Adversarial Search, a “Perfect Barrier” to Cost Effective e-Discovery, and One Litigant’s “Aikido-like” Response

I came across a case recently where a defendant successfully employed an “Aikido-like” maneuver to prevail in an e-discovery fight. Perfect Barrier, LLC v. Woodsmart Solutions, Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008). Plaintiff’s counsel took an over aggressive approach to e-discovery which defense counsel completely turned around on him. Plaintiff’s counsel ended up losing a motion for sanctions and driving up his client’s e-discovery costs. This case demonstrates the essence of Aikido in action, and the dangers of trying to misuse e-discovery as a weapon. It has many other interesting points to it as well, including an argument over native production using hash values, versus flat TIFF file production using Bates stamps. This debate is at the core of my law review article, HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007), and the practitioners here cite to the article as part of their arguments.

But first, a little about Aikido. It is a purely defensive martial art that redirects the force of the attacker back upon himself, instead of opposing it directly. The usual result is the attacker being thrown to the ground as shown in the photo above. For an amazing demonstration of Aikido by Steven Seagal, see this YouTube video, where he is first attacked by one black belt, then two, three, and then a whole “class action. ” They all end up on the ground, with Seagal barely breaking a sweat. Many consider Aikido the purest and most elegant of all martial arts, and one of the most difficult to master. It is considered a “non-violent martial art” (an oxymoron, I know, much like “cooperative litigation”), whose primary message is peace and reconciliation. It is only used for defense, to thwart attacks, never for offense. It works by channeling the force of the attacker, not resisting or opposing it. As the well known founder of Aikido, Morihei Ueshiba, explained:

Nonresistance is one of the principles of aikido. Because there is no resistance, you have won before even starting. People whose minds are evil or who enjoy fighting are defeated without a fight.

These are sage words, but hard to imagine how they apply to litigation and e-discovery. That is where the Perfect Barrier case comes in. Perfect Barrier, LLC v. Woodsmart Solutions, Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008). This is a relatively small dollar value case against Woodsmart Solutions, a maker of blue coated lumber.

Plaintiff begins discovery with a direct attack, making an obviously over broad request for production of emails. The request included a list of seventy-seven so called “relevant search terms” that Plaintiff’s counsel created on their own. The list included the defendant’s name, “woodsmart,” and several other common words. At this point, most would actively resist the over-broad request. They would rise to the fight with either a motion for protective order, or perhaps their own counter-offensive request for emails using a keyword list that was just as broad. But that is not the Aikido way. Nor is it the way of defense counsel in this case, Stefan Stein, whom I do not know, but who, according to my research, is certainly not a martial artist, and may never even have heard of Aikido. He is, however, a very experienced intellectual property lawyer and obviously wise in the ways of litigation.

Defendant’s attorney responded to this attack, not by resisting it, but by pointing out the obvious, that the list of keywords was so broad that it would catch virtually every email on Defendant’s server. He offered to compromise and negotiate a new list of keywords and other search protocols with Plaintiff’s counsel, a list and procedures that would be more effective to the supposed common goal of ferreting out relevant emails. Preferring to fight, Plaintiff’s attorneys did not respond to the peace overture. They refused all negotiation, and instead insisted that Defendant carry out the search with the list they had written. Plaintiff did not care that the search terms would produce too many emails because they assumed that the burden of review, to screen for confidential and unresponsive ESI, would fall on the Defendant, the producing party. They saw this as a potential knock out punch, that might force Defendant to surrender on their terms, instead of incurring the tremendous review expense. By all appearances, they were misusing e-discovery as a weapon.

Defense counsel at this point did not resist, they agreed, reluctantly, to the search terms, but then added a small little twist, that the parties would make the production under a confidentiality order. Of course, this is standard in most business litigation, and so Plaintiff quickly agreed, sensing what they thought was weakness and capitulation on Defendant’s part. Little did they know that their hands had just been grabbed, much like Seagal did to his attackers in the video. Plaintiff’s attorneys under estimated their adversary, and just like the many Steven Seagal attackers, they would soon find themselves thrown for a loop.

The parties then entered into a confidentiality agreement, which became a stipulated discovery order. Too bad Plaintiff’s counsel did not read the stipulated discovery order more carefully. He was obviously too busy with the attack to read the fine print. Defendant then ran the search terms as agreed, and made production to Plaintiff’s counsel of all email containing these terms. The production was made in native format on DVD, and not too surprisingly, there were 75,000 pages of email in this small case. However, what was surprising was the confidentiality designation notice that accompanied the production. The notice designated all of the email produced as falling within the highest category of confidentiality, the so called “Attorneys Eyes Only” confidentiality. Under the stipulated order this meant that only Plaintiff’s counsel could look at these emails, and they could not show any of them to their client, or their expert, or anyone. They could not even use them in court, unless and until they first went through the procedures of the agreement to challenge the confidentiality designations.

This little twist by Defense counsel effectively threw Plaintiff to the ground. It shifted the enormous burden of review of these 75,000 emails from the responding party, here the Defendant, to the requesting party, here the Plaintiff. This is, in my view, a perfect legal example of the Aikido philosophy of defense by redirecting the attacker’s force upon himself.

In the words of Ueshiba, who liked to call Aikido the “Art of Peace:”

In the Art of Peace we never attack. An attack is proof that one is out of control. Never run away from any kind of challenge, but do not try to suppress or control an opponent unnaturally. Let attackers come any way they like and then blend with them. Never chase after opponents. Redirect each attack and get firmly behind it.

To see Ueshiba himself as an elder practicing Aikido, see this YouTube video. It looks fake, but it’s really not. These are young black belts trying their hardest to knock down an old man. By the way, I am not an Aikido practitioner. I have never even tried it. I am just an admirer of its philosophy and techniques. Still, I have studied and practiced other martial arts and earned a brown belt in one of them.

Back to Perfect Barrier, Plaintiff’s counsel responds to the designation of all 75,000 emails as “Attorney Eyes Only,” with a motion for sanctions. It reminds me of the attackers in the Seagal and Ueshiba videos who get up after a throw down and try again to attack. Plaintiff’s counsel argued quite truthfully in the motion that it was never his intention to allow Defendant to designate all emails as “Attorneys Eyes Only,” but only ones that qualified for that designation by virtue of the super confidential nature of the communication or attached document. Plaintiff claimed that all of these emails certainly did not qualify for that classification, and so Defendant violated the stipulated order and should now be sanctioned. This was a pretty credible attack, by a black belt of an attorney, upon a seemingly weak and vulnerable adversary. Here is a copy of Plaintiff’s Memorandum supporting the sanctions motion. It has several interesting exhibits attached to it concerning hash that I will discuss later.

Defendant’ Opposition Memorandum pointed out that nothing in the parties agreement prevented them from designating all email as “Attorneys Eyes Only” and argued that shifting the burden and costs of review here onto the requesting party was justified and permitted under the rules and case law. Here is the primary thrust of their argument:

Because Plaintiff is alone responsible for the impossibly large volume of documents recovered, it should bear the burden of having to review the documents for relevance. . . .

Requiring WoodSmart to review all 75,000 pages of emails for confidentiality would be unduly burdensome and would reward Plaintiff’s overly broad discovery requests.

Magistrate Judge Christopher A. Nuechterlein seemed to understand perfectly well what was going on here, that this was a case of the Plaintiff, Perfect Barrier, attacking unnecessarily with an over broad request, and then getting exactly what they deserved. Here is what Judge Nuechterlein said in denying Plaintiff’s motion:

Nothing in the protective order prevents large categorical designations. If Perfect Barrier desired Woodsmart to be more selective in its use of the confidential designation, Perfect Barrier should have utilized more care in drafting the agreed protective order to include more particular language that is consistent with its position. As it stands, the language of the protective order simply requires a “category” designation. Therefore, this Court finds that Woodsmart followed and did not violate the protective order.

While Perfect Barrier may have a voluminous amount of discovery to parse through, it has no entity to blame except itself. Perfect Barrier provided the search terms to Woodsmart as part of its request for production of the email communications. Woodsmart produced every document that appeared with those search terms. In other words, Woodsmart provided Perfect Barrier with every possible document that Perfect Barrier requested. It was Perfect Barrier’s expansive request that produced such voluminous discovery. . . .

To be clear, Woodsmart has not withheld the emails from Perfect Barrier, it has, however, limited Perfect Barrier’s use of them by designating them “attorney eyes only.” If Perfect Barrier upon examination believes that certain emails were inappropriately characterized as “attorney eyes only,” they may challenge the designation, first with Woodsmart and, if that fails to resolve the dispute, then with the Court.

Judge Nuechterlein went on to warn the parties that he would not countenance any attempt by either side to try to shift the burden once again onto him. He said not to send large batches of email for him to review in camera. Instead, he expects Plaintiff’s counsel to sort through it all, and then get with defense counsel to resolve any disagreements as to what should be excluded, or not. If they insist on further adjudication of these e-discovery issues, Judge Nuechterlein threatened to send the whole thing to a Special Master, and force the parties to pay for it. Once again we see a court speak of possible reference of issues to a Special Master as a kind of threat to cajole agreement.

The Plaintiff attacked once again, and objected to Defendant’s production of the email in its original native format. Plaintiff wanted the whole thing to be redone and reproduced in flat, searchable TIFF images, no doubt so they could load it into their review software. There is a significant expense involved in converting native email into into a searchable image format, and Plaintiff was trying to shift the expense onto Defendant.

The court rejected this attack also and held that since Plaintiff had failed to specify a form of production in its request for email, the production in original native format was permitted under Rule 34(b)(2)(E)(ii), which states:

[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.

Native format is the form in which Plaintiff originally maintained the email, and so the production was perfectly proper. In any event, the court held that a native form production is also reasonably usable, so there is no grounds to complain. Here are Judge Nuechterlein’s words on this issue:

Perfect Barrier did not request that the emails be produced in a particular form, yet Perfect Barrier now asks this Court to force Woodsmart to produce the electronic emails as Static Images with a bates-number identifier. Woodsmart objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images.

Woodsmart has already produced the emails on a disc in Native format. Woodsmart maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires Woodsmart to submit the emails in the format in which it keeps them, Native format, and nothing more. While it may be more convenient for Perfect Barrier to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If Perfect Barrier wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do.

Furthermore, this Court finds that the emails produced on an electronic media such as disc is reasonably usable. Perfect Barrier can access, examine, and even print the communications. While Perfect Barrier may prefer to have them as Static Images, the burden to convert the emails to Static Images remains with Perfect Barrier. Woodsmart complied with Fed.R.Civ.P. 34(b)(2)(E) and is required to do nothing more.

The court once again uses a “gotcha” on the Plaintiff, saying you forgot to ask, so you are getting what you deserve. But in reality, even if Plaintiff had originally asked for production in Static Image form, as the court puts it, that would not necessarily oblige Defendant to comply. Defendant could still have objected, and insisted on native production, arguing that the alternative was simply an attempt to shift the requesting party’s own cost of processing upon the responding party. I have not seen a case on that yet, but I expect this will come up soon.

Finally, this case is very interesting to me because the parties’ memorandums underlying the order include as exhibits several emails and letters between the attorneys where they argue about the meaning of the law review article I wrote on Hash, and the need for Bates stamps, or not, on ESI productions. See Exhibits “D” and “E” to Plaintiff’s Memorandum in Support of Motion to Compel, and Exhibits “D” and “F” to Defendant’s Opposition Memorandum. I do not know any of the attorneys in this Indiana case, so I was surprised to stumble across this debate. 

My article on hash was used primarily to support the producing party’s position that the receiving party should bear the substantial costs of Tiffing and Bates stamping. But the receiving party relied on it too, claiming that the best practice advice in the article to include a load file with hash values was not followed. Since the production was probably just a few a big PST files, that would have been easy to do, but would not really have addressed the receiving party’s concerns regarding the authenticity of individual emails within the PST. There are, however, other ways to address the authenticity issues which were not really explored by the parties. That was because their emails attached to the memorandums show that one side was just arguing, and not really trying to solve the problem. It was just a debate, not an e-discovery Art of Peace collaborative venture.

Morihei Ueshiba (1883-1969)

I leave you to contemplate a few of the quotes of  Sensei Ueshiba. The insights he gained into the resolution of physical combat have, for me at least, some cross-over value to resolution of legal disputes in today’s combative system of justice. As Perfect Barrier shows, his philosophy and techniques can sometimes succeed perfectly in the arena of e-discovery.

Be grateful even for hardship, setbacks, and bad people. Dealing with such obstacles is an essential part of training in Aikido.

Failure is the key to success; each mistake teaches us something.

If your opponent tries to pull you, let him pull. Don’t pull against him; pull in unison with him.

Opponents confront us continually, but actually there is no opponent there. Enter deeply into an attack and neutralize it as you draw that misdirected force into your own sphere.

Even the most powerful human being has a limited sphere of strength. Draw him outside of that sphere and into your own, and his strength will dissipate.

The real Art of Peace is not to sacrifice a single one of your warriors to defeat an enemy. Vanquish your foes by always keeping yourself in a safe and unassailable position; then no one will suffer any losses. The Way of a Warrior, the Art of Politics, is to stop trouble before it starts. It consists in defeating your adversaries spiritually by making them realize the folly of their actions. The Way of a Warrior is to establish harmony.

Never think of yourself as an all-knowing, perfected master; you must continue to train daily with your friends and students and progress together in Aikido.

The techniques of Aikido change constantly; every encounter is unique, and the appropriate response should emerge naturally. Today’s techniques will be different tomorrow. Do not get caught up with the form and appearance of a challenge. Aikido has no form - it is the study of the spirit.

 

More “Must Read” 2008 Cases - Part Three - Including My Favorite, the Wesley Snipes Tax Evasion “e-Document Dump” Case

This is the third and final installment of the”Must Read” 2008 Cases series that I began two weeks ago. The series reviews, in alphabetical order, thirty 2008 e-discovery cases. They are good reference cases that have some lessons to teach, but have not previously been featured in this blog. Part One covered ten cases A-J in just over 4,700 words. Part Two covered seven more cases in 4,150 words, but I only got through two letters in the alphabet, H-I. This last stage will cover the rest of the alphabet, covering 13 more cases in 5,100 words. My favorite is the Wesley Snipes tax evasion case, which not many people know has an interesting e-discovery component to it. U.S. v. Snipes, 2007 WL 5041892 (M.D. Fla. Dec. 24, 2007). Of course, the Ninth Circuit case about the swat team officer in California who constantly used a police pager to send sexy text messages at work is pretty good too. Quan v. Arch Wireless, _F.3d_, 2008 WL 2440559 (9th Cir., June 18, 2008).

Mikron Industries Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008).
This is an interesting opinion by Seattle District Court Judge Robert S. Lasnik interpreting Rule 26(c) and 26(b)(2)(B). Defendants in this breach of contract case sought an order shifting the costs of producing ESI to Plaintiff, arguing that the requests were burdensome and cumulative. Judge Lasnik denied the motion on both procedural and substantive grounds.

He denied the motion on the procedural grounds because Defendants failed to comply with the good faith meet and confer obligations under Federal Rule of Civil Procedure 26(c). Still, Judge Lasnik went ahead and addressed the merits of the costs shifting motion, and denied it again. He held that Defendants had not met their burden of proof under Rule 26(b)(2)(B). Defendants merely provided a cost estimate and described the electronic records as “inaccessible.” Here is the language used by the court, which begins by criticizing Defendant’s lackadaisical collection efforts:

Although defendants directed their employees to search their hard drives for responsive information, defendants have not demonstrated any search efforts beyond that limited inquiry. Responsive information may be discovered during a more thorough search of defendants’ non-backup ESI, including employee hard drives and active e-mail servers. Cost-shifting would not be appropriate in the context of this kind of search, as this ESI is considered reasonably accessible within the meaning of Fed.R.Civ.P. 26(b) (2)(C).

With regard to ESI located on defendants’ backup tapes, those courts that considered shifting the costs of electronic discovery to the requesting party were presented with more detailed information than that provided by the defendants in this case.FN2 In alleging that continued discovery of their ESI would be unduly burdensome, defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as “inaccessible.” Defendants have not provided the Court with details regarding, for example: (1) the number of back-up tapes to be searched; (2) the different methods defendants use to store electronic information; (3) defendants’ electronic document retention policies prior to retaining an outside consultant; (4) the extent to which the electronic information stored on back-up tapes overlaps with electronic information stored in more accessible formats; or (5) the extent to which the defendants have searched ESI that remains accessible.

This case is thus useful to show the kind of evidence that some courts require to support a cost shifting motion under Rule 26(b)(2)(B). It also shows, once again, that just telling your employees to find and collect relevant computer files, with nothing more, is not adequate. The opinion concluded with an order directing both sides to meet and have bona fide good faith discussions on e-discovery issues before coming to him with any more motions.

Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008).
This is a decision by one of my favorite e-discovery magistrates, Judge John M. Facciola (shown right). He found that the producing party, the Defendant, failed to comply with discovery requests because there were significant gaps in the production. The gaps were explained, in part, by the fact Defendant “failed to deactivate network maintenance tools that automatically delete electronically stored information.” Id. at *4. Other omissions were never explained, due in part to the fact that Defendant failed to appear at the evidentiary hearing (never a good idea). This suggested intentional, or at least negligent, omissions in collection or production of relevant ESI.

As a result of Defendant’s failures, Plaintiff asked the court for permission to conduct a forensic examination of Defendant’s hard drive, and for Defendant to pay for it. Judge Facciola recognized that a forensic exam requests inaccessible information and thus made a full analysis under Rule 26(b)(2)(B). It provides a text book example on how the rule should be applied, except for a dicta statement that only the production of inaccessible data is subject to cost-shifting, citing to OpenTV v. Liberate Techs., 219 F.R.D. 474, 476 (N.D.Cal.2003). Id. at *2. In my opinion, that is only true if you are doing a 26(b)(2)(B) analysis to begin with. Otherwise, there are many other factual situations and other legal authority for shifting costs for accessible ESI. It certainly would not be wise to only employ cost shifting protection to requests for production of inaccessible data. See Eg.: Garrie & Armstrong, Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act, 2005 UCLA JL&Tech 2.

Judge Facciola held that the requesting party, here the Plaintiff, had proven good cause under the rule to require production, and no cost shifting was appropriate. The $33,000 forensic exam expense must be born by the producing party. This was fair and equitable under the rules because there was $2.5 million in claims at issue, and the potential benefits of the discovery out weighed the costs. Further, Defendant’s failure to suspend the delete functions is what rendered much of the ESI at issue inaccessible to begin with. For these reasons Judge Facciola chose not to deviate from the “traditional rule that a responding party bears the costs of production.” Id. at *4. As Judge Facciola put it: “This is a problem of Mr. Faber’s own making and, consequently, the expense and burden of the forensic examination can hardly be described as ‘undue.’”

Quan v. Arch Wireless, _F.3d_, 2008 WL 2440559 (9th Cir., June 18, 2008).
This case involves a swat team police officer who sent many, many sexually explicit text messages to his wife during work hours. He used a police department pager intended for emergency communications. In spite of these facts, the Ninth Circuit held that a public employee has a reasonable expectation of privacy to text messages and emails, and found unlawful search and seizure by the employer. The police department had read the text messages on its pager in connection with an audit for text message over-charges, and this lead to disciplinary action against the swat team officer. The police department employer had relied upon its formal computer use policies and procedures, to which the officer had signed a written acceptance, to try to justify its actions. The policy clearly stated that there was no privacy for any electronic messages at work, including email and text messages. The Ninth Circuit indicated that it would have enforced these policies, but for the fact that the employee’s supervisor had implemented a different informal policy causing the swat team officer to have a reasonable expectation that his text messages would not be reviewed. The court held that the “operational reality” trumped the “formal written policies.” For this reason, the employer’s review of the employee’s text messages violated the employees privacy rights, and that of his wife.

The case is also important for its interpretation of the Stored Wire and Electronic Communications Act, 18 U.S.C. §§ 2701-2711 (1986). The Appeals Court held that a paging company was an “electronic communication service” governed by the act. Thus the company’s disclosure of the messages to the employer, who was the “subscriber” and not “an addressee or intended recipient of such communication,” violated the act.

Simon Property Group, Inc. v. Taubman Centers, Inc., 2008 WL 205250 (E.D. Mich. Jan. 24, 2008).
Magistrate Judge Mona K. Majzoub considered a motion to enforce a subpoena against a third party. The underlying action involved allegations of the Racketeer Influenced and Corrupt Organizations Act (RICO), various securities laws and other tort claims. The third-party argued that it should not be required to produce electronic documents responsive to the subpoena because it would be unduly burdensome and expensive. Their search of electronic files identified over 250,000 files. The requesting party offered to narrow the scope of the search by altering the time periods, search terms, and possibly dropping some computer servers from the search. The court enforced the subpoena as long as both parties agreed to narrow the scope in good faith because discovery of electronic records is contemplated under Federal Rule of Civil Procedure 45(d) and is common in business litigation.

Southern New England Telephone Co. v. Global NAPs, Inc., 2008 WL 2568567 (D. Conn. June 23, 2008).
You would be hard pressed to find a case with discovery violations more egregious than this one, which explains why the ultimate sanction of a default judgment was entered in the amount of $5,247,781, plus fees and costs of $645,760. Among the parade of horribles, Defendants failed to turn over their financial records in direct contravention of numerous discovery orders, lied to the court about not obtaining records from third parties, and willfully destroyed and withheld relevant documents. Additionally, Defendants erased computer data in bad faith by using disk wiping software called Window Washer and its “wash with bleach” option. This option overwrites files with random characters to make them unrecoverable. If that were not enough, Defendants then ran the Windows Disk Defragmenter program on the drive, making recovery even more impossible.

The court found Defendants had committed fraud upon the court and prejudiced Plaintiff to such a great extent that it would be unlikely that Plaintiff could ever prove its case. A default judgment under these circumstances was the only viable remedy. Here is how District Court Judge Janet C. Hall summed it up:

In conclusion, defendants’ behavior exemplifies the type of willful disregard for the process of discovery created by the Federal Rules of Civil Procedure that warrants the ultimate sanction of dismissal. Defendants “rolled the dice on the district court’s tolerance for deliberate obstruction,” and this court does not believe they should be allowed to “return to the table.” Bambu Sales, 58 F.3d at 853.

Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008).
Here is another case a defendant has managed to lose entirely by poor judgment in e-discovery. It is doubtful the merits of the case matter much any more here, since defendant and its counsel have lost all credibility with the court through their over-aggressive discovery tactics. They tried to evade discovery and then did not fulfill their responsibilities, nor follow the court’s order. The result is a costly forensic examination of all of their computers and sanctions that stop just short of a default judgment. Here are the words of District Court Judge Nora Barry Fischer, whose patience has obviously worn out.

In conclusion, while the Court has previously spoken of its frustration regarding the discovery process in this case, it is becoming clearer to this Court that Defendant Globe and its counsel bear much of the responsibility for the continual and unreasonable delays in effectuating the Court-ordered forensic inspection and for the other delays in the discovery process in this case. With that in mind, the Court wishes to impress upon Globe and its counsel that any further restrictions unilaterally imposed by it or its counsel on the forensic inspection (in any regard) as well as any other baseless barriers impeding the completion of discovery will be met with sanctions. The Court shall conduct a post-inspection status conference on August 19, 2008 at 10:00 a.m. and counsel shall appear in-person. The Court advises the parties that if additional discovery disputes arise, the Court may require them to utilize a special master, with costs to be borne by the parties.

Note here how Judge Fischer uses the threat of a special master and the expenses that will incur as a stick to try to cajole good behavior. This seems to be a tactic that more and more judges are using lately.

Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008).
This is yet another case where aggressive defense lawyers use old fashioned advocacy in e-discovery. As usual, they end up doing more harm than good. This is a wrongful employment termination case like Zubulake. Plaintiff requested the production of Department Stores Fragrance Group (DSFG) sales reports that tracked employee performance. Defendant claimed that seven key DSFG reports were no where to be found and so they could not produce them. Apparently the court did not believe Defendant’s convoluted excuses, and so ordered a forensic exam of Defendant’s computer system.

In summary, over the course of nine months, the Defense Attorneys’ position regarding the DSFG Reports went from: (1) not being able to produce the documents, to (2) claiming that the documents could not be found, to (3) offering to “recreate” the documents, to (4) claiming that producing the documents would be “overly burdensome,” to (5) hypothesizing that the Plaintiff fraudulently produced the June 2004 DSFG Report, to (6) after receiving Sachse’s incriminating email, producing four of the eleven missing DSFG Reports.

The court ordered a computer forensic expert agreeable to both sides to inspect Defendant’s hard drives to try to locate the seven missing DSFG reports. The parties agreed on an expert, but when he arrived at Elizabeth Arden, he was prohibited from taking any forensic images by Defendant’s attorneys, and denied access to certain parts of the computer system, including a network folder named DSFG, and the laptops of key employees likely to have the DSFG reports.

Defendant then filed a blustery motion for protective order, claiming that the expert had gone too far, and trying to prohibit further inspection of its computer systems. They even sought to have Plaintiff pay for Defendant’s attorney fees. Plaintiff responded with a motion for contempt based on Defendant’s violation of the court’s order, and a motion for sanctions and attorneys’ fees. The court granted Plaintiff’s motion for sanctions finding that defense counsel engaged in “obstructive tactics” evidencing bad faith and a disregard for the authority of the Court. Here are the words of District Court Judge Dominic J. Squatrito:

*10 Accordingly, although the Defense Attorneys may have provided some access to the Defendant’s servers and networks, the majority of the inspection was thwarted by the Defense Attorneys obstructive tactics. Such tactics are sanctionable because “[a] party that ignores or engages in delaying tactics, despite an explicit refusal to produce discovery, is still liable for sanctions pursuant to Rule 37.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707-08 (1982) (finding that the trial court’s invocation of powers under Rule 37 was “clearly appropriate” based on “continued delay and an obvious disregard of its order” even though “petitioners repeatedly agreed to comply with the discovery orders”).

A new inspection was ordered and Defendant was ordered to pay all costs and fees. As a practical matter, the credibility of the Defendant and its attorneys is now shot. Their discovery gamesmanship has backfired terribly. At this point, I would guess their odds of prevailing to be about as good as UBS Warburg in Zubulake, i.e. - slim to none. Here is Judge Squatrito’s stern warning:

In addition to the costs and attorneys’ fees already awarded by the Court, the Plaintiff Attorney requests that the Court enter a default judgment. This request is denied, but not without warning to the Defense Attorneys. In the event that the Defense Attorneys do not comply in full with the directives contained in this decision, they may be found to be in defiance of these orders and to be disinterested in the resolution of this case on the merits. In such an instance this Court may strike the Defendant’s answer and enter a default judgment against it.

Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y., April 2, 2008).
This is another case where an over-aggressive refusal to cooperate unnecessarily drives up the cost of e-discovery. Defense counsel makes what appears to be a fairly forthright proposal to find relevant ESI and respond to pending e-discovery requests. He suggests that the parties reach an agreement as to which employees’ files should be searched and what search terms to use. Defense counsel proposed the following search terms and invited discussion: (i) Treppel, (ii) Jerry, (iii) Bank of America, (iv) Banc of America, (v) BAS, and (vi) BofA. (Personally, I do not think “Jerry” is a great search term, since it is a fairly common name, but that is beside the point.)

You would expect Plaintiff’s counsel at this point to respond by suggesting a few additional keywords, or making comments like I did as to the efficacy of the proposed search terms. You would expect cooperation and communication to begin to resolve the common problem of retrieval of responsive ESI from a large, complex computer system. But no, not in this case where there is a much higher level of virulence between the parties than usuall, and, it appears, their attorneys too. No, what happens here is Plaintiff’s counsel responds by stating that “it is defendants’ obligation to simply search its [sic] records and respond to those demands. Plaintiff has no obligation to assist defendants in the process by providing search terms or any other guidance.” Id. at *3. Then, after some discussions but no communication, Plaintiff responded with several discovery motions.

Magistrate Judge James C. Francis, IV, responded by denying Plaintiff’s request for a preservation order as premature, and ordered Defendants to “promptly conduct a diligent search, explain the search protocol they use, and produce the responsive documents so located.” Id. Defendants then proceeded with the search protocol and terms it originally proposed. Defendants searched the computers of 14 witnesses and multiple shared drives areas. For reasons not explained, Defendants also voluntary searched the backup tapes of two servers.

After the search, Plaintiff now wanted to get in on the act, and demanded that 30 new search terms be added, along with numerous additional ESI custodians, plus a search of several more backup tapes. No explanation as to why Plaintiff did not make any of these requests before, when the search terms negotiations were first proposed, and before Defendants carried out the court ordered search. Of course, I have my theories, that this is just old fashioned adversarial churning, tit for tat attempts at entrapment, not a bona fide search for truth. But that’s just a theory. Anyway, Defendants naturally refused to run yet another search with these new terms, stating the obvious, that it was too late and the request was too broad. The plaintiff then filed a motion to compel the search it wanted, and for sanctions based on Defendants inadequate preservation of evidence. These motions are the subject of this opinion.

I know how I would have ruled on Plaintiff’s motions, especially the motion to compel. If nothing else, to send a clear message about intolerance of e-discovery gamesmanship. But this Magistrate saw things slightly differently, and granted one part of the motion to compel. He ordered the restoration and search of two additional backup tapes, even though Plaintiff had apparently not specifically sought discovery from these tapes before the search and first order. At least the Magistrate did not require the use of the 30 new search terms Plaintiff wanted, nor the new custodians. Still, in my opinion, the search should not have been broadened in any way. Plaintiff had a chance to communicate and cooperate, and instead, Plaintiff’s counsel said, in effect, “not my job.” (Actual words: “Plaintiff has no obligation to assist defendants in the process by providing search terms or any other guidance.”) I am sorry, but as long a judges keep doing this, and rewarding one party’s refusal to cooperate, even if only in part, the bench only serves to encourage the kind of behavior they profess to oppose.

As to Plaintiff’s motion for sanctions, the Plaintiff sought an adverse inference instruction, and pointed to multiple oversights in preservation. The Magistrate correctly noted that Defendant’s preservation efforts were inadequate. At first, all Defendants did was provide verbal instructions to two key witnesses to start preserving evidence. There was no follow up, and apparently nothing at all was done during the first seven months of the case. The Court quite correctly relied upon Judge Scheindlin in Zubulake to find a dereliction of duty in this inaction. See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y.2004) (“Zubulake V” ) (“[I]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”)

But the court went on to ignore Judge Scheindlin on another point and criticized Defendants for not preserving some of their monthly backup tapes. The court correctly quoted Judge Scheindlin “As a general rule, [ ] a party need not preserve all backup tapes even when it reasonably anticipates litigation.” Zubulake IV, 220 F.R.D. at 217. But then went on to incorrectly state that the law had since changed. For this dubious proposition, the Court cited only to Toussie v. County of Suffolk, 2007 WL 4565160, at *8 (E.D.N.Y. Dec. 21, 2007). Id. at *8. But if you read Toussie, you see that it incorrectly cites to Zubulake to support the position that “the law is now clear that any backup tapes containing the documents of a key player must be preserved and accessible.” This is how bad law gets started, much to the joy of some vendors. In any event, this incorrect statement on backup tapes was just a dicta passing statement in Toussie, and not at all essential to its holding. I have previously written a detailed blog on Toussie analyzing the unusual facts of that case. The Toussie court was justified under those circumstances to order a backup tape search in that case, and there was no need to turn Zubulake IV on its head to do that. In so far as Toussie and Treppel are cited for this proposition, they are creating bad law. There needs to be a good reason to preserve backup tapes, and in most cases (but not all) there is no need, because the relevant ESI will be found on live data.

Although I disagree in part with the sanctions road taken here, the end result of the Treppel court’s ruling on sanctions was just. Plaintiff’s request for an adverse inference was denied, and only an inspection of one suspicious laptop was ordered. All other sanctions were denied. In my view, more severe sanctions probably would have been awarded, if Plaintiff had not shot his credibility with the obvious gamesmanship in search.

U.S. v. Johnson, 2008 WL 2060597 (E.D. Va. May 15, 2008).
This is an interesting case to read for its facts, involving the criminal prosecution of Junior Johnson, the founder and CEO of now defunct, PurchasePro.com. This company was a dot com bubble that eventually burst. When it all started falling apart, Junior stopped at nothing, including the law, to try and keep his stock price afloat. For a while he was on top, making millions with a dubious business model involving business to business commerce and a virtual marketplace. At the end of 2000, the market capitalization of his company was almost $1 billion, and Junior’s own shares were worth over $236 million!

If you enjoy reading about how con men operate as much as I do (which is why I loved working on the Lou Pearlman case), you will get a kick, and several laughs, out of reading this 49 page opinion. It lays out an intricate trail of fraud, intrigue and audacious actions, some of which worked for Junior, at least for a while. In the end though he was convicted of numerous felonies, including “attempting to obstruct an official proceeding-his first trial-by giving his counsel an altered e-mail to use as evidence.” That is just one of many of Junior’s “boyish antics” that the opinion recounts in detail, and the only real e-discovery component to the case.

Junior’s first trial ended in a mistrial after his defense counsel withdrew upon learning that Junior had given him four altered emails. The attorney had been tricked by his client into placing altered emails into evidence, and using them in cross examination. This criminal defense counsel did absolutely the right thing upon discovering what happened. Eventually, the true story behind the altered email came out, and in Junior’s second trial, which this time included obstruction of justice, Junior now admitted to altering the emails. He claimed he did that just to see if his attorneys were actually reading all of the stuff, because it was obviously false, and surely his attorney would notice that if he took the time to read it. Id. at *39. He said he played this little prank on his counsel to prove his lack of attention to detail.

The court did not buy this, and instead held that it was “easily foreseeable that giving your trial counsel an altered piece of evidence in the midst of trial naturally and probably will interfere with the trial.” The court found that Defendant had the requisite criminal intent and found him guilty of obstructing justice. Here is the governing law:

To convict Junior of obstruction, the Court must find, that Junior “corruptly … obstruct[ed], influence[d], or impede[d] any official proceeding, or attempt[ed] to do so.”18 U.S.C. § 1512(c)(2). As explained earlier, the word “corruptly” connotes wrongfulness or impropriety. Arthur Andersen, 544 U.S. at 705;see United States v. Matthews, 505 F.3d 698, 706 (7th Cir.2007) (employing Arthur Andersen definition of “corruptly” in the context of section 1512(c)).

I point out that this law on its face applies to any “official proceeding,” not just criminal trials. There is a lesson here for all litigants, including those in civil law suits. Do not try to sneak an altered electronic document into evidence. It may seem easy, and you might even get away with it some of the time, but it is fraud and, if detected, you could face harsh criminal penalties.

U.S. v. Snipes, 2007 WL 5041892 (M.D. Fla. Dec. 24, 2007).
This is the well-known tax evasion case against movie star Wesley Snipes. Many also consider this case to be a good example of an unfair e-document dump. See what you think.

Just before trial in Ocala, Florida, the government produced an electronic database containing the equivalent of 1.6 Million pages of documents! Wesley Snipes and his co-defendants moved for a three-month continuance of trial to have time to sort through the database. They claimed that it was all newly discovered evidence. The government denied it was new evidence and claimed the defendants were previously provided an opportunity to inspect, but declined to do so.

Senior District Court Judge Terrell Hodges denied the request for continuance and concluded that defendants “had an ample opportunity to review and analyze the discovery material and prepare adequately for the trial of the case.” Judge Hodges explained that the ESI in the database consisted primarily of “computer software programs or copies of documents previously provided to the defendants in hard copy or other form.” Not sure exactly how they did that. The Court also seemed to be impressed that the government only intended to use 20 documents at trial that originated solely from the electronic form. But what about the 1,599,980 pages of documents they did not not want to use?

Wesley Snipes was acquitted of the tax evasion felony charges, even though he did not put on any defense witnesses. He was, however, convicted of three misdemeanors and sentenced to the maximum penalty of three years in prison. He has been allowed to remain out on bail, and even to travel overseas, so that he can continue to make movies such as GalloWWalker while his attorneys appeal the convictions to the Eleventh Circuit.

Waste Services, Inc. v. Waste Management, Inc., 2007 WL 1174116 (M.D.Fla. April 18, 2007).
This is one of the first cases in the country to consider what e-discovery costs can be awarded as a court cost to the prevailing party after a summary judgment. The decision of Orlando District Court Judge Anne C. Conway affirmed the recommendations of Magistrate David A. Baker. Judge Baker disallowed some of the costs for “tiffing” as excessive, but allowed other less expensive tiffing costs incurred with a different vendor. Interestingly, all of the costs of “blow back” (converting electronic documents to paper) were allowed.

WIREdata, Inc. v. Village of Sussex, 2008 WL 2512963 (Wis., June 25, 2008).
The Supreme Court of Wisconsin reversed a lower appeals court recently, much to the relief of state and local governments around the country. The intermediate appeals court had held that municipalities violate the Open Records Law when they deny citizens access to a government database, and only provide copies of the records in PDF format. WIREdata, Inc. v. Village of Sussex, 298 Wis.2d 743, 729 N.W.2d 757 (Wis. App., 2007). The court had stated, “The organization and compilation of the data into the Microsoft Access database, done at public expense, allows greater ease of public access to the public assessment information. In keeping with the letter and spirit of the open records law, we will not allow the municipalities to deny [Plaintiff], and others who seek the information, the value-added benefit of this computerization.”

Allowing citizens access to live databases poses a host of technical and other problems to governments trying to comply with Sunshine laws. The Wisconsin Supreme Court realized this and reversed. It is all explained in detail in a 30 page opinion, that only a Foley lawyer would want to read in full. Here is the key section of the ruling:

We share the DOJ’s concern, as expressed in its amicus brief, that allowing requesters such direct access to the electronic databases of an authority would pose substantial risks. For example, confidential data that is not subject to disclosure under the open records law might be viewed or copied. Also, the authority’s database might be damaged, either inadvertently or intentionally. We are satisfied that it is sufficient for the purposes of the open records law for an authority, as here, to provide a copy of the relevant data in an appropriate format

Xpel Technologies Corp. v. Am. Filter Film Distribs., 2008 WL 744837 (W.D. Tex. Mar. 17, 2008).
In this copyright case, the magistrate judge granted plaintiff’s motion for an expedited forensic examination of Defendants’ computers. The court stated that good cause was shown at a hearing, but did not explain what it was. The party moving for the examination (Plaintiffs) were required to pay for the exam. The court set out a specific protocol for the computer expert and the parties to follow in the forensic examination of the computers. Care was taken to preserve the confidentiality of Defendants’ information. The protocol included a hashing requirement: “All images and copies of images shall be authenticated by generating an MD5 hash value verification for comparison to the original hard drive.”

More “Must Read” 2008 Cases - Part Two

This is Part Two of a three part series reviewing, in alphabetical order, some thirty 2008 e-discovery cases. These are particularly interesting and noteworthy cases, but ones not previously featured in this blog. Part One covered ten cases A-J. Here in Part Two, seven more cases are written up, using some 4,150 words, but I only get through two more letters in the alphabet, H-I. That is because there are so many good “In Re” type cases, which are usually complex cases consolidated in a single court. These cases frequently involve important e-discovery issues, as you will soon see.

The first case here is the lone “H” case, Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008). Henry involves search protocols and a questionable decision to change the agreed-upon, and court-ordered, procedures without telling the other side, or seeking permission from the judge. The not-so-subtle message of Henry is the need for communication and openness in e-discovery, especially when attempting a complex search of a large volume of ESI. The old ways of extreme adversarial discovery conduct do not work anymore in the new world of complex e-discovery. You may think you are helping your client, but, as this first case shows, you are not. More often than not you just end up making a bad situation worse. 

Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008).

This case was brought by 422 plaintiffs who worked for Quicken Loans as “loan consultants.” They sued under the Fair Labor Standards Act for time and a half overtime pay for all work over 40 hours per week. Plaintiffs’ requested production of emails which they and 32 managers had written during a three month period in 2004. Apparently these emails were only available on backup tapes, and so Defendant objected.

Plaintiffs filed a motion to compel production and establish a protocol for production and clawback type privilege review. The motion was granted and the court compelled production and “a protocol was ordered that was intended to balance the concerns and needs of both sides at what was hoped to be manageable costs.” Id. at *1. The protocol called for Plaintiffs’ computer expert to retrieve email from the tapes under Defendant’s direction, but using search and screening terms agreed to by the parties. Plaintiff’s counsel agreed to pay for the expert’s expense, but “expressed a desire to limit the costs to no more than what was needed and not to be giving defense counsel a “carte blanche” to run up the costs of the screening procedure at Plaintiffs’ expense.” Id. at *2.

Mid-way through the screening process defense counsel directed the computer expert to start using different keywords to screen emails and attachments. This is difficult to understand. If defense counsel found that the search terms the parties had agreed to were not working well, which is certainly possible, if not likely, and felt it was necessary to change the terms, then why not speak with Plaintiffs’ counsel about it, or the court? (Later in the opinion the court stated that it would have agreed with some of the defense changes, but not all, if it had been asked in advance.) This was, after all, the Plaintiff’s expert, and so, defense counsel could not possibly have thought this “departure” from the agreement would pass undetected. So, why did defense counsel make a unilateral decision to change the search terms? By all appearances, it looks like an intentional violation of the parties agreement and court order? Monday morning quarterbacking is always easy, but still, this one looks like a no-brainer. So why did this happen?

Apparently defense counsel did think that this “little mid-course correction” could go by undetected. Yes, it was originally Plaintiffs’ expert, but the court order made clear that the expert would work under the “direction and control” of Defense counsel and would maintain confidentiality. Further, to underscore this point, and develop and extend the order a bit, Defense counsel told the expert that he “would be acting under the ‘direction and control’ of defense counsel and was not to have any contact with Plaintiffs’ counsel regarding his work.” Id. Apparently defense counsel figured they had set it up so that they could make these changes in search protocols without being detected, and so limit the production to Plaintiffs. Alternatively, they figured that if they were caught, there would not be significant adverse consequences. Wrong on both counts.

Here is how they were found out. The expert presented his bill to Plaintiffs’ counsel for payment as the court order provided. It is interesting to note that the bill was originally for $91,191.35, but was subsequently reduced to $79,965.01 due to “inadvertent double billing for certain work.” Id. at *3. (Seems odd - over twelve thousand dollars in inadvertent double billing?)  As soon as Plaintiffs’ counsel got the hefty bill, he sent a copy to Defense counsel, and advised them of his intent to depose the expert “regarding his bill and the protocol he followed.” Id. It seems to me that this should have been expected. But apparently not.

On the day of the noticed deposition, Defense counsel filed a motion for protective order to try to prevent the deposition. This delayed the deposition by several weeks, but after the motion was denied, the deposition eventually went forward. Of course, that is when the truth came out. The expert told all about how Defendant’s attorneys forced him to use new terms and procedures. Not surprisingly, the result of the new terms and procedures was an under-inclusive production of emails. The expert guessed at his deposition that “tens of thousands” of emails were not produced as a result of the change.

Again, as would be expected, Plaintiffs’ counsel responded with motions to the court. In my view, the motions were pretty mild considering the events described in the opinion. I would have expected a motion for sanctions. Instead, Plaintiffs counsel sought only to have the expert costs shifted, asking for the Defendant to pay most, but not all, of the expert’s bill, not Plaintiffs. Here is the court’s explanation:

*5 While there is no suggestion that defense counsel was acting unethically in serving his client’s interest, defense counsel’s actions exceeded the scope of the “direction and control” powers this Court vested in him in his unilateral and unauthorized modification of the “specific parameters” of the July 10, 2007, letter.

If there was a belief before or after the first screening run that there was some ambiguity in the meaning of screening for the names of identified company legal personnel, where those names were listed as a usual combined first and last name, defense counsel should have aired that with Plaintiffs’ counsel. If agreement could not be reached, Plaintiffs’ or Defendants’ counsel could have raised the matter with the Court. Had the issue of screening separately for first names of the 14 attorneys been brought to the Court’s attention, the initial interpretation and recommendation of Mr. Lanterman [the expert] of using both names together would have been adopted, or if separation was to occur, the screening would be done using the last name only of the attorneys. Instead of this, defense counsel unilaterally and secretly resolved any ambiguity, if such exists, in his client’s favor and against the advise of the forensic computer screening expert.FN5 It appears that as a result of this all e-mails screened subsequent to the initial screening were corrupted as being under-inclusive. Thus, it is determined that it is not a reasonable expense to impose the costs of subsequent screening runs on Plaintiffs where the corruption was caused by the acts and omissions of defense counsel, and could have been avoided.

Plaintiffs’ motion was granted and Defendant was ordered to pay the expert fees. Plaintiffs’ have another motion pending to have the court find a waiver of privilege (which may explain the seemingly mild response here to the hidden change). This opinion did not explain the waiver issues, but did state that depending on how it rules on this privilege motion, Defendant may be required to produce all of the emails it screened from the unilateral revision, and then some. The decision not to call Plaintiffs’ counsel, or the court, and instead unilaterally change the search procedure, could indeed have very harsh consequences.

In Re Flash Memory Antitrust Litigation, 2008 WL 1831668 (N.D. Cal. Apr. 22, 2008).

In this case, the court entered a preservation order reminding parties of their duty to preserve all potentially relevant evidence. It appears if as this was done sua sponte as there is no reference to a motion or stipulation. The parties were directed to take reasonable steps to ensure that potentially relevant records are preserved and to notify all parties and non-parties of their duty to preserve.

This is a one page order that simply reminds the parties to do what the law already requires. No explanation was provided for why the court felt it necessary to help the parties with their memory in this way, but I cannot help but notice the irony in view of the title of this case. The Flash Memory opinion concludes with the following:

Until the parties reach agreements on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation. In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure.

In Re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007).

Technically this may not be a 2008 case, but it is real close. It is a state appeals court opinion involving real estate litigation. The appellate court upheld a trial court order requiring a forensic examination of Defendants’ computers so that outcome determinative metadata could be discovered.

The main issue in the underlying case is whether Defendants had altered a partial assignment of a real estate contract after the parties finalized the agreement. The trial court ordered a computer expert to create a mirror image of the computer hard drives in Defendants’ office in order to locate all drafts of that assignment, including deleted files. Plaintiffs wanted the documents in their native format with the metadata intact so that they could determine when the drafts were modified. The appeals court found that under these circumstances, the order was not overly broad and was properly crafted to protect disclosure of privileged and confidential information. 

Here is the court’s explanation of why acquisition of the metadata in this case was critical:

A & W seeks the metadata from the Honzas’ hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

There is no explanation as to why the Defendants did not simply produce the native files with all metadata. Apparently, the defendants simply refused to do so thus triggering the rationale for the forensic examination. This fact also makes it easy to distinguish this case, because, in most circumstances, the producing party would simply produce the metadata, at least as a fall back position. In a case like this, where only two documents were involved, and the metadata could be outcome determinative, the metadata was obviously relevant and should have been produced voluntarily.

The Texas appeals court opinion is noteworthy for its good review of some of the many state and federal cases addressing the issue of forced forensic examination of a producing party’s computers. This was an issue of first impression in Texas, but has been considered by many other state courts, and dozens of district courts. The opinion also contains a detailed list of the procedures to be followed during the exam to protect the rights of the examined party. It is a good decision to know about, especially in state court cases.

In Re Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. Aug. 21, 2007).

Ok, this is not a 2008 case either, but it is an important case that has a lot to say about search and the need to cooperate in e-discovery. I should have written about Seroquel previously; so, better late than never. This is a well-written decision by Orlando Magistrate Judge David Baker. Judge Baker is not yet one of the “Judicial Rock Stars” of e-discovery, but he has long experience with computers and a good understanding of e-discovery, and could easily join the “e-disco” circuit if he wanted to.

This is a multi-district products liability action. It was filed by 6,500 Plaintiffs who took the drug Seroquel, an anti-psychotic medication that is purported to cause diabetes and other illnesses. I can only imagine the kind of client relations problems the Plaintiffs’ lawyers must have. This opinion addresses Plaintiffs’ motion for sanctions against the Defendant, the drug’s manufacturer, AstraZeneca, due to its failure to timely or properly comply with multiple discovery requests. After a raucous hearing, Judge Baker granted the motion and imposed the sanctions, even though there was no showing of willfulness or bad faith.

There was, however, proof of massive discovery negligence bordering on bad faith that caused unnecessary expenses and delays. Judge Baker characterized Defendant’s response to discovery as “purposeful sluggishness.” Defendant eventually produced 25 million pages of ESI, but of this, over 10 million pages were inaccessible, unsearchable, and unusable. The was at the heart of the sanctions motion. The flat TIFF images produced were not searchable because they were not accompanied with any metadata or other load file. Further, the production included multiple giant “TIFF” images, some over 20,000 pages long, with no page breaks. When plaintiff’s counsel suggested the inclusion of page breaks, defense counsel called it “ingenious,” a fact which Judge Baker pointedly noted in the sanctions opinion.

Judge Baker criticized both sides for their lack of professionalism and over-argumentative approach to electronic discovery. But, the Court found primary responsibility for the breakdown in communication and cooperation on the Defendant whose records were at issue. The following quotes from the opinion are of particular importance, and are starting to appear in other decisions nationwide, including the latest hot opinion on search issues by Judge Grimm, Victor Stanley.

While keyword searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process. Rather than working with Plaintiffs from the outset to reach agreement on appropriate and comprehensive search terms and methods, AZ undertook the task in secret.

Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness. If AZ took such steps, it has not identified or validated them.

One day all practitioners will understand and agree that using sampling and other quality assurance techniques in ESI search is just plain common sense. In the meantime, judges like David Baker, Paul Grimm, and many others stand ready to sanction clueless lawyers whose blundering, or adversarial based “purposeful sluggishness,” needlessly drives up the cost of litigation.

In Re Intel Corp. Microprocessor Antitrust Litigation, 2008 WL 2310288 (D. Del. June 4, 2008).

In this antitrust litigation, supposedly the largest in the country, the court found waiver by the defendant Intel of attorney-client privilege and work product protection. By the time this class action is concluded, all parties expect it will involve the largest production of ESI in history:

AMD, the Class Plaintiffs and Intel recognize that this litigation could be the “largest electronic production in history” resulting in Intel’s production of “somewhere in the neighborhood of a pile 137 miles high.” (citations omitted)

Intel discovered some lapses in its retention of potentially relevant documents and disclosed these lapses to the court and the many opposing parties, most notably AMD. This then forced Intel to start to look for these deleted emails on its backup tapes and other locations. It then discovered that some of the backup tapes had also not been preserved. This triggered a full investigation, including interviews by new outside counsel retained for that purpose, Weil Gotshal & Manges, LLC (”Weil”). In what any law firm would consider a dream assignment, Weil was retained to interview each of Intel’s 1,023 identified custodians “for the purpose of determining their e-mail preservation habits and their level of compliance with Intel’s litigation hold notices/instructions.” As part of these remedial efforts, Weil attorneys “spent many hours preparing roughly 400 pages of custodian-specific retention reports which drew upon thousands of pages of attorney notes, as well as other information.”

Plaintiffs sought the production of the Weil attorney notes underlying these retention reports in order to determine whether there was any deliberate destruction of relevant data. Intel opposed production, asserting attorney-client communication privilege and attorney work product privilege to all of the notes. A Special Master was appointed to determine if Intel had waived these privileges. The Special Master found waiver of attorney-client privilege because Intel had asserted to the Plaintiff, and the court, that the deleted information was due to human error and not intentional destruction. Intel waived work product protection when it agreed to produce detailed descriptions of the preservation issues of each custodian. This was waiver of “fact work product” only, and did not include “core work product,” a/k/a “opinion work product” which the decision notes is accorded near absolute protection from discovery. Id. at pg. *15. The court fully adopted the Report and Recommendation of the Special Master and overruled all of Intel’s objections.

The Court felt that waiver was required; otherwise, Intel would be “in the position of being able to use its sword to assert facts while at the same time shield AMD, the Class Plaintiffs and the Court from the accuracy of Intel’s assertion.” This would in effect force AMD and Class Plaintiff’s to either take Intel’s word for everything, or start all over and depose the Intel witnesses themselves. That would have defeated the whole purpose of the original discovery agreement under which the Weil investigation was commenced. As the Court explained:

In the context of the discovery phase of Intel’s preservation issues, Intel, by and through its attorneys, agreed to this form of discovery. Intel agreed to produce, “detailed written description[s] of the preservation issues affecting [every] Intel Custodian, including the nature, scope and duration of any preservation issue(s).” Intel could have left AMD and the Class Plaintiffs to their own devices, forcing them down the path of protracted world-wide preservation depositions. It did not. Rather it trumpeted its willingness to have AMD, the Class Plaintiffs and the Court informed as to fact work-product gathered and provided “a detailed written description of the information provided by each custodian [to Weil] during the interviews.”

CONCLUSION:

*17 The Special Master concludes, therefore, that Intel cannot now mask its agreed to discovery of custodian information by asserting the work-product privilege with respect to fact work-product which, in the Special Master’s view, lies at the heart of Intel’s position on its preservation issues.

So the troubles for Intel in this antitrust case continue. Not only will its mistakes in preservation cost Intel a small fortune to try to correct, but now it will also cost Intel some of its attorney-client secrecy protection. This could in turn lead to more sanction motions by AMD and other class plaintiffs, depending in no small part upon the findings and conclusions of Intel’s own lawyers. 

In Re Subponea Duces Tecum to AOL, 2008 WL 1956266 (April 18, 2008).

In this qui tam action against State Farm Insurance, the court considered a motion objecting to the magistrate judge’s order quashing State Farm’s subpoena of AOL. The filers of the qui tam action (called “relators”) argued that the subpoena to AOL violated the Electronic Communications Privacy Act. State Farm subpoenaed AOL for certain information relating to the email accounts of listed State Farm adjusters. The subpoena also requested all emails and electronic documents sent and received during a six-week period from one of the adjuster’s email accounts. The adjusters were not parties to the underlying litigation.

The court upheld the magistrate judge’s order for two reasons. First, the subpoena was over-broad due to the fact that the request for all emails and electronic documents during the six-week period was not limited to documents relevant to the subject matter of the litigation and it imposed an undue burden on the third party insurance adjusters. The court reasoned that the emails and electronic documents produced from the six-week period would likely contain privileged and personal information that was unrelated to the litigation. Second, the court held that:

[T]he plain language of the Privacy Act prohibits AOL from producing the Rigsbys’ e-mails, and the issuance of a civil discovery subpoena is not an exception to the provisions of the Privacy Act that would allow an internet service provider to disclose the communications at issue here.

This is an important ruling construing the Electronic Communications Privacy Act (”Privacy Act”). 18 U.S.C. §§ 2701-03 (2000). It applies only to civil discovery subpoenas of Internet service providers, and does not apply to civil trial subpoenas, nor to criminal subpoenas. Here is a segment of the Court’s reasoning behind this important ruling:

Protecting privacy interests in personal information stored in computerized systems, while also protecting the Government’s legitimate law enforcement needs, the Privacy Act creates a zone of privacy to protect internet subscribers from having their personal information wrongfully used and publicly disclosed by “unauthorized private parties,” S.REP. NO. 99-541, at 3 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3557.

*4 Applying the clear and unambiguous language of § 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsbys’ electronic communications to State Farm because the statutory language of the Privacy Act does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas.

[T]he Court holds that “unauthorized private parties” and governmental entities are prohibited from using Rule 45 civil discovery subpoenas to circumvent the Privacy Act’s protections.

This means that if you want to discover email you need to subpoena the subscriber, the person whose email account it is, not the provider. If you receive a court order compelling the individual subscriber to produce the email, then, and only then will the Internet provider cooperate.

In Re World Trade Center Disaster Site Litigation, 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008).

This litigation involves approximately 10,000 cases relating to the respiratory injuries of workers exposed to toxic chemicals in the clean up and rescue efforts after the terrorist attacks of September 11, 2001. The court recognized the massive volume of e-discovery required to fairly resolve the many claims in this important case. For that reason, this opinion accepts and approves the Special Masters recommendation that Technology Concepts & Design, Inc. be hired to build, maintain, and operate a computer database to store “Core Discovery.”

The recommendation was made by the multiple Special Masters previously appointed in these consolidated cases. (By the way, the opinion notes that the Special Masters’ bills average $20,000 per month.) The court accepted the recommendation because, as the court put it, “it is imperative that a means be developed to process and organize the information on a consistent, reliable, and accessible basis.”

The Plaintiffs had opposed the hiring of the expert, and construction of the database, largely on the basis of the additional cost involved. Plaintiffs were keenly concerned with costs because all of the expenses are paid out of a capped recovery fund. The court rejected these arguments, claiming that a source of reliable information was indispensable to the efficient and inexpensive resolution of these 10,000 plus cases. The Court also explained its authority to appoint Special masters and experts to assist courts in complex discovery issues:

The court has ample power to appoint Special Masters, and to support their activities in manners that will create efficiencies and economies. Fed.R.Civ.P. 53; In re Peterson, 253 U.S. 300, 312-13 (1920) (”Courts have … inherent power to provide themselves with appropriate instruments required for the performance of their duties. This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties” including Special Masters); Manual for Complex Litigation §11.52 (4th ed. 2004).

The use of Special Masters in this case is a good example of an emerging trend in e-discovery. Like most people in the field, I predict a significant increase in the use of Special Masters for e-discovery specific issues in the coming years. These issues are frequently too complex and time consuming for district court judges or magistrates to deal with on their own. For consistency, predictability, and quality of ruling, not to mention speed, more and more parties to complex litigation will voluntarily agree to use a special master with special skills and experience to resolve their e-discovery disputes. Even if they do not all agree, the judges may well force it upon them. As this opinion shows, they have ample legal authority to do that, especially in an extraordinary case like this.

 

More “Must Read” 2008 Cases - Part One in a Three Part Series

This is the first of a three-part blog, and a follow-up to an earlier essay, Online Reference and Thirty One More e-Discovery Cases. In this and the next two blogs, I will add thirty new case summaries and analysis in alphabetical order. This first blog covers the first ten cases, A-G, from the first half of 2008. It is already pretty long at 4,698 words, and one Monty Python video on spam, which is why I am breaking this up into three blogs of ten cases each. These are all cases that I consider “must read” e-discovery cases for 2008. Of course, if you want to “have a life” outside of e-discovery, you might just settle for reading these summaries, and then come back and read the full case later, if and when you need to.

These 30 new reviews are in addition to the twelve lengthy articles on 2008 cases that I have already posted:

1. Qualcomm v. Broadcom.
2. Johnson v. Wells Fargo Home Mortgage, Inc.
3. R & R Sails, Inc., d/b/a Hobie Cat Co. v. Insurance Company of the State of Pennsylvania.
4. Victor Stanley, Inc. v. Creative Pipe, Inc.
5. Texas v. City of Frisco.
6. Petcou v. C.H. Robinson Worldwide, Inc.
7. Bro-Tech Corp. v. Thermax, Inc.
8. Victory Intern. (USA) Inc. v. Perry Ellis Intern., Inc.
9. ICU Medical, Inc. v. RyMed Technologies, Inc.
10. Diabetes Centers of America, Inc. v. Healthpia America, Inc.
11. United States v. O’Keefe.
12. D’Onofrio v. SFX Sports Group, Inc.

The above twelve cases are, in my view, the most important decisions so far in 2008, but the 30 others I will review today, and over the next two weeks, are no slouches either. The truth is, there are tons of good e-discovery cases this year, including many more that did not quite make the cut here for one reason or another.

These new cases will help make the e-Discovery Team blog more useful as an online reference tool for students, fans, and practitioners of e-discovery. In the future, just use the Search button on the right to help you find or remember the e-discovery cases you need. In the meantime, reading these short reviews should help keep you up to date. As usual, unlike the excellent K&L Gates Blog, I interject my own opinions and analysis into most of these reviews. Again, these are my views, not that of my firm or clients. I do this with the hope that some analysis may help in your own processing, or at least keep the study of the law a tad more interesting, and maybe even sometimes amusing. After all, learning should be fun, especially for cutting edge stuff like this.

Special thanks to Catherine Jackson, an Editor of Florida Law Review, and Summer Associate at Akerman, for her fine help on this project.

Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008). In a trademark infringement case, Defendant filed a motion to compel Plaintiff to produce a document titled EZTouch File Structure in native format with all metadata. Plaintiff argued that it had already produced the document electronically in PDF format and in paper format. Additionally, Plaintiff provided a “Document Modification History” representing a chronological list of all changes made since the document was created. The court denied Defendant’s request because Defendant had neither specifically asked for native format in its original document requests nor mentioned native format in any of its earlier motions. The court reasoned that “[Defendant] was the master of its production requests; it must be satisfied with what it asked for.”

The authority the opinion cites at page *560 to support this holding includes three cases, D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 48 (D.D.C.2008); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 248 F.R.D. 169, 170-72, 2006 WL 3091331, at *1-2 (D.Del.2006); Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y.2006), and then my book:

See also Ralph C. Losey, E-Discovery, Current Trends and Cases 158-59 (2007) (summarizing recent cases as amounting to a “lesson … that in order to obtain metadata you may need, you should specifically ask for it to begin with”).

It would have been a must read case anyway, honest.

Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008). Plaintiff, a state employee, brought an action against his employer for failing to promote him based on the fact that he had exercised his constitutional rights. Plaintiff filed a motion to compel the production of emails. Defendants produced some responsive emails, but Plaintiff renewed the motion to compel based on inadequate production. After oral argument on the motion, the court ordered Defendants to submit an affidavit delineating the steps they took to locate the emails.

The Defendants filed an affidavit, but it did not describe the steps taken to find the emails as the court had requested. Instead, the affidavit outlined the necessary steps to restore deleted data from backup sources. Plaintiff argued that the emails should be produced even if Defendants had to restore deleted data.

The court examined the elements of Rule 26(b)(2)(B) for production of inaccessible ESI, such as deleted emails, and then made the interesting holding that the rule should not apply unless and until you first try and obtain the ESI from all accessible sources. In this case, that would include PST email archive folders that employees may have made on their personal computers. The existence of such files is unknown, which is one reason the affidavit on search was ordered to begin with. If the missing emails were located in these easy to access PST files, there would be no need to consider searching deleted space and thus no need to follow the analysis of Rule 26(b)(2)(B). In the words of the court explaining the rule:

Under this framework, a court does not reach the two-fold question of whether inaccessible sources of electronically stored information should be searched and, if so, which party should bear the associated costs unless it is first satisfied that the request seeks relevant information that is not available from accessible sources. . . . This is because relevant considerations in determining whether to order a search of inaccessible sources include “the quantity of information available from other and more easily accessed sources” and “the likelihood of finding relevant information that seems likely to have existed but is no longer available on more easily accessed sources.” Id. See also Zubulake v. UBS Warburg LLC, 217 F.R.D. at 323 (one of the two most important considerations is “the availability of such information from other sources”).

Since the defendant did not provide the court with the affidavit it requested to allow the court to determine whether accessible sources of the email might exist, such as the mentioned PST files, the court held that it still did not have enough information to determine whether it should force the government defendants to search through their deleted files or not. The court was obviously persuaded that such an effort would be expensive and time consuming, and seemed completely forgiving of the fact that the state defendants had previously ignored her prior request for information by affidavit. The court denied plaintiff’s motion to compel, but without prejudice. The defendants were ordered to submit to depositions by the plaintiff as to their purported efforts to locate email. After such discovery, which the court assumes will provide information on the availability, or not, or accessible email, the plaintiff can return to the court for appropriate relief

City of Seattle v. Prof’l Basketball Club, LLC , 2008 WL 539809 (W.D. Wash. Feb. 25, 2008). In a case involving a dispute over a lease, plaintiff City of Seattle requested defendant Professional Basketball Club (the Seattle “Sonics”) to search and produce responsive emails of six of its eight owners. The Sonics had already produced about 150,000 emails from two of its owners, Clay Bennett, and Aubrey McClendon. (Who knew professional basketball management types wrote so many emails!) The Sonics objected to the additional requests because such a search would “increase the universe exponentially” and would generally produce irrelevant documents. Still, I have got to believe that the Sonics email is a lot more interesting to read, and certainly more colorful, than the email in your typical landlord/tenant case. That is especially true in this case where these new team owners fought a huge public battle, of which this case is a part, to move the team from Seattle to Oklahoma City.

The City apparently really wanted to see the email of the rest of the Sonics owners too, so it moved to compel production. The court granted the motion because the Sonics had control over the owners’ emails under Federal Rule of Civil Procedure 34(a), the emails were likely relevant to the claims, and there were no specific objections as required under Federal Rule of Civil Procedure 26(b)(2)(B). The court ordered the production of the emails because the Sonics had not adequately explained why the production was unduly burdensome. In the words of the court:

In opposing discovery on the grounds of overbreadth, a party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents.” Super Film, Inc. v. UCB Films, Inc., 219 F.R.D. 649, 651 (D.Kan.2004) (citation omitted). A “court must be able to ascertain what is being objected to. As such, unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” Boeing Co. v. Agric. Ins. Co., 2007 U.S. Dist. LEXIS 90957, *8 (W.D. Wash. Dec. 11, 2007). A claim that answering discovery will require the objecting party to expend considerable time and effort to obtain the requested information is an insufficient factual basis for sustaining an objection. Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (D.C.Pa.1980).

Here, PBC has not explained why producing the emails at issue would be unnecessarily burdensome, but merely states that producing such emails “would increase the email universe exponentially[.]” (Dkt. No. 14, Ex. C). PBC also states in its moving papers that the emails add “nothing to the case except mountains of work for no return.”(Dkt. No. 14 at 7.) But a bald assertion that discovery will be burdensome is insufficient in light of Fed.R.Civ.P. 26(b) (2)(B). The Court is not permitted to presume the potential burdensome effects upon a party. The parties have already agreed upon a group of search terms that PBC previously used to search Messrs. Bennett and McClendon’s emails and the Court assumes those terms may be used again to make further searches efficient.

The lesson of this case is that you cannot rely upon general objections buttressed by big numbers alone to persuade a court to protect you from burdensome discovery. You have to spell it out and provide details as to why it is so burdensome. Otherwise, even if you are the Sonics in your home court in Seattle, you may not be heard. And if you are new owners trying to take the team away, it might not matter anyway, but you should at least try

Clearone Communications v. Chiang, 2008 WL 704228 (D. Utah Mar. 10, 2008). Plaintiff filed a motion for sanctions in this case involving claims of misappropriation of trade secrets, breach of contract, and conversion. Plaintiff argued that sanctions were warranted because of Defendant’s misrepresentations concerning the late source code production and Defendant’s failure to produce “smoking gun” email, which was produced by another party to the litigation. The other party was the recipient of the “smoking gun” email. Defendant argued that its computer system did not retain copies of any sent emails.

The court allowed an adverse inference instruction and monetary sanctions based on the belated production of source code and the misrepresentations about the existence of other versions of the source code. The court did not grant sanctions based on the missing “smoking gun” email because the court reasoned that the automatic deletion of the email was not done in bad faith. Instead it was their usual policy, albeit an uncommon one. The court did, however, question the wisdom of a business not saving any of its sent email, but that was beside the point for sanction analysis. Here is the Court’ ruling:

For any business this is a significant irregularity; almost unimaginable for a technology company; and even more unlikely for a person of Bowers’ importance in such a company. Nonetheless, it does not appear that the September 5, 2005, email was withheld by WideBand Defendants-they did not have any copies of emails sent by Bowers.

WideBand Solutions, Inc., did not maintain an email storage system that would retain a copy of the September 5, 2005 email. No evidence suggests that this was done in bad faith, but is rather the effect of design of the email system WideBand employed. However questionable the design may be, the effect is that the routine operation of the WideBand computer system did not capture the email. No sanction is needed on this point, as ClearOne is free to establish at trial that no one has complete access to or knows the entire contents of Bowers’ sent email. Each party will be free at trial to argue the implications of that fact.

The court did not mention Rule 37(e), but this case is a good example of where the rule would apply. Here is the wording of the Rule:

Electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

That is exactly the situation the court describes in this case and so the refusal to impose sanctions here complies with the new rule.

Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008). In this employment discrimination action, Defendants sought to obtain a forensic examination of Plaintiff’s home computer. Defendants stated that the search would focus on information regarding Plaintiff’s employment with Defendants, the employment termination, Plaintiff’s claims, and possible damages. They offered to pay for the whole thing. Surprisingly, Plaintiff did not object to the forensic examination, but she wanted it to be a more “limited, focused” inspection. Plaintiff also opposed the request because she claimed Defendants did not set forth a protocol or methodology that would protect her against violations of privilege, privacy, and confidentiality interests.

The court did not really address Plaintiff’s scope concerns, but instead generally stated that the burden on Plaintiff was minimal, and noted that Defendants had agreed to pay for the imaging. The court cited Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050, 1054-55 (S.D. Cal.1999), with approval as establishing a good protocol to protect confidentiality. The court then followed Playboy and set forth its own detailed procedures to protect Plaintiff’s privacy rights.

The case is interesting for the detailed protocols ordered. It is also unusual in that the inspection per se was unopposed. I expect many will gloss over this key fact, and try to use Coburn to argue for a right to inspect another’s computers, so long as privacy is protected, and the inspection is paid for. That is contrary to the law, where good cause or other unusual circumstances must be shown, such as discovery abuses, or evidence of missing ESI.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008). This case alleges breach of duty of loyalty and confidentiality based upon an employee’s leaving to go work for a competitor, and allegedly disclosing confidential information to the competitor. Defendant Ramin Younessi was a “high level executive” of plaintiff, Daimler Truck, before going to work for a competitor truck manufacturer. Daimler served a subpoena upon a truck dealer, Cascadia International LLC (”Cascadia”), who was not a party to this litigation. The subpoena requested production of Cascadia’s computers so that Daimler’s experts could search them for certain communications involving the alleged confidential information. Cascadia of course moved to quash the subpoena and for a protective order because the request was unduly burdensome and required disclosure of its trade secrets. No doubt you have already correctly deduced that Cascadia is not a Mercedes truck dealer.

The court did not entirely quash the subpoena because the requested communications were highly relevant. However, the court did not allow Daimler to inspect the computer hard drives because of the risk of disclosing trade secrets. The court ordered Cascadia to search its own computer systems and produce any relevant communications. In response to the objection that the search was unduly burdensome because of the many locations and computers involved, the court directed Cascadia to identify all sources that it did not search, and all potentially relevant documents that it did not produce, in order to evaluate the costs of providing the documents and likelihood of finding relevant documents. The court also limited the production to documents found on certain hard drives and other electronic devices.

Although the Court here reached the right result, the opinion is remarkable for it’s misunderstanding of the rules and the nature of ESI. Read this language of the decision and see if you can tell what is wrong.

The Federal Rules provide for discovery of electronically stored information either in its original state, i.e. actual production and copying of hard drives, or in a reasonably usable form, i.e. print outs. Fed.R.Civ.P. 34(a)(1)(A). . . . That is, the Rule allows for a subpoena of an entire hard drive for the limited purpose of finding a few documents which may be stored therein. See Fed.R.Civ.P. 34(a)(1)(A) (requesting party may obtain information stored in any medium); Fed.R.Civ.P. 34(b)(1)(C) (requesting party “may specify the form or forms in which electronically stored information is to be produced”). This would be analogous to allowing the search of a party’s entire collection of file drawers for the purpose of finding a single class of documents.

That is not what the rules mean at all. The rules allow for the request and production of relevant electronically stored information. ESI is not equivalent to hard drives. The original state of ESI is not hard drives. It is digital information. ESI is sometimes stored on hard drives. It lives there sometimes, it is it’s “house” so to speak. But it is not the same thing as the house itslef, anymore that I am. If you want to see the original of me (dubious desire) you do not subpoena my whole house and then go in there and look around for me. You subpoena me, and out I come. It is the same way for ESI. The original state of the ESI is not the same thing as the “hard drives” or other media in which it lives.

The ESI they were searchin