Reasonable Particularity in Requesting ESI

In an age discrimination suit, a Plaintiff’s motion to compel discovery was denied by a Magistrate Judge on the grounds the requests were overboard.  The Plaintiff challenged Magistrate’s order.  The District Court found the requests were also overboard. Doubt v. NCR Corp., 2011 U.S. Dist. LEXIS 95518, 11-12 (N.D. Cal. Aug. 22, 2011).

Below are three examples of the discovery requests at issue in the motion:

REQUEST FOR PRODUCTION NO. 128:Each and every document, whether piece of electronically stored information, email, including attachments thereto, memorandum, text message, or piece of correspondence emanating from someone, rather than being part of a manual, that inquired in 2008 about the earnings of, and/or overtime worked by, a Customer Engineer whom NCR was considering to be either put on PIP, scheduled for termination, or terminated.

REQUEST FOR PRODUCTION NO. 133:Each and every document, whether piece of electronically stored information, email, including attachments thereto, memorandum, text message, or piece of correspondence emanating from someone, rather than being part of a manual, that prior to September 15, 2008 reflects NCR employees or consultants discussing, reflecting upon, or speculating as to, any amounts that might have to be paid to Customer Engineer 2s and a group as a result of the Teeter v. NCR class action, ED CV 08-00297-SGL.

REQUEST FOR PRODUCTION NO. 141 []: Each and every document, whether piece of electronically stored information, email, including attachments thereto, memorandum, text message, or piece of correspondence emanating from someone, rather than being part of a manual, that was sent to or from, or circulated among NCR management that reflects NCR management awareness in 2008 of, and/or discussion of, the amount of overtime being worked by Customer Engineers in 2008.

Doubt, at *8-9, 10-11.

A discovery request must both be relevant to a party’s claims or defenses and “reasonably calculated to lead to admissible evidence.”  Doubt, at *11, citing Federal Rule of Civil Procedure Rule 26(b).

Federal Rule of Civil Procedure Rule 34 states that a discovery “must describe with reasonable particularity each item or category of items.” Doubt, at *11, citing Federal Rule of Civil Procedure Rule 34.

The Court explained that the requests were not limited in scope as to sender, recipients or subject matter, even through the requests were limited to 2007 and 2008.  Doubt, at *11.

The Court held the discovery requests were overbroad and failed to describe with “reasonable particularity” the ESI to be produced.  The Court stated the request’s “expansive sweep” would include information that would be not relevant to the lawsuit and be unduly burdensome.  Doubt, at *11.

The Court described the requests would require the Defendant to search all of their administrative records regarding customer engineers from all of the employees about general topics.  Doubt, at *11-12.

The Plaintiff argued the requests were relevant to the pretext element of his age discrimination, however, the Court explained that such evidence would need to relate to managers, not every employee in a company.  Doubt, at *12.  Since the requests were not limited to correspondence between management and limited to specific subject matter, the discovery requests were overbroad.  Id.

Bow Tie Thoughts

Drafting discovery requests is an art.

Drafting discovery requests in the age of email, text message and social media requires an attorney to have the hands of a surgeon to request specifically what is relevant to his client’s claims or defenses with “reasonable particularity.”

A surgeon’s skill is not simply needed to comply with Federal Rule of Civil Procedure Rules 26 and 34, but to avoid actually having to review a nightmare amount of data.

If a party actually produced email and attachments after searching an entire corporate exchange server of only 100 people, there would be potentially an extreme amount of data to review.

Just imagine how much email you get in one hour. Multiple it by 100. Now imagine that amount over two years to get an idea of the volume.

For both a requesting or producing party, technology such as “early case [data] assessment” can be extremely helpful in identifying relevant discovery.  However, ECDA cannot limit ESI for identification without first determining what is being searched with “reasonable particularity.”

In identifying ESI with “reasonable particularity” at a minimum includes the type of ESI (email, Excel, text message), the author of the ESI (Email Sender or who drafted a file), Recipients of messages, date ranges and keywords designed to identify ESI relevant to a party’s claims or defenses.

There can be many other factors for attorneys and e-Discovery consultants to consider, but thinking in these terms would be a good starting point in drafting discovery requests by first considering how data would be searched for production.

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Thank You, Steve Jobs

The Computer World we live in owes Steve Jobs a thank you for his leadership and innovation over the past 35 years.

The Computer Age beginnings date back to Jack Atanasoff, a mathematics professor from Iowa State College, while he was having a drink at a forgotten bar on the Iowa-Illinois border in the late 1930s.  Atanasoff developed the linked ideas of electronic logic circuits, binary enumeration, capacitors for regenerative memory and computing by direct logical action that would culminate in the world’s first computer.  (See, The Man Who Invented the Computer, Jane Smiley).

Fast forward to the 1970s: The “Computer Revolution” began at 2066 Crist Drive in Los Altos, California in 1976.  It was in the garage of this house where Steve Jobs and Steve Wozniak built the Apple 1 (along with other significant work done in Woz’s apartment in Cupertino).

The “Steves” might not have invented the computer; however they focused on making sleek and functional computers available to everyone. The stories of both these men is the stuff of Silicon Valley legend.

Like many of my Generation X counter-parts, my first computer experiences were with different Apple computers that began in elementary school and continued through high school (I graduated from the same high school as Jobs and Wozniak, Homestead).

My first Apple computer was a Power Mac 7600.  It served me well throughout all of my time at UC Davis.  I remember many research papers on foreign policy, US History and political science being drafted on that computer, in addition to my first email messages.

My second Apple computer was the PowerBook G3, which spent many long hours at the McGeorge Law Library with me briefing cases and creating class outlines.  Both computers were indispensable in my college and law school years.

From the release of the Macintosh in 1984 to the first iPad, Steve Jobs has been one of the leaders in building the computer world of the 21st Century.  Few individuals have had that sort of impact on society, unless you are discussing the likes of Henry Ford or Walt Disney.

Mr. Jobs, thank you for your innovation and leadership. Not to mention, wearing a bow tie when you introduced the Macintosh.

Arguing $2,630 is Undue Burden to Search ESI

A Defendant refused to produce ESI claiming the estimated $2,630.00 to search the data was unduly burdensome under Federal Rule of Civil Procedure Rules 26(b)(2)(C)(iii) and 26(b)(2)(B).  Hudson v. AIH Receivable Mgmt. Servs., 2011 U.S. Dist. LEXIS 39993 (D. Kan. Apr. 13, 2011).

The Defendant was a company of 13 people that represented it was not doing well financially. Hudson, at *2.

The Defendant’s purported undue burden was based on an estimated 24 hours for a technician at $95 an hour to review the ESI, plus $350 to purchase software to read the archived data. Hudson, at *2.

Rule Summary

A Court will limit discovery pursuant to Federal Rule of Civil Procedure Rule 26(b)(2)(C)(iii) if:

[T]he expense of the proposed production outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Hudson, at *2.

Additionally, a court may limited discovery of ESI that is “not reasonably accessible because of undue burden of cost.”  Hudson, at *2, citing Federal Rule of Civil Procedure Rule 26(b)(2)(B).

A Court may order cost-shifting for producing discovery under the following factors:

(1) The specificity of the discovery request,

(2) The quantity of information available from other and more easily accessed sources,

(3) The failure to produce relevant information that seems likely to have existed,

(4) The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources,

(5) Predictions as to the importance and usefulness of the further information,

(6) The importance of issues at stake in the litigation and

(7) The parties’ resources.

Hudson, at *3-4, citing Fed.R.Civ.P. 26(b)(2), advisory committee’s notes (2006); see also Semsroth v. City of Wichita, 239 F.R.D. 630 (D. Kan. 2006).

The Court’s Analysis 

The Court quickly dismissed the idea of cost-shifting, citing that this element of the litigation was “not disproportionate to the importance of much of the discovery in resolving the issues.”  Hudson, at *4.

The Court reviewed each discovery request to determine whether they were unduly burdensome or costly. Hudson, at *4.

The ESI at issue centered on email, with the parties having reached an agreement on “documents” and the Plaintiff withdrawing their request for Internet search history.  Hudson, at *4-5.

The email was stored in two formats: one format which could be viewed in an available email application and the other a data storage format requiring special software.  Hudson, at *5.

The Court gave the parties two options:

Option 1:

1)    Defendant could produce unedited, unreviewed, and unredacted data files of all data in its possession, together with the name of the software needed to read the storage data.

2)    Plaintiff could then purchase the software and conduct her own searches.

Option 2:

Due to concerns of over producing unresponsive or privileged information, the Defendants would bear the cost of searching the data and purchasing any software.

Hudson, at *5.

The Court further ordered the parties to meet and confer on search terms so the email searched was limited to specific topics. Hudson, at *6.

The Court reviewed each discovery request.  One request called for a list of ESI that “mentioned” the Plaintiff in any “diary, notes and calendar-type” files.  Hudson, at *7.

The Court held the Defendants did not adequately support their objections that the ESI was overly broad or unduly burdensome and overruled their objection.  Hudson, at *7.

Another objection against a request for ESI that “pertain[ed] to or reflect[ed] any statements of any person or witness pertaining to any claim or allegation made by the plaintiff in this lawsuit,” was unduly burdensome and overly broad was also overruled, because the objection were not sufficiently supported. Hudson, at *8.

An objection to a request that purportedly sought information protected by the attorney-client privileged was found to have the privilege waived and the objection overruled, because the Defendants did not produce a privilege log.  Hudson, at *8.

The Court did limit another request for email by date range, narrowed to email that were either sent or received by the Plaintiff, identified her by name, and other specifically named individuals on specific subject matter.  Hudson, at *11.

In summation, while several requests were limited or denied in part, the Defendant still had to search and produce electronically stored information.

Bow Tie Thoughts

As a preliminary matter, most service providers would not think an estimate of $2,600 for e-Discovery services is “unduly burdensome.”

There is reportedly one e-Discovery service provider that does not take any project for under $5,000.  However, this “nothing under $5,000” view is one many service providers think is very shortsighted and jeopardizes relationships with clients.

The tone of the opinion gives the impression the Defendant was attempting to conduct their own e-Discovery work.   These situations can result in using a non-e-Discovery tool for unintended purposes, when software designed for data reduction and identification could allow the party to meet their discovery production obligations.

For example, the “early case assessment” (ECA) products on the market represent they effectively allow a party to identify responsive, non-responsive or privileged ESI for production to an opposing party (Note, always ask about the defensibility of any software you consider using).

While a party might argue such an engagement with a service provider to use an ECA product is “expensive,” so is motion practice that still results with a court order to review, identify and produce electronically stored information.

It is arguably more cost effective to cut out the middle man (in such a dispute, the Court, legal research and drafting motions) and leverage the skills of a service provider with products like Nuix, OcraTech, Access Data or Lexis to identify ESI for production.  Moreover, the reporting features of these products enable a lawyer to generate the information needed for creating a privilege log for ESI that is confidential.

Motion practice is unavoidable if an opposing party is completely unreasonable. However, some disputes can be avoided, saving both time and money, if e-Discovery technology is leveraged to identify, reduce and produce responsive electronically stored information.

Disclosure: I have friends and professional relations with all of the companies named above.  

Hitting the “Unlike” Button on Expedited Discovery

Facebook sued Named and Unnamed Defendants for trademark infringement.

The Plaintiff sought expedited discovery from the Named Defendants to identify the Unnamed Defendants in support of later filing a motion for a preliminary injunction. Facebook, Inc. v. Various, Inc., 2011 U.S. Dist. LEXIS 64539, 6-9 (N.D. Cal. June 16, 2011).

The Court denied the motion for expedited discovery.

The opinion is silent if the Court was later un-friended.

The Court found the Plaintiff failed to show good cause, one of the requirements for expedited discovery.  Facebook, Inc., at *6.

The 9^th Circuit allows expedited discovery to identify unknown defendants when 1) a plaintiff cannot identify any defendants and 2) there are “legitimate fears” that information leading to the identities of the defendants faces “imminent destruction.”  Facebook, Inc., at *6.

As the Court found:

Plaintiff faces neither circumstance. Here, Plaintiff may obtain discovery to identify Unnamed Defendants during the normal course of discovery. Moreover, Plaintiff has not argued that relevant information may be in danger of destruction.

Facebook, Inc., at *7.

The Court further noted that a court may find good cause when there is a pending preliminary injunction motion; that does not mean a party’s mere inclination to file one supports a finding of good cause for expedited discovery.  Facebook, Inc., at *7. As the Court noted:

Nothing has prevented Plaintiff from filing a preliminary injunction, which it later could move to amend once it knew Unnamed Defendants’ identities.

Facebook, Inc., at *7-8.

The Court also took the Plaintiff’s discovery requests to task, finding them to “be implausibly tailored for the sole purposes of discerning Unnamed Defendants’ identities and crafting a motion for preliminary injunction.” Facebook, Inc., at *8.

Bow Tie Thoughts

As a good friend has said, “electronically stored information is both prolific and easily destroyed.”  In cases of infringement, expedited discovery is often needed to identify doe defendants, because of the risk of ESI being lost that can identify a party.  It is also safe to say that the Federal Judges in the Northern District of California have seen their fair share of these cases, given that companies venued here include technology titans such as Facebook, Google and Apple.

Courts likely will not give attorneys seeking early discovery a fast pass to identify doe defendants if there are actual named defendants in a lawsuit.   If a named party is already in the lawsuit, with a duty to preserve data that arguably should identify an un-named defendant, this significantly cuts against a Federal Judge allowing early discovery.

Nominations for ABA Journal Blawg 100 Amici

The nomination process has began for the annual ABA Journal Blawg 100.  I am very honored to have been include as a 2011 honoree.  I would appreciate once again your support in nominating Bow Tie Law for next year.

There are many excellent legal blogs, whether you focus on litigation support, trial presentation technology or blogs related to your specific practice area. Please take the time to recognize the attorney bloggers you enjoy with a “Amici” nomination.

The ABA nomination form is available at Blawg 100 Amici.

Form of Production: (Almost) Anyway You Want It

A Plaintiff in an age discrimination case requested ESI be produced in native format.  Linnebur v. United Tel. Ass’n, 2011 U.S. Dist. LEXIS 88456 (D. Kan. Aug. 10, 2011).

The Defendants did not assert any objections, but produced the responsive ESI as PDF’s.  Linnebur, at 3.

The ESI at issue included company organization charts, email, payroll and work performance evaluations.  Linnebur, at 4.

As the Court noted, Federal Rule of Civil Procedure Rule 34 allows a requesting party to state the form of production in their request.  Linnebur, at *5, citing Fed. R. Civ. P. 34(b).

If the ESI is not reasonably accessible because of undue burden or cost, the producing party demonstrate any undue burden.  Linnebur, at *5-6, citing Fed. R. Civ. P. 26(b)(2)(B).

The Defendants argued the PDF production was sufficient.  Moreover, they argued it was the Plaintiff’s burden to show why they needed the native files. Linnebur, at *6.

As a preliminary matter, the Plaintiff argued that the timing of her being fired was a key issue in her lawsuit.  Linnebur, at *6-7.  The metadata in the discovery was vital to showing when ESI was created, who created it and the file’s history.  Id. This information was not in the PDF production. Id.

The Court took the Defendant to task on their position it was the Plaintiff’s burden to show why native files were needed:

Moreover, the plain language of Rule 26(b) imposes the burden on “the party from whom discovery is sought” to “show the information is not reasonably accessible because of undue burden or cost.” Defendant makes no such showing. Accordingly, Plaintiff’s motion to compel is granted with respect to the requested ESI.

Linnebur, at *7.

Bow Tie Law

There are Federal litigants across the United States that take the point of view they do not need to produce requested native files.  The plain language of the Federal Rules of Civil Procedure are squarely against this false proposition.

If a party requests ESI be produced in native file format, it is the producing party’s duty to object and demonstrate why such a production is unduly burdensome.  The producing party might argue the costs involved or whether the ESI needs to be converted to a static image for redactions. However, producing in native file format has a lower processing costs then converting to a non-searchable image.

Exotic Apples: Solutions in Collecting & Processing Apple ESI

My friend Charlie Kaupp at Digital Strata brought the following issue to me:

There is an increasingly prevalent amount of Apple ESI found in corporate environments, especially among executives, engineering, and marketing groups.

Most review platforms do not handle large portions of Apple ESI, including:

Mac email (Entourage, Outlook 2011, Mail.app, Thunderbird)

iWork files (Pages, Numbers, Keynote)

Mac chat transcripts (iChat, Adium)

While some data (MS Office documents, PDFs, plain text, RTF, etc.) can be handled by review platforms due to its cross-platform nature, these successes can obscure larger failures in processing.

For example, a processing/review service excepted out a large file called “Entourage Database” as an unsupported file type. This database contained all the custodian’s email.

This situation should cause attorneys to pause before figuratively leaving Apple ESI on the loading dock.

Given that Apple has sold approximately 7.33 million iPads, 16.24 million iPhones, 4.134 million Macs during the first quarter of 2011 alone, simply logging all Apple ESI as “unsupported” is a formula to ignore potentially relevant electronically stored information.

Apple ESI is discoverable, can be produced in a reasonably useable form (which might require translation into static images with associated extracted text for some file types and review platforms), and therefore should be treated like any other ESI production.  Categorically logging Apple ESI as “unsupported” raises a host of e-Discovery issues. Consider the following:

Duty of Competency & Federal Rule of Civil Procedure Rules 26(a), 26(g) & 34 Overview

An argument can be made that globally logging Apple data as “unsupported” can have both ethical violations under a lawyer’s duty of competency and Federal Rule of Civil Procedure Rules 26(a), 26(g) and 34.

Duty of Competence

A lawyer is ethically required to provide their clients with a duty of competency.  The ABA Model Rules of Professional Conduct, codified as law in many states, require the following:

Rule 1.1: Competence

A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Initial & Supplemental Disclosures

Federal Rule of Civil Procedure Rule 26(a) requires that a party must disclose the discoverable information that the disclosing party may use to support its claims or defenses.  The Rule specifically requires the following on electronically stored information must be disclosed:

A copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; 

Fed. R. Civ. P. 26(a)(2).

A party must also supplement or correct their initial disclosures if they learn their original disclosure is incomplete or incorrect.  Federal Rule of Civil Procedure Rule 26(e)(1).

Federal Rule of Civil Procedure Rule 37(c)(1) can take a bite out of any Apple ESI by excluding the trial use of any non-disclosed ESI required by Rules 26(a) or 26(e).

 

 

Translation Into a Reasonably Useable Form

The Advisory Committee Notes to Federal Rule of Civil Procedure Rule 26 acknowledge that some electronically stored information as it is ordinarily maintained is not in a reasonably usable form, and thus requires translation into a form the requesting party can use.  See, Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence, §7.7(F), 7-207-208.

Federal Rule of Civil Procedure Rule 34(a)(1)(A) defines electronically stored information as “data compilations–stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”

Magistrate Judge John Facciola explained Federal Rule of Civil Procedure Rule 34(a)(1)(A) in D’Onofrio v. Sfx Sports Group, Inc., 247 F.R.D. 43, 47 (D.D.C. 2008):

In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a “reasonably usable form.” Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done “if [the translation is] necessary.” It is not the case that this clause requires the responding party to produce data in its original form unless “necessary” to do otherwise.

Certifying Discovery is Complete & Correct 

Federal Rule of Civil Procedure Rule 26(g) requires that an attorney of record in a lawsuit sign every response or objection to a discovery request, including initial disclosures under Rule 26(a) (1).  Fed. R. Civ. P. 26(g)(1).

The attorney signature certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) With respect to a disclosure, it is complete and correct as of the time it is made; and

(B) With respect to a discovery request, response, or objection, it is:

(i) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii)  Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and 

(iii) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Fed. R. Civ. P. 26(g)(1)

Rule 26(g) requires an attorney “to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.” Anderson v. Caldwell County Sheriff’s Office, 2011 U.S. Dist. LEXIS 62263, 10-11 (W.D.N.C. June 10, 2011), citing Fed. R. Civ. P. 26(g) advisory committee’s note to the 1983 amendments.

Furthermore, Rule 26(g) provides sanctions against the attorney, party, or both if a certification violates Federal Rule of Civil Procedure Rule 26 with the difficult burden to meet substantial justification. Fed. R. Civ. P. 26(g)(3).

Upsetting The Apple Cart

It is definite that a producing party that does not disclose or produce any Apple data because the ESI was categorically marked as “unsupported” will have problems, because the attorney arguably did not act completely in either disclosing or producing responsive electronically stored information in a reasonably useable form.  Software exists, such as the product line from Blackbag Technologies, for collecting and producing ESI collected from Apple computers and devices. Simply ignoring or being unaware of technology does not make ESI “unsupported.”

Furthermore, a party representing in a discovery response that Apple ESI is “unsupported” will run into problems, especially if the ESI was actually “supported” had processing technology designed for Mac data been used.  Consider the following “rotten apple” scenarios:

Situation 1: A Court finds a violation of Federal Rule of Civil Procedure Rule 34 if the “unsupported” Apple ESI’s existence was disclosed in a discovery response, but not produced in a reasonably useable form.

Situation 2: A Court finds violations of Federal Rule of Civil Procedure Rules 26(a), 26(g) and 34 if the Apple ESI was not disclosed as “unsupported” files that should been both disclosed under Rule 26(a) and produced in a reasonably useable form pursuant to a discovery request.

Situation 3: Court excludes a party’s Apple ESI that is learned to be both supported and exculpatory after the close of discovery and shortly before trial, because the Apple ESI was not disclosed under Rule 26(a) and thus excluded under Rule 37(c)(1).

Search & Preservation Obligations

Simply labeling Apple ESI as “unsupported” may also invoke very dreaded passages from both Qualcomm Inc. v. Broadcom Corp 1 and The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al.

Consider the following from Qualcomm 1:

Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.

Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).

Consider the following from Pension Committee:

“By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records, will inevitably result in the spoliation of evidence.”

“[D]epending on the extent of the failure to collect evidence, or the sloppiness of the review, the resulting loss or destruction of evidence is surely negligent, and, depending on the circumstances may be grossly negligent or willful.”

The Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, LLC, No. 05-9016, 2010 U.S. Dist. LEXIS 4546, at *14 (S.D.N.Y. Jan. 15, 2010), as corrected, Docket # 358 (May 28, 2010) (court has the obligation to ensure that the judicial process is not abused).

Some Bad Apples

It would not take much to envision a situation where a producing party claims Apple ESI is “unsupported,” and thus cannot be searched or produced in a reasonably useable form. In the course of discovery, the requesting party learns the Apple ESI actually is reasonably useable and should have been processed, searched for responsive ESI and produced accordingly.  The following motion battle would likely invoke elements of “misleading arguments and incomplete information,” with the producing party likely pointing a finger at their service provider.

The Great Danger: Missing What Helps Your Case

A sailor who does not know which course to sail will put their vessel in danger.

Simply tagging all Apple ESI as “unsupported” will have a similar effect on a lawsuit.  Such a global categorization can miss a large body of relevant, responsive, or potentially exculpatory, electronically stored information.

The solution to this situation is very direct: Ask the service provider how they collect, process Apple ESI and address the issue of “unsupported” or “exotic” files.

For example, Charlie Kaupp at Digital Strata suggests the following:

Apple ESI Collection needs have been addressed with tools such as Macquisition from Black Bag, which is a bootable forensic image creation tool akin to Encase or FTK. 

Processing needs have been addressed with services such as Digital Strata’s Review-Ready Conversion service. These services will allow Mac data to be converted to file types that can be handled by review platforms while maintaining chain of custody and all metadata with a load file.

Apple ESI issues should be discussed at the meet and confer with the opposing party, because if one party has a significant amount of Apple ESI, it is a high likelihood the other side also has Apple ESI. Moreover, attorneys who are knowledgeable of the available technology to collect and process Apple ESI, have no reason to ignore Mac data any more.

Disclosure: The team at Digital Strata are personal friends and I have referred clients to them in the past.

Recognizing Reality with Preserving Social Media ESI

In a trademark dispute between restaurants, the Plaintiff brought a sanctions motion, claiming spoliation of the Defendant’s Facebook profiles.  Katiroll Co. v. Kati Roll & Platters, Inc., 2011 U.S. Dist. LEXIS 85212, 1-2 (D.N.J. Aug. 3, 2011).  The Court denied the sanctions motion over the Facebook profiles.

The Plaintiff first argued that the Defendant failed to preserve his Facebook pages in PDF format, because the Defendant took down the pages after the Plaintiff sent a take down notice.  Katiroll Co., at *9.

The Court held sanctioning the Defendant for following a take down request would be unjust, even if the Plaintiff’s take down notice was not legally proper.  Katiroll Co., at *9, fn 1.

The Plaintiff also argued that the Defendant changing his Facebook profile photo with infringing trade dress led to the loss of discoverable evidence.  The Court very reluctantly clicked “Like” on this argument, but did not impose any sanctions.  Katiroll Co., at *9-11.

The parties agreed that when a user changes a Facebook profile photo, the user changes the photo associated with each status message or post they have done in the past.   Katiroll Co., at *9.

The Defendants argued that sanctions were not warranted, because the Facebook profile was a public website, which the Plaintiffs could have preserved themselves.  Katiroll Co., at *10.

The Court noted that case law has held that public websites are still within the control of those who own the websites.  Katiroll Co., at *10.

The Court described the Defendant’s position as “an attempt to “pass the buck” to Plaintiff to print websites that Defendants are obliged to produce.”  Katiroll Co., at *10.

The Court found that the Defendants were in “control” of the Facebook profile, stating:

“Given that Defendants have a discovery obligation to produce them and that only Defendants knew when the website would be changed, it is more appropriate for Defendants to have that burden.” 

Katiroll Co., at *10.

However, the Court acknowledged that changing a Facebook profile photo is a “common occurrence” and users often change their profile photos weekly.  Katiroll Co., at *10-11.

The Court stated it was not surprising the Defendant changed his profile photo during the litigation and further that the Defendant did not realize that changing his profile photo would “undermine discoverable evidence.”  Katiroll Co., at *11.

The Court held that the spoliation was unintentional, however, there was some prejudicial loss to the Plaintiff.  Katiroll Co., at *11.

The Court constructed the following solution:

Defendant was to coordinate with the Plaintiff to change his profile photo back to the infringing photo.  This would not be an additional act of infringement.

The Plaintiff would print any of the posts they considered made their case.

The Defendant would change his profile photo to a non-infringing photo immediately after the Plaintiff printed the posts they needed.

Katiroll Co., at *11-12.

Bow Tie Thoughts

The Court did a respectable job recognizing the realities of social media usage, control of public profiles and constructing a remedy for the preservation and production of the ESI that did not sanction the Defendant.

The preservation of electronically stored information on social media websites can cause a headache in determining the right method to preserve it.  Given the number of iPhones and Droids in use, status messages, photo uploads and email can be created almost non-stop.

The simplest method is to simply print the Facebook profile, either as a hard copy or a PDF.  Screen captures are another option.  There are additional specialty software solutions for capturing websites such as HT Track and others designed for social networking sites such as Nextpoint. There are many tools on the market currently and others will continue to be developed in the future.

How to Exclude an Expert Who Says There is No Expectation of Online Privacy

A Plaintiff successfully excluded the Defendant’s testifying expert whose opinion was that “no one, including Plaintiffs, has a reasonable expectation of privacy in Internet communications.”  Clements-Jeffrey v. City of Springfield, 2011 U.S. Dist. LEXIS 81898, 2-3; 10 (S.D. Ohio July 27, 2011).

The case involved the theft of a laptop.  The “contextual expert” was going to offer the following opinions:

1. It is not reasonable to believe that electronic communication is private online.

2. Only the original owner of a computer can have meaningful knowledge of security protection it contains. Any subsequent user of a laptop cannot assume automatic protection of any kind.

3. Computer, laptop, and electronic equipment theft is a serious social and  criminological problem for organizations, businesses and individuals that requires reasonable remote and location-specific security solutions.

4. When a company activates system operation software capture for security reasons, the representatives of the company/employees cannot predict the nature of the material that will be accessed.

5. Security and theft protection tools are necessary and proper tools to combat computer theft.

Clements-Jeffrey, at *2-3.

The Court held the Defense Expert’s opinion was “absolutely irrelevant,” because the issue of whether the Plaintiffs had a reasonable expectation of privacy in their Internet communications was a question of law.  Clements-Jeffrey, at *6.

The Court further noted that the expert’s “opinion” was also contrary to case law.  Id.

The Court quickly recounted well-established precedent by multiple courts recognizing individuals having an objective reasonable expectation of privacy in their computers.  Clements-Jeffrey, at *7.

Moreover, case law has held that password-protected personal computers have an even greater privacy protection.  Id.

The Court further cited a Sixth Circuit case involving electronic communications holding that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial [Internet service provider].’” Clements-Jeffrey, at *8, citing United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), reh’g and reh’g en banc denied (2011) (quoting Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007)).

Furthermore, the Sixth Circuit held that that “the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration.” Clements-Jeffrey, at *8, citing Warshak, at *285.  As the Court further explained:

The court in Warshak also held that even though email had to pass through an Internet service provider (“ISP”), and even though that provider may have contractually reserved the right to access the subscriber’s email in certain circumstances, neither the ability of the ISP to gain that access, nor its contractual right to do so, extinguished the user’s reasonable expectation of privacy.

Clements-Jeffrey, at *8-9, Warshak, at 286-87.

The Court drove the issue home on the expert’s opinion with the following:

These holdings can logically be extended to cover instant messages and webcam communications, the types of electronic communications at issue in this case. Applicable statutes also shed light on whether an individual has an objectively reasonable expectation of privacy in electronic communications. The Stored Communications Act (“SCA”), 18 U.S.C. § 1701 et seq., at issue in Warshak and Quon and the subject of one of Plaintiffs’ claims in this case, specifically prohibits the intentional, unauthorized access of stored communications such as email. The Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511, also the subject of one of Plaintiffs’ claims in this case, specifically prohibits the intentional, unauthorized interception, disclosure, and use of wire, oral, and electronic communications.

Clements-Jeffrey, at *9-10.

The Court held that the expert’s opinion was “contrary to law, and thus not relevant to the issues in this litigation.”  Clements-Jeffrey, at *10.

Bow Tie Thoughts

To say that the expert’s opinion that “no one” has an objective reasonable expectation of privacy in Internet communication bothered the judge is an understatement.

Privacy is a key battleground in litigation today, because individuals live their lives connected to email, text messages, IM’s, social media and whatever network their data is being sent over.  Relevant information is rightly subject to discovery in litigation, but to say there are no privacy interests at issue is a grave mistake.

The fact data is sent over an ISP does not render the 4^th Amendment dead-letter law. Congress will continue to debate these issues and Courts will continue to vindicate these rights in litigation.  These issues will continue to make case law for the foreseeable future.

Deadliest e-Discovery: When Cameras, Hard Drives & Fishing Boats Collide

Two fishing boats voyaged into the ocean of e-Discovery when the Plaintiff learned of digital photos and video of a collision that was not produced in discovery. May v. F/V LORENA MARIE, 2011 U.S. Dist. LEXIS 52695, (D. Alaska May 16, 2011).

The discovery dispute surfaced like a carb pot after the close of discovery.  The Plaintiff (owner of the F/V Northwestern) brought a motion to compel for photos and video that were taken by the Defendants.  Additionally, the Plaintiff brought a spoilation motion.  May, at *1-2.

The underlining facts involve the a collision between the F/V Lorena Marie and the F/V Northwestern during the “flare” opening of salmon fishing in Kitoi Bay, Alaska.  May, at *2-3.  Witnesses related to the Defendant were in a small boat and took photos and video of the collision.  Some of the photos and video were produced in discovery.  The Plaintiff claimed two videos were not produced.  May, at *3.

Photos were produced from the Defendant’s grandson taken before and after the collision, but not of the collision itself (possibly evidence of a production gag). The witness also claimed he no longer had control of his photos/video, because the hard drive having been lost or stolen.  May, at *3-4.

The Plaintiff argued the electronically stored information should have been produced earlier in the case, because it was likely the photos and video would show who was at fault for the collision.  May, at *4-5.  As one of the witnesses was the Defendant’s grandson who lived with the Defendant, the Plaintiff claimed the Defendant had a duty to locate and produce the ESI.  May, at *5.

The Plaintiff argued the ESI should have been produced under Federal Rule of Civil Procedure Rule 26 as an initial disclosure and under Rule 34 as it was requested in discovery.  May, at *5-6.

The Defendant countered that since the hard drive with the photos and video was lost, the Plaintiff had the burden of showing the producing party actually had the information to produce.  May, at *6.

The Plaintiff requested that since the Defendants failed to produce the photos and video, that the Court make a factual finding as a spoilation sanction that the Plaintiff had the right of way and the Defendants were at fault for the collision.  May, at *6-7.

The Court quickly recounted that spoilation is the “destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” May, at *7.  Furthermore, the duty to preserve requires when a party does not “own or control the evidence, [they] still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.” May, at *8.

A Court must first find the missing discovery was critical to the moving party’s case before issuing sanctions.  In the current lawsuit, the Plaintiff claimed the ESI would show who was at fault for the collision.  May, at *8-9.

The Court held the pending motion in abeyance pending the testimony to be given in the witnesses’ depositions.  May, at *9.

The Court did re-open discovery on a limited basis to depose the photographers with the possibly relevant missing photos and video.  May, at *10-11.  The un-produced photos and video could be relevant to the lawsuit, which the Defendant should have known about, since the photographers were relatives and friends of the Defendant.  May, at *10-11.

Bow Tie Thoughts

Relevant ESI outside of a producing party’s control will be litigated as we continue to use “cloud” services.  The requirement that a party must give an opposing party notice of access or of the possible destruction of evidence they do not own or control is a tidal wave waiting to shatter wheelhouse windows. Further complicating discovery in such situations is the Stored Communication Act, which rightly bars third-party requests as an end run around Federal Rule of Civil Procedure Rule 34 requests.  In such situations, one can imagine having to do a Rule 34 request to the producing party, who in turn must go to their stored communication provider for the production of whatever “cloud” base data needs to be produced.