The Meet & Confer Condition Precedent

In the absence of any actual discovery dispute, I cannot see any benefit from my creating an Electronic Discovery Order for the parties from whole cloth, when they know better than I what information they have and what information they need.

United States District Court Judge Catherine Perry

Process Controls Int’l, Inc. v. Emerson Process Mgmt., 2011 U.S. Dist. LEXIS 49876 at *29 (E.D. Mo. May 10, 2011)

In a business dispute involving false advertising, defamation, and tortious interference claims, the Plaintiff brought a motion to enter an Electronic Discovery Order. The Court denied the order, because the parties had not yet held a Rule 26(f) meet and confer on electronically stored information. Process Controls Int’l, Inc. v. Emerson Process Mgmt., 2011 U.S. Dist. LEXIS 49876, 27-29 (E.D. Mo. May 10, 2011).

The Plaintiffs argued that the electronically stored information in the case would be “voluminous,” thus an order was “necessary to organize and accommodate that discovery.” Process Controls Int’l, Inc. at *28.

The Defendants countered no order was necessarily, because the Defendants claimed that there were no discovery disputes and they were willing produce all of their electronically stored information. Moreover, they argued the proposed order was “unduly burdensome.” Process Controls Int’l, Inc. at *28.

The Court denied the order with the ominous phrase “at this time.” Process Controls Int’l, Inc. at *28.

The Court reasoned from the different moving papers the parties had not met and conferred in good faith, pursuant to Federal Rule of Civil Procedure Rule 26(f). In the words of the Court, Rule 26(f) “anticipates and encourages parties’ good faith attempts to come to their own agreements for the discovery of electronic data.” Id.

Instead of issuing an electronic discovery order, the Court ordered the parties to meet and confer in person and “make all reasonable attempts to resolve this issue on their own.” Process Controls Int’l, Inc. at *29.

The Court agreed that the discovery would be great, however, that was not a reason to enter a discovery order before the parties held a Rule 26(f) meet and confer. Process Controls Int’l, Inc. at *29.

Bow Tie Thoughts

The concept of parties being “frenemies” is alien to most litigators. Attorneys are used to an adversarial process and the idea of cooperating over discovery is difficult for many long time litigators.

With that said, a Rule 26(f) conference is not a beach bond fire with singing songs about metadata production. Attorneys must vindicate their client’s case, set rational collection procedures, propose form of production protocols that expedite the efficient review of discovery, address issues of privilege, and many other litigation concerns.

More importantly, courts want to see parties attempt to resolve their disputes without opinions being issued at every turn. As United States District Court Judge Catherine Perry highlighted in this case, there is little benefit (and probably risk) to a court blindly issuing a discovery order without a dispute.


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

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

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

Launch Party Information

Thursday, May 5

5:30 to 7:00 – Appetizer Reception

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


Rooster T. Feathers Comedy Club  

157 West El Camino Real

Sunnyvale, CA 94087

RSVP for The Deponent App Launch Party

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

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

The Deponent App allows you to:

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

Learn More

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

Spoliation & Safe Harbor under Rule 37(e)

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

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

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

The Police Department’s Video Policy & History

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

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

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

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

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

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

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

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

Courts consider five factors in judging a motion for sanctions:

1) Was there a duty to preserve documents?

2) Was the duty to preserve breached?

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

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

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

Miller, at *7.

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

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

The Plaintiffs’ Arguments

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

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

As the Court explained in footnote 1:

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

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

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

Miller, at *8-9, fn1.

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

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

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

Bow Tie Thoughts

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

The “I was on MySpace” Alibi

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

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

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

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

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

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

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

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

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

Bow Tie Thoughts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bow Tie Thoughts

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

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

Bow Tie Law 200: ILTA 2010 Recap

My 200th posting is a recap of ILTA 2010

The 2010 ILTA Conference was a great success.  The conference had excellent content, an active exhibit hall and many networking opportunities. 

The Exhibit Hall

I spent most of the show in the exhibit hall.  The vendors all provided interesting updates on their services and products.  I think the following will be the most useful to attorneys:

                Lexis Nexus product integration with Microsoft Office:  The integration of Lexis’ legal research search tools and Office should expedite workflow in creating legal memoranda. 

                Big Hand Digital Dictation:   “Big Hand” is maximizing traditional diction with mobile apps.  Differently something worth checking out if you need to dictate a memo and email it directly to your assistant on the go.

                Nextpoint:  There are several cloud preservation tools entering the market.  Nextpoint offers a tool to crawl your client’s online presence from their websites to social media for archiving. 

Head in the Clouds

I attended one session on Corporate Information in the Cloud.  The highly talented panel included Cynthia Bateman, KPMG, Vincent Catanzaro, William Kellermann, Wilson Sonsini Goodrich & Rosati, and Daryl Teshima. 

The panel focused on how organizations are losing control over information creation, such as employees creating a Google Doc for project collaboration outside of the corporate firewall.   Other challenges include the legal risk of storing information in the Cloud verse the IT benefit of outsourcing.  

D4 & AccessData Group

D4 and the AccessData Group hosted a bowling party at the Palms.  The event was extremely well attended.  I am proud to say our team took home second place. 


I had the privilege of being interviewed by Christy Burke for a Legal IT Professionals podcast . 

Bow Tie Thoughts

I enjoyed ILTA for all the networking, content and seeing what is new in the market.  I congratulate the organizers on another very successful year.