out before on this blog that vastly increasing data volumes pose challenges for litigation preparedness and electronic discovery. Kon Leong, CEO of ZL Technologies, a firm with extensive experience working with Fortune 500 companies, notes that the data volume within the average Fortune 500 company exceeds the size of Google at its IPO. One of ZL’s clients is creating and archiving documents at the rate of 7 to 8 million per day.
At these rates, deploying a variety of individual applications is troublesome. Using multiple programs at the information management level (for instance, two solutions for e-Discovery and storage optimization) may generate conflicting policies, increasing the risk for a breach in corporate policy. Furthermore, the use of multiple applications along the e-Discovery process is cumbersome and limits flexibility. For example, the time spent exporting, importing and indexing data from one tool into the next is costly and delays analysis of legal issues. Incongruencies in metadata fields may also lead to the loss of helpful information along the way. These challenges are correspondingly multiplied as data volume grows.
Feb
11
Court finds requested ESI inaccessible because of high cost and that requests are a “fishing expedition”
February 11, 2010 | Leave a Comment
In an employment discrimination case, plaintiff requestors sought emails and calendar entries in native format as follows:
For each year 2007, 2008, 2009, produce in native electronic format with its original metadata all e-mail communications and calendar entries describing, relating or referring to plaintiff Vicky Rodriguez, both inbound and outbound from co-defendant GDB’s messaging system servers. Particular attention to the following definition of extract key-words needs to be exercised: a) identification of Rodriguez by different variations of her name; b) designation of pejorative and derogatory terms typically used to demean persons according to their age and gender (including but not limited to phrases such as: vieja, nena, arrugas, anos, edad, etc.); c) designation of phrases which could be referring to the current and past litigations, and which could suggest retaliatory animus or activities (including but not limited to phrases such as: demanda, caso, testigos, demandada, plaintiff, etc.); d) designation of record custodians to include all co-defendants, and other unnamed GDB employees known to tease, insult and taunt Rodriguez based on her physical appearance and age….
Id. at *6-*7. Defendant producer GDB objected on the basis of overbreadth, and argued “that the requests by Plaintiffs are likely to produced hundreds if not thousands of documents which will include irrelevant, confidential and potentially privileged information.” Id. at *7. In a report commissioned at the court’s request, a consultant estimated the cost of production at $35,000.
Jan
31
Producer’s use of computer after entry of an injunction prohibiting destruction of relevant data did not constitute spoliation
January 31, 2010 | 1 Comment
Mintel International Group, Ltd. v. Neergheen, 2010 U.S. Dist. LEXIS 2323 (N.D. Ill. Jan. 12, 2010)
Defendant producer had worked in plaintiff’s marketing department, and had had access to plaintiff requestor’s confidential information. Defendant had signed an employment agreement containing a confidentiality clause, and a covenant not to compete. In 2007, plaintiff restructured its marketing department and eliminated defendant’s job. Defendant was offered a temporary position in January 2008, and began to look for new employment, of which plaintiff was aware. Defendant was hired by a new company in April, 2008.
Plaintiff had provided defendant with a laptop, which was used, along with USB drives, for his work with plaintiff. During his exit interview, plaintiff did not ask defendant to return the laptop and devices, and defendant continued to use the laptop and storage devices during his temporary employment. Between April 23, when he informed plaintiff he was leaving, and April 30, plaintiff began monitoring defendant’s e-mails. During this period, defendant sent 8 emails to his personal e-mail address (a practice not prohibited by plaintiff).
Jan
18
Judge Scheindlin analyzes the law of spoliation
January 18, 2010 | Leave a Comment
Plaintiff producers were a group of investors who had brought an action to recover $550 million lost as a result of the liquidation of two British Virgin Island hedge funds. In October, 2007, the Citco Defendants claimed that large gaps in plaintiffs’ document production had been found. Depositions were held and declarations submitted between October, 2007 and June 2008. As a result of this discovery, defendant requestors moved for sanctions, alleging that plaintiffs had failed to properly preserve and produce documents, and had submitted false declarations regarding their efforts.
Jan
13
Requestor successfully rebuts claim that data from archiving system is not reasonably accessible
January 13, 2010 | 1 Comment
The controversy involved ESI stored on a Plasmon archiving system which producer argued was so cumbersome that the data contained within it was not reasonably accessible because of undue burden or cost under Rule 26(b)(2)(B). The system was described as similar to an optical jukebox, containing 500 double-sided DVDs accessed by a robotic arm. The limitations of the system caused producer to replace the Plasmon system with a new system, but data on the Plasmon system had not been migrated.
Producer’s expert testified that production of the requested emails could potentially involve the access of all of the 500 DVDs in the system. Only one custodian’s email could be recovered at a time, preventing access by producer’s employees of archived emails while the searches were in progress. Attempts to access more than one user’s emails at a time caused the system to freeze, requiring a cumbersome reboot. As only 8 emails per hour could be restored, the total restoration of 25,000 emails (assuming 11 hours per day) would take 284 days. Restoration for 5 custodians could therefore take up to 5 years. Outside vendors could not perform the restoration as many of the DVDs could be only be read by proprietary equipment owned by producer, and producer would be without access to the information during the restoration process. The expert estimated the cost of retrieval at about $834,000, significantly higher than producer’s original $88,000 estimate.
Dec
26
Forensic imaging justified where computer is at heart of allegations
December 26, 2009 | 1 Comment
Capitol Records, Inc. v. Alajuan, 2009 U.S. Dist. LEXIS 110626 (D. Mass. May 6, 2009)
Defendant producer admitted that the laptop sought by plaintiff requestor for forensic imaging purposes was used for the file-sharing activities which were at the heart of the dispute, although defendant could not recall certain details relating to those activities. Producer objected that such imaging was “overbroad, unduly burdensome, would violate his privacy, and would jeopardize confidential attorney-client communications.” Id. at *10.
The court found that the imaging was justified:
While mirror-imaging poses serious privacy concerns, where the computer itself is at the heart of the litigation — where it is, in effect, an instrumentality of the alleged copyright infringement — it is plainly relevant under Fed.R.Civ.P. 26(b). This is particularly so given [defendant] Tanenbaum’s admissions and the scope of his defenses.
Id. Tanenbaum’s argument that the damages available under the Copyright Act are unconstitutional and excessive compared to the actual harm suffered “puts squarely at issue the question of exactly how substantial, continuous, and significant his file-sharing activities actually were.” Id. at *11.
Dec
14
Court holds “native format” to be unambiguous term of art
December 14, 2009 | 1 Comment
Cenveo Corp. v. Southern Graphic Systems, 2009 U.S. Dist. LEXIS 108623 (D. Minn. Nov. 18, 2009)
Defendant requestor served plaintiff producer with requests for production of documents in which “document” was defined as “electronically stored information in its native format.” Id. at *2. Producer produced documents in .PDF format, which was not the native format of the documents sought.
Producer claimed that requestor did not define “native format”, and therefore, the .PDF production was an acceptable form of production. It cited Rule 34(b)(2)(E)(ii), which provides that “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”
Nov
30
Failure to confer leads to court’s denial of requestor’s motion to compel
November 30, 2009 | 1 Comment
In this dispute over producer city’s failure to grant requestor Mirbeau’s zoning request, requestor filed a motion to compel producer to produce their computers and electronic storage devices for forensic examination. Requestor argued that producers’ production of emails in paper form was insufficient, as all of the “relevant information stored in electronic form” associated with emails was not available. Requestor also contended that producer was not properly preserving and producing relevant ESI. Requestor supplemented its original motion with producer deposition transcripts which led requestor to believe that producer was actively destroying ESI.
Producer responded that requestor had failed to make a showing of need for the sequestration of producers’ electronic devices, which would be overly burdensome as the requested extended to all of the city’s electronic equipment. Producer also noted that requestor had not suggested any alternatives to full sequestration of its equipment.
Nov
18
Integrated systems approach reduces the cost of e-discovery
November 18, 2009 | Leave a Comment
I had a follow-on discussion with Mark L. Moerdler, Ph.D, VP of Strategy for CA’s Information Governance business unit, on how a system integrating records information management (RIM) and e-discovery capabilities can lessen e-discovery costs.
Dr. Moerdler pointed out four ways in which CA’s Records Manager cuts e-discovery expenses:
1) The implementation of a retention schedule permits the enterprise to focus on legal, regulatory and business needs for information, and define the total lifecycle, from origin to disposition, of the company’s information. A retention schedule is the only legal way in which a company can destroy information no longer needed. In Andersen v. U.S., 544 U.S. 696, 704 (2005), the Supreme Court stated that “[i]t is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” By getting rid of useless information, the cost of collection and reviewing information for lawsuits is decreased.
