Juror Misconduct: When the Judge Says Don’t Talk About the Case, that Includes Facebook & Twitter

Who knew 140 characters, a few status messages, and tags could play a big role in a court opinion hitting juror misconduct? 

It is not a huge surprise in a criminal case involving politics, money and fraud. 

A Little Background: The Criminal Case against the Defendants

Multiple Defendants were charged with 141 counts of the following:

(1) Fraud and conspiracy to defraud the Pennsylvania Senate;

(2) Fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods (“Citizens Alliance”);

(3) Conspiracy to defraud the United States Internal Revenue Service (“IRS”);

(4) Fraud related to the Independence Seaport Museum (“ISM”); and

(5) Obstruction of justice and conspiracy to obstruct justice. United States v. Fumo, 2009 U.S. Dist. LEXIS 51581 (E.D. Pa. June 17, 2009)

To keep things interesting, one Defendant was a Pennsylvania State Senator.

The “Honorable” Senator was found guilty of 137 of the 139 charges against him.

Don’t Tweet the Trial

The Defendants claimed they were entitled to a new trial because one juror had Facebook status messages and Twitter “Tweets” during the trial.  Fumo, 184-185. 

Here is the short version of what happened:

One of the jurors worked in the HR department of a law firm.  Fumo,192. He also was a user of Facebook, Twitter and had a personal blog. 

Like many Web 2.0 savvy users, he would post status messages and “Tweets” about his day. These included messages about the trial, provided you knew what the juror was talking about, since he did not disclose any facts. 

Jury deliberations were under full steam…and a TV story ran on the trial on March 15, 2009.  Fumo,183-184.

The Defendants learned from the news report that one juror made online postings about the trial.  The Juror also saw the headline for the report and quickly deleted his Facebook and Twitter postings out of fear.  Fumo,183-184. 

The Defendants in turn immediately filed a motion alerting the Court to disqualify the juror.  Fumo,184. 

Just What Did the Juror Say?

Twitter Postings

The juror’s one Twitter posting was simply: “This is it … no looking back now!” Fumo, 193-194. 

Facebook Postings

Below is the Court’s summary of the Facebook Status Messages:

Sept. 18, 2008 (apparently upon continuance of trial judge due to judge’s illness): “… is glad he got a 5 week reprieve, but could use the money …”

Jan. 11, 2009 (apparently referring to the end of the government’s case): “… is wondering if this could be the week to end Part 1?”

Jan. 21, 2009: “…wonders if today will really be the end of Part 1???”

Mar. 4, 2009 (conclusion of closing arguments): “…can’t believe tomorrow may actually be the end!!!!”

Mar. 8, 2009 (Sunday evening before second day of deliberations): “…is not sure about tomorrow …”

Mar. 9, 2009 (end of second day of deliberations): “…says today was much better than expected and tomorrow looks promising too!”

Mar. 13, 2009 (Friday after completion of week of deliberations): “Stay tuned for the big announcement on Monday everyone”

 Fumo, 194-196.

No RT’s from the Defendants

Defense Counsel wanted the juror ”removed” from the trial, to borrow Twitter language.  They claimed the juror’s “behavior and his ‘utterly incredible testimony’ undermined his impartiality as juror.” Fumo,186-187.

The Court Tagging the Juror’s Comments

The Court held an in camera review one day after the news report.  Fumo,185. 

The Court was extremely supportive of the juror’s integrity and stated the following:

I just – - honestly, want to make sure my thoughts are on the record about this guy. My take on him is entirely different. My take on him is this is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established more so then I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury. Fumo, 185-186

The Court & Web 2.0

To the Court’s credit, the Judge included the “About” pages for both Facebook and Twitter.  Footnote 27 nicely summarizes Facebook’s Mission Statement “to give people the power to share and make the world more open and connected.”  Fumo, 184, fn 27. Additionally, the Court summarized Twitter as “a real-time short messaging service that works over multiple networks and devices.”  Fumo, 185, fn 27.

The Court’s RT on “This is it … no looking back now!”

The Court found that the juror’s ONE Tweet suggested “the jury’s decision had been made and that it was too late to influence him.”  Fumo, 194.  Moreover, the message was “so vague as to be unclear.” Fumo, 194.

The Tweet had no details on the case facts or showed any favor/disfavor to anyone in the criminal trial.  Fumo, 194.

Facebook Settings & Status Messages

The Court’s analysis of the Facebook Status Messages included reviewing the juror’s privacy settings.  The juror belonged to the 600,000 member Philadelphia network.  Anyone in this network could view his status messages.  Fumo, 195. 

The juror’s profile was configured so only “friends” could post comments on his profile.  “Friends” could either post messages on the juror’s “Wall” or send a Facebook Message.  Fumo, 195-196. 

Defense Counsel questioned the juror on for whose benefit he was writing his status messages.  The juror explained that his postings were:

“…more for my benefit to just get it out of my head, similar to a blog posting or somebody journaling something. It’s just to get it out there. And that’s what a lot of Facebook … it’s just to get — a way to electronically gets thoughts off your mind.”  Fumo, 196.

The Juror was questioned on whether any “non-friends” ever contacted him or did anything to influence his thinking on the case.  The juror answered:

“No. Because – - again, because they have to be someone that I befriended in order to be able to post on the wall. Whether or not they can see it, I’m not sure. But I know they can’t post on it without being one of my friends.” Fumo, 198-199.

The questioning of the juror was very extensive.  Mark Zuckerberg, founder of Facebook, would have been very proud of the juror’s explanation of Facebook’s appeal during the Defense questioning.  The juror described that “some people use [Facebook] for connection between other people. I use it, personally, as a way to journal my thoughts and get everything out.” Fumo, 199-200.

The Court’s Findings

The Court found no evidence that the juror was influenced by his Facebook postings.  There was no evidence “random individuals” contacting him.  Moreover, there was no evidence the juror’s “opaque” postings were detailed enough for members of the Philadelphia network to know what the juror was talking about. Fumo, 201.

Bow Tie Thoughts

Given the number of iPhone, BlackBerry and other smart phone users who can be in a potential jury, lawyers and judges should include “No Twitter, Facebook or social networking” in the jury instructions.

Admissibility of Text Messages: Challenging Authenticity

A criminal defendant appealing his conviction on ineffective counsel and insufficient evidence to support his convictions challenged text message evidence.  State v. Loye, 2009 Minn. App. Unpub. LEXIS 660, 1 (Minn. Ct. App. 2009).

The Defendant’s key argument at trial was challenging his victim’s credibility as the only witness to his attack upon her.  Loye, 2. Judging by his conviction, this obviously did not work out well for him. 

The Defendant argued the court erred in excluding text messages the victim sent after the assault.  The Defendant claimed these messages were relevant and were not barred as hearsay.  Loye, 3.    

The Court found no error.  Loye, 3.

Trial Procedure & Rules of Evidence

The trial court did allow some text message evidence that the victim “loved” the Defendant.  Loye, 3. 

Instead of offering text messages acquired from a cell phone with a tool such as Paraben, a collection expert who could explain collection methodology or a subpoena to a cell phone service provider to produce text messages, the Defense counsel offered a handwritten transcript of the text messages.  Loye, 4.

There was no one offered to authenticate this handwritten text message transcript.  The Prosecution objected to introducing the trial exhibit.  Loye, 3. 

The Defense successfully used the handwritten transcript to refresh the victim’s recollection and read into the record.  Loye, 4.  The handwritten notes were only admitted as a court exhibit and never went to the jury.

Flashbacks to Trial Advocacy 

Trial Advocacy and Evidence professors teach law students that “authenticity is a precondition to the admissibility of evidence.” Loye, 4.  

The Court found that the Defendants failed to lay any foundation with the handwritten text message transcript, thus the trial court properly excluded the evidence.  Loye, 4.  This might have been different if the Defendant had offered either the cell phone or a transcript from the cell phone service provider.

 

“If I Can’t Have It, No One Can”

The Defense tried arguing in the alternative that no text message evidence should have been admitted.  Loye, 4-5.  The Defense claimed that since the handwritten transcript was read to the jury to refresh the victim’s recollection, “The court erred by letting defense counsel cross-examine the alleged victim with the evidence without an accurate record that could be entered into evidence.”  Loye, 5.

Claiming prejudice because a jury has to rely on their own memories instead of text messages did not fly with the Court.  The Court noted jurors often rely on testimony and there was no explaination how this was prejudicial.  Loye, 5.

Admissibility Battles Can Be Avoided

Defense counsel could have avoided their inability to authenticate text messages with better case planning.  A subpoena could have been sent to the cell phone service provider on the victim’s text messages over the relevant time period.  A collection examiner could have defensibly imaged the victim’s (or the Defendant’s) text messages.  Photos could have been taken of the phone itself with the text messages.  However, none of those things happened.

MySpace and MyDefamation: Tagging Your Way to a Libel Suit

A lot can happen in 140 characters.  Someone can tag their way right into a lawsuit with a Wall to Wall Message, a public note or a Tweet.  This is one of those cases.

Procedural History

In a defamation case, a Philadelphia attorney (Plaintiff Corcoran) with a boutique copyright practice sued the Executor of the Estate (Defendant McCabe) of one of the Plaintiff’s former clients. Corcoran v. McCabe, 2009 Phila. Ct. Com. Pl. LEXIS 74 (Pa. C.P. 2009).

The Defendant defaulted on the Plaintiff’s complaint.  The Defendant appealed the assessment of $50,000 compensatory damages and $25,000 punitive damages for his defamatory comments. Corcoran, 1.

What Happened?  The Case Facts

The Plaintiff attorney was starting a firm that specialized in copyright infringement. Corcoran, 1

In one of the Plaintiff’s cases, he represented a group of local musicians in a suit against Microsoft.  Corcoran, 2.

One of the musicians was the Defendant’s brother, who died in 2000.  The Defendant acted as his brother’s Executor.  Corcoran, 2.

After the Microsoft case settled, the Plaintiff put the settlement funds in his IOLTA account for payment to his clients.  Corcoran, 2.

The Plaintiff issued an “Acknowledge Distribution” that stated all the costs in the copyright suit.  This statement was given to the Defendant.  Corcoran, 2.

The settlement funds could not be distributed to the Defendant Executor until the Estate processed and the state issued an inheritance tax clearance.  Corcoran, 2. 

The Plaintiff attorney not only explained these issues to the Defendant, he volunteered to help pro bono.  The Plaintiff processed the required papers and was waiting for the tax clearance.  Corcoran, 2-3.

No Good Deed…

The Defendant posted the following statement on a MySpace profile on October 22, 2007, with full knowledge of the Plaintiff’s actions on his brother’s behalf:

Bored? Call Connor Corcoran and ask him why Sean McCabe’s share of the settlement went in his pocket. Neither Sean’s family or his estate has received any money. It has been well over a year since suit was settled and the rest of the members received their share. Corcoran, 3.

The posting was reposted on an internet entertainment blog along with the attorney’s phone number.  Corcoran, 3.

The tax approval was made on November 29, 2007.  Immediately thereafter, the Plaintiff sent the Defendant his brother’s share of the settlement check.  Corcoran, 3.

The Plaintiff’s Damages

The Plaintiff had not had any new copyright infringement clients since the Defendant’s October 22, 2007 posting about him “pocketing” his client’s settlement money. Corcoran, 3.

The Court’s Findings

The Court wasted no time saying the Defendant’s actions were defamatory.  The Plaintiff Attorney represented both the Defendant’s brother and his Estate properly and acted correctly.  Corcoran, 4. The statement was made with no legal right.

The Court quashed the Defendant’s appeal on the procedural grounds because “post trial relief must be filed within ten days of the decision in a case of a trial without a jury.” Corcoran, 4-5.

Social Networking Sites & Defamation

People using social networking sites often express statements that they normally would not state in person.  People often “flame” others for political views, status messages and reasons too numerous to name.   This will result in litigation originating from 140 characters of “Status message” litigation or “Tag Defamation” only increasing with time.

Compelling Production of Hard Drives & Metadata to Show Time Worked

The Defendants in a disability suit brought a motion to compel for the following ESI from the Plaintiff:

(1) The Plaintiff’s desktop computer hard drive;

(2) Any computer hard drive the Plaintiff used for business from March 23, 2005 until the present; and

(3) All business computer storage media from March 23, 2005 until the present. Kravetz v. Paul Revere Life Ins. Co., 2009 U.S. Dist. LEXIS 51230, 2-3 (D. Ariz. June 10, 2009).

Defendants’ Reasons Demanding for Hard Drives

The Defendants wanted a third party consultant to review the ESI from the Plaintiff’s hard drives to determine how many hours the Plaintiff spent typing a day. Kravetz, 2-3.

Plaintiff’s Opposition to Producing Hard Drives

The Plaintiff fought the motion to compel as being overly broad and unduly burdensome.  Kravetz, 3.  The Plaintiff also offered an e-discovery expert declaration stating the Defendants would not be able to determine the number of hours the spent typing from the metadata of the ESI from the hard drives. Kravetz, 3.

Analysis of Federal Rule of Civil Procedure Rules 26 & 34

Federal Rule of Civil Procedure Rule 26(b)(1) allows for “Parties [to] obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” Kravetz, 3.

Federal Rule of Civil Procedure Rule 34(a)(1)(A), gives a requesting a party a right to “inspect, copy, test, or sample ‘any designated documents or electronically stored information.’” Kravetz, 3.

The Court found the Defendants demonstrated the relevancy of Plaintiff’s metadata to show the time spent working before and after his disabilities.  Kravetz, 3-4.  As such, the production of the hard drives and media was allowed.

The Court Guarding Against Intrusiveness?

The Court order has a little twist: The Defendants “…may only extract metadata and other necessary electronic information regarding the amount of time spent on documents, but not the substance of the documents themselves.”  Kravetz, 3-4.

While the Court did not outright cite the Advisory Notes to Federal Rule of Civil Procedure Rule 34(a), the Court seemed to be guarding against the massive intrusiveness of reviewing someone’s personal computer. 

The Advisory Committee Notes state that the direction inspection of a computer has both privacy and confidentiality concerns.  As such, “Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”  Diepenhorst v. City of Battle Creek, Slip Copy, 2006 WL 1851243, 3, citing Advisory Committee Notes.

While the Court did not issue a protective order, and the analysis on compelling production of the hard drives was very brief, the limiting language of the discovery order did give the Plaintiff some protection from the imagining of both personal and business hard drives.

Request for Production: Any and All Documents in the Past 46 Years Supporting the Overthrow of a Communist Government

Sometimes there is a case that is just too unique to pass up.  This is one of those cases.

The Defendants in a criminal case were charged  in a conspiracy to ship weapons to Laos to overthrow the Communist Government.  United States v. Jack, 2009 U.S. Dist. LEXIS 43120, 2-3 (E.D. Cal. May 9, 2009).  The charges included: 

1)      Conspiracy to violate the Neutrality Act.

2)      Receive and possess firearms and destructive devices; and

3)      Export listed defense items without a State Department license;

4)      Conspiracy to kill, kidnap, maim and injure people in a foreign country;

5)      Conspiracy to possess missile systems.  Jack, 2-3.

The Defendants sought discovery from 1961 to 2007 documenting communications between different government agencies and the Defendants regarding U.S. “policy, planning or conduct towards the government of Laos.”  Jack, 6. 

The Defendants argued this discovery spanning Presidents Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush 1, Clinton, and Bush 2, was “material to the defendants’ state of mind with regard to the alleged conspiracies as well as to their possible defenses of outrageous government conduct, entrapment and defense of others.” Jack, 6.

The Defendants claimed they this evidence would show they would not have taken action against Laos without the approval of the United States.  Jack, 6.

The Defendants further argued that this evidence would show the United States was not “at peace” within the meaning of the Neutrality Act.  Jack, 6.

The Possible Electronically Stored Information: Wiretaps & Email

The Defendants sought production of “all recordings or documents resulting from the interception of their telephone, email or other communications by presidentially approved warrantless interception, by the NSA and/or by a NARUS computer.”  Jack, 11. 

The Defendants cited various news articles and court decisions to highlight the post-September 11, 2001 terrorist attacks intelligence gathering practices to show NSA and government eavesdropping might have intercepted phone and email messages from the Defendants.  Jack, 11. 

The Government’s Take on the Defendants’ Requests

Somewhere, some Assistant United States Attorney had many late nights briefing a discovery opposition.  The Defendants sought documents regarding assassination attempts and 46 years worth of documents. 

The Prosecution claimed that the government produced all discovery pertaining to call history, court-ordered wiretaps, and emails seized according to search warrants.  The Prosecution stated that there was no NSA or other government agencies with intercepted communications.  Jack, 18-19.

Enter the Court

I am sure the Judge had a few choice private moments sitting in front of his computer considering the underlining facts of conspiracy to overthrow of a government and posses a missile system.

Things generally get bumpy when a Court states it had a “difficult time ‘getting its arms around’ this motion.” Jack, 21.  On one side were Defendants who wanted 46 years worth of documents and on the other U.S. Attorneys who thought the trial was a mere formality for Defendants who were guilty as charged.  Jack, 21. 

Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), the prosecution must produce discovery “”which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense.”  Jack, 22. 

If you like history, politics and enjoy cases involving Iran Contra, the Court had very detailed analysis of how the United States being in an undeclared war is not being “at peace” with that country.  Jack, 35-37.  However, that is beyond the scope of this blog. 

The Court ordered the Government to produce any and all documents or communications from January 1, 2005 to June 3, 2007 that evidenced any covert or overt military ops with respect to Laos.  Jack, 37-38.

One can imagine how the government would conduct a diligent search: constructing key words and possible redactions in the name of national security for any production.  

As for the Defendants’ request for any “recordings or documents obtained by the government constituting or describing cell telephone calls, emails or other communications,” the Court denied the request.  Jack, 41-42.

The Court reasoned that since the Government had produced all communications they had pursuant to court-ordered wiretaps and search warrants, there was no reason to compel discovery that did not exist.  Jack, 41-42.

Bow Tie Thoughts

“Jack” is a wild case.  The fact the Government had to produce material from January 2005 to June 2007 regarding military operations or plans in Laos is an impressive win for the Defendants.  While it is unknown how the government maintains such information, the search would be very interesting to observe.

Motion to Compel Camera Phone Photo

Just as the Def Leppard Song Goes: All I got is a photograph — and it is not enough. (from the classic Photograph)

The Defendants requested a photo from a Plaintiff that was taken on his cell phone.  The Plaintiffs in turn produced the photo.

There was one little problem with the production for the Defendants: They thought the photo was of poor quality. Green v. Fluor Corp., 2009 U.S. Dist. LEXIS 49335 (M.D. La. June 11, 2009). 

The Defendants brought a motion to compel production of the Plaintiff’s camera phone and email account, in an apparent attempt to see a “better quality” photo.

Problems with the Motion to Compel:  The Defendants never made a Rule 34 request to inspect or produce the Plaintiff’s camera phone or his email account. Moreover, the Defendants did not state a form of production for the photo pursuant to Federal Rule of Civil Procedure Rule 34(b)(1)(C).  Green, 1-2.

The Plaintiff had the right pursuant Federal Rule of Civil Procedure Rule 34(b)(2)(E) to produce the photograph in either the “form it is ordinarily maintained” or in a “reasonably usable form.” Green, 2.

The Defendants did not challenge the authenticity of the photo.  Additionally, the Defendants did not claim that viewing the photo on the Plaintiff’s cell phone or his email would give them anything new or useful. Green, 1-3. 

The Plaintiff did not have to re-produce the photo.  Federal Rule of Civil Procedure 34(b)(2(E)(iii) only requires a party to produce electronically stored information in only one form.  As such, the Defendants did not have a right under the Federal Rules of Civil Procedure to view the photo on the Plaintiff’s email or cell phone. Green, 3.

The lesson learned: If you want a cell phone photo, be very specific in your request for production and state the form of production.  A motion to compel cannot correct a failure to state the form of production in your original request.

Dodging a Mistrial for Juror Misconduct

In an age where reporters are Tweeting from Courthouses and Citizen Paparazzi (Snaparazzi) roam the streets with iPhones, one can imagine a slip of the tongue resulting in juror misconduct. 

In the nightmare case of an elderly defendant who drove through a farmers’ market, the question of juror misconduct surfaced via a reporter’s blog.  People v. Weller, 2009 Cal. App. Unpub. LEXIS 4685, 44-45 (Cal. App. 2d Dist. 2009).

A reporter on her post-verdict blog stated that one juror sought spiritual counseling from his minister during a recess from deliberations.  Weller, 44.  

The Problem: A juror cannot discuss a pending trial with a nonjuror.  Weller, 44.

The only evidence offered to show any juror misconduct was the blog.

The blog was insufficient to show any misconduct, because there was no evidence that the juror discussed the case with his minister.  Weller, 44. 

Things could have gotten exciting (on an evidentiary level) if the juror had been questioned on what he talked to his minister about, which could have resulted with the juror claiming the clergy- penitent privilege.

This privilege gives the penitent the right to refuse to disclose a penitential communication.  Cal Evid Code § 1033. 

One can wonder if the Defense could compel disclosure to show juror misconduct by claiming the Defendant’s Constitutional right to a fair trial. My guess would be “no,” because the verdict had already been issued and an appellate court will not be doing any fact finding.

If this had come up during trial, then perhaps the Trial Court would have simply excused the juror to avoid a clergy privilege vs Constitution showdown.

Anyone who has confidences to maintain, be it a juror, or a doctor, or anyone who wants to hold a private conversation, should be very careful with what they say in public. The ability for “citizen journalists” to post information in “real time” on Twitter, Facebook or a blog is a fact of life that can ruin your day.

The Return of Covad Communications: Forensic Imaging of Databases & Email Servers

Magistrate Judge Facciola’s “Christmas Eve” opinion now has a sequel: Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 47841 (D.D.C. May 27, 2009).  This opinion is very detailed covering issues of forensic examinations, email servers and commentary on retention policies.  I encourage lawyers to look at this opinion. 

The issues in Covad II were the following: 

(1) Whether Plaintiff Covad Communications Company could conduct a forensic search of Defendant Revonet, Inc.’s computers and servers;

(2) How those searches should be conducted; and

(3) Who should pay the cost? Covad, 1.

The crux of the lawsuit was the expropriation of information from Covad by Revonet, who ran made an outbound phone marketing campaign.  Covad, 1-3.

Taking the Deep Dive

Judge Facciola is no stranger to wading deep into the waters of detailed facts and technical requirements for preserving, searching and reviewing electronically stored information. 

This time around, the judge put on a cold water survival suit jumped into Antarctic waters. 

This case involved a complex set of facts to image multiple servers, complete with failures over the years, different back ups, located in New Canaan and Sioux Falls.  Covad, 5-9.

The findings of fact were 14 paragraphs from three hearings, plus a page and a half grid accounting for the lives of different hard drives and servers.  Covad, 10-11.

The Heart of the Lawsuit

The “heart of the lawsuit” was not limited to the original “Federated Database” that the Defendants used for outbound and inbound leads, but the electronically stored information outside of the marketing campaigns to show what the Defendants did with the ESI.  Covad, 13. 

The Plaintiffs argued they needed a forensic image to search the database’s historical data.  Covad, 12.

The Defendants fought against a full forensic image and argued only two of the marketing campaigns were at issue.  Covad, 12.

The Court sided with the Plaintiffs.

Forensic Searches of Databases

The issue of forensic image and forensic searching of the databases launched an in depth review of Federal Rule of Civil Procedure Rules 26 and 34. 

Federal Rule of Civil Procedure Rule 34 allows for the copying of electronically stored information, limited by Federal Rule of Civil Procedure Rule 26(b)(1) to “any non-privileged matter that is relevant.” Covad,12.

The Defendants claimed because the database had “confidential” material, imaging was not appropriate.  Covad, 12.  The Court disagreed. Any issues regarding confidential material could be addressed with a protective order, which was not a reason to bar a forensic image.  Covad, 12.  

Federal Rule of Civil Procedure Rule 34 is not an express way to an opponent’s hard drive.  The Advisory Committee notes, followed by case law, have put the breaks on making the default standard forensic examinations of hard drives.  Covad, 13, citing Fed. R. Civ. P. 34, Advisory Comm. Note (2006).  Additionally, because of confidentially and privacy issues that I have seen judges cringe over, “compelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests implicated by forensic imaging before ordering such procedures.” Covad, 13 (citations omitted).

The Court explained that the issue of forensically inspecting a party’s hard drive was subject to the balancing test of Federal Rule of Civil Procedure Rule 26(b)(2(C) because of undue and unnecessary burden.  Covad, 15-16. 

 The Defendants claimed undue burden because their servers were “old” and could crash. Covad, 16. 

The Court rejected the Defendants’ arguments.  First, the forensic imaging was ordered to be done over a weekend, as to avoid interfering with business operations.  Second, the searches were to be done on the forensic copies, so the databases would not be affected.  Third, the forensic images and searchers were to be covered by a protective order.  Covad, 16. 

The Court found that the balancing requirements under Rule 26(b)(2)(C)(iii) established that the benefit of forensic examination outweighed any burden, considering the amount in controversy and the issues at stake. Covad, 16-17. The Court noted this case was also a paradox, because allowing the discovery was the only way to determine the “amount in controversy,” “the likely benefit,” and the “needs of the case.”  Covad, 17. 

Judge Facciola ordered the databases to be forensically imaged based on the overwhelming necessity for the discovery.  Covad, 18. Now, the email was a different story.  

Email Servers

The Plaintiffs sought the forensic examination of the Defendants’ email servers because 1) the email production was incomplete; 2) the email production suggested the Defendants used email to pass leads onto clients; and 3) the Defendants’ email servers crashed after the litigation began, but before discovery.  Covad, 19.

The Court cited examples of companies poor document retention and destruction policies, plus examples of different individuals saving more email than another coworker, as possible ways gaps in email can occur. Covad, 20-21.  The Court further stated:

…I cannot find any authority in the cases to date that permit a court to conclude that allegations of deficiencies in themselves automatically require a forensic search whenever a party claims that there are, for example, fewer e-mails from a person or about a subject or transmitted in a given time than the party expected to find. This would result in forensic examinations in virtually every case, which would increase the cost of litigation involving electronically stored information markedly not only because of the cost of the examination itself, but also because it would yield information that would have to be sorted for relevance and privilege. Experience shows that the latter, involving expensive reviewing of “e-mail strings” by lawyers, paralegals or by vendors to whom the work has been outsourced, may dwarf the cost of the search. Covad, 21-22.

The Court stated that the forensic search of email servers should require a showing that a producing party did not meet their Rule 26(g) production requirements that the production was “complete and correct as of the time it was made.”  Covad, 22, citing Fed. R. Civ. P. 26(g)(1)(A). 

The Court “reserved judgment” on imaging the email servers, because

1) The forensic examinations that were being allowed might produce evidence of how email was used to pass on leads; and

2) The Defendants repeatedly asked the Plaintiffs for suggested search terms, which went unanswered.  Covad, 22-23. 

Who Pays the Bill?

 Magistrate Judge Facciola’s discussion on costs is worth reading in its entirety. 

The Court noted that the expansion of technology and storage media has created the “antithesis” of a records management policy: People save everything. Covad, 29.  

This phenomenon causes increased costs in collection, processing and review of electronically stored information.  As the Court stated:

[N]ew technologies have the capacity to be outcome determinative but often at significant expense. Thus the courts are required to strike a balance between allowing the requesting party to take full advantage of the technologies available to it and protecting the producing party from having to pay to leave no stone unturned. Resting all of the costs of electronic discovery on the producing party may create a perverse incentive on the part of the requesting party to dispense with reason and restraint and unleash every new technology under the sun to try and find information that supports the requesting party’s claims. 29-30.

The Court held the Defendants were required to pay the production costs, but specifically limited to the forensic copy.  The Plaintiffs were required to pay for their own expert to review the produced forensic copies.  Covad, 30.

Bow Tie Thoughts

This is a very well thought out opinion that covers many issues for the forensic imaging of databases, servers and costs.  This blog posting does not cover every issue and the opinion is definitely worth reading.

The Plumbing of a Motion to Compel

In a product defect case about brass plumbing fittings, the Defendants fought a motion to compel electronically stored information relevant to class certification, because of undue burden and cost.  They lost…in large part. In re Zurn Pex Plumbing Prods. Liab. Litig., 2009 U.S. Dist. LEXIS 47636, 1 (D. Minn. June 5, 2009).

Paper Clogging the Drain

The Court initially required the parties at the beginning of the litigation to only focus on hard copy documents out of the concern the electronically stored information would drive up the cost.  2.  The Court stated:

“ESI may prove to be relevant to the first stage of discovery, we cannot meaningfully make that prediction now, and require the parties to engage in what could be vastly more expensive, and yet utterly futile, discovery.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

 

The Court further stated on electronically stored information:

“[S]hould the parties uncover voids in the information disclosed in hard copy form, they are . . . at liberty to press for further discovery including electronically stored information.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

The Defendants’ Electronically Stored Information

Deposition testimony revealed the Defendants’ electronically stored information includes employee email folders and files on the network system.  Additionally, the ESI of former employees’ were archived on DVD.  There was also a separate network drive that contained un-segregated folders from over 600 employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 2-3.

Enter the Litigation Hold and Search Terms

The Defendants produced a list of individuals who were issued a litigation hold. In re Zurn Pex Plumbing Prods. Liab. Litig., 3.

The Plaintiffs in turn requested searches across the different databases with 26 key words.

The Defendants opposed the request as being “not necessary for class certification and that the request was overly broad and would be extremely costly.”  In re Zurn Pex Plumbing Prods. Liab. Litig., 3. 

The Defendants’ Arguments Going Down the Drain

The Defendants argued that 1) the first Court Order did not allow for any ESI productions and 2) producing ESI would be unduly burdensome and costly. 

The first Court order did NOT foreclose electronic discovery.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4.  The Court stated the first Order allowed for electronic discovery if there were “voids in the information disclosed in hard copy form.” Id.  The Court noted email messages showed possible gaps over fittings failures and aggressive water compared to the paper documents.  Id. 

The purpose of civil discovery is to allow parties to “obtain the factual information needed to prepare a case for trial.” In re Zurn Pex Plumbing Prods. Liab. Litig., 5.  Despite the discovery being limited to class action certification, the Court stated there was a presumption in favor of production the Defendants’ electronically stored information.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4-5.

Cost Counts

The Defendants were able to stop a complete rout with their cost arguments. 

The Defendants had approximately 61 gigabytes of data, which would have totaled around 27 million pages if printed.  The Defendants estimated searching all of the databases to cost around $1,150,000 and take seventeen weeks to perform.  That did not include collection and processing. In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7.

The Court Order

The Court did not buy the Defendants’ burdensome arguments, especially considering a lawyer who was not an expert on searches made the claim. In re Zurn Pex Plumbing Prods. Liab. Litig., 6.

The Court did try to limit false hits from the search terms by limiting the number of search terms to 14 specific terms.  The Defendants’s searches were limited to the network drives, custodian emails and the DVDs of the former employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7. 

Bow Tie Thoughts:

The parties would have been better served addressing electronically stored information at the beginning of the lawsuit, instead of delaying it for over a year.  Both sides would have been in a better position to judge class certification or settlement options if they knew the big picture.  Moreover, the Defendants had over a 600 person company.  Using email would be a fact of life.

The collection, processing, data reduction and review of 61GB would not be cheap, but $1,150,000.00 for the searches alone over 17 weeks sounds inflated. 

The perceived cost might be inflated by thinking of electronically stored information as the same as reviewing 27 million pieces of paper.  ESI can be reduced by targeted collections, pre-discovery tools to reduce the data set that are then fully searchable in a litigation support software.  With paper review, lawyers, contract attorneys and paralegals are digging through boxes of paper only searchable by the human eye. One can see where a seventeen week estimate comes from such a brut force search. 

Processing costs, which include data reduction to cull down electronically stored information, is approximately $600 to $1000 a gigabyte, depending on the vendor’s services.  Attorney review in a litigation support software is reduced by having to review less ESI, such as not reviewing any email newsletters, spam and focusing on specific date ranges.  With that said, estimating the cost to search 61GB that also did NOT include collection and processing to be over a million dollars seems high on the facts presented.

Litigation Holds, Web 2.0 and e-Discovery at the Arkansas Bar Association Meeting

I presented at the Arkansas Bar Association in Hot Springs on June 12, 2009.  

I have presented nearly 100 CLE seminars, but this was my first state bar association meeting.  It was a privilege to travel to Arkansas to discuss Web 2.0 litigation and current trends in discovery.  I look forward to returning to Little Rock in the future.

Thank you Arkansas Bar Association for being such a great host.

Discussing litigation holds and the duty to preserve (please forgive the audio).