Preservation Orders & First Amendment Rights on Social Networking Sites

In a case originally filed in California State Court, a Plaintiff brought a civil rights action against Facebook for alleged First and Fourteenth Amendment violations.  The Defendant removed the case to Federal Court.  Young v. Facebook, Inc., 2010 U.S. Dist. LEXIS 98261, at *1-2 (N.D. Cal. Sept. 13, 2010).

The Plaintiff sought a preservation order against the Defendants.  Young, at *2.

Judge Fogel summarized general preservation obligations in Federal Court, according to 9th Circuit precedent:

Parties to a civil action in federal court are under a duty to preserve evidence that they know is relevant or reasonably could lead to the discovery of admissible evidence. Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006). This obligation, backed by the court’s power to impose sanctions for the destruction of such evidence, is sufficient in most cases to secure the preservation of relevant evidence. Before additional measures to preserve evidence are implemented, there must be some showing that there is reason for the court to be concerned that potentially relevant evidence is not being preserved and that the opposing party may be harmed as a result. Jardin v. Datallegro, Inc., No. 08-cv-1462, 2008 U.S. Dist. LEXIS 67575 at *1, *2 (S.D. Cal. Sept. 3, 2008).

Young, at *2.

The Court found the Plaintiff did not demonstrate any “extraordinary” reasons that a preservation order was needed to prevent the destruction of evidence.  Young, at *2-3. The Court did not close the door on discovery sanctions if needed later in the case. However, issuing a preservation order was premature.  Young, at *3. 

In deciding another issue, the Court noted that the Plaintiff’s complaint seemed to be without merit, because a civil rights claim requires government action.  Young, at *3-4.  In short, Facebook is not the United States government.

Bow Tie Thoughts

The issue of preservation on social networking sites should give parties pause.  If a “Tweet” is an issue, is the best method of preservation simply printing the “Tweet”?  Would a screen capture be enough?  Or should a party send a request to Twitter? 

There are new “cloud” preservation tools on the market that will help shape these standards.  One such new tool is Convogence.  This tool is aimed at companies using social media for marketing and can be used for compliance with a records retention policy for data outside of a company’s firewall.  Other products are also on the market and this area of cloud preservation will continue to mature.

How Third Party ESI Requests Collide with the Stored Communications Act

The Plaintiff in an online fraud case sought the production of personal email messages from Yahoo.  Jimena v. UBS AG Bank, Inc., 2010 U.S. Dist. LEXIS 95050 (E.D. Cal. Aug. 27, 2010).

The allegations of the lawsuit involved a “Nigerian advance fee scheme,” where the Plaintiff claimed the Defendant, the Chief Financial Officer of UBS AG Bank, Inc., sent the Plaintiff emails from his Yahoo accounts.  Jimena, at *1.

The Defendant’s CFO purportedly offered to transfer $19 million to the Plaintiff if the Plaintiff sent $51,000 via wire transfer, so millions of dollars could clear “Anti-Drug/Terrorist Clearance” fees for transfers from Nigeria.   Id.

The Plaintiff did not get $19 million dollars. 

However, Yahoo did get a Federal Rule of Civil Procedure Rule 45 subpoena for emails from the Defendant’s two email accounts relevant to the lawsuit.  Jimena, at *2. 

Yahoo responded by that they did not have any subscriber information or responsive ESI for the named Defendant’s CFO.  Jimena, at *4. 

Yahoo also claimed that if there were responsive electronically stored information, it could not disclose the content of that information under the Stored Communications act without the consent of the subscriber.  Jimena, at *4-5. 

The Stored Communication Act states, in relevant part,

(a) Prohibitions. Except as provided in subsection (b) or (c)–
   (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and
   (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service–
      (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;
      (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and
   (3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.

(b) Exceptions for disclosure of communications. A provider described in subsection (a) may divulge the contents of a communication–
   (1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;
   (2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title [18 USCS § 2517, 2511(2)(a), or 2703];
   (3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;
   (4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;
   (5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

18 USCS § 2702

The Plaintiff filed a motion to compel the Defendant to give its consent to disclose the Yahoo email content of the Defendant’s CFO.  Jimena, at *5. 

The Plaintiff argued that because the CFO was employed by the Defendant, the Defendant had the legal right to consent to the production of the CFO’s personal data from Yahoo.  Jimena, at *5. 

Yahoo filed an opposition to the motion out of the concern that the motion would be used to compel Yahoo’s compliance with the original subpoena.  Jimena, at *6.

The Defendant responded they were willing to consent for the CFO’s Yahoo subscriber information to be produced. However, the Defendant argued that there were no responsive email messages, as evidenced from Yahoo’s prior declarations.  Jimena, at *6.

The Court noted in a footnote that it was largely unaddressed whether the Defendant had the legal right under the Stored Communication Act to consent to the CFO’s personal email being produced.  Jimena, at *7, fn 1.  This issue alone is worthy of a detailed Court opinion.

Hitting Delete on the Motion to Compel

The Court denied the motion to compel Yahoo to produce electronically stored information.   Jimena, at *8.

The Federal Rule of Civil Procedure Rule 45 subpoena had a fatal procedural defect:

Yahoo was served in Sunnyvale, California (near San Jose). 

The subpoena required production at the United States District Courthouse in Fresno, California, which is more than 100 miles away. 

According to Rule 45, the production must take place within 100 miles of the issuing District Court. Jimena, at *8-9.

The Court assumed even if the subpoena could be enforced, Yahoo had demonstrated it had no responsive electronically stored information.  Jimena, at *9.  Yahoo argued that additional searches would “require the company to dedicate an incalculable amount of resources to conduct a manual search of all of its stored data.”  Jimena, at *9.

A court may not force a third-party to endure “undue burden” in the enforcement of a subpoena.  Jimena, at *9, citing Fed. R. Civ. P. 45(c)(3)(A)(iv). 

The Court held Yahoo would not be compelled to conduct additional searches, because of the cost and unlikelihood to prove different results.  Jimena, at *9-10. 

Bow Tie Thoughts

The Court’s two footnotes foreshadow an issue that will be decided: Does an employer have the legal authority to authorize the disclosure of an employee’s relevant personal electronically stored information under the Stored Communication Act?  The Court in Jimena did not decide this issue, but questioned whether the Defendant had such legal authority.  See, Jimena, at *fn 1 and 2. 

The analysis of whether such consent is proper would likely include if personal emails were being sent on a company device, during company time and in the course of the individual’s employment. However, this should make all of us stop and think. 

The idea of an employer having the power to consent to the production of an employee’s personal Facebook activity, webmail messages or text messages on a personal phone should strike fear into everyone.  Such an application of the Stored Communication Act would gut any protections the Act is supposed to offer, nevermind any state constitutional privacy rights.

The “I was on MySpace” Alibi

In an unplublished criminal appeal over a jury instruction that the Defendant failed to explain or deny evidence, the Appellant-Defendant claimed as his alibi that he was playing poker on MySpace at the time of the crime. 

The Prosecutor claimed the “MySpace Alibi” was implausible or bizarre.  People v. Calderon, 2010 Cal. App. Unpub. LEXIS 7172, at *5-6 (Cal. App. 2d Dist. Sept. 9, 2010).

The Court of Appeals disagreed, finding the alibi was neither implausible or bizarre.  Calderon, at *6. 

The MySpace records showed that someone was logged into the Appellant-Defendant’s account at the time of the crime.  The Appellant-Defendant claimed he did not share his account information with anyone. 

In the words of the Court: “There is nothing implausible or bizarre about this alibi.”  Calderon, at *6.

Now for the big “however”:  The Court of Appeals found there was no “ reasonable probability that appellant would have received a more favorable verdict if the instruction had not been given.”  Calderon, at *6. 

The jury instruction given was not an “adverse inference” instruction, only that the Defendant failed to explain or deny evidence, plus some favorable instructions for the defense.  Id. 

Given the strong evidence against the Defendant, the Court of Appeals found that the instruction given was harmless.  Calderon, at *6-7.

The second big “however”: The MySpace Alibi was not compelling.  The Court noted that anyone could have logged into MySpace for the Defendant or he could have logged in from another location.  Calderon, at *7.

Bow Tie Thoughts

The “Social Media” age has people connected online continuously.  It is not a surprise someone claimed they were on a social networking site as alibi.  If there was a case with compelling evidence, there might be more detailed evidence presented, however, the fact there was MySpace evidence in Calderon is impressive. 

There is a courtroom drama waiting to erupt in a brutal cross-examination over whether someone was on Facebook on their iPhone or at home when the “Social Media” alibi is next offered.  There likely would need to be forensic analysis on both the personal computer and SmartPhone in determining the truth.    IP and ISP evidence would likely be used for impeachment or rehabilitation of a witness.  

Attorneys need to consider what to do when someone makes an argument such as the above.  What discovery needs to be sought?  What sort of expect is required?  Where is the data?  Will there be third-party discovery from social networking site? 

I also wager it is a matter of time before someone tries a Chat Roulette defense. 

Taming Litigation Hold Sanctions

A Plaintiff brought a motion for the most severe sanctions possible for the Defendants’ alleged failure to issue a litigation hold.  Taylor v. AFS Techs., Inc., 2010 U.S. Dist. LEXIS 93664, at *1 (D. Ariz. Aug. 18, 2010).

The Court refused to use legal nuclear weapons on the Defendants.    

The reason? 

The motion was premature. 

The Court followed one of the rule statements from Rimkus, stating that in determining spoliation sanctions, a Court must consider “both the degree of culpability and the extent of prejudice.” Taylor, at *2, citing Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp.2d 598, 613 (S.D.Tex. 2010).

The Court found that it could not address the issue of prejudge, because discovery was not complete (the deadline was the end of October 2010).  Taylor, at *2.

The Court did state the Plaintiff could raise any spoliation arguments in summary judgment or seek adverse jury instructions in motions in limine before the last pretrial conference.  Taylor, at *2.

The Plaintiff’s additional discovery sanctions were not “well taken” by the Court.  Taylor, at *2.  The Court noted that the alleged discovery violations for “false” deposition testimony included “minor” matters, such as who participated on a telephone call or whether someone was in an office on a specific day.  Taylor, at *3.

The Court stated the “Plaintiff’s motion for sanctions appears to be needlessly multiplying litigation in this case.”  Taylor, at *3.  Moreover, the Plaintiff could challenge such factual differences with evidence or cross-examination.  Id.  As such, the motion for sanctions was denied.

Bow Tie Thoughts

Some commentators and attorneys have taken the duty to preserve and converted it to a weapon, where the subject matter of a case is secondary to how quickly a litigation hold was issued.  While the duty to preserve is profoundly important to ensure that Court’s can determine the truth of a matter, reducing a case to discovery about discovery can bring the legal system to a crawl. 

Magistrate Judge David Waxse at Legal Tech West 2010 stated that he requires some causal connection between the subject matter of the case and the ESI claimed lost from the failure to issue a litigation hold.  In short, is it even relevant?

Courts need to be a breakwater against the legal system turning into fights about how discovery was conducted.  While there are many just cases where there was abuse, Courts must ask is the electronically information stored information relevant?  Secondly, whether or not how a litigation hold was issued involves analysis of whether there was conduct justifying sanctions, not strict liability punishment of striking answers and default judgments.  That might be the proper result, but it must be based on the degree of culpability and the extent of prejudice.

Dawn in Oceania: The 9th Circuit’s Assault on the 4th Amendment

Bad Laws are the worst sort of tyranny.

Edmund Burke

The denial of the petition for the en banc rehearing of U.S. v Pineda-Moreno by the Court of Appeals for the Ninth Circuit should make Lady Justice scream for review by the United States Supreme Court. U.S. v Pineda-Moreno 2010 U.S.App. Lexis 16708 (Aug. 12, 2010). 

The majority in Pineda-Moreno held that the 4^th Amendment was not violated when police officers snuck onto Pineda-Moreno’s driveway in the middle of the night and attached a GPS tracking device on the underside of his car. Pineda-Moreno, at *2. 

The GPS recorded the Appellant’s every moment. 

The denial of the rehearing prompted Chief Judge Alex Kozinski to write a forceful dissent, attacking the majority’s mugging of the 4^th Amendment.  More importantly, it cast a dire warning to not just the 60 million people impacted by the Ninth Circuit’s ruling (1/5 the nation’s population), but everyone in the United States. Pineda-Moreno, at *2-3. 

Invading the Curtilage

Chief Judge Kozinski began his dissent summarizing the meaning of “curtilage.”

The majority found that the Appellant’s driveway was part of his home’s curtilage, however, he did not have a reasonable expectation of privacy in his driveway.  Pineda-Moreno, at *3. 

The “curtilage” is an area around a home that is “so closely associated with the home as to be considered part of it.”  Pineda-Moreno, at *3.

The United States Supreme Court has held since the 19^th Century that the “curtilage” of a home is entitled to 4^th Amendment protection.   Pineda-Moreno, at *4. 

The Government conceded that the Appellant’s driveway was part of his home’s curtilage, which made the result even more disturbing.  Pineda-Moreno, at *5-6. 

The majority’s holding that the Appellant had to prove he had a separate reasonable expectation of privacy in his driveway, an area already protected by the 4^th Amendment, is the legal equivalent to proving you have a reasonable expectation of privacy in your bedroom.  Pineda-Moreno, at *5-6.

The majority’s logic that the Appellant did not have a reasonable expectation of privacy in his Constitutionally protected driveway, was because it was “open” to the public, such as a postal worker or someone wanting to walk up to the front door.  Pineda-Moreno, at *7.

Chief Judge  Kozinski summed up that service people who have a limited right to enter property to do their job (i.e., a postal worker delivering the mail), does not mean strangers have a right to go swimming in your pool or for the police to search your garage.  Pineda-Moreno, at *7-8.

Moreover, claiming the police have the same search powers to enter property as neighborhood kids to get a ball from a front yard would “spell the end of Fourth Amendment protections for most people’s curtilage.”  Pineda-Moreno, at *8.

The dissent also took a very big look at an often ignored area: poverty.  “Poor people” do not park in gated communities, free of police officers attaching GPS tracking devices to BMW’s.  Pineda-Moreno, at *9-10.  The standard for privacy cannot be based on one’s economic status.  Moreover, the Fourth Amendment applies to everyone in the United States, not those in the highest tax brackets. 

Climb Aboard Airship One

The majority held that downloading the GPS tracking data was not a search.  Pineda-Moreno, at *10.

The majority based their decision on an early 1980s case where a “beeper” was used to track a car.  As the police got closer to the beeper, the signal would become stronger.  Pineda-Moreno, at *10-11.  The 1980s opinion compared this early technology to using binoculars to enhance your field of vision.  Pineda-Moreno, at *11.

The dissent took issue with the comparison of 1980s technology verse 21^st Century tracking devices.  A GPS unit can pinpoint someone’s exact location on the planet, far more effectively than a beeper signal getting stronger if you are close to it.    Pineda-Moreno, at *12.

Chief Judge Kozinski discussed how the use of thermal imaging technology to watch suspects inside a house was a search, because activities inside one’s home are considered private.  Pineda-Moreno, at *13.  To be blunt, no one expects your neighbors to watch you with Predator vision. 

The Chief Judge proceeded to summarize what are any privacy advocate’s worse fears of technology:

                Cell phone companies can give police the exact location of a phone on its network;

                Roadside services know where you are at any given time;

                Companies are building databases of location information for targeted advertising, which can be turned over to police without a warrant.

                Pineda-Moreno, at *14-15. 

Bow Tie Thoughts

I hope the Supreme Court takes U.S. v Pineda-Moreno and sentences it to the ash heap of history. 

Technology makes our lives easier.  An iPhone has more computing power then an entire computer room in the 1960s.  However, we should not turn the ease of building a database into gutting our protections from unreasonable search and seizures. 

In 1990, the largest user of GPS technology was the United States military.  The technology was well highlighted in the first Gulf War with precise missile strikes through building windows.  In the mid-1990s, the technology became more commercially available for mariners (displacing the Loran-C many boaters used for navigation).

Today, a GPS unit can sit on anyone’s dashboard in their car and pinpoint the nearest gas station for under $200. 

In the 1950s, helicopters were a new technology used by the military.  By the 1980s, police departments were flying them across the country for law enforcement.

Today, unmanned Predator drones are a key weapon in the war on terror. 

How long will it be before police departments use unmanned drones flying over cities?  Will it be Constitutional to program a “police” predator to track someone’s smartphone without a warrant? 

The prospect of an Orwellian world with the ability to track citizens at any given time is something Stalin would have envied. 

Chief Judge Kozinski concluded the dangers of this case very eloquently:

We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible.  Someday, soon, we may wake up and find we’re living in Oceania. 

Pineda-Moreno, at *19. 

Text Messages as Party Admissions to Prove a Prima Facie Case

The Plaintiff in a sexual harassment case was able to demonstrate a prima facie case to overturn a summary judgment on the narrow issue whether she was retaliated against for filing her lawsuit.  Magiera v. City of Dallas, 2010 U.S. App. LEXIS 16802 (5th Cir. Tex. Aug. 11, 2010).

The key evidence? A text message.

One of the challenges to the summary judgment was whether there was sufficient evidence for a jury to find that the Plaintiff was removed from her field training officer (FTO) duties because of her sexual harassment complaint.  Magiera, at *9-10.

The Plaintiff’s removal from FTO duties meant she received less compensation.    Id.

The Defendant conceded in oral argument that the Plaintiff being removed from her FTO duties was a material adverse action. Id.  

Here is how the Plaintiff was able to show a prima facie case:  A sergeant testified that her supervising lieutenant stated that the Plaintiff was not on FTO because another lieutenant was “angry” the Plaintiff had filed her lawsuit.  Magiera, at *10.

The same sergeant sent the Plaintiff the following text message:    

“I was told by [W]oodbury that [B]arnard said you had a law suit against the city and you shouldnt [sic] train because of the suit.”

Magiera, at *10.

The Plaintiff argued that the statements in text message evidenced the retaliation for her lawsuit.  Magiera, at *10.

The Defendant challenged the text message as not competent summary judgment evidence, because it was hearsay.  Magiera, at *10-11. 

The Plaintiff argued that the statement was admissible as a party admission, under Federal Rule of Evidence Rule 801(d)(2)(D).

The Party Admission Rule states that an admission by a party-opponent is not hearsay, if “[t]he statement is offered against a party and is . . . a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.”  Magiera, at *11, citing Federal Rule of Evidence Rule 801(d)(2)(D).

The Court agreed.  The Lieutenant who made the statement (if it was true) was speaking in the course of his employment, which would make the statement admissible as a party admission.  Magiera, at *11.

The Court held that the Plaintiff made a prima facie case on the retaliation claim and reversed and remanded on those specific grounds.  Magiera, at *15-16. 

Bow Tie Thoughts

Text messages are quick and easy to send.  Attorneys should not overlook requesting text messages in discovery, there could be a smoking gun to make your case…or at least survive a motion for summary judgment.

Discovery Deadlines at Dial-Up Speeds: Clear Signs You Need an e-Discovery Service Provider

A service provider for router and network systems sued Cisco for Sherman Antitrust act violations.  Cisco in turn sued for copyright and other violations.  Multiven, Inc. v. Cisco Sys., 2010 U.S. Dist. LEXIS 71221 (N.D. Cal. July 9, 2010).

Cisco propounded two discovery requests on the Plaintiff.  The Producing Party claimed they had a rolling agreement to review and produce discovery to Cisco.  The Defendant denied any such agreement.  Multiven, Inc., at *4.

The Defendant issued deposition notices many months later that included ESI requests that mirrored the prior discovery requests.  Multiven, Inc., at *4.  The Defendant followed-up with a motion to compel the original discovery requests. Id.

The discovery cutoff date is September 27.  Multiven, Inc., at *5.

The Court found the Plaintiffs could not finish their review and production of electronically stored information with enough time for the Defendant to make any use of the production.  Multiven, Inc., at *5.  The Court noted this self-fulfilling prophesy was created by the Plaintiff’s review and production protocols.  Multiven, Inc., at *5. 

The Plaintiff did not use an e-Discovery service provider to search and narrow their ESI because of “cost.”  Multiven, Inc., at *5.  Note, the opinion is silent on what those costs were, if there was any undue burden arguments or even if a service provider was consulted. 

The Plaintiff did not use any search terms to narrow the data for review.  Multiven, Inc., at *5.  An interesting question is whether or not the ESI was not “de-duped,” or “near de-duped” or “email threading” was at all used in processing the data for review in any litigation support review software.    

The Plaintiff’s review was done the “old-fashioned” way, with five lawyers reviewing “every bit of that giant mass of information for responsive documents.”  Multiven, Inc., at *5. 

The Plaintiff claimed it would take an additional two or three months to review their ESI. Multiven, Inc., at *5-6. 

Assuming each attorney can work 40 hours a week over three months, with an hourly billing rate of $250 an hour, that would be $120,000.00 for each lawyer, or $600,000.00 for all five. 

The Court bluntly stated:

“This is far too long and a new method for this review and production is needed.” Multiven, Inc., at *6.

The Court ordered the Defendant to hire an e-Discovery service provider to help with the “increasingly perilous situation.”  Multiven, Inc., at *6.  The Plaintiff agreed to the order, because the Defendant was willing to pay for half of the cost for the “collection, search, review, and production of documents.”  Multiven, Inc., at *6.

Bow Tie Thoughts

Bad news does not get better with age and reviewing electronically stored information certainly does not get cheaper the closer you get to the close of discovery. 

Everyone should remember Federal Rule of Civil Procedure Rule 1: The Federal Rules of Civil Procedure should be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” 

Many parties, either out of the lack of experience or because of fear of high costs, automatically assume e-Discovery is expensive. 

This fear based decision to conduct e-Discovery like it was a box of paper can drive up costs and run afoul of Federal Rule of Civil Procedure Rule 1.  Working with someone with knowledge, either an in-house specialist or outside vendor, can help control e-Discovery costs.  This can also help avoid months being lost in document review. 

Consider the following:

3 Terabyte External Hard Drive is less than $250.

3 TB worth of data is roughly 6 millions records (based on one complex case)

Estimated Review Rate: 60 records an hour

Estimated review time: 100,000 hours

Estimated Cost at $150 an hour: $ 1,550,000

It would be profoundly expensive and wasteful to try reviewing this amount of data without a service provider’s assistance in the following data reduction and review accelerator protocols:

1. De-duplication based on MD5 Hash Value.

2. Near-De-Duplication based on similar file types (such as a Word Document that was printed to a PDF file.  Different file types with the same content).

3. Email Threading, which allows the reviewing attorney to see all email threads at one time to streamline the review.

4. Auto-Coding of the litigation support database with extracted text to reduce time spent conducting objective coding for names, dates and document types. 

5. Searching the database based on keywords, dates, or email authors, or any other searchable data, developed after consulting with the custodians and possibly a service provider to find the most responsive data.

Lawyers will always be the ones to try their cases, but a service provider can help attorneys find the responsive electronically stored information they need, so months are not spent reading one email message at a time.

Lost Hard Drives in the Mail: An e-Discovery Nightmare

The facts sound like a typical e-Discovery case, but quickly you feel very sick.

Two employees were accused of misappropriation of trade secrets.  A Federal lawsuit was filed in Florida.  As one can guess, electronically stored information would be key evidence in the lawsuit.  Dana Ltd. v. Am. Axle & Mfg. Holdings, 2010 U.S. Dist. LEXIS 88474 (W.D. Mich. Aug. 26, 2010).

The Plaintiffs retained an expert and shipped the computer hard drives for forensic examination to Michigan and forwarded them onto their Florida office. 

The hard drives went missing sometime after they were shipped.  Dana Ltd., at *2-3.

The Plaintiffs filed four subpoenas duces tecum to be issued by the United States District Court for the Southern District of Florida against their own expert’s firm.  Dana Ltd., at *3.

Three days before the depositions, the expert’s attorneys filed a motion to quash or modify the subpoenas in Federal Court in Michigan, because the expert was going to be out of the state on the designated deposition date.  Dana Ltd., at *3-4. 

The Court attempted to contact the moving party’s attorneys to see if motion practice could be avoided, only to learn that both attorneys left the state.  As the Court noted, “It ill-behooves an attorney to ask the court to drop everything to attend an eleventh-hour request for relief and then leave town.” Dana Ltd., at *4.

The Court addressed the motion without a hearing, given the unavailability of counsel.   

The Court stated it would be exceeding its authority to quash a subpoena issued by the Federal Court in Florida.  In short, the motion was filed in the wrong Federal Court.  Dana Ltd., at *4-5. 

Bow Tie Thoughts

The idea of hard drives being lost in the mail sends fear into attorneys and service providers alike.  A shipping accident can happen to anyone.  Moreover, sending hard drives is a common practice, because sending evidence via a personal courier across the country is often not practical, unless there is truly highly sensitive material. 

A possible best practice is to have the vendor to make a copy before shipping any data.  Alternatively, if multiple hard drives are being shipped, they can be sent separately and staggered out over several days.  This can help ensure if there is a shipping problem, not all the data is lost.