Know Your Client’s ESI: You Really Don’t Want a Judge Saying, “This is Unacceptable”

This may surprise a few people: There is another magistrate judge besides Judge Waxse writing ESI opinions in Kansas.  Magistrate Judge Donald Bostwick issued an order granting in part and denying in part a motion to compel ESI in Patterson v. Goodyear Tire & Rubber Co., 2009 U.S. Dist. LEXIS 34585, 15 (D. Kan. Apr. 23, 2009).

The parties in Patterson made a big mistake: They neglected their ESI obligations under both the Federal Rules of Civil Procedure and the United States District Court for the District of Kansas Guidelines for Discovery of Electronically Stored Information (ESI). 

The Kansas Guidelines require attorneys to become familiar with their client’s information systems before the Rule 26(f) conference.  That did not happen.  Patterson, 17. 

Further complicating things for the parties, the Initial Order Regarding Planning and Scheduling directed the attorneys to familiarize themselves with the ESI provisions of the Federal Rules of Civil Procedure before Rule 26(f) planning conference.  Patterson, 15.

Three and a half months BEFORE the close of discovery, the Plaintiffs served Discovery requests for electronically stored information to the Defendants.  In the words of the Court: “This is unacceptable.”  Patterson, 17. 

The only chance the Plaintiffs had for any ESI being produced would turn on Defendants’ back-up tapes subject to a litigation hold in a separate lawsuit.  However, this hold only covered two of the three dates the Plaintiffs sought in Discovery. 

The Court ordered the back-up tapes sampled for the names of specific individuals on the available date ranges.  While not wadding into the issue of search terms in any depth, the Court ordered the terms to include first names, abbreviated first names and last names.  Patterson, 17-18. 

The situation in Patterson v. Goodyear Tire & Rubber Co., was entirely avoidable if the parties had not ignored the electronically stored information in the case.  Electronically Stored Information is not something you ignore to the last minute.  Parties are finding themselves having multiple conferences to agree on search terms, meetings with clients on sources of ESI and time with consultants to determine best practices for collection and processing.  There are many issues to be aware of when dealing with electronically stored information.  Procrastinating is really a bad plan.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

The sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

The Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.

Social Networking Sites in Litigation, or the Status Message of a Lawsuit

Facebook, YouTube and a whole list of other social networking sites are used every second of every day.  People are Twittering their lives away online from their BlackBerries.  There is no shortage of growing case law with online conduct leading to civil or criminal litigation.  Here are several recent examples:

 Sentence Enhancement of Criminal Defendant for MySpace Photos & YouTube Video

A criminal defendant had his sentenced enhanced for photos found on his MySpace page and a YouTube video.  The Defendant was photographed holding an AK-47 with a loaded clip after he had been convicted of a felony crime of violence.  United States v. Villanueva, 2009 U.S. App. LEXIS 3852 (11th Cir. Fla. Feb. 25, 2009).

Police Officer Accused of Misconduct over MySpace Profile

A police officer was accused of misconduct after he posted information on his MySpace profile regarding the arrest of John Michael Montgomery.  Cromer v. Lexington-Fayette Urban County Gov’t, 2008 U.S. Dist. LEXIS 65374 (E.D. Ky. Aug. 25, 2008).

Students Suspended from Private Religious School for Online Statements

Two female students were suspended from a private Lutheran school for statements on their MySpace pages about their sexual orientations and a relationship between the two youth.  Doe v. California Lutheran High School Assn., 170 Cal. App. 4th 828, 833 (Cal. App. 4th Dist. 2009).

School Administrator Sued for Discrimination

A middle school administrator was sued for multiple discrimination claims.  Some of the evidence included Facebook groups entitled “Everyone Hates [WW]” and “I Love Watching Fights at School.”  Threats were made on the groups and the youth was assaulted shortly after the online threats.  Wolfe v. Fayetteville, 2009 U.S. Dist. LEXIS 15182 (W.D. Ark. Feb. 26, 2009).

 There are many positive attributes from social networking, including building business and sharing information.  However, there are those who take actions online that can lead to litigation, cause pain or unintended humiliation. 

 A lawyer’s duty of competency may require them to ask their clients about any social networking profiles the client maintains.  Whether or not there is anything relevant about those profiles would completely depend on the case. 

There are situations where a party seeking social networking sites in discovery would be harassment and oppressive.  For example, it is hard to imagine in a breach of contract case where a social networking profile would be relevant.  Conversely, a disability case may be justified to seek photos from a social profile regarding a Plaintiff’s activities. 

In short, whether something from a social networking site is relevant will depend on the case.  Needless to say, there is no shortage of examples from case law with Facebook, MySpace, YouTube and other social networking services being offered as evidence.

What Happens When the Requesting Party Does Not State a Form of Production?

Federal Rule of Civil Procedure Rule 34 allows for a requesting party to state the form of production in their request. In the event a requesting party does not state the form of production, the responding party can state the form of production in their reply. However, if no party states the form of production, the ESI must be produced in the form it is ordinarily maintained or in a reasonably usable form.

So, how does this all work when the request does not state the form of production? Can the responding side product ESI as paper and run away laughing like giddy children as their opponents weed through a semi-truck full of documents?

Short answer: NO.

Federal Courts have applied the Advisory Committee notes in applying Federal Rule of Civil Procedure 34(b) in form of production disputes. Case law has held that a party may produce ESI in a “reasonably useable form,” but ESI ordinarily kept in electronically searchable form “should not be produced in a form that removes or significantly degrades this feature.”  In re Payment Card Interchange Fee, Slip Copy, 1007 WL 121426 (E.D.N.Y.), 4, citing Fed.R.Civ.P. 34(b), 2006 Amendment, Advisory Committee’s Note.

Judge Waxse’s opinion in White v. The Graceland College Center, 2008 U.S. Dist. LEXIS 63088 ( D. Kan. Aug. 7, 2008 ) also addressed the issue of not specifying the form of production. In White, the plaintiff did not specify the form of production and the defendants converted native file email messages and attachments to PDFs and then printed the PDFs as a paper production.

The Court found that the Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a “reasonably usable form,” as required by Rule 34(b)(2)(E)(ii). The producing party was compelled to reproduce their production in native file format. The court relied on the Advisory Committee notes to Rule 34, stating that “Defendants’ option to produce in a reasonably usable form does not mean that they are free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for Plaintiff to use the information efficiently in the litigation.”

Case law has consistently followed the Advisory Committee Notes when a party fails to specify a form of production and the producing party attempts to remove the “search-ability” of electronically stored information. While converting to PDF and then printing is an extreme example, Courts have had little tolerance for parties making productions difficult or burdensome to use in litigation.

The Request for Production You Never Saw Coming: Match.com Profiles as Evidence

Dating is not always easy. Dating outside of a marriage is just asking for trouble.

The key evidence in a recent marriage fraud case was the Defendant’s Match.com profile. Now, there was other substantial evidence in the case, but the evidence the court spent the most time on was a witness from Match.com.[1]

The Defendant was a Bulgarian national in the United States on a student visa. The month her visa was to expire, she married a man from Bulgaria. After an investigation by INS, the Defendant was charged with marriage fraud.

The Match.com evidence included the following:

· An updated profile after the marriage for continued dating;

· Profile said “never married;”

· Communicated with others on Match.com after “marriage.”

The evidence was sufficient to show the Defendant knowingly entered into a fraudulent marriage for the purpose of obtaining immigration benefits.

The explosion of online dating, social networking sites and other online activity is fueling a never ending creation of electronically stored information. Effectively using this information is a new challenge for lawyers. For example, if a Match.com or Facebook profile is evidence, how to you capture it? Can a paralegal just print it? Should you save it as a PDF? Do you need an expert to collect the webpage with special software? The answer is: “It depends on the facts.”

More importantly, how do you authenticate this electronically stored information? If you do not want a situation where your paralegal may have to testify, an outside expert may be necessary. This person might be a consultant hired to collect the information from the internet or a witness subpoenaed from the website.

Many lawyers’ heads spin at the idea of an online personal ad being evidence. However, we live in a world where people post their lives online. The electronically stored information is waiting online; whether or not it is relevant is for lawyers to investigate.

[1] United States v. Dimitrova, 266 Fed. Appx. 486, 488 ( 7th Cir. Ill. 2008 )