What Litigation Hold? Failing to Image Hard Drives and Other Discovery Mistakes

Plunk v. Vill. of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009) is a civil rights case with a summer time trial date against a local government, village officials and the police department.  The Plaintiffs took the Defendants to task for failing to image six hard drives that the Defendants had agreed to image after discovery requests in March 2007. 

The Plaintiff argued the Defendants:

(1) Destroyed and failed to preserve relevant ESI on police department computers;

(2) Failed to preserve ESI on six computer hard drives; and

(3) Failed to back-up any relevant ESI.  Plunk, 36.

The Plaintiffs’ expert determined evidence wiping software had been installed on two of the Defendants computers.  Adding to the drama, the Defendants admitted in a court hearing that 6 hard drives were not imaged and that the Defendants had known this for 11 months.  Moreover, no action was taken to preserve the ESI on these drives during the 11 months.  Plunk, 10-11. 

The Defendants also withdrew their own computer expert when she could not state whether two of the hard drives had been wiped or not.  Plunk,10 and 37.  However, she did state the two computers at issue had been “defragged” prior to imaging, “which would have destroyed any evidence of a deliberate effort to wipe the computers.” Plunk, 37-38.

After creating a preservation auto accident, the Defendants brought a motion to strike the Plaintiffs’ expert’s supplemental report and to reopen discovery so they could designate another computer expert.  Plunk, 10-11.  This effectively would derail the summer time trial date with a new series of expert reports and depositions.

All in the all, the Defendants lost.  In the words of the Court, it was the Defendants’ “dilatory discovery tactics” of not imaging the hard drives that required the Plaintiffs’ expert to amend his report that kicked off the motion practice.  Plunk,15.  The Defendants were allowed a short follow-up deposition, provided they paid the Plaintiffs’ expert’s costs, plus the costs for one of the Plaintiffs’ attorneys.  The Defendants were denied designating a new computer expert, which would have resulted in a new round of dueling expert reports.  Plunk,15-16.

 

Court’s Analysis for Sanctions

The Court called the Defendants to account for their discovery tactics resulting in several sanctions. 

The Plaintiff sought sanctions for spoliation of evidence.  The Court engaged in the following four point analysis:

(1) Was there a duty to preserve the specific documents/evidence?

(2) Was that duty breached?

(3) Were plaintiffs harmed by the breach?

(4) Was there willfulness, bad faith or fault?   Plunk, 27-28.

 The Court also had to evaluate must “whether the proposed sanction can ameliorate the prejudice from the breach or whether there is a lesser sanction available, which will accomplish that goal.” Plunk, 27-28.

Further making things interesting for the Court, the Defendants admitted they did not have a document retention policy AND did not enact any sort of litigation hold.  Plunk, 37. 

 The Defendants argued the wiping and “defragging” hard drives routine and any destruction was accidental.  Plunk, 38. 

The Court did not accept the Defendants’ “accidental” arguments.  First, there was sufficient evidence to show the Defendants acted recklessly.  There was also evidence some of the drives were intentionally wiped.  Plunk, 39-40. 

 Plaintiff’s Relief

The Court required witness testimony before it could find bad faith justifying the sanctions the Plaintiffs request.  The Court did find that Defendants acted recklessly and ordered the following sanctions:

1) The jury will be informed that the defendants failed to preserve information which existed on its computers even though it was on notice that it should preserve that evidence in this lawsuit.

2) The defendants will be precluded from arguing that the absence of any documents supporting plaintiffs’ contentions should be considered by the jury against plaintiffs.

3) The jury will be instructed that it may (but does not have to) infer that the failure to preserve relevant evidence which defendants had a duty to preserve means that the evidence contained on the computer hard drives was not favorable to defendants. Plunk, 40-41.

Looking Ahead

Intentional wiping of hard drives aside, this sort of fact pattern where a party does not have a document retention policy and does not enact a litigation hold will probably be fairly normal for the near future.  Many small companies, local governments or even individuals do not create document retention policies for themselves to follow.  Until these polices are developed and followed as standard operating procedure, parties might be at risk for spoliation, depending on the nature of a case.

Attorneys and parties also need to vet and understand their experts.  While withdrawing experts is nothing new to litigation, knowing your expert’s subject matter experience can help determine the right person for a case.

Procrastination and Objecting to the Form of Production Don’t Mix

It is beyond cavil that this entire problem could have been avoided had there been an explicit agreement between the parties as to production, but as that ship has sailed, it is without question unduly burdensome to a party months after production to require that party to reconstitute their entire production to appease a late objection.

United States Magistrate Judge Ester Salas, Ford Motor Co. v. Edgewood Props., 2009 U.S. Dist. LEXIS 42001, 21 (D.N.J. May 18, 2009)

Ford Motor Company and Edgewood were locked in a series of disputes.  One portion of the dispute was over a discovery request for native files with metadata and the Responding Party’s production.

Edgewood requested electronically stored information in native file format with metadata.  Ford instead produced the ESI as static images (TIFFS) with searchable text.  Ford, 13-14.

Federal Rule of Civil Procedure Rule 34 allows for a requesting to state the form of production and request metadata.  Pursuant to Fed. R. Civ. P. 34(b)(2)(D),  “If the responding party objects . . . the responding party must state “the form or forms it intends to use for its production of ESI.” Ford, 15.  The requesting party can object to a counter form of production, which should be followed by a meet and confer over the dueling forms of production.  Fed. R. Civ. P. 34.

That is not what happened here…at least not in a reasonable period of time.

The Discovery Production

There were three productions in the Producing Party’s counter-form of production over an 8 month period.  Ford, 19.

The Requesting Party waited 8 months to object to the static production with searchable text.  Id.

The Court stated the Requesting Party’s delay was “patently unreasonable.”  Id. 

While not setting out a rigid rule on timelines to object to a form of production(which would probably result in case law chaos given the nature of ESI), the Court held it was unreasonable to wait 8 months to object when the production was nearly finished.  Ford, 20. 

Reasonableness is king when it comes to discovery and waiting 8 months was not reasonable. 

The Court further stated:

One may reasonably expect that if document production is proceeding on a rolling basis where the temporal gap in production is almost half a year apart, a receiving party will have reviewed the first production for adequacy and compliance issues for a reason as obvious as to ensure that the next production of documents will be in conformity with the first production or need to be altered. It was incumbent on Edgewood to review the adequacy of the first production so as to preserve any objections.  Ford, 19-20. 

The Court held the Requesting Party’s objection was untimely and requiring the Producing Party to produce ESI as native files to be unduly burdensome.  Ford, 21.

What the Party Should Have Done

The Requesting Party was required under Fed. R. Civ. P. 34 to object to the Producing Party’s proposed form of production.  If they were unable to reach an agreement on how to produce the ESI, the Requesting Party was required “to alert the Court within a reasonable period of time.”  Ford, 20.

Now, what is reasonable?  That will turn on the nature of the case, how involved the parties are in the meet and confer process and other factors showing reasonableness.

Guidance’s Computer Enterprise Investigation Conference 2009

D4 LLC exhibited at the Computer Enterprise Investigation Conference (CEIC) for the first time in Orlando on May 17-20, 2009.  I have attended the show for the last four years and it was an honor to present again on e-Discovery.

CEIC always brings together the most educated people on computer forensics, e-Discovery, information security systems and law enforcement.  I participated in Guidance’s first “Birds of a Feather” meeting, where we discussed everything from collection of ESI, MD5 Hash Values and the finer points of the practice of law with technology. 

I presented “What Goes Bump in the Night,” focusing on many of the new Web 2.0 litigation cases.  Below is a video clip from the presentation on personal jurisdiction.

The Keynote Speaker was Leonard Nimoy, whose personal story of “trains, horses and starships” was extremely entertaining.  He is also a very kind man who took the time to greet many of the attendees. 

 

I look forward to CEIC 2010 and congratulate Guidance on a very successful conference.

Is ONE Keyword Adequate for a Search?

Magistrate Judge Facciola’s Asarco, Inc. v. United States EPA, 2009 U.S. Dist. LEXIS 37182 (D.D.C. Apr. 28, 2009) dealt with a very brief issue:

Was one keyword adequate for the search of electronically stored information? 

Short answer: No

In Asarco, the Plaintiff opposed a summary judgment motion and sought leave to take discovery.  The Plaintiff claimed the Defendants had acted in bad faith and claimed Defendants only used the search term “recontamination” in their ESI search.  Asarco, 7.

Judge Facciola ordered the Defendants to perform another key word search using the Plaintiff’s four keywords: 1) “recontaminate,” 2) “recontaminat,” 3) “recontamination,” and 4) “contaminate again.” Asarco, 7-8. 

Ironically, the search terms derivative of the term “recontamination” should have positive results in a Pre-Discovery tool such as Clearwell or a litigation support database with the search term “recontam*”. 

This raises a fundamental question when searching electronically stored information: What are an adequate number of search terms? 

Answer: Totally depends on the case.

In William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009), one party proposed a few basic search terms to search a non-party’s email system. 

The other party provided several thousand terms. 

The non-party understandably only wanted to produce emails that related to the subject matter of the litigation.

Magistrate Judge Peck ordered the parties to use the “narrow” terms, variations of the parties names and the names of the personnel involved in the construction.  William A. Gross Constr. Assocs., 10.

In another case out of Kansas, a Court ordered search terms to include first names, abbreviated first names and last names of the parties in the lawsuit.  Patterson v. Goodyear Tire & Rubber Co., 2009 U.S. Dist. LEXIS 34585, 17-18 (D. Kan. Apr. 23, 2009).

On the other extreme, in a Copyright & Computer Fraud and Abuse case between Oracle and SAP, the parties were in a dispute to limit discovery to 165 custodians on an ancillary issue in the case.  The estimated discovery cost for the 165 custodians was $16.5 million.  One can imagine the number of terms, names and dates being employed as search terms in such litigation.  Oracle Corporation, et al., v. SAP AG, et al., 2008 U.S. Dist. LEXIS 88319.

The number of search terms required for a search to be “adequate” will turn on the facts of each case.  There will not be a bright line rule, other then being diligent and understand the technology your law firm and experts are using.

Who Delivers a Litigation Hold Notice to the Post Office?

Procedural Overview

A mail clerk sued the United States Post Office and settled her lawsuit 1999.  The Plaintiff sued the Post Office again, claiming the Defendants engaged in a campaign of harassment. The Plaintiff brought a second lawsuit for violations of Title VII and breach of contract. Phillips v. Potter, 2009 U.S. Dist. LEXIS 40550 (W.D. Pa. May 14, 2009).

The Plaintiff brought a Motion for Sanction for spoliation of evidence of electronically stored information.

Failure to Preserve Electronically Stored Information

The Plaintiff claimed the Post Office failed to preserve electronically stored information by allowing email to be destroyed after litigation was reasonably foreseeable.  Phillips, 15-16. 

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.” Phillips, 13, citing Mosaid Technologies Inc. v. Samsung Electronics Co., 348 F. Supp.2d 332, 335 (D. N.J. 2004).

Sanctions may be imposed when that party is “under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.” Phillips, 13, citing, Scott v. IBM Corp., 196 F. R. D. 223, 249 (D. N.J. 2000).

The Court further stated, “Sanctions are appropriate when there is evidence that a party’s spoliation of evidence threatens the integrity of this Court.” Phillips, 14, citing, Mosaid, 348 F. Supp.2d at 335.

Brief Factual Timeline

August 4, 2006: the Plaintiff filed an informal complaint with the EEO against the USPS.

September 14, 2006: a formal complaint was sent by Plaintiff’s counsel to the USPS.

November 20, 2006: USPS acknowledged receipt of formal complaint.

June 14, 2007: Lawsuit filed.

February 7, 2008: First Discovery request for ESI.

February 29, 2008: First USPS Litigation Hold Notice.

Before May 2007, the USPS email server had a 30 day retention period.  After 30 days, the email messages were destroyed.  After May 2007, all email was retained for 18 months, unless there was a request to not destroy them.  Phillips, 13-14.

Dear Mr. Postman, Please Bring Me a Denial for Sanctions…

The Defendants claimed that sanctions were not appropriate because the destroyed emails were not relevant to the Plaintiff’s case, thus there was no prejudice. Phillips, 15.

The Plaintiff claimed that if there had been a litigation hold, the Plaintiff “would have had access to an email indicating that a co-worker had informed another manager” of the Plaintiff’s harassment. Phillips, 15.

The Court held that while the USPS did not issue a litigation hold, there was “no evidence that relevant documents were destroyed.” Phillips, 16.  Moreover, sanctions cannot be based on “mere speculation.”  Phillips, 16, citing Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65,74 (3d Cir. 1994).  Compounded by the lack of any basis the Plaintiff was harmed by the late litigation hold, the Court denied the sanctions motion.  Phillips, 16.

Paper Chase 2.0: Posting Your Way to Personal Jurisdiction

Web 2.0 litigation gives us Defendants with colorful names such as “AK47,” “A horse walks into a bar” and “:D”.  

Doe I v. Ciolli, 2009 U.S. Dist. LEXIS 37625 (D. Conn. Apr. 30, 2009) is the tale of two female law students from Connecticut attending Yale Law School, who are suing thirty-nine pseudonymous names on a post-graduate admissions website (AutoAdmit.com).  The students identified Defendant Matthew Ryan as “:D” from Texas, who brought a motion to dismiss for lack of subject matter and personal jurisdiction.  Ciolli, 1-2. 

“:D” lost.

 

AutoAdmit is a discussion board for post-graduate schools where people can post information pseudonymously.  The Plaintiffs claimed they were the targets of defamatory, threatening, and harassing statements posted on AutoAdmit. Ciolli, 2.  

The Doe Plaintiffs sued thirty-nine pseudonymous named Defendants for the following:

 (1) Copyright Infringement, 17 U.S.C. § 501;

(2) Appropriation of another’s name or likeness;

(3) Unreasonable publicity given to another’s life;

(4) Publicity that places another in a false light before the public;

(5) Intentional infliction of emotional distress;

(6) Negligent infliction of emotional distress; and

(7) Libel.  Ciolli, 3.

The Copyright claim was a Federal Question, thus giving the Court jurisdiction over the case. 

The issue of whether personal jurisdiction was proper required determining whether:

(1) The conduct satisfies the requirements of the Connecticut long-arm statute, and

(2) The conduct satisfies the “minimum contacts” requirement of the Due Process Clause of the Fourteenth Amendment. Ciolli, 11.

The Defendant argued he had never been to Connecticut, never done business, nor owned property, nor knowingly post information on websites in Connecticut or any other activity related to the state of Connecticut.  Ciolli, 11-12. 

The Plaintiffs claimed personal jurisdiction was proper because the Defendant committed a tort in Connecticut, because his “tortious conduct (online statements) were specifically targeted at victims he knew to be in Connecticut.” Ciolli, 13. 

The Connecticut Long Arm Statute is satisfied when “a nonresident commits a tortious act within the state by sending a tortious communication into the state.”   Ciolli, 13.

Courts generally do not allow personal jurisdiction for general internet postings.  Connecticut Courts require something more then a “mere posting,” but that a resident is “specifically targeted” by the out-of-state Defendant for there to be personal jurisdiction.  Ciolli, 13-17. 

The Defendant admitted in deposition it was “possible” Yale law students could have seen his posts about the Plaintiffs.  Additionally, some of the Defendant’s off color comments on AutoAdmit showed he believed Doe II was attending Yale.  Ciolli, 17-18.

The Court found the Defendant had sufficient minimum contacts to satisfy constitutional due process because of his voluntary and repeated postings on AutoAdmit.  The Defendant knew the Plaintiffs were law students at Yale and that his comments about them were publicly available on AutoAdmit.  Ciolli, 19-20.

These cases will become more common.  One does not need to spend much time on a social networking site to see people post rude, hurtful and off-color comments with impunity.  It is only a matter of time before there is litigation over a “ReTweet” or Status Message.

Surfing for Personal Jurisdiction from Online Activity

The internet has made applying the traditional touchstones for personal jurisdiction challenging. Ever so slowly courts have addressed the personal jurisdiction questions in internet cases, to arrive at a point now where there may not be bright lines to guide us; but there are definitely guidelines emerging.

U.S. District Court Judge Edward J. Lodge, Sky Capital Group, LLC v. Rojas, 2009 U.S. Dist. LEXIS 37132, 11 (D. Idaho Apr. 30, 2009)

May 13^th is the anniversary of Pennoyer v. Neff, 95 U.S. 714 (1878), one of the great personal jurisdiction cases, followed by International Shoe Co. v. Washington, 326 U.S. 310 (1945), Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987) and Burnham v. Superior Court of California, 495 U.S. 604 (1990).  It is only appropriate to write about personal jurisdiction on the anniversary of this major decision. 

The United States Constitution requires a court to have personal jurisdiction over the parties to decide a case in controversy. U.S. CONST. Amend. XIV. Perhaps it is just guys in bow ties and Civil Procedure professors, but the intersection of online activity and a Court exercising personal jurisdiction is an exciting area of case law.  The entire concept of where is it fair to sue someone, or where there are minimum contacts from online business, are topics that could make a law student’s head spin. 

It is antithetical to our civil justice system to have people sued as a “result of random, fortuitous, or attenuated contacts or on account of the unilateral activity of third parties” due to blogging, Facebook or people simply maintaining a website.  Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471 (U.S. 1985).  Courts have been crafting personal jurisdiction requirements for online contracts and torts for a decade.  The following is one of those cases. 

Truck Stops & Economic Torts

Sky Capital Group, LLC v. Rojas, 2009 U.S. Dist. LEXIS 37132 (D. Idaho Apr. 30, 2009) is a story of alleged trade secret violations by out-of-state Defendants intentionally accessing the Plaintiffs computer servers. Sky Capital Group, 12.

Sky Capital Group, LLC (dba Roady’s Truck Stops), an Idaho limited liability company, employed the two Defendants after a business acquisition. One Defendant was based in Florida and the other in Wisconsin. 

Roady’s sued the Defendants for trade secret violations and economic torts by unlawfully accessing Roady’s administrative and email servers located in Idaho after their employment ended.

Roady’s sued the Defendants in Idaho and the Defendants sought dismissal for lack of personal jurisdiction.

Short Overview of Personal Jurisdiction Rules

The 9^th Circuit requires a three part test to exercise specific personal jurisdiction:

(A) The nonresident defendant must purposefully conduct activities within the forum;

(B) The claim must arise or result from forum-related activities; and

(C) The exercise of jurisdiction must be reasonable. Sky Capital Group, 6, citing Doe, 248 F.3d at 923.

Knowledge that the plaintiffs are in a specific state is not enough for a court to exercise jurisdiction.  Courts require “something more” to show a defendant directed their actions to a specific state.  Sky Capital Group, 11.

The Court found that the Defendants accessing the Plaintiffs’ servers was the “something more” the Court needed to exercise personal jurisdiction over the Defendants. 

Intention Acts: Accessing Servers

The “intentional actions” of accessing the Plaintiffs’ computer serves included logging onto the system, and accessing proprietary information including, “recorded customer lists, vendor lists, pricing information, marketing information and other valuable customer and company information.”  Sky Capital Group, 12.  Such directed activity in accessing the computer systems was such that the Defendants “should have reasonably anticipated being sued in Idaho.”  Sky Capital Group, 13. 

Expressly Aimed at Idaho

The “expressly aimed” requirement is defined as “when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.” Sky Capital Group, 14, citing Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000). 

This rule also requires “something more” besides an action having a foreseeable effect in a forum state for personal jurisdiction.  Sky Capital Group, 14. 

The defendant had to knowing a plaintiff is a resident of “the forum state and that the harm resulting from the intentional act will be suffered in the forum state.” Sky Capital Group, 14-15. 

The fact the out-of-state Defendants knew Roady’s was located in Idaho, coupled with the allegation of taking proprietary business information to compete directly with the Roady’s, was a sufficient showing to meet the expressly aimed requirement.  Sky Capital Group, 15.

Causing Harm in Idaho

The Court found the “harm in the forum state” also met, based on the fact the Defendants knew the Plaintiff was located in Idaho and their conduct would cause the Plaintiff harm.  Sky Capital Group, 16-17. 

Lessons Learned

Way back when I had Civil Procedure in 1998, the course books had not even touched personal jurisdiction from online activity.  This will become standard analysis as Generation X lawyers become partners and Net Geners become associates.  The volume of online business, Web 2.0 activity, let alone continued advancements of iPhones and BlackBerries, will ensure these issues continue to develop. 

I’d just like to avoid a giant split Supreme Court decision like Asahi Metal Industry Co. v. Superior Court when the Courts determine bright lines for personal jurisdiction from online activity.

Producing Social Networking Profiles: What Court has Jurisdiction?

A Facebook user in Massachusetts was facing criminal charges in Massachusetts for criminal harassment and threats to commit a crime from Facebook messages.  Skerry, 2009 U.S. Dist. LEXIS 38804, 1-2 (D. Cal. 2009).  The Petitioner’s defense was that someone had improperly used his account to send the Facebook messages.  Skerry, 4.  The Petitioner sought the emergency deposition of Facebook’s “recorder keeper” because of the concern Facebook periodically purged its information system.  Skerry, 2-4.   

The petitioner’s criminal defense attorney emailed Facebook for ESI pertaining to the petitioner’s profile.  Facebook replied they were creating a preservation order, but they required a formal subpoena to produce any ESI or Documents.  Skerry, 2. 

The Petition filed a pro se motion to compel a deposition of Facebook’s record keeper to perpetuate testimony before any action been filed according to Federal Rule of Civil Procedure 27(a). 

The Petitioner had two major problems: 1) There was no adverse party in the Northern District of California and 2) The Petitioner did not seek to perpetuate testimony “about any matter cognizable in a United States court.”  Skerry, 4

The Petitioner fell victim to the United States District Court for the Northern District of California not having any Federal jurisdiction.  The case was a Massachusetts criminal case with a Massachusetts victim of the alleged crime.  There was no Federal Question for the Federal Court to hear the case, but rather a state criminal action from Massachusetts. Skerry, 4-5.  Since the Court did not have jurisdiction, there was no relief to grant. 

While the Court did deny the motion, the Federal Magistrate Judge did not state any opinion on what a California state court would do with such a request.  Skerry, 5-6. 

The Petitioner’s issue goes back to Marbury v. Madison: A Federal Court needs jurisdiction to hear a case.  When dealing with social networking sites based in one state that provide services to the entire country, the issues of proper venue, choice of law and even state vs Federal court must be considered when seeking legal relief.

Measure for Measure: Sexting, District Attorneys and Restraining Orders

Parenting has never been easy.  Since cell phones starting having cameras, parents have had to talk to their teenage children about the dangers of “sexting.” For those who have never heard of this practice, it is taking photos of a sexual nature and sending them via text message.  There is no shortage of cases with youth under 18 being charged as sex offenders for this practice. 

The proper legal deterrent for “sexting” is the subject of debate.  Some people think charging 15 year olds as felony sex offenders is the appropriate deterrent, with serious ramifications on college selection, job applications and just moving for at least a decade.  Some take a “do nothing” approach.  Others are looking for a middle ground.  It is only a matter of time before state legislatures take this issue up to determine the appropriate legal deterrent for “sexting.” 

The case Miiller v. Skumanick, 2009 U.S. Dist. LEXIS 27275 (M.D. Pa. Mar. 30, 2009) is the story of a temporary restraining order being issued against a District Attorney from charging multiple teenage girls for felony child pornography from texting.  A preliminary injunction hearing is schedule for June 2, 2009.

Thoughts on being a District Attorney

To be fair to District Attorneys, I think the DA in this case is the exception and not the norm.   Being a DA has to be hard.  The job can be demanding and stressful in protecting communities from crime.  I remember a DA joking to us in law school that new all DA’s get a concealed weapons permit and a bullet proof vest. 

Many states have also adopted the Model Rules of Professional Conduct Rule 3.8 for prosecutors, which states in relevant part:

Rule 3.8 Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…

Factual Overview: Threat of Prosecution from the District Attorney

The District Attorney in Miiller sent letters to the parents of 20-some students who had been identified in cell phone photos.  Three of the students (later Plaintiffs) had photos of themselves in bras and the other in a swim suit. 

The DA’s letter promised child pornography charges would be dropped against the youth if they completed a 6 to 9 month “re-education” program (which was reduced to 5 weeks) and drug testing.  Those who did not attend the “re-education” program and drug testing would be charged as sex offenders.  Miiller, 4. 

The District Attorney held a meeting at the Wyoming County Courthouse with everyone who received the letter.  This meeting consisted of a threat to prosecute the teenage girls in the photos unless they submitted to 1) probation, 2) paid a $100 program fee and 3) completed the “re-education” program. 

The “re-education” program was to instruct the girls on their inappropriate behavior and to “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “identify non-traditional societal and job roles.” They were also required to write a paper on their actions and how they were wrong.  Miiller, 5-6. 

“These are the rules. If you don’t like them, too bad”

Parents understandably questioned the District Attorney on his methods.  One of the girls at issue had photos of herself in a bathing suit.  When questioned by the father how swim suit photos were child pornography, the DA explained the youth had posed “provocatively.”  When questioned on who decided what was “provocative” the DA told the father, “[T]hese are the rules. If you don’t like them, too bad.”  Miiller, 5.  The District Attorney also told the questioning parents he could charge their children with child pornography during the meeting, as obvious leverage for the parents and youth to consent to the “re-education” program.  Id.

When the parents of the other Plaintiff challenged the District Attorney’s child pornography definition, the DA claimed the youth had no right to a jury trial in Juvenile Court, even with felony child pornography charges. 

The Civil Lawsuit (Or, this is the US Constitution, if you don’t like it, too bad)

The parents of the three Plaintiffs did not give in to the District Attorney’s threatened prosecution of their children.  The Plaintiffs brought a 1983 action base on 1) retaliation in violation of plaintiffs’ First Amendment right to free expression, because the photographs did not violate any obscenity law; 2) retaliation in violation of plaintiffs’ First Amendment right to be free from compelled expression, specifically having to write a paper about their actions; 3) retaliation against the parents for exercising their Fourteenth Amendment substantive due process right as parents to direct their children’s upbringing, as evidenced by the “re-education” program material.  Miiller, 10-11. 

The Temporary Restraining Order

A temporary restraining order is an “extraordinary remedy” that requires a Court to evaluate: 

(1) Whether the moving party has shown a reasonable probability of success on the merits;

(2) Whether the moving party will be irreparably injured by denial of the relief;

(3) Whether granting preliminary relief will result in even greater harm to the nonmoving party; and

(4) Whether granting the preliminary relief will be in the public interest. Miller, 13, citing Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001).

The Plaintiffs met all of the requirements for a retraining order against the District Attorney.  Moreover, the Court outlined the state law definition of “prohibited sexual act,” which did not include “provocative” poses.  Miiller, 25-26.  One can wonder if the District Attorney over-stepped his ethical duties as a prosecutor, if he was threatening prosecution not supported by probable cause, let alone advising the accused youth of their right to counsel. 

In reviewing the sub-requirement that the Plaintiffs’ Constitutionally protected activity caused the retaliation, the Court noted that the District Attorney’s threat to charge the youth with felony child pornography was “not a genuine attempt to enforce the law, but instead an attempt to force the minor plaintiffs to participate in the education program.” Additionally, the continued threat of prosecution for not participating in the “re-education program” indicated that the charges were “retaliation for their refusal to engage in compelled speech.”  Miller, 24-25.

What is the Appropriate Deterrent?

The actions of the District Attorney in Miiller were extreme.  It will be interesting to see if the preliminary injunction is granted on the June 2, 2009 hearing.  Judging by the tone of the Court Order, I would think so. 

Cases such as Miiller may prompt state legislatures to determine the appropriate punishment for a teenager sending or receiving sexually suggestive photos from other teenagers.  Some states may find the current child pornography laws are sufficient, because the threat of having to register as a sex offender is a high deterrent.  Other states may try finding a lessor punishment. 

In the meantime, parents should have very frank discussions with their children about responsibility and consequences.

Name that Form of Production: Converting ESI to TIFF without Metadata is Not a Reasonably Useable Form

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. LEXIS 21250 (M.D. Fla. Mar. 4, 2009) is a lengthy opinion covering Rule 34 requests, form of production issues concerning metadata, reasonably useable form of production, ethical responsibilities for candor to the Court and Opposing Parties and sanctions.  One could imagine the fact pattern on a Bar exam for issue spotting. 

The Procedural History Highlights

Defendant Lexington Ins. Company requested electronically stored information “in native form without deletion or alteration of metadata” from Plaintiff Bray & Gillespie. Bray & Gillespie, 13.  Bray & Gillespie (B&G) instead produced non-searchable TIFFs stripped of metadata.  Several attorneys from Reed Smith also withheld material information and made misrepresentations to the Court and Opposing Counsel as the motion to compel saga played out. 

Lexington Ins. Company sought sanctions against the Plaintiffs and to compel the production of ESI with metadata. 

Short Overview of ESI Collection

B&G had student interns download electronically stored information and scan paper documents.  This information was copied to a “Target Hard Drive” and given to the law firm Anderson, Kill & Olick, P.C.  Extractiva was then used to convert the ESI to static images (TIFFs) and extract metadata.  This ESI was then loaded onto an Introspect review database.  Bray & Gillespie, 7-8.

Reed Smith became the attorneys for B&G after one of the lawyers left Anderson, Kill & Olick, P.C. 

The Discovery Request & Production

After Lexington made discovery requests for electronically stored information, the Plaintiffs produced paper documents on disk and agreed to a “rolling production.”  Bray & Gillespie, 14-15.  The Defendants brought a motion to compel several months later when the Plaintiffs had not begun a “rolling production.”  Bray & Gillespie, 17.

Nearly four months after the rolling production agreement, the Plaintiff produced some ESI from the Introspect database on disk.  Bray & Gillespie, 18. 

The Defendants renewed a motion to compel shortly after the first ESI production.  Bray & Gillespie, 20.  A second production followed after a Court order.

As the Defendants began reviewing the ESI productions, they learned the ESI was in TIFF format, with no metadata or extracted text for author, data, or subject.  Bray & Gillespie, 22-23.

Producing ESI in a Reasonably Useable Form

The Court stated that producing the ESI in TIFF format without metadata eliminated the search capabilities compared to producing the ESI in native form.  As such, the ESI production was not in a reasonably useable form.  Bray & Gillespie, 23.

There were two options for making the production searchable: Option 1) OCR the TIFFs and then run ALCoder over the OCR to populate database fields for author, date, etc.  This would cause an additional cost to the Defendants, since the material was already searchable in native file form.  Option 2) Produce ESI in native form with extracted text, which makes use of the already searchable native files. 

 …and then Things Get Worse with Misrepresentation to Court on ESI Collection

You know someone is getting sanctioned when a Judge uses a lawyer’s name and the phrase “concocted a story” in an opinion. 

One of the Plaintiff lawyers represented to the Opposing Party and the Court that the Plaintiff printed all of the ESI and it was then scanned as TIFFs.  Bray & Gillespie, 25.

The Court summed up the “concocted story” as ignoring readily available or known facts pertaining to the collection and production of ESI.  Bray & Gillespie, 25-26. 

Enter the Sanctions Motion

The Defendants were not happy.  The Defendants claimed the Plaintiffs violated the Court order to produce ESI according to the form of production stated in the discovery requests.  The Defendants sought production of ESI according to the discovery requests, striking portions of the Plaintiffs’ claims and reasonable costs. Bray & Gillespie, 28.

The Court ordered B&G to produce to the Defendants the Plaintiffs’ Introspect database, minus any privileged ESI.  Bray & Gillespie, 66.  Additionally, B&G was ordered to pay all costs, including buying software or hiring someone to copy the litigation support database.  Bray & Gillespie, 67-68. 

The Plaintiffs were also required to allow a Defense computer expert direct access to the Plaintiffs’ Introspect database to confirm all non-privileged information had been produced.  Bray & Gillespie, 67-68. 

The lead attorney for the Plaintiffs was sanctioned and ordered to pay attorney’s fees and costs, which included the testifying expert and the Court reporter for transcribing the sanctions hearing. Bray & Gillespie, 71-72.   Others were sanctioned as well.

This is a very lengthy case that is fact intensive.  Every detail is not summarized in this blog.  The case is worth reviewing for the discussion on the reasonably useable form of production, discovery misconduct and the sanctions motion.