Meet & Confer at 10 Paces

There are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.

The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).

The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.

Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.

According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.

The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.

Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.

Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.

Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.

Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.

Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.

After the parties finished taking their respective shots at the other, the Court stated the following:

Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.

Procongps, Inc., at *11-12.

Bow Tie Thoughts 

The Dreyfus Protocol should never be included in a meet and confer.

eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.

The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.

Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.

2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

No Differences in Discoverability Between Social Media & Email

Letters versus telegrams. Faxes versus emails.

Attorneys must be familiar with the many ways people have communicated in the everyday course of their lives.

“Social media” is just another evolution in technology for possible sources of electronically stored information.

Robinson v. Jones Lang Lasalle Ams., is a case centering on a motion to compel the production of social media discovery from the Plaintiff in an employment dispute. Robinson v. Jones Lang Lasalle Ams., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012).

The Defendants specific sought social media including:

…photographs, videos, and blogs, as well as Facebook, Linkedln, and MySpace content that reveals or relates to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint…

Robinson, at *1-2.

The Court bundled its analysis of the social media discovery bundled with other electronically stored information including email and text messages. As Magistrate Judge Paul Papak wisely stated, recognizing that social media is simply another form of ESI:

I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.

Robinson, at *3.

In determining its order, the Court cited E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (“Simply Storage“), which “recognized that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff’s allegations of the severity of that distress.” Robinson, at *3-4.

The Plaintiff previously agreed to produce social media discovery “directly referencing her allegedly discriminatory supervisor or ‘work-related emotions.’” Robinson, at *5. Following the principles from Simply Storage, the Court ordered the following:

(1) any: (a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to: (a) any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

Robinson, at *5-6.

The Court explained that the category of communications pertaining to “any emotion, feeling, or mental state that plaintiff alleges to have been caused by defendant” was in regards to “information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.”  Robinson, at *6.

Additionally, the category of communications “that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct” was meant to produce discovery “establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident.” Robinson, at *6-7.

The Court walked the line between limiting discovery and declaring open season on the Plaintiff’s life with the following passage:

As Simply Storage recognized, it is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production. 270 F.R.D. at 436. Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what “has and has not been produced and can challenge the production if it believes the production fails short of the requirements of this order.” Id. Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiff s deposition or other discovery. 

Robinson, at *6-7.

Bow Tie Thoughts

Magistrate Judge Paul Papak did a huge service to eDiscovery with the statement “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” Robinson, at *3.

Social media content is just another form of electronically stored information. For example, there is no legal difference in drafting requests for Lotus Notes and CAD files. The same is true for social media, because it is literally just another flavor of ESI. Social media does not require special rules, just a recognition of the procedures that follow such requests.

Social media should not strike fear into the hearts of lawyers. Attorneys must learn to overcome their fear by understanding the types of social media their clients use; ways to preserve social media; what sorts of social media they should request; different forms of production; and whether any privileges apply to the specific electronically stored information.

Requesting Facebook Wall Posts obviously have differences with requests for email messages. However, the Federal Rules of Civil Procedure apply equally to both, and that is something that Magistrate Judge Paul Papak recognized in Robinson v. Jones Lang Lasalle Ams.

You Do Have to Look for Discovery in Your Possession

A Producing Party (the Defendant) argued against searching for responsive electronically stored information, claiming “that the mere fact an employee might have discoverable information or relevant knowledge does not necessarily mean she possesses relevant documents.” McNearney v. Wash. Dep’t of Corr., 2012 U.S. Dist. LEXIS 108386, 14-16 (W.D. Wash. Aug. 1, 2012).

Negative inductive reasoning aside, Federal Rule of Civil Procedure Rule 34 requires a party “to produce requested documents if they are within his ‘possession, custody, or control.’” McNearney, at *14, citing Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 165 n.6 (1980) (Stevens, J., concurring in part and dissenting in part).

The Producing Party did not challenge that it failed to search for responsive electronically stored information from “numerous employees identified as likely having discoverable [information],” but took the position that just because it was possible the custodians had relevant information, did not mean they actually had the relevant information.  McNearney, at *14.

The Court agreed with the logic, but that did not give the Producing Party a free pass on its duty to make a reasonable inquiry, especially considering the fact the Producing Party identified the employee as likely having relevant information. Id.

Further causing problems for the production, was a difference in email messages produced by the Defendant and two other Defense custodians, suggesting that there had not been a reasonable search for email by one of the Defense custodians. McNearney, at *14-15.

The Producing Party also conceded that it did not produce email attachments and that its search scope was narrower than the Plaintiff’s discovery requests. McNearney, at *15.

The Court held the following on the Defendant’s search:

Defendant’s production of some documents in response to RFP No. 5 does not satisfy its duty to make a reasonable search for and produce all responsive documents in its possession, custody, or control. Despite its original objection that RFP No. 5 was unduly burdensome because it was “a trap for Defendants,” DOC has not demonstrated that conducting a thorough search for responsive ESI would pose an undue burden or cost, as required in responding to a motion to compel. Fed. R. Civ. P. 26(b)(2)(B).

McNearney, at *15-16 (Emphasis added).

Bow Tie Thoughts

A party must demonstrate undue burden to limit discovery. This does not include an argument “that just because there might be something relevant, does not mean there is something relevant.”  While that is true in a logical discussion during a philosophy class, the Federal Rules of Civil Procedure are not an exercise in metaphysical nihilism to circumvent a party’s duty to conduct a reasonable search for responsive ESI to a discovery request.

The Federal Rules of Civil Procedure require ESI to be produced as it is ordinarily maintained or in a reasonably useable form. By the plain language of “ordinarily maintained,” a producing party cannot break the parent-child relationship between email messages and their attachments (or Tweets and Hyperlinks or text messages with photos).  Additionally, a production that breaks the parent-child relationship is not in a “reasonably useable form,” since searching for an attachment to its corresponding message is like re-unitizing a document that has had its staples removed and the pages shuffled with 1,000 other pages.

The technology to collect, search and produce electronically stored information are well established now after a decade of being available. These products are common services offered by eDiscovery service providers and many law firms have brought these technologies in house. While electronic discovery has many challenges, there are solutions available to these challenges that are affordable.

A Civ Pro Review of Jurisdiction

Judge Susan Illston could not simply Tweet her decision with 140 characters in Twitter, Inc. v. Skootle Corp.

Twitter sued the Defendants on numerous causes of action for the Defendants’ alleged spamming activity, including breach of contract, tortious interference with contract, fraud, and unfair or deceptive business practices.  Twitter, Inc. v. Skootle Corp., 2012 U.S. Dist. LEXIS 87029 (N.D. Cal. June 22, 2012).

The alleged facts of the suit involved the Defendants operating over 129,000 automated Twitter accounts that used “deceptive language” that directed Twitter users to websites that provided “online payment services of questionable legitimacy.” Twitter, at *6.

The Plaintiff alleged the Defendants’ actions included violating the Terms of Service Agreement by:

(a) Spamming users;

(b) Creating serial accounts for disruptive or abusive purposes;

(c) Tweeting misleading links; and

(d) Posting the same message from multiple accounts.

Twitter, at *6.

The Plaintiff claimed they spent at least $75,000 in anti-spam measures and sought multiple remedies against the Defendants.  Id.

One Defendant, acting pro se, brought a motion to dismiss based on subject matter jurisdiction and personal jurisdiction, plus other traditional civil procedure challenges. Twitter, at *1-2.

The Court’s holding could have been a very short Tweet: Denied.

Civil Procedure Review

Judge Illston first addressed the challenge of lack of subject matter jurisdiction.

The Defendant challenged diversity jurisdiction on the grounds the Plaintiff stated their anti-spam costs were “at least $75,000” and not “exceeds the sum or value of $75,000.” Twitter, at *7.

The Defendant also claimed that contract law is a state law issue that should not be litigation in Federal Court. Twitter, at *7-8.

Finally, the Defendant claimed the use of the term “spam” did not meet the definition of the CAN-SPAM Act of 2003. Twitter, at *8.

The Court held that the Defendant failed to meet his burden that subject matter jurisdiction was improper.

First, Twitter’s anti-spam expenses were only one expense they incurred from the Defendant’s actions. The complaint also sought compensatory, statutory, punitive, and exemplary damages, in addition to restitution and disgorgement of profits to be established in trial. Twitter, at *8-11.

As the Court held in 796 characters:

Here, [Defendant] has not met his burden. He has not presented any facts that would support his position that the amount in controversy cannot exceed the jurisdictional minimum. It is only disputed, not implausible, that the amount sought by plaintiff, including the value of the injunctive relief, is over $75,000. Further, it is well-established that a federal district court may hear a breach of contract claim, among other matters of state law, in diversity jurisdiction. Finally, the definition of “spam” in the CAN-SPAM Act is irrelevant to the present case because the complaint does not concern that Act but a breach of the TOS contract, which defines “spam” for the purposes of the agreement. Defendant Harris’s motion to dismiss for lack of subject matter jurisdiction is, therefore, DENIED.

Twitter, at *10-11.

Personal Jurisdiction

The Court rejected the Defendant’s personal jurisdiction challenge, because there was a valid form selection clause in the Twitter Terms of Service Agreement.  Twitter, at *12-13.

Forum selection clauses are prima facie valid. Twitter, at *12. A party must show the clause was “unreasonable under the circumstances” in order to be set aside. Id. Further, “hardship” in having to travel to California does not make a clause unreasonable when a defendant was both aware of a clause and able to negotiate it.  Id.

The Defendant was from Florida and failed to show any evidence regarding his ability to litigate in California. Twitter, at *12-13. The Defendant’s arguments of personal jurisdiction truly ran aground when the Court cited the law school favorite Carnival Cruise Lines, Inc. v. Shute:

The Supreme Court has held that cruise ticket purchasers were bound by a forum selection clause in a standard contract when “conclusory reference to the record provides no basis for this Court to validate the finding of inconvenience.”

Twitter, at *13, citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594 (1991).

The Court held that enforcement of the forum selection clause was not unreasonable, based on the allegations in the complaint that the Defendant:

1) Offered “online payment services” and attempts to profit from his alleged Twitter “spam;”

2) That Twitter has spent $75,000 to counteract the Defendant’s 129,000 automated Twitter Accounts; and

3) The Defendant did not submit any evidence regarding his ability or inability to litigate in California.

Twitter, at *13.

Bow Tie Thoughts

This case literally sounds like a first year Civil Procedure exam. The Court reviewed each element of subject matter jurisdiction, personal jurisdiction, venue, service of process and pleading. The Court even cited a first year case: Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

Online businesses and traditional rules of Civil Procedure have been an entertaining issue since the mid-1990s (Well, for people who like Civ Pro and e-Commerce). Moreover, the impact of forum selection clauses are always interesting to review in online disputes, because they can be unreasonable in certain situations and valid in others (See, Dix & Smith v. ICT Group, Inc., and AOL, 161 P.3d 1016, 1020 (Wash., 2007), where a forum selection clause was found unreasonable because it denied the plaintiffs relief under the Washington Consumer Protection Act).

This is a solid opinion that I predict will be in future Civil Procedure classes.

Streaming Early Discovery in Online Music Infringement

The Plaintiffs filed a suit alleging copyright infringement against the online proprietors of Korean pop music website where the Defendants “post, organize, search for, identify, collect and index links to infringing material that is available on third-party websites,” which the Plaintiff claimed was a “a one-stop shop for infringing material.” DFSB Kollective Co. v. Jenpoo, 2011 U.S. Dist. LEXIS 62163, *1-2 (N.D. Cal. June 10, 2011).

The Plaintiffs sought early discovery on eight third-party service providers and “other necessary entities that may be uncovered during discovery” to identify the Doe Defendants, because the Defendants allegedly used false names on their various websites and social networking profiles. DFSB Kollective Co., at *2, 4. The service providers included:

SoftLayer;

Facebook;

Twitter;

Google;

MySpace;

DPS;

HostGator and

GoDaddy

DFSB Kollective Co., at *4.

Requirements for Early Discovery

Early Discovery may be allowed by a Court when there is “good cause” and “for the convenience of parties and witnesses and in the interests of justice.” DFSB Kollective Co., at *4, citing Fed. R. Civ. P. 26(d).

A Moving Party must show the following to conduct early discovery:

(1) Identify the defendant with enough specificity to allow the Court to determine whether the defendant is a real person or entity who could be sued in federal court;

(2) Recount the steps taken to locate the defendant;

(3) Show that its action could survive a motion to dismiss; and

(4) File a request for discovery with the Court identifying the persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information.

DFSB Kollective Co., at *4, citing Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

Downloading Good Cause

The Court found good cause for early discovery, because ISP subscriber logs are retained for a short time before the data is lost. DFSB Kollective Co., at *5. In short, time is of the essence to identify Doe Defendants with ISP information.

The Court outlined how the Plaintiffs had satisfied the four-factor test for conducting early discovery:

Defendants specifically identified e-mail addresses, user IDs, and account numbers.

The Defendants had hired investigators and presented the findings to the Court.

The Defendants established that the Complaint would likely to survive a motion to dismiss.

The Defendants demonstrated there was a reasonable likelihood that third-party discovery would produce identifying information, with a couple of big caveats.

DFSB Kollective Co., at *5-6.

The Court’s Terms & Conditions on Limited Discovery

The Court’s order was limited to six of the third-parties, because the Plaintiffs did not show a connection between MySpace and GoDaddy to the Defendant. DFSB Kollective Co., at *6-7. The Court noted that the MySpace account appeared dormant and contained no references to the Defendants’ website. Id.

Additionally, the Court limited the search into the different email addresses down to two, because those addresses appeared connected to the alleged infringing activity. DFSB Kollective Co., at *7.

Furthermore, the Court did not allow the Plaintiff to subpoena the Defendants’ financial institutions. Id.

The subpoenas were limited to the production of the names, addresses, phone numbers, e-mail addresses, and physical addresses associated with those accounts. Id.

No Tonkin Gulf Resolution for Production

Echoing the logic that enacted the War Powers Act, the Court refused to give an open-ended order where the Plaintiff could seek discovery from “other necessary entities that may be uncovered during discovery.” DFSB Kollective Co., at *7-8.

Pistols at Downloading: Dueling Procedures for Third-Party Service Providers

The third-party service providers subject to the discovery order were required to serve a copy of the subpoena on their affected subscribers. If the subscribers did not file a motion to quash, the third-parties would then produce the required information within 10 days. DFSB Kollective Co., at *8-9.

Bow Tie Thoughts

Early discovery from third-party service providers walks a delicate line between furthering the interests of justice and violating privacy laws. In this case, early discovery was absolutely required to identify the Doe Defendants. Early discovery from third-party service providers is often the only way to identify committing an online tort.

However, the idea of a Court giving a very open-ended Order to seek discovery from “other necessary entities that may be uncovered during discovery” should give everyone pause. Discovery requests are supposed to be narrowly tailored and reasonably particular against an entity; a blank check to seek discovery from un-named third-party service providers would be a very dangerous precedent. If a third-party is identified and has a causal connection to a case that may produce information to identify a doe defendant, a party should bring it before the Court for expedited discovery.

The other risk with early discovery is ordering the production of otherwise privileged information. For example, California has a state constitutional right to privacy which might apply in some cases. The Stored Communication Act protects the contents of email messages from production by a third-party. Financial information is also often protected by both Federal and State laws. While producing names, addresses, phone numbers, e-mail addresses, and physical addresses is within the interests of justice, Courts must guard against these procedures from being abused.

Santa Clara Bar Association Expert Deposition Seminar

Go “On the Record” with the Santa Clara County Bar Association Civil Practice Committee’s new expert deposition seminar on June 22 at 6:00pm. To register, click here.

“On the Record” is a seminar with Judge Gregory Ward (retired), author of California Objections (James Publishing). After the brief introductory material by Judge Ward, 10 expert witnesses will be available with sample expert reports for mock depositions by the attendees. Experienced attorney coaches will assist the attendees in their mock examinations.

Attorney participants will have the opportunity to depose an expert witness from any one of the following areas:

> Electrical Engineering
> Fires & Explosions
> Computer Forensics
> Industrial Hygiene
> e-Discovery Search Term Efficiency
> Mechanical Engineering
> Advanced Materials

Join us for the latest on deposing experts in California. Learn a judge’s perspective on expert depositions and gain hands-on practice with experienced expert witnesses.

Part 1: 

Retired Superior Court Judge Gregory Ward will give a short overview of expert witness requirements, focusing on preparing to take an expert’s deposition.

Part 2: 

Attendees will divide into small groups for a practical exercise with attendees conducting 10-15 minute questioning of experts.

The experts will be from multiple subject areas to represent several practice areas. Each attendee will be given a one-page expert’s “report” to use in the mock deposition.

Facilitating the interactive groups of Part 2 are the following: Kristine Meredith, Nora Rousso, plus other attorneys to be announced.

Pricing:

SCCBA Member: $65.00
Non-Member: $149.00
SCCBA New Admittee (0-3 years in practice): 55.00

Driving the Snakes from e-Discovery Seminar

Driving the Snakes from e-Discovery, the first seminar by the Santa Clara County Bar Association e-Discovery Task, will be on March 17, 2011 in San Jose, California.  This two-hour seminar is the first of a four-part series on e-Discovery in Silicon Valley. To register for the panel, please click here. 

“Driving the Snakes from e-Discovery” is an introduction to electronic discovery. It will address practical solutions for understanding and competently handling e-Discovery issues, whether you are working with a small client or a large enterprise and will include an overview of e-Discovery terminology; understanding computers and sources of electronic data; collection methodologies for large and small clients; litigation hold notices and strategies; and best practices for complying with the California Electronic Discovery Act and the Federal Rules of Civil Procedure.

I am very proud to be on this panel with an all-star panel, including:

Judge Socrates Manoukian, Santa Clara County Superior Court

William Kellermann, Esq., Director of e-Discovery at Wilson Sonsini Goodrich & Rosati

Dianne Sweeny, Esq., Pillsbury Winthrop Shaw Pittman LLP

Kate Wilson, Esq., Berliner Cohen

Jon Rowe, PinPoint Labs

If you are in Silicon Valley and the San Francisco Bay Area, we hope you can join us on March 17 for Driving the Snakes from e-Discovery.  Our panel is also sponsoring O’Doul’s Non-Alcoholic Beer in honor of St. Patrick’s Day.

A Civil Procedure Car Crash

A short Civil Procedure Overview: 1) A protective order must correspond to a discovery request; and 2) A motion to compel needs to have an underlying request. 

In an auto-recall case, the Plaintiff had produced 1.79 million pages of documents in discovery, plus an additional 84,000 pages of documents from the Japanese non-party parent company.  Nissan N. Am. v. Johnson Elec. N. Am., 2011 U.S. Dist. LEXIS 16022 ( E.D. Mich. Feb. 17, 2011).

For the tone of the opinion, discovery sounded as smooth as a student driver learning to drive a manual transmission up a hill.  On ice.

As we go into first gear, the Plaintiff was initially ordered to supplement its discovery responses to 1) identify the sources of ESI it did not search because of undue burden; 2) why the ESI was not reasonably accessible due to undue burden and cost; and 3) an estimated of costs and associated effort in retrieving the electronically stored information.   Nissan N. Am., at *2. 

Shifting to second gear, the Defendant claimed the Plaintiff’s supplemental discovery contained misstatements that undercut the sufficiency of the Plaintiff’s preservation and production of ESI.  Nissan N. Am., at *2-3.

Seeking a tune up to the Plaintiff’s production, the Defendant tried to informally communicate with the Plaintiff to cure the alleged discovery defects.  The Defendant asked (not in a discovery request) to produce the following to comply with the earlier Court order:

(a) A data map to show what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived;

(b) Document retention policies;

(c) Tracking records and/or requests for restores; and

(d) Backup policies.

Nissan N. Am., at *2-3.

In what conceptually could be making a right hand turn from the far left lane, the Plaintiff filed a Motion for Protective Order, claiming the Defendant’s informal request 1) sought discovery from “not readily accessible” systems and 2) demanded “broad and duplicative searches” of custodians whose data had already been collected.  Nissan N. Am., at *3. 

Plaintiff’s Motion for Protective would deny the Defendant the discovery of the following:

(1) Discovery of system-wide searches of Plaintiff’s systems and custodians beyond what Plaintiff has already provided;

(2) Plaintiff’s “not readily accessible” sources identified by Plaintiff, including backups;

(3) Plaintiff’s record retention practices or disaster recovery backup policies;

(4) Plaintiff’s tracking records and requests for computer restores to IT and vendors; and

(5) A “data map” to provide information on all of Plaintiff’s systems.

Nissan N. Am., at *3-4. 

The Red Light on Additional Searches

The Defendant argued they did not request the Plaintiff conduct additional searches, but wanted confirmation that custodians were searched involved in the recall or identified in the Rule 26(a)(1) initial disclosures.  Nissan N. Am., at *4. 

The Court held that since the Defendants were not seeking additional searches, but only confirmation, the Plaintiff’s motion for protective was denied on this issue. Nissan N. Am., at *5.  In the words of the Court: 

Since Plaintiff claims to have searched the documents of its key custodians and states that it has already produced all relevant documents for all readily-accessible sources, it should be able to provide this confirmation without significant effort. Presumably if Plaintiff did not search the computer systems of all or some of these forty-one individuals it can provide justification for its decision.

Nissan N. Am., at *5. 

Back-Up on the Back-Up Tape Argument

As for the back-up tapes, the Court agreed they were not reasonably accessible; however that was not the issue.  The Defendant asked for the Plaintiff’s back-up policies, tracking orders and requests for restores.  Nissan N. Am., at *8.

The Court found no basis to issue a protective order of the Plaintiff’s back-up systems when there was no request for the information.  Nissan N. Am., at *9.  Moreover, there was not good cause for a protective order over the Plaintiff’s policies.  Nissan N. Am., at *8-9.

Asking for Directions: Data Map & Rule 26(a)(1)

The Plaintiff’s request for a protective order to not produce a data map was an argument that could not be jump started.  

The Defendant’s request for a data map included identifying what data was located on different systems, who used the systems, data renention, and back-up information. Nissan N. Am., at *9.

The Court denied the protective order on Rule 26(a)(1) grounds.  As the Court explained

In order to comply with this mandatory disclosure counsel must become knowledgeable about their client’s computer systems and ESI at the onset of litigation. Hence, Plaintiff’s counsel should have access to information from which it could readily discern what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived. Plaintiff has not shown that it is in need of an order protecting it from annoyance, embarrassment, oppression, or undue burden or expense related to Defendant’s request for this information. The Court will therefore deny Plaintiff’s motion as to this request.

Nissan N. Am., at *9-10.

Spinning Out on at the Finish Line

Both parties essentially lost the race over the motion for protective order and the production of discovery.

First, the Court found the Defendant’s accusations of spoliation and unethical discovery practices to be unsubstantiated.  Nissan N. Am., at *10. 

Secondly, the Court found the informal discovery requests were separate from the prior Court order.  As such, the Plaintiff did not need to produce any of the informally requested information, which was only before the Court on a Protective Order Motion.  Id.

Bow Tie Thoughts

Effective pleading and motion practice are extremely important to e-Discovery.  A party must be sure to specifically request the desired information before bringing a motion to compel for that information.  Additionally, a party opposing production and seeking a protective order must actually oppose the specific request, not go on a related, but not requested, tangent.

The Return Line in e-Discovery

The Court in Radian Asset Assur., Inc. v. College of the Christian Bros. of N.M., wrestled with the issue of compelling the return of an imaged hard drive that had been produced in discovery in a lawsuit with a stipulated protective order. 

The Court required the hard drive returned and any copies destroyed.  Radian Asset Assur., Inc. v. College of the Christian Bros. of N.M., 2010 U.S. Dist. LEXIS 107983 (D.N.M. Sept. 24, 2010).

The Production

The Defendants produced a hard drive pursuant to subpoena and a Court order.   The Defendants thought they had deleted all the email on the hard drive, claiming they would only produce email responsive to Court ordered time frames and search terms.  Radian Asset Assur., at *3.

The Defendants also removed any files containing the names of their past attorneys subject to privilege.  Radian Asset Assur., at *3.

The Defendants also removed the folder of the college president’s assistant, claiming the data voluminous, irrelevant, and that anything responsive had already been produced. Radian Asset Assur., at *3.

A Discovery Gift

The Plaintiff’s expert took a look at the hard drive and found several presents waiting for him…

The college president’s secretary’s deleted folder and email were readily accessible. 

The Plaintiff’s expert claimed the data could have been easily restored.  Radian Asset Assur., at *4-5.

While the Plaintiffs did not restore or review the data, they did create a list of the allegedly deleted names and files for the Court’s review.  Radian Asset Assur., at *4-5.

The Plaintiff sought Court approval to review the data and return anything privileged to the Defendants.  Radian Asset Assur., at *5. 

 A High Earth Orbit Launch into Motion Practice

The Defendants wanted everything back, most likely after coming down from being launched into a high Earth orbit. 

The Plaintiffs argued the secretary’s data was not voluminous and was “only” 480 MB.  Moreover, there were file names that should have been produced in discovery.  Radian Asset Assur., at *6.  The Plaintiff also made several representations on the preservation of privilege and that the Defendant would not need to include any other ESI from the secretary in future ESI searches.  Radian Asset Assur., at *7. 

The Defendants had a very different outlook on the hard drive data.

The Defendant argued the Plaintiff was “invading” the attorney-client privilege on ESI that was specifically redacted from production.  Radian Asset Assur., at *7. 

The Defendant further argued that it produced a “redacted” hard drive as a professional courtesy before depositions.  Radian Asset Assur., at *7.  Moreover the hard drive was “provided in a readily-usable, readable format that did not require the use of computer forensic software or other investigative tools to review and search the unredacted files and information.”  Radian Asset Assur., at *7. 

The Defendant claimed the Plaintiff did not need their consultant to review the hard drive and did so “only if” the Plaintiff “wanted something more than it was being intentionally provided would it need to send the hard drive to its expert.” Radian Asset Assur., at *8. 

Without getting into the merits, the Court ordered the hard drive returned and any copies destroyed.  Radian Asset Assur., at *8. 

Bow Tie Thoughts

Parties need to understand the nature of computers and the challenges in producing what they consider to be “redacted” electronically stored information on a hard drive.  I personally think that redacting data on a computer hard drive for production is like trying to redact daylight; something will shine through.     

If a party is concerned with not producing specific data, instead of deleting folders and email on a forensically imaged hard drive, one option is to do a targeted collection of what you want to produce.  This avoids the issue “Did we delete everything?” issue.  Moreover, hoping the opposing party will not restore any data is a dangerous presumption.  Collecting specifically what needs to be produced is a better practice then deleting what you do not want to produce. 

This case could easily have been subject to Federal Rule of Evidence Rule 502 analysis on whether the data was inadvertently produced.  That analysis would have included whether the producing party took “reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.”  Fed. R. Evid. Rule 502(b).  The test generally is 4 or 5 parts, including:

1. The reasonableness of the precautions taken in view of the extent of document production

2. Number of inadvertent disclosures

3. Magnitude of disclosures

4. Measures taken to mitigate the damages

5. Overriding interests of justice.

Merenda v. Detriot Med. Ctr., 2009 WL 454670 at *4 (E.D. Mich. 2009).

I think there could be an argument that merely deleting information on an imaged hard drive is unreasonable.  There are times when it might be acceptable, but given the level of forensic tools commercially available, that might not be a reasonable production.  This possibly could generate a large number of inadvertent disclosures and ultimately a waiver of any privilege.  While that was not the issue in this case, this issue will likely be litigated in the future.