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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.
Nov
9
PSS Systems Announces the Release of Atlas Compliance Automation 2.0 for eDiscovery
November 9, 2009 | Leave a Comment
PSS Systems is probably best known in the e-discovery community for its legal hold solutions. Over time, however, PSS Systems has built an entire suite of applications dedicated to the governance of information over its entire lifecycle, from creation to disposal. From its origins helping attorneys manage legal holds in their organizations, PSS Systems has expanded their offerings into the IT environment, so that essential communications between the IT and Legal departments can be facilitated.
From this foundation, PSS Systems added an information governance module, enabling the enterprise to develop retention periods for the different classifications of information within the company. An enforced retention policy is the only legal means by which information can be legitimately disposed of within the organization. A retention policy is the means by which the organization can prove to the courts that information was no longer needed for either business, legal or regulatory reasons. Since litigation holds are the exception to the rules set forth in the retention schedule, it was natural for PSS Systems to integrate their legal hold capabilities in both the legal and IT areas with their information governance offering.
Nov
4
Production of ESI on backup tapes denied where ESI ruled inaccessible and requestor fails to demonstrate good cause
November 4, 2009 | 1 Comment
Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 97554 (D.N.J. Oct. 20, 2009)
Requestor sought e-mails from backup tapes and producers’ e-mail archives, while producer sought a protective order, claiming that the e-mails were inaccessible because of the burden and cost to retrieve them. Producer sought to limit discovery to the e-mails on their production system.
The total number of backup tapes at issue was 2,500, and producers ultimately asserted it would cost $1.5 million to harvest the e-mails. Producers had already harvested 152,000 e-mails from the live production mailboxes of 37 custodians. 70,000 of the 135,000 reviewed documents produced at least one hit on the over 100 search terms agreed to by the parties.
Oct
22
CA’s new release of CA Records Manager speeds the e-discovery process
October 22, 2009 | Leave a Comment
In conjunction with the latest release of CA Record Manager, v. 12.6, I had a chance to speak with Mark L. Moerdler, Ph.D, VP of Strategy for CA’s Information Governance business unit. I asked Dr. Moerdler about the electronic discovery functionality in the new release. CA Records Manager offers intertwined discovery and records management functionality to respond efficiently and effectively to information requests and litigation.
The information governance philosophy embodied in CA Records Manager is focused on managing information throughout its lifecycle. A key attribute of this philosophy is to manage information in place. CA Records Manager has functionality which allows governance principles to be applied to SharePoint sites, document management systems such as Documentum, OpenText and other repositories. It is not necessary to make additional copies of the information for governance purposes. Other existing archiving systems can be utilized, or, information can be managed in existing network file shares.
The importance of the in-place management in the e-discovery context is that relevant information can be quickly located. CA Records Manager has already indexed the information and collected metadata, so that the various existing repositories can be easily queried. Processing times are substantially reduced, as the data is not actually collected, but pointers to the data are created.
The new release provides advanced automation to intelligently identify, collect (when content cannot be managed in place), declare and preserve information in an ongoing fashion as content is created to facilitate preservation of responsive information during litigation or for compliance purposes. This eDiscovery functionality includes the imposition of litigation holds upon the data. Once a document is designated to be held, it can no longer be disposed of—the user is free to make a copy of the data if necessary, but the data is preserved until the hold is released. Automation applies to content generated in the past or in the future – as content is created. Users can also create two types of tags for the data—tags which are matter-specific, and which expire upon conclusion of the matter, and persistent tags, which stay with the data until the end of its lifecycle.
Read more about the latest release of CA Records Manager here, or visit www.ca.com/infogov.
