Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

The sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

The Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.

Local Political Drama: Text Messages, Employee Hard Drives and Wrongful Termination

Williams v. City of Franklin, 2009 U.S. Dist. LEXIS 33200 (M.D. Tenn. Apr. 16, 2009) is an ESI free for all.  The case is a local political drama that sounds like a Hollywood production.  There are threatening text messages from an alderman and then rummaging through an employee’s laptops for pornographic images.  There is Internet usage history and one key email message. 

 

Short Factual Overview

The basic facts and evidence included the following:

            An Alderman was subject to an ouster suit;

The Alderman anonymously sent threatening text messages to the Plaintiff;

The Alderman, after resigning but before the resignation is effective, sent an email alleging wrongdoing by the Plaintiff on his work computer who had an “insignificant role” in the ouster;

The Plaintiff was subject to disciplinary hearings over usage of two city laptops, resulting in an employment suit against the City.  Williams, 1-5.

The Anonymous Text Messages

These “threat messages” included the following:

“time almost up. hear u got money now. I b in touch tues or wed 4 u 2 give me mine. who alderman I get 2 fire u next?;”

“I turn u into today u get fired;”

“u been turned in. . . . u aint gone find work noplace then,” and

“u b fired.” Williams, 5.

ESI Litigation

The Plaintiff sued the City claiming he was terminated in retaliation of the ouster suit and was deprived of his due process rights.  Issues such as form of production or defensible collection are not discussed in any detail. The opinion grants in part and denies in part the Defendant’s summary judgment motion.  However, that is not the key reason the case is noteworthy:  The volume and forms of ESI that form the subject of the lawsuit is a strong indication of what electronically stored information we can see in litigation.  Lawyers handling civil and criminal cases need to be aware that this ESI can be the basis of a case. 

The “connectivity” of the average person can include a work computer, a personal laptop, cell phones (personal and/or business), social networking activity and “classic” ESI such as email.  What ESI is relevant to a lawsuit will entail analyzing the facts of a case, consulting with the client and possibly an expert.  

For example, Williams has no discussion of how text messages were collected.  This is not a lawsuit with data to revival Enron or Verizon litigation, but dozens of text messages, email and arguably imaging two hard drives. 

 

Here are possible ways text messages can be collected in a “small” lawsuit:

            Option 1: Computer expert uses product like Paraben for collecting text messages.

            Option 2: Request to cell phone provider for text message history.

            Option 3: Text messages possibly backed up on computer after being synced with phone or PDA.

            Option 4: Photos taken of phone with text messages showing (LOW tech, but was done in Dickens v. State, 175 Md.App. 231 (Md.App.,2007).)

This is not an exhaustive list.  However, it does illustrate considerations for collecting text messages. 

Collecting electronic evidence such as text messages, Internet usage history, harvesting emails and imaging a hard drive are all possible issues to consider in litigation.  The more technology we use in daily life only increases the sources of ESI that can form a lawsuit.  The wild ride of Williams v. City of Franklin is a prime exhibit of this phenomenon.

Is the Circus in Town? Justifying a Change of Venue from Online Publicity

United States v. McRae, 2009 U.S. Dist. LEXIS 32411 (W.D. Tenn. Apr. 15, 2009) is a 1983 action against a police office for violating a prisoner’s rights.  The incident was captured on video and had been broadcast on the news, with denouncements and outcry from politicians, public figures, the Plaintiffs in the civil action and anonymous blog posters.  McRae, 1-2. 

The Defendant sought a change of venue because of the pretrial publicity.  McRae, 1-2.  The Defendant’s evidence of prejudice included a hard copy exhibit of a blog of local events.  The blog contained anonymous comments concerning the case, which the Defendant claimed prejudiced his case.  McRae, 4.

The Government opposed a transfer of venue and argued jury voir dire was the appropriate way to identify any actual prejudice to the Defendant.  McRae, 4.

Courts can find a defendant has been prejudiced from pretrial publicity when “an inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community.” McRae, 5. 

In short, if the circus is not in town, the Court must evaluate actual prejudice against a defendant by questioning the jury pool during voir dire.

The test for a trial court to find prejudice from pretrial publicity is to review the media coverage and the prospective jurors’ statements at voir dire to decide “whether a community-wide sentiment exists against the defendant.”  McRae, 5-6, citations omitted.   

The Court held the pretrial publicity had NOT prejudiced the Defendant to warrant a transfer of venue.  While the case had a large amount of national and local press coverage, there was nothing to show a “trial atmosphere that [has] been utterly corrupted by press coverage.”  McRae, 8-9, citations omitted. 

Actual prejudice from online pretrial publicity might not be as obvious as a virtual circus in Second Life.  The analysis required to show pretrial prejudice from online coverage would probably be daunting.  A party might be required to produce search engine hits on a Defendant’s name or other case information, listserv topics, Twitter “Tweets,” comments from news websites and other online evidence to show prejudice. 

For now, the most effective way to handle any prejudice from online publicity is through questioning the jury pool to find any bias.  The Court will know a media circus when it sees one.  Until then, if you have a high profile case, be on the lookout for Casey Junior coming down the tracks.

Prescription for Spoliation: A Short Legal Review

Two drug companies in litigation ended up in a legal brawl over spoliation of backup tapes.  The Defendants claimed the Plaintiffs either intentionally or recklessly destroyed back up tapes with key email messages that tended to show the Plaintiffs’ drug “escitalopram” did not produce “unexpected results” and therefore was “obvious.” Forest Labs. v. Caraco Pharm. Labs., 2009 U.S. Dist. LEXIS 31555, 2-3 ( E.D. Mich. Apr. 14, 2009).

The Defendant’s “Spoliation Motion” sought the following:

(1) “[A] one-day hearing to create a record of Forest’s spoliation of evidence,”

(2) “Forbid Forest from claiming at trial that escitalopram produced unexpected results (and thus was not ‘obvious’),” and

(3) “Require Forest to pay Caraco’s attorney fees.” Forest Labs. 3-4.

Defining the Law:

The Court conducted an extensive review of the facts and law regarding the spoliation of electronically stored information.  This is a thoughtful and detailed case addressing spoliation, triggering dates for the duty to preserve and adverse inference instructions.  Relevant sections are summarized below.

Spoliation Defined:  

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Forest Labs. 3-4, citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).

Spoliation is a rule of evidence and is “administered at the discretion of the trial court.”  Forest Labs. 3-4, citing Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir. 1995)).

Standards for Adverse Inference Instruction:

To establish an adverse inference instruction for the destruction of evidence, the moving party must show the following:

(1) That the party having control over the evidence had a duty to preserve it at the time it was destroyed;

(2) That the records were destroyed “with a culpable state of mind”; and

(3) That the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Forest Labs. 5.

Step 1: Failure to Preserve Evidence

A moving party has to show the non-moving party had a duty to preserve the evidence at the time it was destroyed.  This requires determining the “trigger date” to preserve evidence.  Forest Labs. 9.  As the Court summarized:  

“Any destruction of potentially relevant evidence that occurs before the trigger date would be harmless, since the party was unaware of a need to safeguard evidence. The destruction of documents and evidence after the trigger date, however, is not allowed.” Forest Labs, 9, citing Clark Constr. Group, Inc. v. City of Memphis, 229 F.R.D. 131, 136 (W.D. Tenn. 2005).

The focus of the legal brawl was over backup tapes, whether they were accessible or not, whether there was a duty to preserve them and when the duty began.  As a general rule, a party does not have to save “everything.”  Forest Labs, 10-11.  However, “[a] party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.”  Forest Labs, 11. 

The Court found the backup tapes were not reasonably accessible, largely because the Defendants did nothing to rebut Plaintiffs’ arguments the tapes were for disaster recovery and thus inaccessible.  Forest Labs, 13.

However, this does not outright mean the inaccessible back up tapes were not subject to preservation.  The “Zubulake Exception” states:

If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of “key players” to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes.  Forest Labs, 14-15, citations omitted. 

Step 2: State of Mind

The failure to produce evidence falls on a “continuum” of degrees from “negligence to intentionality.” Forest Labs. 16-17, citations omitted.  However, once there is a duty to preserve, “any destruction of [evidence] is, at a minimum, negligent.”  Forest Labs. 17, citing Zubulake, 220 F.R.D. at 220. 

Case law defines three possible states of mind for culpability:  (1) Bad faith destruction, (2) Gross negligence, and (3) Ordinary negligence.” Forest Labs. 17, citing Sampson v. City of Cambridge, Md., 251 F.R.D. 172, 179 (D. Md. 2008).

Some courts have found negligence is enough to meet the state of mind requirement.  Forest Labs. 17.  One prior court stated:

[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss. Forest Labs. 17-18, citing Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y.1991).

Step 3: Destroyed Evidence was Relevant to a Claim or Defense

The “prejudiced party” has to show some evidence that the destroyed documents (or ESI) was relevant “to substantiating his claim would have been included among the destroyed files.’” Forest Labs, 20, citing Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93 at 108 (2d Cir. 2001).  As the Court explained:

 ”[R]elevant” in this context means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence. Rather, the party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that “the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction.” Forest Labs, 20, citing Byrnie, 243 F.3d at 110.

Application to the Facts

The Court found the Plaintiffs had a duty to preserve evidence beginning in August 2003.  This was the timeframe when the Plaintiffs were on notice that an Abbreviated New Drug Application had been filed, which was a “triggering event” for potential litigation.  Forest Labs, 7-8. 

The Court ordered a two part spoliation hearing to determine 1) whether the “Zubulake” exception applied and 2) determine if the Plaintiffs had a culpable state of mind and whether the spoliated evidence is relevant.  Forest Labs, 21-22.

The “Zubulake Exception” is threefold analysis to determine whether:

(1) “The information contained on [the] tapes” is “otherwise available,”

(2) The alleged spoliator can “identify where particular employee documents are stored on the backup tapes,” and

(3) The tapes “store the documents of ‘key players’ to the . . . litigation. Forest Labs, 22, Zubulake, 220 F.R.D. at 218.

 This case is not over and I will be interested to see what happens next.

A Note on Judicial Notice of Blogs and Admissibility of Electronically Stored Information

In a trade secret case, the Defendants attempted to strike the Plaintiffs’ complaint pursuant to the California Anti-SLAPP statute.  The Defendants failed to make a prima facie showing that the complaint arose from protected activity.  World Fin. Group v. Hbw Ins. & Fin. Servs., 2009 Cal. App. LEXIS 553 (Cal. App. 2d Dist. Apr. 16, 2009).

The Defendants on appeal requested judicial notice of blogs, online articles and websites.  This argument and request was made for the first time on appeal.  The Defendants claimed the online material showed the content of the communications at issue here involve a matter of public interest.  Defendants claimed the Court needed to take judicial notice of the evidence pursuant to California Evidence Code section 459(a)(2).  World Fin. Group, fn 7, 13-14.

California Evidence Code 459(a)(2) states, in relevant part:

The reviewing court shall take judicial notice of :…(2) each matter that the trial court was required to notice under Section 451 or 453. The reviewing court may take judicial notice of any matter specified in Section 452. The reviewing court may take judicial notice of a matter in a tenor different from that noticed by the trial court.

The Court pointed out one error in Defendants’ use of California Evidence Code 459(a)(2): The statute does not compel judicial notice of documents that were NOT offered in the trial court.  World Fin. Group, fn 7, 14.  The argument that Defendants’ speech involved a matter of public interest (as evidenced by the online material) was being advanced for the first time on appeal and had not been presented to the trial court.  Id. This ran counter to the judicial notice statute and was denied for additional reasons. 

Judicial Notice was designed so a party does not have to formally present evidence to prove a fact that is “outside the area of reasonable controversy.”  Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence, §8.6(B), citing FED. R. EVID. 201, Advisory Committee Note. 

Examples of judicial notice for electronically stored information include:

Online videos of “The Guy from Boston” from a local news channel, other websites and a blog.  Ligotti v. Garofalo, 2008 DNH 123, fn 15, 21-22 (D.N.H. 2008).

Website information from Amazon.com and American Academy of Allergy Asthma & Immunology in ERISA action.  Arkfeld, §8.6(C), citing Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d 956 (C.D.Cal.Jun.20, 2005).

Online meeting minutes from the City’s Board of Mayor and Aldermen attached to an attorney’s affidavit as a public record.  Williams v. City of Franklin, 586 F. Supp. 2d 890, 894 (M.D. Tenn. 2008).

The admissibility of electronically stored information can take many paths in court, from party admissions on blogs, present sense impressions on Twitter or layered hearsay on cell phone video sent with an accompanying text message.  However, these issues almost always have to be raised at the trial court and not for the first time on appeal.

When Contract Law Collides with Social Networking & Online Movie Rentals

Every now and then, there comes a case that gives me law school flashbacks.  Professor Rohwer, my old Contracts professor, this one’s for you. 

Harris v. Blockbuster, 2009 U.S. Dist. LEXIS 31531 (N.D. Tex. Apr. 15, 2009) involves Blockbuster allegedly violating the Video Privacy Protection Act.  Blockbuster Online (an online video rental service) entered into a contract with Facebook that caused rental information for Facebook-Blockbuster Online users to be published to all of the users’ Facebook friends via Facebook’s Beacon application.  Harris, 1-2. 

The Plaintiffs apparently did not like their rental history being broadcast to their Facebook friends. 

The Plaintiffs claimed Blockbuster Online violated the Video Privacy Protection Act. The VPP prohibits a video service provider from disclosing a customer’s personally identifiable information without their written consent.  The VPP Act allows for liquidated damages of $ 2,500 for each violation.  Harris, 2.

The Defendants invoked a binding arbitration provision, pursuant to the contractual “Terms and Conditions.”  The Terms and Conditions were a “clickwrap” style agreement, which included binding arbitration and a waiver of any class action litigation against Blockbuster.  Harris, 4. The online contract stated, in relevant part:

Blockbuster may at any time, and at its sole discretion, modify these Terms and Conditions of Use, including without limitation the Privacy Policy, with or without notice. Such modifications will be effective immediately upon posting.

The issue before the Court was whether the online contract “Terms and Conditions” were illusory and thus unenforceable.  Harris, 3-4.  The Court found the online contract illusory. 

For those flashing back to first year Contracts, a contract must be supported by consideration, where something of value (such as a peppercorn) is received by a promisor from a promisee.  Black’s Law Dictionary.  If there is no consideration, the contract is illusory and unenforceable.  Harris, 4 and Black’s Law Dictionary.

The crux of the Plaintiffs’ arguments were that since Blockbuster reserved the right to modify the Terms and Conditions at their “sole discretion” at “any time” to be effective immediately on their site, the contract was thus illusory.  Harris, 6-7. 

The Court found the contract was illusory because Blockbuster had the power to unilaterally change the contract whenever they wanted to do so. The only “limit” was the new terms would not be effective until posted online.  Harris, 6-7. 

Online “clickwrap” agreements can include forum selection clauses, choice of law provisions and other “unilateral” agreements.  The issue of illusory contracts will continue to be litigated and will probably be the topics of future Contracts hornbooks.

This case also raises an interesting question: just what will the discovery look like?  Will the Plaintiffs produce screen shots of their published movie rental history to show their injury?  Will the Plaintiffs request databases from the Defendants?  These sorts of questions will continue to come up as Web 2.0 litigation continues.

Check Please: Challenging a PDF Form of Production

Rahman v. Smith & Wollensky Rest. Group, Inc., is an employment discrimination case where the Defendants produced guest checks from a database in PDF format on CD-ROM, in three-year batches, with a unique index number identifying each check.  Rahman v. Smith & Wollensky Rest. Group, Inc., 2009 U.S. Dist. LEXIS 30275, 10 (S.D.N.Y. Mar. 18, 2009). 

The Plaintiffs claimed the production was done in an “unsequential, jumbled up manner.” Rahman, 10 (S.D.N.Y. Mar. 18, 2009).  Additionally, the Plaintiffs’ expert claimed the PDF format would make the analysis of the data “extraordinarily time consuming and expensive.” Rahman 11.

The Court did not see a “jumbled” production or anything wrong with producing in PDF format. 

Plaintiffs’ arguments failed for several reasons. First, the Court did not find the production to be an unorganized “document dump.”  Secondly, there was no evidence the Plaintiffs specified the form of production in their discovery request. The Court stated, “Without specific instructions otherwise, pdf format — a familiar format for electronic files that is easily accessible on most computers — is presumptively a ‘reasonably usable form.’” Rahman, 13.

The Court quickly torpedoed the expert’s claimed production inefficiencies.  The Defendant had produced “over one hundred thousand checks that showed a waiter’s name, table assignment, and tips.”  Rahman, 14. This information, coupled with the other document produced, should have enabled the economic expert to perform any required analysis for the Plaintiff’s claims.  Id.

PDF productions are perfectly acceptable if a requesting party does not specify the form of production.  Rahman, 13, citing, Autotech Technologies Ltd. v. Automationdirect.com, Inc., 248 F.R.D. 556, 559-60 (N.D. Ill. 2008) (Documents produced in pdf and tiff format complied with Federal Rule of Civil Procedure 34 where the requesting party failed to specify the form of production ).

The Plaintiff might have had a better argument if the checks were searchable ESI that had been converted to non-searchable PDFs.  Case law and the Federal Rules of Civil Procedure Advisory notes prohibit converting ESI that is in searchable form into a non-searchable form.  In re Payment Card Interchange Fee, Slip Copy, 1007 WL 121426 (E.D.N.Y.),  4, citing Fed.R.Civ.P. 34(b), 2006 Amendment, Advisory Committee’s Note.  However, the opinion makes no mention of extracted text or whether the PDFs were searchable.

Spinning the Spoliation Record (OR, Download MP3 Sanctions)

I watched David Boies argue the original Napster case on CSPAN while taking Computer and Internet Law at McGeorge, University of the Pacific.  David Boies is more remembered for later representing Vice President Al Gore in the Bush v Gore legal saga.

Online music downloads have caused litigation with the click of the mouse since the days of Napster in the 1990s.  Arista Records LLC v. Usenet.com, Inc., 2009 U.S. Dist. LEXIS 5185 (S.D.N.Y. Jan. 26, 2009) continues the story of the music industry suing for copyright infringement. 

Arista Records LLC v. Usenet.com, Inc. is a tale of sanctions and music downloads. The Defendants operated Usenet.com, which is network message board that predates the Internet.  Arista Records, 4-5. The Defendants charged subscribers a monthly fee effectively for file sharing.  The Plaintiff music industry claimed the Defendants provided Usenet subscribers access to music piracy groups containing copyrighted digital music files. Arista Records, 7.  The discovery requests at issues included the Music Groups, Digital Music Files and promotion material on the Defendants’ website.

 The Plaintiffs claimed the Defendants deliberately destroyed evidence of the Music Groups, Digital Music Files and website information, thus claiming spoliation for the following:

 1) “Usage Data,” which Plaintiffs defined as “pre-existing records from Defendants’ computer servers reflecting actual requests by Defendants’ paid subscribers to download and upload digital music files using Defendants’ service;”

2) “Digital Music Files,” which Plaintiffs define as “the physical digital copies of the copyrighted sound recordings at issue in this case and related information hosted on computer servers operated by or on behalf of Defendants”; and

3) “Highly incriminating promotional materials previously available on the Usenet.com website.”  Arista Records, 8.

The chronologies of facts outlining Plaintiffs’ claims are technical and detailed.  The following outline is created from the Court’s opinion:

August 2007: Plaintiffs first sent a written notice of copyright infringement. 

The Defendants did not respond to the written notice.

October 12, 2007: Plaintiff sues Defendants.

January 2008: Plaintiff Rule 34 requests specifically for the Usage Data.

February to March 2008: Plaintiff attempted to acquire data through correspondence with Defendant

March 8, 2008: Defendants agreed data was relevant and to produce “snapshots.”  Arista Records, 9-10.

During a period of only days in March 2008, the Defendants disabled the music groups subject to the discovery requests.  The Plaintiffs challenged this action and demanded the Digital Music Files be preserved.  The Defendants represented the music files had been preserved.  Arista Records, 12-13.

The Plaintiffs claimed the Defendants reconfigured their system in order to write-over the Digital Music Files.  Additionally, the Plaintiffs represented to the Court that only 78 of the 900 Music Groups had been reactivated.  Arista Records, 13.

 The Defendants went to the extreme of removing all references to “Music” and “mp3s” from a promotional webpage. The Court noted the “Defendants destroyed all copies of this webpage, and only produced the sanitized version of it to Plaintiffs during discovery.” Arista Records, 79-80.

The Court found the Defendants’ production was in bad faith and sanctioned the Defendants with an adverse inference instruction for their discovery violations.  Arista Records, 78-80.  The Court based the sanction order on the fact the Defendants had an obligation to preserve and produce the following ESI:

Useage Data and Digital Music Files.   Arista Records, 61-62.

Images from the website.  Arista Records, 64.

Promotional materials from the website.  Arista Records, 79-80.

The Defendants argued that they could not preserve data on their serves because it was transitory in nature without any sort of back-up.  Arista Records, 68.  This argument was flatly rejected, because the Defendants had produced some of the “transitory” Usage Data and Digital Music Files to Plaintiffs.  Id.

What are the lessons learned from this case?  First, don’t go around destroying ESI that is relevant to a lawsuit or subject to a discovery request.  Arista Records has many examples of bad faith behavior with willful acts to remove user group information, digital music files and website information.  Additionally, a party’s duty to preserve and produce electronically stored information does not allow for unethical gamesmanship. 

The other big lesson: Music downloads and piracy has been the subject of litigation for over a decade and will not likely cease anytime soon.

Creighton Law Review Symposium on Evolving Litigation Issues

I participated in a symposium at Creighton University School of Law on April 3, 2009, presenting “Modern Issues in e-Discovery.”  The symposium was extremely well attended with attorneys from Nebraska and Iowa. 

It was a privilege to present to attorneys and law students on current e-Discovery issues.  Thanks go to Thomas J. Kelley, Esq., from McGrath North Mullin & Kratz, PC for being an excellent co-panelist. 

The following panels included the “Credibility of Eyewitness Testimony” and “The Eyewitmem Project, Measuring the Impossible?”  The keynote by Dr. Richard De Mulder, Professor of Computers and Law, Erasmus University, Rotterdam, the Netherlands, focused on memory and witnesses, and even touched on memory in document review. 

I also enjoyed one attendee asking if I was the new dean.  I was not sure why I was mistaken for the dean, until I met the man: Another bow tie lawyer.