ELECTRONIC
DISCOVERY LAW: e-discovery
DISCOVERY
OF
ELECTRONIC DATA
© Richard E. Best
1998-2003 All Rights Reserved
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Civil Discovery Law
GENERAL DISCOVERY
OF ELECTRONIC
DATA
EARLY IDENTIFICATION OF ELECTRONIC
DISCOVERY ISSUES
Meet & Confer Obligations
Court Rules
DISCOVERY OF BACKGROUND INFORMATION
FOR ELECTRONIC DATA DISCOVERY
Importance / Integration into Discovery Plan
Alternative e-discovery devices to
obtain background information
Background information to be obtained
to conduct e-discovery
SEARCH OBLIGATIONS
PRESERVATION
DUTIES
PRESENTATION OF E-DISCOVERY
DISPUTES TO COURT
Expert Evidence
Relevant Factors
Strategies
DENIAL OF E-DISCOVERY FOR OVERBREDTH
FORM OF PRODUCTION OF ELECTRONIC
DATA :
COST SHIFTING & RECOVERY
RECOVERY OF DELETED
ELECTRONIC DATA
CREATION OF DOCUMENTS FROM ELECTRONIC DATA
HARD DRIVE PRODUCTION
ON-SITE DISCOVERY OF OPPONENT'S ELECTRONIC DATA
DATABASE
COMPUTER LOGS
IP ADDRESS AS TRACKING
DEVICE
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EARLY IDENTIFICATION OF E-DISCOVERY ISSUES
Lawyers often make the mistake of
avoiding or not addressing e-discovery issues as early as possible when
expenses and adverse consequences can be prevented. Discovery
issues seldom improve with the passage of time and often get much worse
and much more expensive. See Toshiba
America Electronics Components, Inc. v. Superior Court (Lexar Media,
Inc.), 124 Cal.App.4th 762 (2004) where early discussion could have
avoided expensive appellate litigation as well as potential million
dollar discovery issues. Lawyers who are resisting discovery and
believe avoidance of discussions will avoid the issue are missing an
opportunity to protect their clients from charges of spoliation
and are increasingly subjected to claims of malpractice.
Courts are awarding
spoliation and discovery sanctions against those who fail to preserve
and produce electronic records: judgments, evidence, money, adverse
inference instructions. Coleman
(Parent) Holdings Inc. v.
Morgan Stanley, Inc. 2005 WL 674885 (Fla.Cir.Ct.) United
States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21
(D.D.C.2004) In the 5th decision of the well known Wall Street
employment law case, Zubulake
v. UBS Warburg LLC, 2004
WL 1620866 (S.D.N.Y.). Adverse inference instructions to juries are
considered major factors in the multi-million and billion dollar awards
against corporate defendants that neglect or avoid e-discovery
responsibilities and issues.
Many
courts have adopted early case
management programs and FRCP 26 requires parties to dislcose
information and confer on e-discovery issues early in the
litigation. In other courts, parties seeking to address issues before
they get out of control can seek a protective order. Proposed
amendments to the FRCP expresly require discussion of potential
e-discovery issues at the Rule 26 conference though such discussions
should occur under current rules.
MEET
AND CONFER OBLIGATIONS
Proposed
amendments to FRCP 26 and California CRC Rule 212 specifically require
early discussion of electronic
data issues.
In
re Bristol-Myers Squibb Securities Litigation (D.N.J.2002), 205
F.R.D. 437, at pages 441 and 444 [at p.441 "Defendants
were mandated to advise the Plaintiffs that the NDA was in electronic
form at the time 26(a)(1) disclosures were made." at p.444 “
[FRCP
26(f)] provides that before a Rule 16 Conference, the parties "confer
... to develop a proposed discovery plan...." In the electronic
age, this meet and confer should include a discussion on
whether each side possesses information in electronic form, whether
they intend to produce such material, whether each other's software
is compatible, whether there exists any privilege issue requiring
redaction, and how to allocate costs involved." "...the
production of electronic information should be at the forefront of
any discussion of issues involving discovery and trial, including the
fair and economical allocation of costs. Of course, in some
instances, paper, rather than electronic, production may still be the
preferable method of discovery."]
COURT
RULES
Note that many trial courts have adopted local rules to guide and
facilitae the discovery of electronic information which require
disclosure of certain background information and encourage the
voluntary exchange of additonal information. Several federal district
courts have required parties to focus on the subject with regard to
required disclosures under FRCP 26 and the 26(f) discovery
plan. For example, the Delaware federal district court recently
adopted a detailed
default
discovery plan and order for lawyers who cannot agree
otherwise. FRCP amendments effective December, 2006 encourage
early disclosure and require parties to identify sources of
electronically stored infomration that it is not producing because of
undue burden or cost. FRCP Rule 26(b)(2)(B).
DISCOVERY
OF BACKGROUND INFORMATION
IMPORTANCE
Discovery: Understand opponents system and personnel to
formulate discovery plan and argue feasibility of obtaining and
producing information;
Identify legacy system problems: old electronic data created and stored
on systems or media no longer in use; discovery may requires special
hardware only available via computer museum or special programs to
convert data to usable forms
Identify alternative sources of information
Admissibility at trial of information obtained: show the design and
reliability of the system, the authenticity and lack of alteration of
documents and data
United States ex rel Tyson v.
Amerigroup Ill., Inc., 2005 U.S. Dist.
LEXIS 24929 (N.D.Ill.2005) The trial court
granted the motion of a non-party state agency to quash a subpoena duces
tecum served on it by the defendants calling for
production of emails of three named employees. The uncontested
affidavit
of the moving party's expert, who knew and explained the computer
system, costs and effect on daily operations, prevailed.
"Significantly,
the defendants do not challenge any of Mr. Perry's assertions. This
omission, they claimed at oral argument, was the inevitable result
of having no familiarity with the internal systems used at HFS. The
argument is unpersuasive. The defendants could have sought leave to
depose Mr. Perry, and, of course, they could have retained an expert
of their own to opine on the validity of Mr. Perry's statements -- at
least in a general sense."
Alexander v. Federal Bureau of Investigation (D.C.1998),
188 F.R.D. 111 [Organization depositions permitted to discover
information re systems; Expert declaration on another issue disregarded
by court in part because expert was unaware of details of the specific
system; opposing experts familiar with the system prevailed due to
their knowledge and detailed declarations.]
INTEGRATE INTO ALL DISCOVERY
Every depositions should include inquiry that may lead to sources of
discoverable information. Opposing parties and cousel may not know all
sources of their own information. Is work taken home? How do people
communicate, memorialize meetings, store information, transmit
information? How
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ALTERNATIVE
DISCOVERY DEVICES
See also Discovery Case Outlines
on specific discovery devices and Discovery
Act & Outline for specific statutory provisions in California
For Federal Rules of Civil Procedure see Cornell Law
DEPOSITIONS See also Deposition Case Outline
Corporate deposition: C.C.P.§2025.230; F.R.C.P. Rule 30(b)(6)
Alexander v. Federal Bureau of Investigation (D.C.1998),
188 F.R.D. 111,118 [organization depositions re system permitted and
essential for opinions of experts re what should be discoverable;
discovery permitted re filing systems of documents, recording and
email, systems of video and audio recordings, recording systems used by
individuals, email systems and databases, electronic devices used by
individuals]
Describe subject and corp picks deponent
Specificity re system configuration and layout,devices
available to write data, media, format, back up and archives, policies
& procedures, programs & applications
Most qualified to testify on its behalf to extent known to corp
Not necessarily "most knowledgeable" or most helpful
Issue re whether person presented is adequately informed
See Linnen v. A.H. Robins Company, Inc.(Mass. 1999),
10 Mass.L.Rptr. 189, 1999 WL 462015 where the PMK was "not particularly
familiar with the back-up procedures or the record retention practices
of the electronic mail system."
Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989),
125 F.R.D.121 [When expense raised as objection to providing
information re prior similar claims, plaintiff sought a corporate
deposition re claims processing, recording, storage and retrieval. The
claims director could not answers questions on the subject and
plaintiff requested a person who could respond. Defendant refused
despite the fact plaintiff had traveled to the corporate offices. Under
FRCP 30(b)(6) the corporation had a duty to produce and prepare the
witness to give"complete, knowledgeable and binding answers". The
corporation had a duty to substitute a proper witness. The failure to
designate was a failure or refusal to answer deposition questions
justifying appropriate sanctions.]
Individual deposition of corporate employees:
C.C.P.§2025.280(a),
2025.220(a)(3), 2025.260 (a)
"general description sufficient to identify" employee
Every deponent should be questioned re computer usage as well as other
e-data devices
Possible lead to
sources of information
Indicates level of sophistication
INTERROGATORIES See also Interrogatory
Case Outline
Written interrogatories: C.C.P.§2030;
Background info: how is data written, to what media, in what
format; burden
& cost of retrieval
Document retention policies and compliance therewith
Destruction of data
DOCUMENTS See also Document
Case Outline
Document production: C.C.P.§2031.010 discovery of "documents" ,
"tangible things", "other property, or any designated object or
operation on it" See above See also Document Production Case Outline
C.C.P. 2016.020(c) document is a writing as defined in Evid.Code
250
Evid. Code 250 "... every other means of recording upon any tangible
thing any form of communication or representation, including letters,
words, pictures, sounds, or symbols or combinations thereof."
Evid. Code 255 " 'Original' means...if data are stored in a computer or
similar device, any printout or other output readable by sight...."
Evid.Code 260 " 'duplicate' is...electronic rerecording...."
C.C.P. 2031.281(b) re translation of "data compilations" See Toshiba
America Electronics Components, Inc. v. Superior Court (Lexar Media,
Inc.), 124 Cal.App.4th 762 (2004) [automatic cost shifting of
reasonable costs if within section]
Specificity re data in request; not just e-data
Specify production form, format, media
Opponents' format may not be usable
Experts meet and confer to determine realistic discovery
See §33.53 Federal Manual For Complex Litigation(3d)
Use of court appointed or neutral experts
Playboy Enterprises v. Welles
(S.D.Cal.1990), 60
F.Supp.2d 1050, 1054
Simon Properties Group LLP v. mySimon Inc. (S.D.Ind. 2000),
194 F.R.D. 639 [selected and paid by opponent]
Antioch
Co. v. Scrapbook Borders, Inc. 210 F.R.D. 645
(D.Minn.,2002) [selected and paid by opponent]
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BACKGROUND
INFORMATION TO BE OBTAINED
What data exists ? How is it processed ? How is it organized
? How can you formulate a request so the
responding party can comply ? Will production be made in a usable
format or media ? What does your expert need
to know in order to plan your electronic discovery and to formulate
meaningful requests for information? What do
you need to know about your opponents system to satisfy yourself that
it has conducted a reasonable search for
data ?
DOCUMENT
RETENTION POLICIES
Treppel
v. Biovail Corp. 233 F.R.D. 363, 2006 WL 278170
(S.D.N.Y. Feb. 6, 2006).[The Court
ordered answers to inquiries re document retention and storage.]
Petersen v. Union Pacific R. Co.
(C.D.Ill.,2006)
Not Reported
in F.Supp.2d, 2006 WL 2054365
[Ordered production of "... a
copy of UP's Document Retention and Destruction Policy or equivalent,
as it existed both at the time of the subject accident and at present
day, setting forth UP's policy for the retention of documents and
other materials but not limited to, crossing signal test reports,
audio recordings of train dispatcher radio and telephone
communications, video footage filed from moving trains, data from
rail/highway grade crossing event recorders or equivalent, data from
defect detectors; maintenance and repair records for track, signals,
rail/highway grade crossings, locomotives and rolling stock; and
e-mail messages."]
In
re Honeywell Intern., Inc. Securities Litigation (S.D.N.Y.,
Nov. 18, 2003), 2003 U.S. Dist. LEXIS 20602 [The
request for document retention policies and all documents reflecting
how the documents sought by the subpoena were preserved, maintained
and collected by a non-party for production pursuant to subpoena was
denied since there was no concrete
basis for this request other than allegations and concerns that all
documents were not being produced.]
Lawyers
Title Ins. Corp. United States Fidelity &Guaranty Co.(NDCal.1988)
122 F.R.D. 567. [Questions propriety of general inquiry for purpose of
formulating future discovery without some showing of relevance and
necessity (e.g. conventional discovery not working). Note the context
of the court previously rejecting other overbroad, marginally relevant
inquiries. "The mere possibility that a party might not produce all
relevant, unprotected documents, is not a sufficient basis for ordering
such a party to disclose its entire computerized system of information
management."] See also Strasser case
Bills v. Kennecott, 108 F.R.D. 459, 461
WRITTEN AND UNWRITTEN POLICIES, PROCEDURES etc.
Operation of system
Access control lists that limit and control accessing, viewing
and editing documents & data; may assist authentication of
particular data or document
Audit trails & computer logs to show who actually accessed, when,
for how long etc.
Document retention policies, enforcement, and deviations;
Security policies, hacking experience, intrusion software used
Physical security, locks, key logs,
biometric ID,
Access codes, tokens, passwords
Access limits of personnel to different databases, or functions, or
documents
Firewalls, antivirus, intrussion detection
Mauals and policies; any records of enforcement or discipline
Schedule and history of outside or internal security audits
Encryption programs & passwords: may assist access and
authentication
Policies on termination of employees
Revocation of passwords and access codes
Change of access codes if used by others
Wiping or reformatting of hard drives; back up or copy of old data
Disposal policies for replaced hardware
Policies re employee use, privacy, retention, copies of files
Failure to follow policies may give rise to nefarious inferences
Can you trust the documents that survived
Are the destroyed documents damaging
May not be justified i.e. didn't read or follow policy
COMPUTER PERSONNEL: Who to depose ?
Head of department or CIO may not be most knowledgeable
Database or Intranet administrator / person most knowledgeable
about database inquiries
Tech support staff & former employees
Persons with access to computers or files
Persons handling operations, maintenance, backup
Independent contractors
Different persons may need to be deposed regarding different
technologies etc [PC, mainframe, security etc.] or content.
SOFTWARE [current & prior programs and versions]
Brand & version of each operating system, network management
and file management program
Operating systems on network, PC etc.
Programs: word processing, email, utilities, data base management,
project management, calendars
Specialized software for particular function or industry e.g.
financial, HR, construction, design, scheduling
Automatic file management programs that delete inactive files
Programs used to monitor employee activities
Encryption software & methods used to perform the encoding.
Utilities, "wipe" programs, de-fragmenting,
Obtain copies of current manuals
ENCRYPTION & PASSWORD INFORMATION
All persons who had or have access to the encryption passwords
Only source of some information
Multiple keys to open data
Who can provide access codes
Tunneling software for VPN
BACKUP AND STORAGE [past and current] see above
Wide variety of backup media and operating systems; may need
original program to restore and read data
Written and unwritten policies and practices
Hardware, backup drives, tapes, optical disk
Locations of storage; any redundancy of storage within organization
or with contractors
Name & version of software
Schedules of tape rotation, retention, reuse, index, storage,
Type of backup: full, differential, or incremental
Timing: monthly, weekly, permanently, incrementally
Disaster recovery plans
Archives: files, backup
Individual practices in addition to system wide backup
Data compression for increased storage may alter data
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HARDWARE original & current
Types of computers and other hardware used
Personal use or availability of equipment by key personnel
Servers: current & out of service; access
Hard disk: location of removed disks and destruction policies
COMPUTER SYSTEMS
Schematic diagram of computer system
Computers[numbers & types, locations, users], operating systems,
software
How data is written, stored, formats, storage media
Configuration, layout, devices to write data, media, format
Systems used by key individuals including home computers, laptops,
palms
NETWORK
Type: NT, Novel, proprietary [ ID & limit to relevant network]
Topology & maintenance
Persons responsible for maintenance, operation
Security:
history of security breaches [internal & external hacking]
protection and loss of data
risk assessment program
firewalls, intrusion detection, scanning & probing
virus protection and history
Encryption, passwords, access codes
Precautions for change of personnel, software or hardware
Data bases and persons with access: program, compilation,
reliability
Interconnectivity and data sharing among parties or with 3rd parties
File servers identification; current & out of service servers
Access to servers [past & current]
persons; key persons
terminals accessing [home PC& laptops]
Access: passwords, logons
All applications and documents [email, voicemail]
Network administrator password
All persons with passwords
Databases:
How programmed; determine whether or not its output is reliable
in an evidentiary sense.
How compiled: business record ?
Document management databases maintained for archival purposes.
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E-MAIL
Programs
Users
How stored: back-up, archive, on-line
Servers & backup schedules
Third party providers or ISP
Locate & retrieve data sets [To/From, users sent/received;
then sort & search data [by date, subject, sender, recipient]
VOICE MAIL
Storage limits of time, number of messages
Optional
Purging schedules
OTHER ELECTRONIC DEVICES & STORAGE
Fax machines
Printers
Palm, PDA, cell phones, pagers, laptops
Cell phone records
GPS records re employee or equipment locations
Fast track or other toll records
Surveillance cameras
I-pods, flash memory
MISCELLANEOUS DATA TO BE DISCOVERED
Database production:
basis for expert witness opinion;
litigation generated with attorney input; work product issues
Williams v. E.I. duPont deNemours & Co. 119 F.R.D.
648,651 (W.D.Ky. 1987)[expert's data base probably discoverable]
National Union Elec.Corp. v. Matusushita Elec. Indus.Co 494
F. Supp. 1257-1269 (E.D.Pa. 1980)
In
Re: Lowe's Companies, Inc.
(5/18/04),134
S.W.3d 876, 2004 Tex. App.
LEXIS 4432 In a PI case resulting
from falling merchandise in a store, the corporate representative was
questioned regarding a database containing information regarding
accident trends. Tr.Ct was reversed for ordering production or
access to entire database on grounds the order was overbroad. The
Texas Court of Appeals rejected the trade secret claim for an
accident database suggesting that, otherwise, all internal records
would be trade secrets.
“In
this case, the order requires [corp] to bring to [corp
representative] deposition either: (1) the database and application
necessary to search, sort, and print data from it; or (2) computer
access to the database that would enable searching, sorting, and
printing data from it as requested by the Morenos' counsel at the
deposition. Data that may be so requested for printing is limited to
accidents prior to the one made the basis of this suit and those
involving reports of customers injured due to falling merchandise.
Based on the foregoing authorities, we conclude that the order is
overbroad to the extent it allows the Morenos to: (1) access (even if
not print) data without any limitation as to time, place, or subject
matter; and (2) print data concerning falling merchandise accidents
for an unlimited period preceding the accident in this case and for
an unlimited geographic area."
Jinks-Umstead
v. England 227 F.R.D. 143, 148 (D.D.C.2005),
[Defendant ordered to provide access to database by plaintiff and its
experts to determine "whether more information bearing on the
[specific subject matter] can be retrieved from the ... database."
After determining more information could be retrieved defendant was
ordered to do so.]
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SEARCH OBLIGATIONS
Treppel
v. Biovail Corp. 233 F.R.D. 363, 2006 WL 278170
(S.D.N.Y. Feb. 6, 2006).The
Court addressed the search obligation
of a party responding to
document requests stating "...it
must conduct a diligent search, which involves developing a
reasonably comprehensive search strategy. Such a strategy might, for
example, include identifying key employees and reviewing any of their
files that are likely to be relevant to the claims in the
litigation." A Responding party need not search "every
scrap of paper." A requesting party need not agree to search
terms and scope. "Absent
agreement ...about a search strategy, [responding party] should have
proceeded unilaterally, producing all responsive documents located by
its search. It shall now do so promptly. In addition, [responding
party] shall provide the plaintiff with a detailed explanation of the
search protocol it implements."
JPMorgan Chase Bank, N.A. v. Neovi,
Inc. Slip Copy (S.D.Ohio,2006), 2006 WL 3803152 (Nov 14,
2006). Production of database. The trial court ordered
production of a database that would provide requested information in
response to a motion for sanctions based on inadequate searches for
information and responses to discovery.
"As ...
deposition testimony ultimately revealed,
it would have been a simple matter ... to respond to that
interrogatory by searching its database and providing the requested
information....However, it elected to forego that reasonable approach
to answering the interrogatories....
"Again, any
reasonable
litigant would have understood the purpose for the request [for
admission] and would have understood that it had an obligation to
confirm, at the very least, the fact that the documents appeared to
be identical in all material respects to ones contained in Neovi's
database.
"The Court
concludes that Chase was unnecessarily
required to contact the Court in order to obtain supplemental
interrogatory answers and to take steps to arrange for and conduct
[the CEO]'s deposition. Further, Chase should not have been required
to file and brief its motion to compel and for sanctions. It is
therefore appropriate to award Chase all of its costs and expenses,
including reasonable attorneys' fees, associated with those
activities.
Chase has also requested that Neovi either be
precluded from litigating its motion to dismiss for lack of personal
jurisdiction or that it be required to hand over its database so that
Chase may make the appropriate searches for information relating
Neovi's business contacts with the State of Ohio. The former request
is an extreme sanction which, although it may ultimately be
appropriate in this case, should not be imposed based upon the
present circumstances. If Chase is awarded its costs and expenses for
all unnecessary discovery and is given complete access to the
database where the information it seeks is contained, it will be
placed in the same position as if Neovi had complied with its
discovery obligations. Consequently, the Court will direct that Neovi
provide the database....
"....Within
15 days, Neovi shall provide to Chase in a readable format those
portions of its database which would allow Chase to obtain
[requested] information....
McDowell
v. Government of Dist. of Columbia (D.D.C.2006),
233 F.R.D. 192 [February 9, 2006
initial decision. See fee award order: ]
Delay
and expense incurred due to failure of defendant to make proper
queries of its database resulted in an award of monetary sanctions
in
the amount of $ 72,910.12. The requesting party was ordered to
"submit to the court a detailed report identifying the amount of
attorneys' fees and costs that have been expended since February 3,
2003 in attempting to secure the PD 163's."
"Since the beginning of discovery in this case,
plaintiff has sought to query CJIS for information about those
arrests in which the individual named officers, while not the
arresting officer, nonetheless participated in some fashion in the
arrest. While defendants have repeatedly acknowledged that CJIS
contains an "other officer" field, defendants only recently
conceded that a query of this field can actually be performed."
"...almost three years after plaintiff's first request for
production of documents, defendants finally stated conclusively that
data could be accessed for arrest events where the named officer was
not the arresting officer." "The most obvious problem
relating to the PD 163's is the fact that plaintiff will only get the
relevant PD 163's if the spreadsheet is the result of a carefully
worded and accurately executed query."
In
the fee award order [2006 WL 1933809 (D.D.C. 7/11, 2006) , 2006 U.S.
Dist. LEXIS 46371], the court noted "...the rationale
underlying my decision to award attorney's fees remains the same. But
for defendants' failure to comprehend the capabilities of their own
record-keeping system, plaintiff would have had the discovery she
sought at a much earlier date."
Benson v. St. Joseph
Reg'l Health Ctr.
(S.D.Tex.2006), 2006 U.S. Dist. LEXIS 28795 Absent
evidence to the contrary, parties responding to discovery need not
explain their efforts to search for and produce electronic
information.
"The Court presumes, in the absence of any showing
to the contrary, that the statements made by Defendants under oath
and the statements made by Defendants' counsel to the Court were made
with a good faith belief in their truthfulness. Additionally,
Plaintiffs have failed to offer more than
speculation .... Finally, it is unnecessary for Defendants to explain
the details of their method of searching, when they have certified
and represented to the Court that they have complied fully with
Plaintiffs' requests and made reasonable efforts to find and disclose
all responsive documents and emails. Plaintiffs' motion to compel
additional electronic searches is DENIED."
Super
Film of America, Inc. v. UCB Films Inc. (D.Kan
2004),
219 F.R.D. 649 The
court held “...allowing [a party responding to a document
production request] to satisfy its electronic discovery obligations
by simply turning over its two computers to [the requesting party] for
inspection would unfairly shift the burden and expense of
discovery to [the requesting party] and could potentially result in
relevant and otherwise discoverable information being shielded from
UCB.” Non-archived
electronic versions of e-mail, documents and spreadsheets were
produced; Responding party stated it
attempted to provide electronic copies of the documents requested
within its "knowledge or expertise” of how to retrieve such
documents from the company's two computers [but]does not have the
expertise to recover any further electronic documents and the court's
order requiring such production would be unduly burdensome. It
offered to produce its two computers and allow requesting party to
search. The offer rejected as shifting burden and expense of the
search and requesting party might miss some documents accessible to
responding party. Conclusions re burden etc must be supported by
facts.
Williams v.
Massachusetts Mut. Life Ins. Co. 226 F.R.D.
144 (D.Mass.2005) [Court denied appointment of neutral or forensic
exam by requesting party; responding party had submitted
declaration of conducting its own forensic examination and actually
produced an e-mail that appeared to be the one sought in discovery]
Alexander v. Federal Bureau of Investigation (D.C.1998),
188 F.R.D. 111 [Looking in folders or files likely to contain
responsive
information as if conducting normal search. Uncontradicted
declaration showing reasonable search
was major factor in denying more burdensome effort of searching
archived or deleted files ]
Convolve, Inc. v. Compaq
Computer Corp. (S.D.N.Y.2004), 223 F.R.D.
162 ["Because
this document is plainly relevant and because Compaq previously
provided incorrect information about its RFPs and RFQs, it is
important to ensure that its search has been comprehensive.
Therefore, Compaq shall submit an affidavit setting forth in detail
the steps taken to identify RFPs and RFQs, including those stored in
electronic databases...."]
Peskoff v. Faber
(D.D.C.,2006), Slip Copy, 2006 WL 1933483 Search effort
details by declaration required. . Where
a two year gap in e-mails produced was not adequately explained, the
trial court ordered the producing party to file a "detailed
affidavit specifying the nature of the search it conducted and noted
it may have to hold an evidentiary hearing in which [to] take
testimony ...about the effectiveness and cost of any additional
searches." Defendant
had previously explained that "its electronic files are stored
on [a sublessor's] server. ... When [plaintiff's] employment ended,
counsel "caused the creation of an archive of all [plaintiff]
electronic files, including documents stored on his computer hard
drive, email, and any other [plaintiff] electronic documents."...
This entire archive was produced to [plaintiff]"
The court noted "the
producing party has an
obligation to search available electronic systems for the information
demanded" and suggested sources where such e-mail or copies
thereof might be located:
1.
the plaintiff's e-mail account
2. "the inbox, sent items, trash, and other folders of e-mail
accounts of other employees, agents, officers, and representatives of
the [defendant] entities, who may have been the author or recipient
of the e-mails at issue";
3.
the hard drive of [plaintiff's] computer or within any depository for
[defendant] e-mails. The e-mails may be accessible from those
locations through simple search technology, such as by conducting a
key word search (i.e., a search on "Peskoff" or his e-mail
address)";
4. "...with the help of a computer forensic
technologist, the e-mails, even if deleted, may be recoverable from
other places within [plaintiff's] computer, such as its "slack
space." [citation](" 'Slack space' is the unused space at
the logical end of an active file's data and the physical end of the
cluster or clusters that are assigned to an active file. Deleted
data, or remnants of deleted data can be found in the slack
space....")"; or
5.
"from periodic backups tapes or disks".
Fischer
v, United Parcel
Service Co (E.D.Mich.2006 Slip
Copy), 2006 WL 1046973. Discovery of search efforts "Defendant
produced the e-mail,
but claims that it is unable to find the attachment. Plaintiff is
unwilling to simply accept Defendant's claim and asked to depose
someone familiar with Defendant's retrieval efforts. Plaintiff
contends that the Magistrate's compromise order that Defendant make
the appropriate person available for an informal telephone conference
was not clearly erroneous or contrary to law." The district
court judge affirmed the magistrate's decision. Note this informal
procedure may not be proper under California law but the discovery of
search efforts may be.
Reino de Espana v.
American
Bureau of Shipping (S.D.N.Y.,2006), 2006 WL 3208579
The trial court granted defendant's
motion to compel production of e-mail and electronic documents and
invited a further motion for discovery sanctions. "It
was incumbent upon [plaintiff] to identify and
preserve relevant documentation related to its claims. The failure to
conduct discovery in accordance with the Federal Rules and this
Court's rules is sanctionable.*** "[Plaintiff]
has failed to show that it conducted a timely and diligent search for
electronic records, and that all electronic records have been
produced. The failure to conduct an adequate search for electronic
records inhibits the prosecution of this case, and adversely affects
both parties' claims."
PRESENTATION
OF DISPUTES TO COURT RE
GENERAL
DISCOVERABILITYOF
ELECTRONIC DATA
Lawyers must make a major effort to educate themselves and the
courts on the technical and practical aspects of electronic discovery.
Absent the input of current knowledge, mistakes and bad decisions
are inevitable as some reported cases illustrate. Well intentioned
lawyers and experts can make erroneous assertions and representations
on which a court might rely. The result can be extremely expensive and
unnecessary or it may result in the denial of discovery that should be
provided. It can also result in a loss of credibility of the lawyer or
sanctions against parties and lawyers. Counsel and the courts should
recognize an inherent problem in the adversary system: with two
adversaries, extreme positions may be advocated in support of their
ultimate positions on the motion and the court may be forced to
pick one or the other with unfortunate and unfair consequences.
Properly done, the adversary system will produce the best result but
that requires all players to be educated on the technology at issue. It
also requires knowledge, understanding, creativity and
flexibility in application of the various discovery concepts, devices,
and rules.
EXPERT
EVIDENCE
Provide detailed expert declarations: expert qualifications &
basis for conclusions
Balboa
Threadworks, Inc. v. Ronald A. Stucky 2006
WL 763668 (D.Kan.2006)
The
Court recognized that some showing must be made to mirror image a
computer that there is a likelihood of it containing discoverable
evidence. It criticized the vague expert declaration:
"Plaintiffs
have produced no affidavits to support their arguments that
Defendants have purportedly deleted information from some of their
computers. Instead, they submit an affidavit of a computer expert
which only outlines, in general terms, why he believes it is
important to collect digital and electronic evidence early in a case
in order to avoid the possibility that relevant files are deleted or
other residual data is overwritten or otherwise destroyed during
normal computer use."
United States ex rel Tyson v.
Amerigroup Ill., Inc., 2005 U.S. Dist.
LEXIS 24929 (N.D.Ill.2005 The trial court
granted the motion of a non-party state agency to quash a subpoena
duces tecum served on it by the defendants calling for
production of emails of three named employees, limited to one year
and by search terms, on the ground that compliance with the
subpoena would be unduly burdensome -- especially given the fact that
it is not a party to the case. The agency had the burden of proof to
"demonstrate that the burden of producing the one year's worth
of emails is undue. There must be affirmative and compelling proof.
Ipse dixits will not suffice" The uncontested affidavit
of the moving party's expert prevailed.
"Significantly,
the defendants do not challenge any of Mr. Perry's assertions. This
omission, they claimed at oral argument, was the inevitable result
of having no familiarity with the internal systems used at HFS. The
argument is unpersuasive. The defendants could have sought leave to
depose Mr. Perry, and, of course, they could have retained an expert
of their own to opine on the validity of Mr. Perry's statements -- at
least in a general sense. Moreover, Mr. Perry's assessment is
confirmed, in the main, by the cases, which have recognized that the
task of restoring emails through the use of backup tapes is a 'unique
burden':"
Playboy Enterprises v. Welles
(S.D. Cal.1999), 60 F.
Supp.2d 1050 [Tr Ct required an expert declaration confirming the
feasibility and probability of discovery ---just as likely as not---and
that no damage would occur to the opponent's computer]
Alexander v. Federal Bureau of Investigation (D.C.1998), 188
F.R.D. 111 [no weight given to expert declaration when expert failed to
provide educational background and show familiarity with computer
system at issue; expert was a consultant with 35 years experience]
Strausser v. Yalamanchi, 669 So.2d 1142, 1144 (Fla App.1996) [CPA
vs certified netware engineer]
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526 [Lack
of detail in proposed protocol cast doubt on technical soundness;
expert affidavit attacked as conclusionary and lacking foundation]
Gates Rubber Co. v. Bando Chemical Industries (Colo.D.1996), 167
F.R.D. 90 [Expert's "credentials, experience and knowledge were
impressive, and I relied upon his opinions. Gates failed to obtain a
similar expert in timely fashion.. Gates did offer the testimony of
.... His credentials, experience and knowledge were nowhere near those
of Dr. Wedig, and I placed much less weight on his testimony...."]
Adobe Systems v. South Sun Products
(1999), 187 F.R.D. 636
[Court scrutinized expert declaration in rejecting ex parte application
for search & seizure order. Court rejected the claims that evidence
could be easily deleted to prevent proof of case of software pirating
and analyzed the sophistication necessary to eliminate all evidence of
software installation]
Keir
v. Unumprovident Corp. (S.D.N.Y.
2003), 2003 WL 21997747 [fact finding memorndum decision illustrates
importance of experts]
TOP
RELEVANT
FACTORS Factors to address
in seeking or opposing discovery of electronic data by forensic
examination expensive process
See also Cost Shifting as an alternative to denial of discovery
Reasonable search in responding to discovery requests
Williams v.
Massachusetts Mut. Life Ins. Co. 226 F.R.D.
144 (D.Mass.,2005) [Court denied appointment of neutral or forensic
exam by requesting party; responding party had submitted
declaration of conducting its own forensic examination and actually
produced an e-mail that appeared to be the one sought in discovery]
Looking in folders or files likely to contain responsive
information as if conducting normal search
Alexander v. Federal Bureau of Investigation (D.C.1998),
188 F.R.D. 111 [uncontradicted declaration showing reasonable search
was major factor in denying more burdensome effort of searching
archived or deleted files ]
Word searches of all data and documents
Embedded information
Hidden comments
Residual data: file remnants, deleted docs or portions not overwritten
Backup tapes and archives
Copies, clones, temp files, swap files
Browser created data: cache, history
Likelihood of discovery of relevant information
Williams v. Massachusetts Mut. Life Ins.
Co. 226 F.R.D.
144 (D.Mass.,2005) [Existence
of an e-mail appeared speculative and there was no evidence that the
responding party acted in an improper manner or failed
to search & produce requested documents."As an initial matter, the
court is not at all inclined to
appoint, under its aegis, a "neutral expert" in computer
forensics in order to help Plaintiff confirm what is at best highly speculative
conjecture that the October 24, 2002 e-mail
message which he claims exists is something other than the October
24, 2002 memorandum which Defendants have produced." " In
short, Plaintiff has presented no credible evidence that
Defendants are unwilling to produce computer-generated documents, whether
now or in the future...or that Defendants have withheld
relevant information."
Strasser
v. Yalamanchi (Fla.1996), 669 So.2d 1142
Menke v. Broward County School
Bd. --- So.2d ----, 2005 WL 2373923 Fla.App. 4 Dist.,2005.
Sep 28, 2005. Order for production of home
computers vacated.
Lawyers
Title Ins. Co. v. United States Fidelity & Guaranty,
122 F.R.D. 567 (N.D. Cal.1988),
Fennell
v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d
526[No particularized likelihood of success balanced against risks
& costs]
Playboy
Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d
1050 [Tr Ct required an expert declaration confirming the feasibility
and probability of discovery ---just as likely as not---and that no
damage would occur to the opponent's computer]
Simon
Property Group v. mySimon Inc.(S.D.Ind.2000), 194
F.R.D. 639 [relative lack of importance of information likely to be
discovered was factor when discovering party was required to pay all
costs of neutral]
Reasonable alternative sources of information
Strasser v. Yalamanchi
(Fla.1996), 669 So2d 1142
Menke v. Broward County School
Bd. --- So.2d ----, 2005 WL 2373923 Fla.App. 4 Dist.,2005.
Sep 28, 2005. Order for production of home
computers vacated.
State Farm Mut. Auto Ins. v.
Engelke (Tex.Ct.App.1999), 824
S.W.2d 747,750 [Manual search of files for info to answer interrogs
would cost $2.7mil; but comparable information could be produced by
reprograming computers to obtain it]
Overbroad scope, time etc. and focus discovery
Strasser v. Yalamanchi
(Fla.1996), 669 So.2d 1142
Menke v. Broward County
School Bd. --- So.2d ----, 2005 WL 2373923 Fla.App. 4 Dist.,2005.
Sep 28, 2005. Order for production of home
computers vacated.The court noted the lack of
particularity in the request for wholesale production: “In civil
litigation, we have never heard of a discovery request which would
simply ask a
party litigant to produce its business or personal filing cabinets for
inspection by its adversary to see if they contain any information
useful to
the litigation.”
Procter & Gamble v. Haugen,
179 F.R.D. 622, (D. Utah
April 17, 1998), [Issue re limiting the scope of a keyword search that
P&G desired to conduct of Amway's electronic databases.]
Linnen v. A.H. Robins Company,
Inc.(Mass. 1999), 10
Mass.L.Rptr. 189, 1999 WL 462015 [by negotiation, parties narrowed
scope of discovery of backup tapes by time and subject matter and
eliminated those likely to contain privileged material; they agreed on
search terms to search 2 restored back-up tapes]
Prevent harm to opponent's system or data by destruction of data
or introduction virus
Playboy Enterprises v. Welles
(S.D. Cal.1999), 60 F.
Supp.2d 1050 [Tr Ct required an expert declaration confirming that no
damage would occur to the opponent's computer]
Strasser v. Yalamanchi (Fla.1996), 669 So.2d 1142
Fennell v. First Step Designs Ltd.(1st
Cir.1996), 83 F.3d
526 [risk of data loss , business system downtime, lack of detail in
protocol to address perceived risks resulted in denial of discovery]
Protect privileged, confidential, private or trade secret
information
Playboy Enterprises v. Welles
(S.D. Cal.1999), 60 F.
Supp.2d 1050 [Tr Ct established protocol: mirror image by neutral
expert at requesting party's expense; producing party to print and
review all documents and submit privilege log ]
Strasser v. Yalamanchi (Fla.1996), 669 So.2d 1142
Menke v. Broward County School
Bd. --- So.2d ----, 2005 WL 2373923 Fla.App. 4 Dist.,2005.
Sep 28, 2005. Order for production of home
computers vacated.
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526
Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d
1050, 1054
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194
F.R.D. 639
Avoid intrusion, interruption and interference in opponent's
business
Playboy Enterprises v. Welles
(S.D. Cal.1999), 60 F.
Supp.2d 1050 [Tr Ct required mirror image at time to minimize business
disruption]
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526
TOP
Cost / benefit analysis; consider cost shifting or sharing
Zubulake v.
UBS Warburg (SDNY 5/13/03) [Tr Ct. revisted the cost
shifting criteria of Rowe Entertainment and formulated its own 7 factor
test. More important the court emphasized the need to be
fully informed of the technology and cost issues and confirmed that the
test employed is a qualitative one in which all relevant factors must
be considered in resolving issues on allocating costs and determining
whether and how the presumption that the producing party pays should be
altered. Presumption is that producer pays. Accessible data normally
would not involve cost shifting issues.]SEE
ALSO THE
FOLLOW-UP DECISION DATED 7/24/03 BASED ON SAMPLING OF FIVE BACKUP
TAPES. Based on 5 of 77 tapes, partial cost-shifting
was ordered:
plaintiff and requesting party to pay 25% of restoration costs only;
defendant and producing party to pay 75% of restoration costs and all
costs of review. A review of 5 tapes immediately preceding termination
produced 6,203 unique e-mails, 1075 of which were within the search
terms, and 600 of which were responsive to the request. Total costs
$19,00, restoration costs $11,500, review costs $7500. 68 emails were
presented to the court by plaintiff and the court assumed these were
representative of the emails on the 77 tapes [page 11]. Plaintiff found
6 e-mails to be "particularly 'striking'". The court found none
provided direct evidence of discrimination [at p.18 it described the
exitence of such evidence as "still speculative"] and the 68 emails
provided no evidence of dislike based on gender. [p.14]. Certain
relevant e-mails sent after the discrimination complaint were not
preserved and were deleted. The court concluded as a general rule that
cost shifting would only apply to restoration and not to the cost of
the producing party's review [p.25].
See also Rowe Entertainment v.
The William Morris Agency (S.D.N.Y.
1/16/02 2002), 205 F.R.D. 421 2002 WL 63190; Murphy Oil USA v.
Fluor Daniel Inc. (2/19/02, E.D. La.) 2002 WL 246439
Computer Associates International,
Inc. v. Quest Software, Inc.,
[ND Ill, June 13, 2003].
Motion to shift costs of producing employee hard drives denied.
Plaintiff requested production of hard drives of 6 employees for
imaging, search and recovery of deleted material in copywrite
infringement and trade secret case re software source code. Defendant
reviewed hard drives and claimed privileed documents. It hired a
consultant to image, search & delete privilege docs for production
of hard drives. It then made a motion to recover estimated costs
ranging from $28 to $40,000. The court denied the motion. The court
held that it could shift the costs if the burden outweighed the
benefit. It then considered the factors set forth in Rowe in
making the decision and concluded cost shifting was not justified and
that this was a normal cost of review for privileged documents that
should be paid by the producing party
Playboy Enterprises v. Welles
(S.D. Cal.1999), 60 F.
Supp.2d 1050 [cost of neutral expert preparing mirror image of hard
drive required to be paid by requesting party]
Brand Name Prescription Drugs Antitrust Litigation (ND Ill 1995),
1995 US Dist LEXIS 8281 [production of email at defendant's expense but
plaintiff to pay copy costs; retrieval cost is ordinary and foreseeable
risk of selecting storage system; $50-70,000 retrieval costs due to
inadequate search and retrieval software]
Linnen v. A.H. Robins Company, Inc.(Mass. 1999), 10 Mass.L.Rptr.
189, 1999 WL 462015 [While the court certainly recognizes the
significant cost associated with restoring and producing responsive
communications from these tapes, it agrees with the District Court for
the Northern District of Illinois In re: Brand Name Prescription Drugs
Antitrust Litigation that this is one of the risks taken on ) by
companies which have made the decision to avail themselves of the
computer technology now available to the business world. 1995 WL 360526
(N.D.Ill.). To permit a corporation such as Wyeth to reap the business
benefits of such technology and simultaneously use that technology as a
shield in litigation would lead to incongruous and unfair results.]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639
[party seeking discovery paid for neutral expert when discovery was
relevant but not critical]
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526
Bills v. Kennicott 108 F.R.D. 459(D.Utah 1985)
TOP
Undue Burden: consider limitations, cost shifting
United
States ex rel Tyson v. Amerigroup Ill., Inc.
(N.D.Ill.2005), 2005 U.S. Dist. LEXIS 24929. Burden
is not limited to out of pocket
expenses.Non-party motion
to quash production of e-mails of 3 employees was granted on grounds of
relevance and undue
burden despite (1) the requesting party's offer to pay the costs, (2)
the limit of search efforts to certain terms, and (3) the limitation
to one year. "Here, the 'unique burden' of restoring the email
records and the 'special weight' to be accorded HFS's
non-party status combine to require that the defendants' subpoena be
quashed under Rule
45(c)(3)(A)(iv)."
"It is not a
decisive answer to say that the
defendants have offered pay the costs that might be incurred in
retrieving the emails. Expense is but a part of the burden. As Mr.
Petty's uncontested affidavit indicates, the process of retrieving
the emails also entails the extensive use of equipment and internal
man-power. It will take six weeks to restore and review the data of
just one of the three individual's email accounts. The entire
project, then, will entail eighteen weeks of effort. To be sure, one
can imagine the use of three dedicated servers to perform each of the
six weeks of restoration work concurrently, but the end result is
still eighteen weeks of man-power and eighteen weeks of use of the
necessary equipment. That burden, which is undeniably substantial,
exists independently of the monetary costs entailed."
Playboy Enterprises v. Welles
(S.D. Cal.1999), 60 F.
Supp.2d 1050 [Tr Ct considered needs of the case, amount in
controversy, importance of issues, importance of information expected
to be discovered and potential of finding information is evaluating
burden]
State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824
S.W.2d 747,750 [Ins.Co.demonstrated burden with testimony that
responding to one interrogatory would cost $2.7 mil, require a manual
exam of 500,000 claims files and require 27 people to devote a year;
cross examination revealed the information was generally available by
programing the computer to produce it; the Ins Co. objected that
certain information was not available but testimony revealed it could
be generated by computer; the appellate court modified the order to
respond to that information that could be generated by the computer.]
State of Missouri v. Ely (Mo.Ct.App.1994), 875 S.W.2d 579
[Information re prior claims available in computer data base for most
of time period sought; def. could retrieve balance from unindexed
boxes. "The absence of indexing cannot be laid to the plaintiffs
however; it was K-Mart's decision to store the files without a
convenient system of retrieval."]
Equal Employment
Opportunity Com'n v. Lexus Serramonte (N.D.Cal.2006), Slip
Copy, 2006 WL 2329510 Producing party need not create
an "An electronic database file, in Quattro Pro readable format"
that does not exist in response to a discovery request. "It is
unduly burdensome to require Defendant to do Plaintiffs' work for
them by creating a computer-readable file." "...if
Defendants do not presently maintain their employee contact
information in the electronic format requested by Plaintiff, they
shall produce it as maintained."
STRATEGIES
Adjust & accommodate opposing counsel to gradually obtain
discovery
Accommodate & avoid disrupting business of adversary
Not seizure of computers but preservation of data status quo
Not ghosting of hard drive by party but by neutral 3rd person
Not reading files but just copying
Not reading contents of files, just file names
Produce hard copy list of file names rather than access to computers
Allow counsel time to review data & seek protection before
production
Accommodate reasonable needs re inadvertent production of privileged
etc. docs
TOP
OVERBREADTH
& BURDEN
Cost / benefit
analyses
Sampling to evaluate burden and benefit
J.C.
Assocs. v. Fid. & Guar. Ins. Co. (D.D.C.
2006), 2006 U.S. Dist. LEXIS 32919 . "...plaintiff
seeks...1.4 million active and
inactive claim and litigation files...." The court found "...the
information plaintiff seeks is clearly relevant" but recovery
could not exceed $124,000. "...defendant has conducted an
electronic search of the files, using internal codes that identify
the category of the claim [and] identified 454 claims, including the
6 claims at issue in this case." The court required the
following procedure to "determine whether or not any additional
search is necessary." If so, cost shifting could be considered.
1. Plaintiff
provide copy of document conversion program
2. Defendant randomly
pull, scan and convert 25 of the 454 files into searchable documents
using the conversion program
3. Defendant conduct an electronic
search of the files using 4 terms
4. Defendant pull any files
containing the words, ascertain if responsive and produce subject to
privilege claims and using "comprehensible" redaction.
5.
Defendant submit affidavit the time and costs for search, redactions
and review. "I expect that attorney time will only be expended
on work that requires an attorney's skill and judgment."
See also Liturgical Publications, Inc.
v. Karides (Wis.App.2006 Slip Copy), 2006 WL
931892 [discovery to date had not been productive and further discovery
was denied.
Cost reduction techniques; narrow request or scope of search
Narrow the time frame
Eliminate duplicate files
Search by user or department
Eliminate files by extensions
Create a search term list
R.S. Creative Inc. v. Creative
Cotton Ltd. (1999), 75
Cal.App.4th 486 [discovery of entire hard drive of personal computer
used to create document that was basis of dispute authorized over
claims of privacy and overbredth]
Wright v. Amsouth Bancorporation (11th Cir.2003), 2003
WL
245588 [Denial of request for e-copy of all word processing files "
created, modified and/or accessed by" 5 individuals over 2 ½
year period as over broad, burdensome and irrelevant is not abuse of
discretion.]
Alexander v. Federal Bureau of Investigation (D.D.C.1998),
188
F.R.D. 111 [heroic efforts not required re backed-up and archived email
and deleted files etc.; opposing declaration re expense, feasibility
and burden plus declarations showing reasonable search of files likely
to contain relevant documents
Playboy Enterprises v. Welles (S.D.Cal.1999), 60 F. Supp.2d
1050 [Tr Ct considered needs of the case, amount in controversy,
importance of issues, importance of information expected to be
discovered and potential of finding information is evaluating burden]
Strausser v. Yalamanchi, 669 So.2d 1142, 1144 (Fla App.1996)
[TrCt
rev'd for permitting unrestricted access to computer system, all
programs and directories, without safeguards and restrictions to
protect computer system and without protection of privileged and
confidential information]
Fennell v. First Step Design 83 F.3d 526 (1st Cir. 1996)[
denial of discovery of hard drive to find proof of when memo was last
modified. affirmed, substantial risks and cost + failed to show a
"particularized likelihood of discovering appropriate information."]
Lawyers Title Ins. Co. v. United States Fidelity & Guaranty,
122 F.R.D. 567 (N.D. Cal.1988), [deny wholesale discovery of computer
system (computer storage, organization and retrieval systems to
evaluate compliance with discovery) without showing it would lead to
evidence that had not already been produced; work product issue]
In Re: Lowe's Companies, Inc.
(5/18/04), 134
S.W.3d 876, 2004 Tex. App.
LEXIS 4432 Unlimited access to data
base of accidents rejected as overbroad re time period, locations and
subject. Claim of trade secret for database on accidents rejected.
Production was also denied because it had not been requested and
because there was no express request for "electronic"
documents as required by Texas law. In a PI case resulting from
falling merchandise in a store, the corporate representative was
questioned regarding a database containing information regarding
accident trends. Defendant
previously produced a list of accidents for the prior 5 yrs in Texas
re falling objects and claimed other information in database was
irrelevant and privileged. The trial court was reversed for
ordering production or access to the entire database on grounds the
order was overbroad. The Texas Court of Appeals rejected the trade
secret claim for an accident database suggesting that, otherwise, all
internal records would be trade secrets.
“In this case, the
order requires [corp] to bring to [corp
representative] deposition either: (1) the database and application
necessary to search, sort, and print data from it; or (2) computer
access to the database that would enable searching, sorting, and
printing data from it as requested by the Morenos' counsel at the
deposition. Data that may be so requested for printing is limited to
accidents prior to the one made the basis of this suit and those
involving reports of customers injured due to falling merchandise.
Based on the foregoing authorities, we conclude that the order is
overbroad to the extent it allows the Morenos to: (1) access (even if
not print) data without any limitation as to time, place, or subject
matter; and (2) print data concerning falling merchandise accidents
for an unlimited period preceding the accident in this case and for
an unlimited geographic area.
TOP
FORM
OF PRODUCTION:
CONSIDERATIONS & CONCERNS
CONCERNS WHEN YOUR CLIENT PRODUCES:
security and integrity,
spoliation charges
Backup copy, secure and easily authenticated to assure integrity
of data produced
Modification after production; Write protected, read only format
Production of unknown data or metadata
Williams
v. Sprint/United Management Co.,
230 F.R.D. 640,
2005 WL 2401626 (D.Kan.,2005) discussion of metadata and potential
disclosure of privileged or private information
CONCERNS WHEN YOUR OPPONENT
PRODUCES: accessible, searchable, readable,
electronic format, native format
CONSIDERATIONS RE FORM OF PRODUCTION
FRCP amendments allow requesting party to specify form of
production subject
to objections by the responding party
Bits & bytes useless without proper hardware and software to
read data
Different ways to store and access data; therefore, data stored on one
system may not be usable on another
Most systems can export or write data to standard generic formats
Request for production should specify in technical terms the form of
production and provide instructions
Issues
Cost comparison of production, search, review &
manipulation: electronic vs hard copy or alternative forms of
electronic production
Bristol-Myers Squibb Sec Litig. 205
F.R.D.437, 442 (D.N.J. 2002) ["It
is beyond dispute that "[d]ocuments in digital format can be
copied quickly, less expensively, and with better quality." It
is also unquestioned that if "there are a significant number of
documents, and their content must be examined in order to conduct the
case competently, the cost of doing whatever is going to be done with
these documents will be cheaper in digital format than the manual
alternatives."]
See Sattar v. Motorola, Inc.(7th
Cir.1998)138 F.3rd 1164 re
alternatives considered
TOP
LEGAL AUTHORITIES RE
FORM OF PRODUCTION
STATUTES & RULES
California
C.C.P.§2031.280. (a) "Any documents produced in response to an
inspection
demand shall either be produced
as they are kept in the usual course
of
business, or
be organized and labeled to correspond with the categories
in the demand."
C.C.P.§2031.280(b)
"If necessary, the responding party at the reasonable expense of
the demanding party shall, through detection devices, translate any
data compilations included in the demand into reasonably usable form."
Toshiba
America Electronic Components, Inc., v. Superior Court
(2004), 124 Cal. App. 4th 762. [California adopted
language from FRCP Rule 34 and added a cost shifting provision. The
statute is mandatory and requires cost shifting if the discovery at
issue is within the coverage of the subsection and to the extent it is
"reasonable". ]
Federal Rule FRCP Rule 34(a)
"translated...into
reasonably usable form"
FRCP Rule 34(b) "produce them
"as they are kept in the usual course
of business or"
"organize and label them to correspond with the categories in
the request"
Note that proposed FRCP amendments, if adopted and effective in 2007,
will allow requesting party to specify form of production subject to
objections by the responding party
See also Texas Rule 196.4: "If the responding party cannot - through
reasonable efforts ... produce [electronic data] in the form requested,
the responding party must state an objection."
CRC Rule
212 and FRCP 26 specifically require early
discussion of electronic
data issues.
In
re Bristol-Myers Squibb Securities Litigation (D.N.J.2002), 205
F.R.D. 437, at pages 441 and 444 [at p.441 "Defendants
were mandated to advise the Plaintiffs that the NDA was in electronic
form at the time 26(a)(1) disclosures were made." at p.444 “[FRCP
26(f)] provides that before a Rule 16 Conference, the parties "confer
... to develop a proposed discovery plan...." In the electronic
age, this meet and confer should include a discussion on
whether each side possesses information in electronic form, whether
they intend to produce such material, whether each other's software
is compatible, whether there exists any privilege issue requiring
redaction, and how to allocate costs involved." "...the
production of electronic information should be at the forefront of
any discussion of issues involving discovery and trial, including the
fair and economical allocation of costs. Of course, in some
instances, paper, rather than electronic, production may still be the
preferable method of discovery."]
“AS THEY ARE KEPT IN THE
USUAL COURSE OF BUSINESS"
Hagenbuch
v. 3B6 Sistemi Elettronici Industriali S.R.L 2006 WL 665005
(N.D.Ill.2006) TIFF rejected when Producing party elected to
produce as maintained in the normal course. Producing party insisted
inspection occur on site. After inspection, Requesting party wanted
data produced in electronic form as maintained in normal course of
business. Producer first wanted to print hard copies and ultimately
provided TIFF images. The trial court rejected production of TIFF
images and required production in the same electronic form as
maintained in the business.
In
Re Lorazepam & Clorazepate Antitrust Litigation
Blue
Cross Blue Shield of Minnesota v. Mylan Labs
(D.D.C. 2004), 300 F.Supp.2d 43
The
court noted some of the value of obtaining discovery in electronic
form: “
The
glory of electronic information is not merely that it saves space but
that it permits the computer to search for words or "strings"
of text in seconds....the presence of the information on the CDROM's
is an opportunity for the Blues rather than a problem.” The court
observed that the ability to search e-docs was more valuable than an
index prepared by the opponent. however, as
to documents produced on a CD ROM that Plaintiff could not read, the
court
deferred a ruling until Plaintiffs “first make the 23 CD-ROM's
available to a company that specializes in computer forensics or
electronic discovery to ascertain whether the information on the 23
CD-ROM's can be either read and searched by a commercially available
software or whether it can be converted to a format that will render
it capable of being read and searched by commercially available
software.”
Antitrust,
MDL, class action. Plt had opted out of class settlement after years
of litigation and sought documents. Plt claims an
unindexed, document "dump" does not meet defendant's “obligation
to match documents with discovery requests as specifically as
possible” and seeks an index to all documents. Def. relied
on prior production of a “mountain of information” of e-docs and
hard copy claiming if it isn't there it doesn't exist and it is
Plt.'s job to find whatever it wants. As
to 40 boxes of hard copy, the court noted plaintiff had examined the
boxes and selected 2 boxes of documents it wanted and concluded
there was no longer any need for an index. Plt, “having taken what
they want from these 42 boxes, do not need an index to their
contents.”
Equal Employment
Opportunity Com'n v. Lexus Serramonte (N.D.Cal.2006), Slip
Copy, 2006 WL 2329510 Producing party need not create
an "An electronic database file, in Quattro Pro readable format"
that does not exist in response to a discovery request. "It is
unduly burdensome to require Defendant to do Plaintiffs' work for
them by creating a computer-readable file." "...if
Defendants do not presently maintain their employee contact
information in the electronic format requested by Plaintiff, they
shall produce it as maintained."
PRODUCTION
IN TIFF, PDF or on CD: “as they are kept in
the usual course
of business"
Wyeth v. Impax
Laboratories,
Inc.(D.Del.,2006), Slip Copy, 2006 WL 3091331 (D.Del.)
Court denied
motion to compel production of data in native format with all
metadata in addition to the prior production in TIFF because of
a lack
of "particularized
showing of need". "Since
the parties have never agreed that electronic documents would be
produced in any particular format, Wyeth complied with its discovery
obligation by producing image files. Further, neither party has
argued that the need for accessing metadata was foreseeable or
generally necessary. Finally, Impax has not demonstrated a
particularized need for the metadata or database production it has
requested."
Residential
Constructors, LLC v. Ace Prop. & Cas.
(D.Nev.2006),2006 WL 1582122, 2006 U.S. Dist. LEXIS 36943 Producing
documents on
CD in a format that was searchable was not sufficient and an index or
table of contents was required.
"Plaintiff
argues that the imaged documents are formatted so that Defendant
can perform key word searches for information in the
documents, which it contends actually makes the documents more
accessible than they would be if produced in paper form with some
type of limited table of contents or index." Producing party must
provide "a table of contents or index for the documents
contained on CDs. In so doing, [it] is not required to index each
document in each file. [It], however, is required to identify the
files it has produced and in which boxes or group of document numbers
the files are located."
"The Court disagrees that simply
producing for inspection 41 boxes of documents, or producing
documents in a computer imaged format, complies with Plaintiff's
obligation under Rule 34. Although Plaintiff alleges that the
documents are organized in the manner in which they kept in the usual
course of business, Plaintiff has gathered these documents together
from different entities and locations and has assembled the documents
together in the boxes, which have now been imaged onto a computer
data base. Clearly some form of table of contents or index of the
materials produced should be provided. "
Bergersen
v. Shelter Mut. Ins. Co.
(D.Kan.2006. Slip
Copy), 2006 WL 334675 Dictim re proper manner of document
production though motion denied as untimely.
Defendants have
provided Plaintiff with three CDs containing a total of 7,253
documents which, according to Plaintiff, are not “kept in any
perceivable sequential order.”... Plaintiff argues that this does
not comply with Fed.R.Civ.P.
34(b), which requires a party producing documents for inspection
to produce them “as they are kept in the usual course of business
or ··· organize and label them to correspond
with the categories in the request.” This provision was
specifically designed to prevent parties from “deliberately
···
mix[ing] critical documents with others in the hope of obscuring
significance.” See Advisory Committee Note for 1980
Amendment to Rule
34 (quoting Report of the Special Committee for the Study of
Discovery Abuse, Section of Litigation of the American Bar
Association (1977)).
....a party who chooses the 34(b)
option to
produce documents as they are kept in the ordinary course of business
bears the burden of showing that the documents were in fact produced
in that manner. A mere assertion that they were so produced is not
sufficient to carry that burden. In addition, merely categorizing the
documents produced does not, without some further explanation,
satisfy the requirement that they be produced as kept in the usual
course of business.Cardenas
v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D.Kan.2005).
Thus, the Court does not accept Defendants' assertion of their duty
in this case.
It is clear that the documents produced by
Defendants were not produced “as they are kept in the usual course
of business.” Instead, at least some of the documents were kept as
hard-copies, but were then scanned onto a CD for production. When
this is done, a receiving party may not be able to determine which
specific images comprise a single document or attachments to a
document since there are no staples which bind together the scanned
images as they would hard copies in a file. Faced with problems such
as this, some courts have required a producing party to label,
organize or index documents being produced, if doing so is necessary
to make the documents usable by the requesting party.
[citation] Parties producing documents electronically often enter
into
agreed orders concerning the protocol to be followed. [citation] Those
agreements may contain provisions for (1) keying which
documents were produced from electronic files and which were scanned
from hard-copy files, (2) keeping multi-page documents as a unit, (3)
providing source information which identifies, where possible, the
custodian of a particular document or set of documents, etc. ....
Zakre v. Norddeutsche Landesbank
Girozentrale (2004), 2004
WL 764895 (S.D.N.Y No. 03 Civ. 0257(RWS)..4/9 2004) Production of two
CD's containing 6000 emails that is text-searchable by words or phrases
but lacks an index satisfies FRCP Rule 34 (b) requirements for the
manner of production. The producing party had searched for
privilege but not responsiveness. No index, labeling, or production by
category was required. See In
Re Lorazepam & Clorazepate Antitrust Litigation [MDL No. 1290]
(D.D.C.
1/16/04)
Hagenbuch
v. 3B6 Sistemi Elettronici Industriali S.R.L 2006 WL 665005
(N.D.Ill.2006) TIFF rejected when Producing party elected to
produce as maintained in the normal course. Producing party insisted
inspection occur on site. After inspection, Requesting party wanted
data produced in electronic form as maintained in normal course of
business. Producer first wanted to print hard copies and ultimately
provided TIFF images. The trial court rejected production of TIFF
images and required production in the same electronic form as
maintained in the business.
METADATA
Wyeth v. Impax
Laboratories,
Inc.(D.Del.,2006), Slip Copy, 2006 WL 3091331 (D.Del.)
Court denied
motion to compel production of data in native format with all
metadata in addition to the prior production in TIFF because of
a lack
of "particularized
showing of need". "Since
the parties have never agreed that electronic documents would be
produced in any particular format, Wyeth complied with its discovery
obligation by producing image files. Further, neither party has
argued that the need for accessing metadata was foreseeable or
generally necessary. Finally, Impax has not demonstrated a
particularized need for the metadata or database production it has
requested."
Rodriguez v.
City of
Fresno (E.D.Cal.2006 slip op.), 2006
WL 903675 ["Request
for Production Numbers ... seek metadata for documents regarding the
events .... Although Defendants point to Exhibit K as responsive to
these requests, the document does not identify what
changes
were made to the documents. By way of the declaration..., Defendants
estimate that it would take approximately eight hours to gather the
requested metadata. This amount of time is not unreasonable.
Accordingly, Defendants must produce the requested
metadata.
"....Defendants shall produce these
documents to the
extent they have them in an electronic format. This includes email
communications, radio communications and unit-to-unit electronic
communications."]
Nova
Measuring Instruments Ltd. v. Nanometrics, Inc., 2006
WL 524708 (N.D.Cal. 2006)
"...Nanometrics offers no reason why the
documents should not be produced in
their native format. Indeed... it
has agreed to do so. ....if it has not already done so, it must
produce the documents in their native file format, with original
metadata. See In re Verisign, 2004 WL 2445243 at
1 (N.D.Cal.2004)(upholding discovery orders
requiring production of documents in native format with metadata as
not clearly erroneous: " '[t]he electronic version must include
metadata as well as be searchable')". See also In
re Honeywell International, Inc., 230 F.R.D. 293, 296
(S.D.N.Y.2003).
Hagenbuch
v. 3B6 Sistemi Elettronici Industriali S.R.L 2006 WL 665005
(N.D.Ill.2006) TIFF rejected when Producing party elected to
produce as maintained in the normal course. Producing party insisted
inspection occur on site. After inspection, Requesting party wanted
data produced in electronic form as maintained in normal course of
business. Producer first wanted to print hard copies and ultimately
provided TIFF images. The trial court rejected production of TIFF
images and required production in the same electronic form as
maintained in the business. The trial court rejected the need to bate
stamp argument and noted that the "parties
agree that, unlike the original electronic media, the TIFF documents
do not contain information such as the creation and modification
dates of a document, e-mail attachments and recipients, and
metadata." "Plaintiff claims
that the TIFF documents are inadequate reproductions that (1) lack
clarity and color, (2) lack metadata that track when a document was
created or modified and whether e-mails contained attachments and to
whom they were sent, (3) lack clear indications as to where each
document starts and stops (i.e., the TIFF pages all run together and
make it difficult to determine which pages are part of one document),
(4) lack clear indications as to which documents are stored together
on the original compact discs and DVDs (i.e., over sixty original
compact discs and DVDs were reduced to four compact discs containing
TIFF documents), and (5) make it impossible for Plaintiff to use
search terms to quickly and efficiently search through the documents
electronically."
In
re Verisign, Inc. Securities Litigation, 2004 WL 2445243
(N.D.Cal.,2004) Production in native format with metadata.
ORDER: produce documents in electronic form, documents in
"pst" format must be produced in that native format, TIFF
version alone is insufficient, metadata must be included, document
must be searchable. Court rejected argument of cost burden based on
costs of redactions and "bates" stamp and argument that
expense had already been incurred in conversion to TIFF and cost of
conversion back to pst would be unduly burdensome.
Williams
v. Sprint/United Management Co., 230 F.R.D. 640,
2005 WL
2401626 (D.Kan.2005. ) discovery of metadata.
The Court ordered
Defendant to "produce the electronic spreadsheets
in the manner in which they were maintained, which includes the
spreadsheets' metadata." The court denied sanctions for the
"scrubbing" of metadata and the locking of certain data on
electronic spreadsheets prior to production because "the
production of metadata is a new and largely undeveloped area of the
law." The court discussed the nature
of metadata, alternative approaches to discovery and general
guidelines.
PRODUCTION IN
ELECTRONIC FORM
Federal and state rules require
production by category or as maintained in the normal course of
business. Since most businesses as many individuals create
and maintain documents in electronic form that would be the norm.
FRCP Rule 34(b) "A party who produces
documents for inspection shall produce them
as they are kept in the usual course of business or shall organize
and label them to correspond with the categories in the request."
Proposed amendments to Rule 34 permits specification of the format
subject to objection by the responding party.
California C.C.P.§2031 .280.(a) "Any documents produced in
response to an inspection
demand shall either be produced as they are kept in the usual course of
business, or be organized and labeled to correspond with the categories
in the demand."
Clarify request for electronic form. There seems to be little
doubt as a legal matter that producing parties
can be required to produce "documents" in electronic form.
Nevertheless, anecdotal information suggests that some parties oppose
and some courts consider this to be a real issue. Lawyers need to
be prepared to educate courts if they are unable to convince opposing
counsel of the obligations to produce e-data in electronic form.
Secondly, it may be necessary to convince opponents or the court that a
particular form of electronic productions is required e.g. TIFF vs
native format vs. whatever.
If a party seeks production in
electronic form, the requeting party
should make that request asap and as specifically as
possible. If the opposing party produces requested documents in
some form when the requesting party has not made clear the requested
form of production, courts may be reluctant to order a second
production or may be inclined to required the requesting party to fully
compensate the producing party for all expenses.
Equal Employment
Opportunity Com'n v. Lexus Serramonte (N.D.Cal.2006), Slip
Copy, 2006 WL 2329510 Producing party need not create
an "An electronic database file, in Quattro Pro readable format"
that does not exist in response to a discovery request. "It is
unduly burdensome to require Defendant to do Plaintiffs' work for
them by creating a computer-readable file." "...if
Defendants do not presently maintain their employee contact
information in the electronic format requested by Plaintiff, they
shall produce it as maintained."
Northern
Crossarm Co. v. Chemical
Specialities (W.D.Wis. 3/3/04), 2004 WL 635606 Pursuant to
request, 65,000 emails were
reviewed and produced in hard copy. Requesting party then sought
production in electronic form which the court denied. A party is not
entitled to its preferred form of production absent a specific
request or a prior understanding with counsel; but, if the request is
for a specific form such as electronic, the producer must produce in
that form, reach agreement with counsel or seek relief from the
court. The court noted that counsel had failed to bring this issue to
the court before it was too late and the costs had been incurred in a
good faith production by the producing party. The court also declined
to require the producing party to provide a copy of a CD of the
emails made for its use since the CD was protected work product.
In
re Bristol-Myers Squibb Securities Litigation (D.N.J.2002), 205
F.R.D. 437, at pages 441 and 444 [at p.441 "Defendants
were mandated to advise the Plaintiffs that the NDA was in electronic
form at the time 26(a)(1) disclosures were made." at p.444 “
[FRCP
26(f)] provides that before a Rule 16 Conference, the parties "confer
... to develop a proposed discovery plan...." In the electronic
age, this meet and confer should include a discussion on
whether each side possesses information in electronic form, whether
they intend to produce such material, whether each other's software
is compatible, whether there exists any privilege issue requiring
redaction, and how to allocate costs involved." "...the
production of electronic information should be at the forefront of
any discussion of issues involving discovery and trial, including the
fair and economical allocation of costs. Of course, in some
instances, paper, rather than electronic, production may still be the
preferable method of discovery."]
State
Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824
S.W.2d 747,750 [produce information available from computer rather than
spend $2.7 to manually gather information from claims files]
Sattar v. Motorola Inc. (7th Cir 1998), 138 F.3rd 1164 [Party
produced documents in electronic form ["tapes"] that was inaccessible
to opponent who lacked proper equipment and software. No abuse of
discretion when tr ct denied request to produce hard copies of 210,000
pages of emails and gave producing party 4 options: download to floppy
or hard drive; provide software to opponent; provide on-site access to
system; each side bear half cost of hard copy. ]
Anti-Monopoly Inc. v. Hasbro Inc. (S.D.N.Y. 1995) 1995 U.S.
Dist. LEXIS 16355 [electronic documents discoverable even if hard copy
provided; Producing party "can be required to design a computer program
to extract the data from its computerized business records; consider
cost/benefits, need, shifting of expenses]
In
Re Lorazepam & Clorazepate Antitrust Litigation
Blue
Cross Blue Shield of Minnesota v. Mylan Labs
(D.D.C. 2004), 300 F.Supp.2d 43
The
court noted some of the value of obtaining discovery in electronic
form: “The
glory of electronic information is not merely that it saves space but
that it permits the computer to search for words or "strings"
of text in seconds....the presence of the information on the CDROM's
is an opportunity for the Blues rather than a problem.” The court
observed that the ability to search e-docs was more valuable than an
index prepared by the opponent. however, as
to documents produced on a CD ROM that Plaintiff could not read, the
court
deferred a ruling until Plaintiffs “first make the 23 CD-ROM's
available to a company that specializes in computer forensics or
electronic discovery to ascertain whether the information on the 23
CD-ROM's can be either read and searched by a commercially available
software or whether it can be converted to a format that will render
it capable of being read and searched by commercially available
software.”
Antitrust,
MDL, class action. Plt had opted out of class settlement after years
of litigation and sought documents. Plt claims an
unindexed, document "dump" does not meet defendant's “obligation
to match documents with discovery requests as specifically as
possible” and seeks an index to all documents. Def. relied
on prior production of a “mountain of information” of e-docs and
hard copy claiming if it isn't there it doesn't exist and it is
Plt.'s job to find whatever it wants. As
to 40 boxes of hard copy, the court noted plaintiff had examined the
boxes and selected 2 boxes of documents it wanted and concluded
there was no longer any need for an index. Plt, “having taken what
they want from these 42 boxes, do not need an index to their
contents.”
Williams
v. Owens-Illinois, Inc.,
665 F.2d 918, 933 (9th Cir.1982)
(party not compelled to produce computer tapes where previously
produced wage cards included information sought. "While using
the cards may be more time consuming, difficult and expensive, these
reasons, of themselves, do not show that the trial judge abused his
discretion in denying the tapes.").
American
Brass v. United States (C.I.T. 1988) 699 F. Supp.
934, 935 [The court ordered production to opposing party of "a copy of
the tapes compatible with the computer system at their in-house
computer facility." The court concluded that conversion of printout to
computer readable form is prohibitively time consuming and
costly(p.936), a protective order adequately protects confidential
customer information(p.937), "the printout of the data is unusable by
the plaintiffs due to its size and complexity "(p.938), and "data
released in an unusable form are...the equivalent of no data at all"
(p.936) citing the Timken case. ]
Pearl
Brewing Co. v. Joseph Schlitz Brewing, 415 F.Supp. 1122,
1134, 1139 (S.D.Tex 1976). [Plaintiff programed economic model of
market to simulate market condition based on high volume of data in
antitrust case. Plaintiff provided information, "intermediate" computer
output, and a "print-out of the computer programs" in the model.
Defendant sought access to details of the computer programs and the
depositions of non-witnesses who had designed and tested the computer
systems. Def seeks mechanical methods, tests, procedures, assumptions
and comparisons supporting the expert's testimony. Court ordered
production of entire system documentation for the model and required
depositions of the non-witness experts who had designed the computer
system. ]
Timken Co. v. United States, 11CIT 267, 659 F. Supp.239,
240n.3 (1987) [Commerce Dept. resisted production of computer tapes
because the data had previously been produced in hard copy in the form
of 15,000 pages of computer printouts. The court observed "Data
released in an unusable form are, after all, the equivale