Electronic Discovery Blog

Mikron Industries, Inc. v. Hurd Windows & Doors, Inc., 2008 U.S. Dist. LEXIS 35166 (W.D. Wash. Apr. 21, 2008)

Producer’s motion for protective order sought only to shift costs for production of ESI. The court denied the request because of producer’s failure to comply with the “meet and confer” requirement of Rule 26(c). The court observed that compliance with the rule

would have involved a more substantive discussion regarding defendant [producer]s’ difficulty in producing responsive ESI, the extent to which defendants have searched ESI to date, and the foundation for defendants’ belief that a more thorough search of ESI, including backup tapes, would yield only information that has already been produced.

Id. at *2-*3. Requestor had identified “gaps” in production, and received no response when it asked producer to explain why the unsearched ESI would provide “little additional responsive information. Id. at *3.

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Ferron v. Search Cactus, L.L.C., 2008 U.S. Dist. LEXIS 34599 (S.D. Ohio Apr. 28, 2008)

At issue in the litigation was whether e-mails at issue in the litigation by plaintiff producer were solicited or unsolicited, which would affect producer’s claim under the Ohio Consumer Sales Practices Act. Accordingly,

Defendant wishes to inspect Plaintiff’s computer systems to ascertain whether Plaintiff’s efforts with respect to receiving the emails and visiting the websites (that are at the heart of this action) constituted a consumer transaction under the OCSPA, or whether Plaintiff’s opening of the emails and any attempts to obtain free merchandise were part of a business designed to profit from email litigation.

Id. at *4. The court observed that forensic examination of the computer would be necessary in order to recover e-mails which might have been deleted by producer, noting that such files could be overwritten during normal computer operations.

The parties had been unable to agree on an appropriate inspection protocol to protect producer’s confidential information and to prevent producer from waiving any attorney-client privilege by allowing information to be viewed by a third party.

The court found that requestor had established qualifying reasons permitting requestor to inspect the computer. Producer had apparently failed to preserve relevant information, and his computer contained “the only available documentary evidence of his visits to the websites in issue .” Id. at *8. Producer’s argument that he had preserved “commercial email” did not sufficiently fulfill his duty to preserve evidence. Id. at *10.

To address producer’s confidentiality concerns, the court ordered that hard drive images be taken of producer’s computer, but producer’s expert would be permitted to remove personal and confidential information which would not lead to the discovery of relevant information. The protocol used by the expert would be provided to requestor.

In connection with the privilege issue, the court noted initially that producer caused the issue to arise by his failure to preserve relevant information. Requestor offered that his expert would review his findings with producer and allow producer to identify and remove privileged documents before they would be forwarded to requestor. Although the imaging process would take a significant amount of time, that inconvenience would be reasonable in light of producer’s failure to preserve evidence.

Sterle v. Elizabeth Arden, Inc., 2008 U.S. Dist. LEXIS 32046 (D. Conn. Apr. 9, 2008)

In this age discrimination case, plaintiff requestor sought certain types of sales reports, known as DSFG reports, which he alleged would establish that he was leading his division in sales performance. He knew of the existence of the reports because one had been anonymously faxed to him from defendant producer’s headquarters. After nine months, producer produced four DSFG reports, and requestor filed a motion to compel production of seven other DSFG reports. In a conference, requestor alleged that producer was hiding the reports, while producer stated the reports did not exist. The court proposed a forensic examination of defendant’s computers.

The court ordered that the parties agree on a forensic expert to inspect producer’s electronic records, limited in scope to the seven reports, for a 12 month period prior to the plaintiff requestor’s termination. If the expert found any report, producer would bear the costs, if the expert found no reports, requestor would bear the costs.

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Autotech Technologies L.P. v. Automationdirect.com, Inc., 2008 U.S. Dist. LEXIS 27962 (N.D. Ill. Apr. 2, 2008)

Requestor sought to compel producer to produce document in native format after producer had already produced it in hard copy and .PDF format. Requestor alleged that the original version of the document, produced in Microsoft Word, contained metadata which indicated when the document “was created, when it was modified, and when it was designated ‘confidential.’” Id. at *3.

Requestor had not specified a production format for the document. Thus, producer had the option of either producing it in the form it was ordinarily maintained, or in a reasonably usable form. Requestor alleged that when the document was converted from Word to .PDF, it was not produced in the form it was originally maintained. However, requestor failed to provide corroborating evidence (i.e. an affidavit) to support its assertion.

It was not clear from producer’s submission whether it had actually produced the Word file. Assuming it did not, the court considered whether the .PDF and hard copy production was “reasonably usable.” As the document contained a modification history (along with the document itself), requestor’s argument was that the hard copy copy does not include the metadata that would be associated with the document as it is stored on [producer]’s engineering computer.” Id. at *10.

The court noted the late request for metadata – after production of the .PDF and hard copy versions. In addition, requestor had not originally requested metadata in its document requests. It also cited the July 2005 version of The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery, citing an example that absent a special request for metadata, hard copy or .PDF production satisfied Rule 34. Also noting that that version of the Principles stated that “there should be a modest legal presumption in most cases that the producing party need not take special efforts to preserve or produce metadata,” id. at *13, the court denied the motion.

Treppel v. Biovail Corp., 2008 U.S. Dist. LEXIS 25867 (S.D.N.Y. Apr. 2, 2008)

In early May, 2003, producers learned that plaintiff requestor had initiated an action, and counsel orally instructed two executives to preserve relevant information. No written instructions were issued, and counsel did not follow up with the executives to determine the steps they had taken to preserve evidence. No instructions were given to the IT department at that time.

On December 3, 2003, counsel for requestor sent a demand to preserve evidence to producers, which included electronically stored information. Producers’ counsel repeated his preservation instructions to the executives, but was not involved in notifying other individuals. Producers at that point began removing one of the backup tapes from three of their servers from the regular rotations, although tapes from its file and e-mail servers in New Jersey were not preserved until March, 2005. A backup of the CEO’s laptop was first made in August, 2005, which was important as the CEO’s e-mails were not preserved on company e-mail servers.

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Autotech Technologies L.P. v. Automationdirect.com, Inc., 2008 U.S. Dist. LEXIS 23498 (N.D. Ill. Mar. 25, 2008)

In a deposition, plaintiff producer admitted that two customer relationship management databases had not been reviewed. Producer asserted that review of the databases for relevant information would be almost impossible, but one of the software vendors contacted by requestor indicated that information retrieval would be easy. When producer failed to respond, requestor filed a motion to compel, in April, 2007.

Briefing on the motion was suspended when producer proposed that requestor hire a consultant to query the database. After arguing over keywords, the parties finally agreed on a list. The consultant ran the searches, and provided a table of the results to requestor, which indicated the results it wanted printed. Requestor also indicated that it wanted the complete record associated with each result.

When the parties could not agree on a method for review (review at producer’s headquarters v. review at requestor’s facility subject to clawback agreement), the parties went back to court in September, 2007. Requestor’s motion to compel was granted.

Producer produced 10,000 pages of documents generated by the keyword search. The documents were reports of producer’s employees’ conversations with customers. However, the documents lacked contextual information such as employee name, date of communication, source of referral, or other database information. Requestor demanded the additional information, and producer responded that it printed the information asked for by the consultant, which did not include the requested information.

Producer subsequently produced an index of information containing contact person, customer company name, address and reference. The reference field apparently matched a corresponding reference column on the previous production. Requestor objected that it did not include employee name, date of contact or other database information. It also required producer to match the reference field manually, as producer had asserted would be required.

Requestor, in the instant motion, sought to query the database again, at producer’s expense, and sanctions against producer for failure to comply with the September order.

The court found that producer’s production complied with what requestor’s consultant had specified. Since the production complied with what requestor’s consultant had requested, it was not sanctionable. Producer objected that requestor’s request could only be obtained through extensive manual effort and would not produce the result sought by requestor. The court “cannot tell with certainty whether the information now requested was in fact available in the Goldmine database but was not produced as part of the keyword search designed by [requestor]’s consultant.” Id. at *12.

The court required the parties to meet to attempt to resolve how the dates of the communications could be obtained, which would be the only information the court would permit to be produced. Requestor would bear the costs of obtaining the information. If requestor could show that the information could have been obtained by running the protocol designed by requestor’s consultant, but was not produced by producer, then producer would bear all “costs, expenses and attorneys’ fees resulting from nonproduction of the information.” Id. at *13.

Wells v. Berger, Newmark & Fenchel, P.C., 2008 U.S. Dist. LEXIS 21608 (N.D. Ill. Mar. 18, 2008)

In this sexual harassment suit, plaintiff requestor filed a motion to sanction defendant producers for spoliation based on producer’s failure to preserve evidence on a computer. Plaintiff requested that

(1) a statement should be read to the jury explaining that defendants did not take steps to preserve [the] computer; (2) defendants should be prohibited from arguments based on the absence of pornographic or sexually explicit email evidence; and (3) defendants should be prohibited from using or referencing [plaintiff’s]’ computer records or emails.

Id. at *16-*17. Producer argued that there was no indication any evidence ever existed on the computer.

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The Richmond Journal of Law and Technology today published my article titled “The Increasing Importance of Metadata in Electronic Discovery” as part of its Annual Survey of Electronic Discovery. Also included are articles by Thomas Y. Allman, “The ‘Two-Tiered’ Approach to E-Discovery: Has Rule 26(b)(2)(B) Fulfilled Its Promise?,” Douglas L. Rogers, “A Search for Balance in the Discovery of ESI Since December 1, 2006,” and Rodney A. Satterwhite and Matthew J. Quatrara, “Asymmetrical Warfare: The Cost of Electronic Discovery in Employment Litigation.”

Mr. Rogers and I will be presenting our papers at a symposium at the University of Richmond on April 16.

Thomas v. IEM, Inc., 2008 U.S. Dist. LEXIS 19186 (M.D. La. Mar. 12, 2008)

Following a deposition of defendant, plaintiff requestor served a Rule 45 subpoena upon defendant, seeking complete copies of Microsoft Exchange mailboxes of nine individuals. The court found that, although the wording of Rule 45 did not preclude its use against parties to the case (as opposed to third parties), the use of the Rule 45 subpoena was “clearly not meant to provide an end-run around the regular discovery process under Rules 26 and 34.” Id. at *4. Had plaintiff used the Rule 34 procedure, the deadline for the defendants’ response would have fallen outside the discovery deadline. Thus, “[t]he Court will not allow Thomas to employ a Rule 45 subpoena to avoid the discovery deadline and to obtain documents from IEM that could have been requested pursuant to a Rule 34 document request well before that deadline.” Id. at *7.

The court also found that plaintiff’s request was overly broad and burdensome. Defendant had met its burden in this regard, as it “has set forth a detailed account of the overly burdensome nature of Thomas’s subpoena request as well as a specific estimate of the staff hours, and associated monetary cost, that would be expended in order to comply with IEM’s subpoena.” Id. at *9. “In total, to avoid disclosure of confidential and sensitive information, IEM estimates that it would be forced to review more than 67,000 emails, requiring approximately 700 hours of staff time at a cost exceeding $ 120,000.00.” Id. at *11.

Finally, the court found that the request was not only duplicative of what had already been produced, but that the nine business days was clearly an insufficient amount of time to review the overbroad request, which would have required “over four (4) weeks of staff time, working twenty-four hours a day for seven days a week” in order to respond to the request. Id. at *13.

Connor v. Sun Trust Bank, 2008 U.S. Dist. LEXIS 16917 (N.D. Ga. Mar. 5, 2008)

In a case involving the Family Medical Leave Act, plaintiff requestor brought a motion for sanctions for destruction of evidence. The motion concerned an e-mail sent February 12, 2007 which the court subsequently found to be relevant to requestor’s case.

Requestor’s attorney sent defendant producer a letter on February 21, 2007 advising producer of its claims and instructing producer to preserve all relevant documents. Producer’s counsel identified key employees, including requestor’s supervisor, Ms. Weigle, and on February 22, instructed them regarding their preservation obligations. The court described the operation of producer’s e-mail system:

Sun Trust’s email system automatically deletes all emails from the company’s server that are more than thirty days old. To preserve an email and prevent it from being automatically deleted, employees must take steps to archive their messages outside of the email system. While Sun Trust does back up its email servers on a daily basis for disaster recovery purposes, the backup tapes are retained for only seven to ten days before being overwritten. Consequently, an email deleted immediately after being sent or received by an employee will survive on the server only seven to ten days; meanwhile, an email not archived and retained on an employee’s server account for the maximum thirty days will survive on the server for up to thirty-seven to forty days.

Id. at *9-*10.

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