Digital Detectives Podcast on the Legal Talk Network

I had the privilege of doing a podcast with the “Digital Detectives”  Sharon D. Nelson, Esq., President of Sensei Enterprises, Inc. and John W. Simek, Vice President of Sensei Enterprises.

Our discussion included the form of production,  litigation holds after the Pension Committee case, how small firms are surviving their entry into e-discovery, preservation of ESI and how to prove that an e-discovery request will cause an “undue burden.”

To listen to the podcast, please click here.

Discussing the Form of Production: Always Good at a Meet and Confer

The Defendant in Quality Inv. Props. Santa Clara, LLC v. Serrano Elec., Inc., brought a motion to compel the Plaintiff to “organize, index and label” their production of electronically stored information.  Quality Inv. Props. Santa Clara, LLC v. Serrano Elec., Inc., 2011 U.S. Dist. LEXIS 41006, 1-2 (N.D. Cal. Apr. 11, 2011).

The following outlines the Plaintiff’s collection and production methodology:

Plaintiff created at .ftp site for the Plaintiff’s personnel to deposit their discovery

Plaintiff created folders with names either describing the types of discovery contained in the folder or corresponding to the Defendant’s discovery requests.

The discovery was then downloaded onto Plaintiff’s outside counsel’s computer network in the same order and format as organized on the .ftp site.

The discovery was then processed for production and put on two data disks.

Quality Inv. Props. Santa Clara, LLC, at *1-2.

The two disks contained 82 folders with 11,796 responsive “documents” and no privilege log.  The folders were numbered sequentially.  The discovery encompassed 43,368 .tiff images and an .opt load file. Quality Inv. Props. Santa Clara, LLC, at *2-3.

The Defendant brought a motion to compel to produce the discovery as it is kept in the usual course of business or to label the production to correspond to the categories of the discovery requests.  Quality Inv. Props. Santa Clara, LLC, at *3.

The Defendant also argued that any privileges were waived, because the Plaintiff did not produce a privilege log. Quality Inv. Props. Santa Clara, LLC, at *3.

The same day the Defendant filed their motion, the Plaintiff produced a list matching the Bates Numbers to document categories.  Id.

The Plaintiff produced a 55-page privilege log with nearly 300 entries 10 days after the motion to compel was filed. Id.

Production Requirements under the Federal Rules of Civil Procedure

The production requirements on producing electronically stored information can be summarized as follows:

“A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i).

“[I]f 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).

Quality Inv. Props. Santa Clara, LLC, at *4.

Standards for Waiving Privilege Analysis 

Courts review four factors in determining whether the failure to produce a privilege log results in a waiver of any privileges:

1. The degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient);
2. The timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); 
3. The magnitude of the document production;
4. Other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard. 

Quality Inv. Props. Santa Clara, LLC, at *5.

The Meet & Confer

The parties in this lawsuit filed a report that they had met and conferred pursuant to Federal Rule of Procedure Rule 26(f).  However, no report was ever filed with the Court.  During oral argument, one party admitted they never met and conferred over the form of production of electronically stored information.  Quality Inv. Props. Santa Clara, LLC, at *6-7.

The Court described this failure as follows:

Neither of the parties in this action fulfilled its Rule 26(f) obligation to meet and confer about a discovery plan. As a result, Quality has now produced documents in a form that Serrano claims is not compatible with Serrano’s system for reviewing documents. Had there been a candid discussion about the form in which documents should be produced, the events precipitating this motion could have been avoided. Instead, rather than the parties each controlling its own fate by negotiating an agreement each could live with, the court must now decide which one of the parties will invest further resources to correct these mistakes.

Quality Inv. Props. Santa Clara, LLC, at *7.

The Form of Production Dispute

The Defendants argued that the Plaintiffs failed to comply with Federal Rule of Civil Procedure Rule 34 because the Plaintiffs failed to 1) produce the ESI as it was kept in the usual course of business or 2) organize and label the production to correspond to the categories in the request. Quality Inv. Props. Santa Clara, LLC, at *8.

The Plaintiffs argued that their production complied with Federal Rule of Civil Procedure Rule 34, because their “ESI” was stored “electronically” and produced “electronically” as .tiff images. Quality Inv. Props. Santa Clara, LLC, at *8.

The Court quickly disregarded this argument.  First, the Court noted that the process to convert ESI to tiff images and load files “makes clear that the documents were not kept in those formats in the usual course of business.”  Quality Inv. Props. Santa Clara, LLC, at *8.

The Court also noted that the Plaintiff’s “declarants have presented no information establishing that the metadata that Quality provided would identify from whose files a given document was collected.” Quality Inv. Props. Santa Clara, LLC, at *8.

The Court also found that the supplemental list produced by the Plaintiffs was “sufficiently specific,” thus the Plaintiff had failed to “organize and label” their production. Quality Inv. Props. Santa Clara, LLC, at *8-9.

The Court found that the Plaintiff failed to meet with Federal Rule of Civil Procedure Rule 34.  The Plaintiff was ordered to re-produce its production “consistent with a specification agreed upon by the parties.”  Quality Inv. Props. Santa Clara, LLC, at *9.

In a footnote, the Court recommended two individuals meet, presumably litigation support professionals, without the lawyers present, to discuss how the production could be loaded into the Defendant’s litigation support database and searched. Quality Inv. Props. Santa Clara, LLC, at *9-10, fn 16.

In the event the parties could not agree on a production protocol, the Plaintiff was ordered to identify the categories in each discovery request the production was responsive to in their re-production. Quality Inv. Props. Santa Clara, LLC, at *10.

As to the privilege log, the Court found that between the “unsatisfying” meet and confer and other factors, the delayed privilege log was not unreasonable, thus the privileges were not waived.  Quality Inv. Props. Santa Clara, LLC, at *10-11.

Bow Tie Thoughts

Magistrate Judge Paul Grewal is one of the newest magistrate judges in the Northern District. Quality Inv. Props. Santa Clara, LLC, was a well thought out opinion.  I have high hopes for Silicon Valley producing excellent e-Discovery cases.

e-Discovery cases are not measured in epic opinions over terabytes, but the megabyte cases addressing meet and confers, the form of production and the daily practice of law. Quality Inv. Props. Santa Clara, LLC, highlights all of these issues.

While not addressed, the collection of electronically stored information may or may not have been an issue in this case.  It sounds like the producing party engaged in the self-collection of ESI, possibly without any preservation tools. While doing a byte-for-byte image of computers may turn on the subject matter of a case, there are forensic tools from companies such as PinPoint Labs that allow a custodian to select ESI for preservation.  There are dangers with “self-selection,” because the custodians could be determining what is relevant to a lawsuit and potentially eliminating relevant or responsive information in a production.

We Are on The Record…for the Launch of The Deponent App

If you are in the San Francisco Bay Area on May 5, I hope you can join us for the launch party for The Deponent App for the Apple iPad. Ted Brooks wrote an excellent review of The Deponent App in LTN that is available here.

You are invited to celebrate with an evening of tasty refreshments, great company and a few good laughs at Rooster T. Feathers Comedy Club in Sunnyvale, California.

Launch Party Information

Thursday, May 5

5:30 to 7:00 – Appetizer Reception

8:00 to 9:30 – Comedy Show with headliner Wendy Leibman

Location

Rooster T. Feathers Comedy Club  

157 West El Camino Real

Sunnyvale, CA 94087

RSVP for The Deponent App Launch Party

Please indicate whether you will join us for the comedy show – space is limited.

Majority Opinion LLC will provide all food/drinks at the party and admission to the show.  

The Deponent App allows you to:

Organize and create more than 150 deposition questions
Customize them for each witness
Link exhibits

Learn More

Majority Opinion LLC is dedicated to helping attorneys and litigation support professionals improve the practice of law with innovative technology solutions. Our mission is to provide practical applications for attorneys to use in their daily practice of law. Visit www.molimited.com to get more information about The Deponent App and Majority Opinion, LLC.

Spoliation & Safe Harbor under Rule 37(e)

The Plaintiffs sued a police department after a traffic stop where they were detained for 45 minutes, handcuffed and a police dog sniffed around and in their car.  Miller v. City of Plymouth, 2011 U.S. Dist. LEXIS 41386, (N.D. Ind. Apr. 15, 2011). The facts were unsettling on many levels.

In the following lawsuit, the Defendants were ordered to produce any video recordings involving the police office and his dog sniffing a detained vehicle since January 1, 2004.  Miller, at *4.

The Plaintiffs brought a motion for sanctions based on the alleged loss of video recordings.  The Magistrate Judge found for the Defendants and the Plaintiffs sought review by the District Court.

The Police Department’s Video Policy & History

The police department did not have a video library of traffic stops.  Additionally, the stopping police officer did not have videos dating back to 2004. Miller, at *6.

The Police Department had a video recording policy dating back to 1993 (back in the days of VHS tapes).  Miller, at *4.

The policy called for the retention of video recordings for 7 days, after which the VHS tapes could be reused.  Miller, at *5.  The policy allowed an officer to save a video if they believed the video would be useful “in the judicial process.” Id.

The “archaic” VHS recorders were replaced in 2006.  Miller, at *5.  However, the digital recorders malfunctioned often.  Id.

The stopping police officer had the only working digital video recorder the night of the traffic stop in the present lawsuit.  The police officer preserved the video from the stop on DVD.  Miller, at *5.

The digital recording device recorded video on an embedded hard drive.  Id. The device burned video to a DVD whenever the police lights were activated.  Id. If the DVD was full, the device gave the option to save the data on the DVD or reformat the disk.  Id.

In early 2010, the county prosecutor asked the stopping police officer to record certain traffic stops and arrests. However, the new video recording often malfunctioned.  Miller, at *6.

The Duty to Preserve & Federal Rule of Civil Procedure Rule 37(e)

Courts consider five factors in judging a motion for sanctions:

1) Was there a duty to preserve documents?

2) Was the duty to preserve breached?

3) Does the culpability for the breach rise to the level of willfulness, bad faith, or fault?

4) Did the party seeking production suffer prejudice as a result of the breach?

5) Can an appropriate sanction ameliorate the prejudice from the breach?

Miller, at *7.

Case law states that a sanctions award “must be proportionate to the circumstances surrounding the failure to comply with discovery.” Miller, at *7, citing Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382 (7th Cir. 1993).

However, Federal Rule of Civil Procedure Rule 37(e) “cautions” a court not to “impose sanctions on a party who lost electronically stored information because of the routine, good-faith operation of an electronic information system” absent “exceptional circumstances.”  Miller, at *8.

The Plaintiffs’ Arguments

The Plaintiffs argued that the Magistrate Judge’s order was clearly erroneous,”because the recording device in this case did not automatically record over previously stored videos. Rather, the hard drive was knowingly and willfully ‘reformatted’ . . . at the prompting of the equipment operator.” Miller, at *8.

In summation, the Plaintiffs’ argument was that the “Safe Harbor” did not apply to the Defendants because choosing not to burn video to a DVD was a “not a routine operation of an electronic information system,” but a policy, practice or custom.  Miller, at *8.

As the Court explained in footnote 1:

The 2006 official comments to Rule 37(e)—then Rule 37(f)—explain that the routine operation of computer systems “includes the alteration and overwriting of information, often without the operator’s specific direction or awareness . . . . Such features are essential to the operation of electronic information systems.”

Here, it was essential to the operation of Defendants’ cameras that the user either save the recordings on the DVD or rewrite the information on it.

Critically, by noting that routine operations “often” occur without the operator’s specific direction, the drafters acknowledge that “routine operations” can still occur despite the direct involvement of a system user. Accordingly, Plaintiffs’ contention that the activity of the camera user—which was extremely minimal in this case-takes the electronic information outside of Rule 37(e)’s safe harbor construes Rule 37(e) too narrowly.

Miller, at *8-9, fn1.

The Plaintiffs argued the Defendants’ “failure” to change their video storage policy after being served with discovery amounted to bad faith.  Miller, at *11-12.

The Court outlined a key problem with the Plaintiffs’ argument: it assumed relevant video ever existed.  Miller, at *12.  Moreover, it ignored all the problems the Defendants had with their video system, such as the police officer not having a camera in his police car for several months.  Id.

Finally, there was not evidence the Defendants had destroyed any DVD copies made from the video recording system.  As such, there were no bad faith actions by the Defendants. Miller, at *12-13.

Bow Tie Thoughts

Spoliation cases are not decided in the Star Chamber.  Many parties have rushed to the Courthouse with spoliation charges.  Sometimes there have been very disturbing examples of destruction of ESI.  Other times, the motion is based on an assumption that electronically stored information ever existed.

Being a Fugitive is Not Consent for Production under the Stored Communications Act

The Plaintiff sued his former wife and EgyptAir for abducting their children and taking the children from the United States to Egypt without his consent.  The Defendant never appeared in the lawsuit and ignored the court proceedings.  Bower v. Mirvat El-Nady Bower, 2011 U.S. Dist. LEXIS 36677 (D. Mass. Apr. 5, 2011).

The Plaintiff served Google and Yahoo a third-party request to produce the Defendant’s emails from approximately the month before she took the children to Egypt to present.  Bower, at *3.

The Plaintiff requested the Court to order that the Defendant granted consent to the production of her email messages from Yahoo and Google.  Id.

Both Google and Yahoo argued they could not comply with the third-party discovery request, because such production is specifically not permitted under the Stored Communications Act.  Bower, at *3-4.

The Court agreed that the production was barred by the Stored Communications Act and further “declined” to find the defaulting Defendant “impliedly consented to the production of her emails.” Bower, at *4.

The Stored Communications Act

Yahoo and Google are both “electronic communication service” providers under the Stored Communications Act, which states in relevant part:

[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[.]

Bower, at *4, citing 18 U.S.C. § 2702(a)(1)

One Court explained the protections of the Stored Communications Act as follows:

“[P]rotecting privacy interests in personal information stored in computerized systems, while also protecting the Government’s legitimate law enforcement needs, the Privacy Act creates a zone of privacy to protect internet subscribers from having their personal information wrongfully used and publicly disclosed by ‘unauthorized private parties,’ S.REP. No. 99-541, at 3 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3557.”

Bower, at *4-5, citing, In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 610 (E.D. Va. 2008).

The Plaintiff’s Arguments

The Plaintiff argued that since his former wife was a fugitive, “she should be deemed to have consented to the disclosure of her emails.”  Bower, at *5.  Alternatively, the Plaintiff argued the Court order the Defendant to consent and any default to consent should be deemed as the Defendant’s consent.  Id.

The Court’s Finding

The Court refused to find that the Defendant’s default amounted to consent under the Stored Communications Act for the production of her email.  Bower, at *6-10.

There was no case law where a court ordered the production electronically stored information belonging to a fugitive defendant or by default under either Federal Rules of Civil Procedure Rules 34 or 45. Bower, at *6-7, fn 1.

While the Court recognized the Plaintiff’s frustration, there was no evidence that the Defendant “consented” to her email being produced.  Moreover, the Court would not order her “consent” through her failure to participate in the litigation.  Bower, at *6-10.

Bow Tie Thoughts

The Stored Communication Act creates a significant privacy interest in electronically stored information.  Moreover, it is questionable a Court to order a party to consent to waive their rights under the Stored Communication Act (as one California case is demonstrating).

There may not be a winnable scenario to compel third-party production from a defaulting defendant of “cloud” based email messages.  It might be possible for a Court to order the production of enough information to identify where a party is located, but disclosing the contents will likely be barred.

An iPhone Left in a Locked Bathroom is Not “Abandoned” under the 4th Amendment

Given the number of iPhones sold, it is no surprise to see a case like People v. Schutter.

The Defendant had left his iPhone in a locked convenient store bathroom.  When the Defendant went back to the store to get the phone, the store clerk refused, because the clerk was “busy.”  The Defendant left after being told to come back later. Within an hour, a police officer went to the store.  The clerk turned the phone over to the police officer, who had been told the above facts. People v. Schutter, 2011 Colo. LEXIS 246, at *9-11 (Colo. Mar. 28, 2011).

The police officer searched the phone and found incriminating text message evidence.

The District Court suppressed the evidence found on the warrantless search of the iPhone because 1) the Defendant did not abandon the phone and 2) even if the phone had been lost or mislaid, the police violated the Defendant’s reasonable expectation of privacy of his phone’s contents.  Schutter, at *2-3.  The State filed an interlocutory appeal.

The Colorado Supreme Court affirmed the District Court, because the iPhone was not abandoned, lost or mislaid under the facts of the case, thus the warrantless search violated the 4^th Amendment.  Id.

The Colorado Supreme Court did not wade into the swamp of when a police office could conduct a warrantless search of property that had been lost or mislaid.  Schutter, at *8.  The Supreme Court focused on the facts of the case, finding the following:

Under these circumstances, the officer had no grounds to believe the property’s safe return required the discovery of any further information. Assuming, without deciding, that the Fourth Amendment could tolerate, under some set of circumstances, some kind of warrantless examination of a cell phone to ascertain how it might be returned to its owner, this case cannot present that set of circumstances.

Schutter, at *9-10.

There was one dissenting opinion, taking issue with the Defendant not asking the clerk when the clerk would not be busy, setting a time to return for the phone or leaving his contact information.  Schutter, at *11.  As such, this one justice would find the phone abandoned.  Schutter, at *12.

Bow Tie Thoughts

A 32 Gigabyte iPhone can hold a lot of data, be it in the form of contacts, photos, text messages or Apps.  Moreover, there are millions of Smartphones on the market.  It is a guarantee that Courts will address both civil and criminal issues involving these highly portable and sometimes easy to leave behind devices.

Argumentative & Prejudicial Social Media Exhibits

In a case originating from a police shooting, the Plaintiffs included in their complaint a screen capture of the shooting officer’s MySpace page.  Rice v. Reliastar Life Ins. Co., 2011 U.S. Dist. LEXIS 32831, 11-13 (M.D. La. Mar. 29, 2011).

The MySpace page included a 1960s era photo of Clint Eastwood in Old West gunslinger attire with the caption, “How I feel most of the time!!!!”.  Rice, at *4.  The image was captured a week after the shooting.  Rice, at *3.

The Defendants brought a motion to strike the section of the Complaint pertaining to the MySpace profile pursuant to Federal Rule of Civil Procedure Rule 12(f), which allows a Court to strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.”  Rice, at *6.

The Court struck the MySpace related paragraphs and exhibit, because 1) it was “merely argumentative and prejudicial” and 2) did not “add to the substantive allegations of the complaint.”  Rice, at *11.

The Court further explained the MySpace exhibit was “particularly prejudicial,” because there was no evidence linking it to the police officer as his MySpace profile.  Rice, at *11-12.  As the Court explained:

Deputy Arnold’s name is nowhere on the page, and defendants represent to the Court that the photograph on the page is not of Deputy Arnold or of any other defendant in this case and has no connection to the incident at issue in this case whatsoever.

Rice, at *12.

The Court determined the allegations centered on the MySpace Exhibit was simply “name calling,” which was inappropriate in the pleadings.  Rice, at *12.

Bow Tie Thoughts

Social media enables people to live public lives.  If in a lawsuit, it is a given the parties will not only be searched on Google or Yahoo, but in Facebook and MySpace for informal discovery.  However, just because someone is posting information online does not mean it is relevant.

Additionally, information gathered online is still bound by rules of pleading and evidence.  Even if the above MySpace information had not been struck from the complaint, there would have been evidentiary issues with authentication, hearsay, and the prejudicial effect outweighing the probative value of the evidence.

The Confirmation of Existence…Of Responsive ESI

EEOC v. Jp Morgan Chase Bank, N.A., is gender discrimination case with multiple discovery disputes.  EEOC v. JP Morgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 34409, 6-7 (S.D. Ohio Mar. 30, 2011).

One request for production called for “[w]hatever hardware, software, files, metadata, and properties in Defendant’s possession that shows Aimee Doneyhue herself created the purported resignation letter dated 4/30/08.” JP Morgan Chase Bank, N.A., at *6.

The Defendant countered that the former employee’s computer had been reassigned and that the Defendant was “unable” to recover any responsive information, but would supplement their response if any ESI later recovered.  Id.

The EEOC argued this was inadequate, because the Defendant did not state if it “ever tried to recover an original or native file from a backup tape, archived document, or hard drive.”  JP Morgan Chase Bank, N.A., at *6-7.

The EEOC quoted testimony from the Defendant’s IT Director/Vice-President that the Defendant had the technology to forensically recover deleted documents from the former employee’s hard drive.  JP Morgan Chase Bank, N.A., at *7.

The Court agreed with the EEOC and granted the motion to compel.  It was not clear what steps the Defendant had taken to recover the responsive information.  Id. As the Court explained:

The EEOC is entitled to confirm whether or not this information exists, either through Chase’s own search or through production of the requested storage devices to the EEOC for examination.

JP Morgan Chase Bank, N.A., at *7.

Bow Tie Thoughts

It is unlikely a party will be required to prove a negative, such as data does not exist, however, a party must explain what steps were taken to preserve and search for responsive electronically stored information.