New Bad Idea: Claiming You Can Produce ESI as PDF’s because “Native File” is “Ambiguous”

In Cenveo Corp. v. Southern Graphic Sys., 2009 U.S. Dist. LEXIS 108623 (D. Minn. Nov. 18, 2009), the Defendant propounded the following discovery request:

“Defendant requests that these documents be produced in native format with all attachments in native format.” Cenveo Corp., at *2.

The Plaintiff produced all electronically stored information as PDF’s.  Cenveo Corp., at *2.

The Plaintiff argued (and probably very forcefully) that since the Defendants did not define “native format,” the PDF production complied with Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii).  Cenveo Corp., at *3. This Rule provision states the following:

“If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii).

The Plaintiff’s argument that the “failure” to define “native format” thus allowed them to produce ESI as PDF’s was not quite the Hindenburg of “form of production” arguments, but it did go down in flames.

The Court held that the term “native format” was “unambiguous.”  Cenveo Corp., at *3-4.  Moreover, the Court found the Plaintiff failed to comply with the Defendant’s request for native file production and Federal Rule of Civil Procedure Rule 34(b)(1)(C), which allows a requesting party to specify the form of production.   Cenveo Corp., at *4. 

The Court recounted multiple cases and several secondary sources which define “native format.”  The reoccurring theme for the definition of “native format”  is the “default format of a file,” which is “typically provided through the software program on which it was created.” Cenveo Corp., at *4, citing Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 353 n.4 (S.D.N.Y. 2008).

The Court held that Plaintiff had to produce (or re-produce) responsive electronically stored information in native file format.  Cenveo Corp., at *7-8.  The Court further found that the Defendant’s requests were neither overly broad or unduly burdensome.  Id. Moreover, the Plaintiff offered no argument why it could not produce the ESI in native file format.  Id. As such, the Plaintiff was required to produce their electronically stored information as native files.

Bow Tie Thoughts

Courts are not tolerating parties who play games such as “I don’t know what you mean by ‘native format’?”  Electronically stored information is part of everyday life with people using Droids and sending mobile Facebook updates.  While there will always be gamesmanship in litigation, claiming “native format” is an undefined term is like asking, “what do you mean by ‘paper’?”

Boarding a Flight with Foreign Based Discovery for the Holidays

In the spirit of holiday travel, the Plaintiffs in Park v. Korean Air Lines Co., 2009 U.S. Dist. LEXIS 107647 (C.D. Cal. Nov. 18, 2009) brought a motion to compel discovery regarding tickets purchased in South Korea to show price fixing. 

As quickly as you can say “What’s your clearance, Clarence?” the parties in Park entered the world of foreign-based discovery. 

Federal Rule of Civil Procedure Rule 26(b) provides that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”  Park, at *4, citing Fed. R. Civ. P. 26(b). 

Seeking discovery from foreign parties in electronic discovery can be a minefield when it comes to foreign privacy laws.  Luckily, this was not one of those cases.

The Plaintiffs wanted the foreign discovery to help determine when the Defendants’ price fixing conspiracy ended.  Park, at *4-5.  Federal case-law vindicates the relevancy of foreign discovery in antitrust litigation for this purpose.  Examples include the following: 

Documents relating to meetings or communications with competitors outside the U.S. may be relevant to establish conspiracy.  Park, at *5, citing In re Urethane Antitrust Litigation, 2009 U.S. Dist. LEXIS 71135, at *21, *24 (D. Kan. Aug. 11, 2009).

“Evidence of foreign price-fixing among Defendants would also be material to prove that they had the opportunity and ability to engage in domestic price-fixing for automotive refinishing paint.” Park, at *5, citing, In re Automotive Refinishing Paint Antitrust Litigation, 2004 U.S. Dist. LEXIS 29160, *12 (E.D. Pa. Oct. 29, 2004)

Discovery may be relevant to show “how the conspiracy was maintained for the length of time alleged.” Park, at *5, citing, In re Vitamins Antitrust Litigation, 2001 U.S. Dist. LEXIS 8904, at *64 (D.D.C. June 20, 2001).

However, merely showing foreign discovery is relevant is only part of the analysis. The parties have to determine discovery protocols, which might include agreeing on custodians or limiting discovery to individuals with decision-making authority.  Park, at *6, citing In re Urethane Antitrust Litigation, 2009 U.S. Dist. LEXIS 71135 (D. Kan. Aug. 11, 2009) and In re Vitamins Antitrust Litigation, 2001 U.S. Dist. LEXIS 8904 (D.D.C. June 20, 2001).

In Park, the parties did not meet and confer on these issues.  Park, at *6. 

The Court ordered the parties to meet and confer on the foreign-discovery regarding pricing decision in South Korea and the United States. 

The parties were directed to discuss custodians, search terms and ways to reduce the volume of electronically stored information that would be both searched and produced.  Park, at *7.  While it was not stated, the parties should also consider which litigation support software to use with foreign language capabilities.

Bow Tie Thoughts

Holiday travel can be stressful, with long lines and individuals who are not used to airports and flying.  Electronic discovery can also cause nightmarish stress with large volumes of email, Excel files and lawyers who are trying to review native files like they were in box of paper one document at a time.  Leveraging litigation support software which can sort by custodians, dates and keywords can focus the review on the discovery that matters. 

Parties are well served in determining decision makers, custodians, search terms and data reduction strategies in any situation dealing with electronically stored information.  Focusing on these issues at the intake of a case reduces costs and control the volume of discovery.  Such diligence can also reduce the feeling of being trapped on a runway for 3 hours.

Bribing Witnesses with Text Messages, Cell Phones and Fake Email Accounts

Sometimes there are fact patterns that surprise you how far we have come with technology and the foolishness of people. 

In People v. McInnis, the Defendant was convicted of attempted witness bribery.  The Defendant attempted to keep witnesses from testifying against the Defendant’s nephew, in the nephew’s trial for robbery and kidnapping.  People v. McInnis, 2009 Cal. App. Unpub. LEXIS 9046 (California Unpublished Opinions 2009).

The basis of the Defendant’s appeal was based on alleged “outrageous governmental conduct” by a police investigating officer. 

The Court upheld the conviction. 

The Bribe

One of the victims in the robbery and kidnapping case received the following letter with a cell phone number to call:

“The purpose of this letter and its contents is to compensate you for your initial loss that occurred as a result of the robbery. I believe you have at least 1 Thousand reasons to be compensated for your pain and suffering. However, I feel that because you are the true victim in this crime, you deserve much more compensation for your pain and suffering. While it’s obvious that the defendants don’t have the ability to adequately compensate you, I do have the ability to do so on their behalf.”

“Obviously this correspondence and agreement has to be kept confidential and not disclosed or shared with the District Attorney or Police. . . . Remember the District Attorney works for the people (you & me) and you have every right to tell the DA you don’t want to testify and he can’t force or threaten you to.” McInnis, at *2-3.

The letter ended with “there are at least 25 thousand reasons why you would like to immediately settle the case in a civil manner instead of being a witness in a criminal court.” McInnis, at *3.

The victim turned over the letter to the authorities who launched an investigation.

Other letters were sent to the two victims offering $50,000 to settle the criminal suit against the Defendant’s nephew.  McInnis, at *5 (which should send ethics lawyers into orbit).

The investigating police officer left multiple phone messages with the number on the letter. A text message was sent to the investigating officer saying, “Leave me a message with your questions. I am going to send the money, I swear.”  McInnis, at *6.

Tracking Down a Cell Phone

The police investigation in tracking down the Defendant’s cell phone was a case study of how far we have come with technology.

The police officer was able to trace the exact sale date of the cell phone, the cell phone carrier (Virgin Mobile), the fake purchase name (Joe Gift), the store it was purchased from (Radio Shack), and that it was activated at a FedEx Kinko’s near the store where the Defendant purchased the phone.  McInnis, at *6-7.

Virgin Mobile indicated the specific time, down to the minute, the cell phone number had been activated, including the fake name used for the Yahoo! email address.  McInnis, at *7.

The police officer used “Yahoo! Emergency Disclosure Request Form” to determine the identity of the Yahoo! subscriber. McInnis, at *7.

The investigation showed the IP address where the account was activated was a FedEx Kinko’s in Los Gatos, California.  McInnis, at *7.  From there, the police were able to review the store security cameras and identify the Defendant later in Court. McInnis, at *7.

“Outrageous Conduct”

The “outrageous conduct” was the police officer overstating the threat against the victims on  ”Yahoo! Emergency Disclosure Request Form.”  While the officer exaggerated the danger, the Court found this was not shocking conduct that rose to the level of “outrageous conduct.”  McInnis, at *21-21. 

What is Interesting about This Case…

Tracking down a suspect by IP addresses, fake email names and security video sounds like something out of “24.” These electronic finger prints are all markers of electronically stored information.  Just as civil litigation is dealing with “forms of production,” criminal law have also adopted to the Digital Age.

Don’t Text & Drive…but Can the Police Search Your Cell Phone at the Traffic Stop?

“The plaintiffs have not explained why the City of Chicago had no authority to enact legislation designed to protect the safety of its roads in this way, nor can we think of any restriction on its powers under either federal or state law that is so obvious we would need to take note of it here. The district court correctly dismissed the plaintiffs’ Fourth Amendment claim.”

Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir. 2009)

Hands Free Means Hands Free in Chicago

In case anyone was wondering, those Hands Free laws are Constitutional, at least in Illinois. 

In Chicago, three drivers ticketed for driving while on the phone challenged the Constitutionality of the “Hands Free” law. Schor, 779.

The law states no person is to drive a vehicle while using a cell phone, unless they have a hands free device (or three other exceptions). 

The Plaintiffs claimed the police violated the 4th Amendment  when the Plaintiffs were pulled over for talking on the phone.

It is well established law that the Fourth Amendment is not violated if a police officer has probable cause for a traffic stop.  Schor, 779.

In this case, the police officers saw the Plaintiffs violating the Hands Free law by using their cell phones without a hands free device.  As such, the violation of the valid traffic law provided probable cause for the officers to stop the Plaintiffs.  Scho, 779.

Cell Phone Search During a Traffic Stop?

If someone is stopped for breaking a Hands Free law, an interesting question is whether the police can do a warrantless search of the cell phone.

As a preliminary matter, a person has a reasonable expectation of privacy over their cell phone. United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007).

In United States v. Zavala, the police officer checked a driver’s cell phone during a traffic stop. 

The Government argued that a “phone check” was the same as asking for someone’s driver’s license and proof of insurance.  United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008).

The Court thought otherwise, stating that a cell phone is totally different then a driver’s license and proof of insurance.  First, a cell phone is not issued by the state, like a driver’s license, nor required by law, such as proof of insurance in most states.  Zavala, 577.  The Court noted that cell phones are more than just calling devices, containing private information, such as text messages and address books.

The Court went on to state that going through a cell phone at a traffic stop was like “general rummaging in order to discover incriminating evidence.” Zavala, 577. 

Conversely, the Finley Court held that a warrantless search of a cell phone was proper after the arrest of a suspect, thus there was no Fourth Amendment violation in retrieving the call records and text messages from the suspect’s cell phone. Finley, 259-260.

What will be the search and seizure law if someone is stopped for breaking a Hands Free law? A court in one of the 18 (and growing) states with Hands Free laws will answer this question.

Bow Tie Thoughts

It will be an interesting question if a police officer making a traffic stop can ask for an individual’s phone to verify the time of the last call and if that search would violate the Fourth Amendment.

I personally think it would violate the Fourth Amendment.  I believe courts would follow the logic of Zavala, because of the personal information contained on Smartphones, and prohibit the search of a cell phone on a traffic stop for violating a Hands Free law.  The practice also just smacks of “rummaging” in someone’s phone “in order to discover incriminating evidence.” However, this is an unsettled issue of law.

When Jurors “Friend” the Plaintiffs on Facebook…

Plaintiffs brought a motion for a new trial because of an email sent by a juror to the Plaintiffs’ attorney four days after a defense verdict.  Wilgus v. F/V Sirius, Inc., 2009 U.S. Dist. LEXIS 100094 (D. Me. Oct. 27, 2009).  The email stated:

 [D]id you know your plaintiff[s] advocated the use of mushrooms and weed smoking, and binge drinking all over the internet? . . . It['s] really sad what happened but with all the work going into this don['t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I’m just trying to help.[] [I]f you want more info and insight [I] will help you.

Wilgus, at *2.

How did the juror learn this information? 

Facebook.  Wilgus, at *10.

How on Facebook you ask? 

The juror sent the Plaintiffs friend requests after the trial.  Wilgus, at *10.

And as you can guess, the Plaintiffs accepted the friend request.

After the Plaintiffs’ attorneys returned from low Earth orbit, the Judge held an investigation, asking questions of the juror at issue and the jury foreperson.  The juror claimed he did not “friend” the Plaintiffs until after the trial.  The juror also claimed he discovered photos on the Plaintiffs’ Facebook profiles that motivated him to email the Plaintiffs’ attorney.  Wilgus, at *10. 

The juror claimed that the information on Facebook was never discussed during jury deliberations.  Wilgus, at *10.  Additionally, the juror claimed the Facebook material would have not influenced him during deliberation, because he did not know about the Facebook photos at that point in time.

The Judge found no basis for the juror being untruthful as to when the juror found the Facebook material, which was after the verdict.  Wilgus, at *12-13.  As such, the Court denied the Plaintiffs’ motion for a new trial.

Bow Tie Thoughts

This case is a giant warning sign to any trial lawyer and judge on jurors and Facebook.  The idea of a juror “friending” a party at any point in time is troubling.  Moreover, trial attorneys really need to be aware of party admissions their clients might be making in status messages or damning their own case with photos.  If a juror can find it, watch out for the opposing party.

Extra! Extra! No Tweeting in Court!

In United States v. Shelnutt, a member of the press requested the right to “Tweet” a criminal trial on Twitter.  The court denied the request pursuant to Federal Rule of Criminal Procedure Rule 53. United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427 (M.D. Ga. Nov. 2, 2009). 

Federal Rule of Criminal Procedure Rule 53 states, in relevant part:

“[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Shelnutt, at *2, citing Fed. R. Crim. P. 53

The Court held that the term “broadcasting” includes sending electronic messages contemporaneously from the trial, which the Court held includes Twitter.  Shelnutt, at *2-3.

First Amendment Concerns

The Court held the First Amendment was not violated by the prohibition of Twitter in the courtroom. 

The Court stated that Federal Rule of Criminal Procedure Rule 53 is well established as Constitutional.  Shelnutt, at *4.  Additionally, the Press has the right to attend the trial, listen to the evidence, evaluate the arguments and report on the proceedings.  As such, there is no restriction on the right to report on the criminal trial.  Shelnutt, at *4-5.  In short, these sound like “time, place and manner” restrictions on where the broadcasting of a trial can occur. 

Bow Tie Thoughts

This is a new spin on cameras in the courtroom.  Just as a judge would prohibit reporters setting up a broadcast booth in her courtroom (and thus creating a media circus where lawyers put on silly hats and do bad rhymes during closing argument), it is understandable why a judge would not want a “Tweetup” taking place during a trial.

BlackBerry Boo-Boos: How to Get the Judge to Text You Adverse Inference Instructions

Southeastern Mechanical Services, Inc., v Brody, et al., is the story of how wiping the data off your BlackBerry can result with the Court having you drawn and quartered.  Not with horses, but with adverse inference instructions.

In a trade secret case where Individual Defendants left the Plaintiff’s company and went to the Defendant’s company, issues with BlackBerry data spoliation exploded like a fireball in the night.  Southwestern Mechanical Services, Inc., v Brody, et al., 2009 U.S. Dist. Lexis 85430 (August 2009).  There is an “app” for that sort of spoliation called adverse inference instructions.

The key facts of the case took place in a matter of days.  The three Individual Defendants purchased their BlackBerries between May 28 to May 30, 2008.  The devices were used for email, phone and text messaging. 

The Individual Defendants’ BlackBerries were synced with the Defendant’s email server between June 3 to June 4, 2008.  SMS, at *5-6. 

A demand letter was sent from the Plaintiff on June 6, 2008 and email messages were preserved on June 10.  SMS, at *7.  A temporary restraining order (TRO) was issued on June 13 and the Individual Defendants were instructed to return their laptops and BlackBerries on June 17, 2008.  SMS, at *7-8.

The Defendants represented that no email messages were lost from the Individual Defendants’ BlackBerries or laptops because they were synced to the Defenant’s BlackBerry Enterprise Server.  SMS, at *4.  As such, the email messages were not on any hard drives, but an email server.  SMS, at *6.

Forensic Examination of the BlackBerries

After the execution of a litigation hold and the physical sequestering of the Individual Defendants’ BlackBerries and computers, the Plaintiff’s expert performed a forensic examination using Paraben Device Seizure software on the BlackBerries.  SMS, at *9-12.

The Plaintiff’s expert quickly determined the BlackBerries had been wiped clean: No phone records, no text messages, no email messages or applications existed on the devices.  SMS, at *10.  Moreover, the data on the devices was different from what would be on a brand new BlackBerry and different from one only used as a phone.  SMS, at *11, fn 8.

This sort of thing does not happen by accident.  The only ways this would happen (according to the expert) would be by a “hard reset” or someone entered the incorrect password ten times.  SMS, at *11.

The Defendant’s forensic expert also determined that the BlackBerry SIM cards contained some contacts and text messages, but not emails messages. SMS, at *12.

Dial S for Spoliation

For those who are not familiar with spoliation, it is the intentional destruction of evidence.  SMS, at *13.  To prove sanctions for spoliation under Florida law, a party must show the following: 

1)       The evidence existed at one point in time;

2)       There was a duty to preserve the evidence on the part of the spoliator; and

3)       The evidence was crucial to the movant’s prima facie case.

SMS, at *14. 

The Court rocketed through these three factors answering all in the affirmative.  SMS, at *15.

The Court found that there were circumstances showing the destruction of the email, text messages and phone data was in bad faith. SMS, at *16-17.  The Court found the Individual Defendants to not be credible in explaining the data loss, because the expert testimony showed that 3 of the 4 ways the data could have been lost were by intentional acts.  SMS, at *17.  Further, the Individual Defendants had both the motive and opportunity to erase the data on their BlackBerries. SMS, at *16-17.

Furthering the Individual Defendants’ credibility gap, there was evidence of other deleted data.  One Individual Defendant’s prior computer he used while employed by the Plaintiff had all of its email and contacts deleted.  The other Individual Defendant used a software program to delete all of the data on it before returning it to the Plaintiff.  SMS, at *19-20.   

The Court found that the appropriate sanction for the loss of data was an adverse inference instruction regarding the Individual Defendants failure to preserve data on BlackBerries that would be advantages to Plaintiffs and disadvantageous to the Individual Defendants. SMS, at *23.  While default judgment was avoided, the Court’s irritation is visible throughout the opinion.  

Bow Tie Thoughts

The Court’s analysis of the BlackBerry preservation and data deletion was very well done.  This case highlights how data on a BlackBerry (or any Smartphone) can be deleted and the importance of having procedures to enact a litigation hold on these devices.

In the Eye of the Beholder: The Relevance of Facebook Evidence

Social networking litigation will be written by the end users of those websites.  In Bass v Miss Porter’s School, the Defendant school sought from the Plaintiff discovery of her alleged teasing and taunting on Facebook.  Bass v. Miss Porter’s Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009).

The Plaintiff objected to the Facebook discovery request on the following grounds:

1) The Facebook information was “irrelevant and immaterial” and was “not reasonably calculated to lead to the discovery of admissible evidence;” and

2) “[Plaintiff's] ability to produce responsive documents was severely curtailed by Defendants’ actions in disconnecting the Plaintiff’s access to her school email and intranet access prior to the filing of this lawsuit.” Bass, at *2.

After subpoenaing Facebook, Facebook agreed to produce “reasonably available data” from the Plaintiff’s profile from January 1, 2008 to May 1, 2009.  Bass, at *2.

The Court ordered the Plaintiff to produce 1) all responsive Facebook discovery to the Defendant and 2) everything produced from Facebook to the Court for in camera review.  Bass, at *3.

The resulting production was 100 pages (apparently printed out) to the Defendant and 750 pages produced to the Court.  Bass, at *3.

The Court was noticeably frustrated with the Plaintiff’s attorney.  The Court stated the production offered “no guidance as to the grounds or basis on which her counsel made the determination of which documents to produce to Defendants.” Bass, at *3.

The Court took direct aim Plaintiff’s claim the Facebook discovery was irrelevant after reviewing the Facebook production by date, sender/recipient and subject matter.  Bass, at *3.  The Court found:

The selections of documents Plaintiff disclosed to Defendants and those she referred for in camera review reveal no meaningful distinction. Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting. Therefore, relevance of the content of Plaintiff’s Facebook  usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff’s own determination of what maybe “reasonably calculated to lead to the discovery of admissible evidence.” Bass, at *3-4.

The Court overruled the Plaintiff’s objection to producing Facebook discovery, especially in light of the fact the in camera production contained communications clearly relevant to the lawsuit.  Bass, at *4.

Bow Tie Thoughts

This is a wonderful short and sweet opinion on using Facebook information in discovery.  The Court’s recognition that Facebook usage can reflect the state of mind of a user was excellent to see.  The only area somewhat concerning about the opinion was the fact the Facebook discovery was printed and not maintained in a digital form of production.