Post Process

Everything to do with E-discovery & ESI

Case Summary: Publicis Groupe; Recusal Motion Found Meritless

Posted by rjbiii on October 10, 2012

Plaintiff moved for the recusal of a magistrate judge under  28 U.S.C. § 455 in a dispute involving the propriety of using predictive coding.  Prior to the case being referred to U.S. Magistrate Judge Andrew Peck, plaitiffs resisted the idea of predictive coding as a component in the e-discovery workflow. 

Plaintiffs did not base their claim on actual incidents of bias, but rather “an appearance of partiality.”  U.S. Magistrate Judge Andrew Peck was asked to recuse himself for

  1. “Public comments concerning the case”;
  2. His “participation on pro-predictive coding panels with defense counsel Ralph Losey while presiding over the parties’ dispute on predictive coding”;
  3. His “numerous speaking engagements in favor of predictive coding, which were at least indirectly sponsored and funded by Recommind and other e-discovery vendors”
  4. His  “failure to disclose [his] activities [which] enhances the appearance of impropriety”

The court began its analysis by declaring that the motion itself was untimely.  Although 28 U.S.C. § 455 doesn’t explicitly address timeliness as a requirement, the issue has manifested itself in prior analyses in two forms: First, judicial resources should not be wasted; and, second, a movant may not hold back and wait to hedge its bets against the eventual outcome.

In deciding whether a recusal motion is timely, a court looks to a number of factors, including whether:

  1. the movant has participated in a substantial manner in trial or pre-trial proceedings;
  2. granting the motion would represent a waste of judicial resources;
  3. the motion was made after the entry of judgment; and
  4. the movant can demonstrate good cause for delay.

The court concluded the movants had been active participants in pre-trial proceedings, and that recusal would require a significant duplication of efforts already expended by the court.  While movants didn’t wait until entry of judgment, they did wait until the court adopted opposing party’s proposed predictive coding protocol.  Although the court didn’t say it plainly, the quotes from cited cases might be seen to imply that movants look to be trying to take a mulligan…or a “second bite at the apple.”  The court not convinced by movant’s statement that they had promptly filed the recusal motion.  The court stated:

Despite plaintiffs’ knowledge as of December 2, 2011 of my views on predicative [sic] coding, and by January 4, 2012 as to my relationship with Losey and my speaking at LegalTech, plaintiffs did not request my recusal until March 28, 2012 by letter and did not file their formal recusal motion until April 13, 2012.  The movant “is charged with knowledge of all facts ‘known or knowable, if true, with due diligence from the public record or otherwise.’” I have made no efforts to hide my views, relationships or affiliations. If plaintiffs truly believed that any of these issues, individually or collectively, created a bias or the appearance of partiality, they should have promptly moved for my recusal.

Accordingly, plaintiffs’ recusal motion is untimely.

Beyond this, the court also declared that plaintiff’s motion was “meritless.”  Judge Peck noted that he had never referred to the substance of this case.  His general comments on predictive coding would not alarm a reasonable observer, and were compatible with movant’s own expert.  Although Judge Peck did participate in panels alongside noted attorney Ralph Losey, whose firm represented movant’s adversary, there had been no ex-parte communication between the two men.  Merely serving on the same panel is not a basis for recusal.  The court also examined the chilling effect for judges and speaking engagements should their motion be successful:

There are probably fewer than a dozen federal judges nationally who regularly speak at ediscovery conferences. Plaintiffs’ argument that a judge’s public support for computer-assisted review is a recusable offense would preclude judges who know the most about ediscovery  in general (and computer-assisted review in particular) from presiding over any case where the use of predictive coding was an option, or would preclude those judges from speaking at CLE programs. Plaintiffs’ position also would discourage lawyers from participating in CLE programs with judges about ediscovery issues, for fear of subsequent motions to recuse the judge (or disqualify counsel).  Taken further, it would preclude any judge who speaks at a CLE conference about any ediscovery subject from handling future cases involving ediscovery. Such a position defies logic and is inconsistent with the Code of Conduct for United States Judges.

Finally, the court defended Judge Peck’s remarks with counsel when things got a bit…testy.  Some of the excerpts included show that the court’s relationship with plaintiffs was far from harmonious.  In previous posts I’ve warned readers about the dangers of unnecessarily provoking the court’s wrath.  Rarely does it end well for the folks stirring the pot.  Below, I’ve listed some of the exchanges between the court and movant’s counsel:

THE COURT: . . . How soon can you [move for class and collective action certification]?

[Pls. Counsel] MS. WIPPER: Your Honor, we would object to moving the briefing schedule to an earlier period given the discovery disputes in this case.

THE COURT: That wasn’t my question. My question is, how soon can you do it? Democracy ends very quickly here, meaning you don’t want to give me a date other than no later than April 1, 2013. I get to pick the date and you get to whine to Judge Carter. [emphasis added].

The court then allowed that it could have chosen [its]words more carefully.  Another discussion ended with this expression of frustration:

“I’ve seen many a big case in this court go a lot more smoothly than this. As I say, I cannot speak to what happened before I inherited the case, but I expect cooperation. Stop the whining and stop the sandbagging. This goes for both sides. Get along.” [emphasis added].

The court noted that movants claimed that the Judge had attempted to dissuade them from objecting to his rulings.  The court disagreed, using the following passage to demonstrate that nothing could have been further from the truth.

[...]at the April 25, 2012 conference I said, “And you have the right to take objections to Judge Carter, which you’re not shy about, so take your objections. Stop arguing with me.”

The court also recalled its own remarks made while discussing a [at that time] potential recusal motion:

“If plaintiffs were to prevail [on recusal], it would serve to discourage judges . . . from speaking on educational panels about ediscovery (or any other subject for that matter). The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their ‘scorched earth’ approach to this litigation.”

Courts often use the phrase “scorched earth” to describe hardball litigation tactics designed to complicate and prolong litigation and drive up litigation costs. My “scorched earth” comment provides no basis for recusal. [emphasis added].

These are a few of the myraid of quotes and exchanges listed in the opinion.  The reader of an opinion has, of course, the benefit of hindsight.  The ruling on a motion, or on the conduct of a case, is included in the very document. It is easy to be critical of unsuccessful parties at that stage (pending appeal, at least).  That said, provoking an already irritated Judge and then submitting a motion for recusal based on what appears to be a weak platform seems like a recipe guaranteed to produce a bitter and unfulfilling dish.

Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 83659 (S.D.N.Y. June 15, 2012)

Posted in 2nd Circuit, Case Summary, Document Review, Magistrate Judge Andrew J. Peck, S.D.N.Y, Technology Assisted Review | Tagged: , , | Leave a Comment »

Odds and Ends

Posted by rjbiii on September 25, 2012

I just don’t get why people do this:

Seven rent-to-own companies and a software maker are settling charges with the Federal Trade Commission that rental computers illegally used spyware that took “pictures of children, individuals not fully clothed, and couples engaged in sexual activities.”

As per the course, the FTC slapped the hand of DesignerWare of North East Pennsylvania and the rent-to-own companies. The settlement, announced Tuesday, only requires them to halt using their spy tools, which has been employed on as many as 420,000 rentals.

The software, known as Detective Mode, didn’t just secretly turn on webcams. It “can log the keystrokes of the computer user, take screen shots of the computer user’s activities on the computer, and photograph anyone within view of the computer’s webcam. Detective Mode secretly gathers this information and transmits it to DesignerWare, who then transmits it to the rent-to-own store from which the computer was rented, unbeknownst to the individual using the computer,” according to the complaint.

Hard for me to imagine the attitudes of the minds behind junk like this.

Real robot-cars: probably safer than the human drivers I see everyday

At a signing ceremony at the Google headquarters on Tuesday, California Governor Jerry Brown signed into law state legislation that officially makes the Golden State the second in the nation to legalize and regulate autonomous cars.

Google, of course, has already developed a fleet of a dozen cars (mostly modified Toyota Priuses) and has already logged over 300,000 miles of autonomous driving on state roads.

The new law obliges the California Department of Motor Vehicles to draft regulations for autonomous vehicles by January 1, 2015.

Hey!  Someone finally realized that police might not need unfettered access to everyone’s email:

A new bill introduced today in the US House of Representatives seeks to require warrants before police can trawl through your e-mail or track your cell phone, reports CNET. The legislation is backed by several technology companies, including Apple, Google, Microsoft, and Twitter. But given the government’s history with privacy bills, it faces a high chance of getting blocked by the Department of Justice.

The bill was introduced by Representative Zoe Lofgren (D-CA) and would require officers to get a warrant before accessing e-mail or location information. Access to these data types is a notorious gray area in US courts.

Once again…yes, social media IS discoverable:

The dispute quickly started focusing on the discoverability of information on Nicole’s Facebook page. TRW had perused Nicole’s public-facing Facebook profile and had found material undercutting her claims of injury. According to TRW, such material depicted Nicole playing sports, dancing, consuming alcohol, partying, enjoying personal relationships, and offering to share medication with others. Based on these findings, TRW requested all material—public and private—from Nicole’s Facebook page. In response, Nicole objected and produced only redacted copies of her Facebook account history and a limited number of photographs. TRW moved to compel a full production.

The court granted TRW’s request, ordering Nicole to send TRW all recent information from her Facebook account. Noting, however, that litigation does not permit “a complete and open public display of Plaintiff’s life,” the court required TRW to keep the information confidential and provide a list identifying the material TRW believed to be discoverable. The court also set forth a procedure by which Nicole could challenge the discoverability of specific material.

Posted in Uncategorized | Leave a Comment »

Case Summary; Nat’l Day Laborer Org; 2nd Cir.; Adequacy of Searches under FOIA

Posted by rjbiii on September 18, 2012

Context: Three entities, the National Day Laborer Organizing Network; the Center for Constitutional Rights; and the Immigration Justice Clinic for the Benjamin N. Cardozo School of Law filed a lawsuit seeking compliance of targeted agencies to earlier Freedom of Information Act (FOIA) requests.  Requests were sent to: Immigration and Customs Enforcement (ICE); the Federal Bureau of Investigations (FBI); the Department of Homeland Security (DHS); and the Office of Legal Counsel (OLC).  The plaintiffs were seeking information related to “Secure Communities,” a federal program launched in 2008.  It has long been the practice for local law enforcement agencies to send fingerprints of individuals they’ve arrested to the FBI to be checked against those in the national criminal history database. 

 Under Secure Communities, those prints were also sent to DHS to be compared to immigration records.  Plaintiffs also requested information associated with the issue of whether and how local agencies could “opt-out” of the participation in Secure Communities. After the agencies conducted extensive searches involving thousands of hours and resulting in tens of thousands of records produced, Defendants and Plaintiffs cross-moved for summary judgment on the adequacy of the searches.

 Issues:  Requesting parties lodged two main criticisms of the agencies search protocols. 

 First, they contended that the agencies failed to conduct any searches over records of certain custodians who were likely to possess records. 

 Next, they argued that the producing parties failed to establish that those searches they did conduct were adequate. In elaborating on their second criticism, plaintiffs contended that many of the submitted affidavits were insufficiently detailed to permit a finding by the court of adequacy; and that where searches were described sufficiently, those searches were inadequate.

Legal Standard: A FOIA request at Summary judgment has different standards and burdens than would be the case for a litigant in a civil matter.  The burden to “prove” the adequacy of a search protocol is much heavier for the agency in this situation. That said, one must wonder in which circumstances listed below the heightened the standard makes a difference.  I’ll sprinkle commentary on this and other subjects throughout my summary of the court’s analysis below (always in italics).  A general point should be made on this, however.  FOIA cases are such that they invite analyses of search protocols and methodologies.  After all, the entire case centers around what was, or should be, produced. In a civil matter, litigants are likely to be granted greater levels of deference.  However, once the issue of e-discovery methodologies arises, the standards might not vary as greatly as one might imagine.  This is especially true if the court is presented with evidence that relevant documents were omitted from production.

 Another item to note is that the searches discussed here are associated with collection, rather than downstream processes occurring during processing or review.  Search protocols for collections deserve a heightened level of scrutiny.  If the protocol is deficient, data remains uncollected, and becomes susceptible to deletion or loss.  Narrowly tailored collection methodologies must be well designed.

 In order to win summary judgment under FOIA, an agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents. The agency must conduct a search reasonably designed to identify and locate the requested documents, but is not expected to take extraordinary methods to find the records. At summary judgment, an agency bears the burden of showing that its search was adequate.  It may do so by submitting affidavits or declarations containing facts illustrating the sufficiency of the search.

 Summary judgment is inappropriate where the agency’s response raises serious doubts as to the completeness of the search, where the response is patently incomplete, or where the agency’s response is for some other reason unsatisfactory.  A showing of tangible evidence that defendants have not met their burden may defeat a summary judgment motion.  A showing of bad faith is not necessary to defeat a motion for summary judgment.

 Defendant’s affidavits must identify the files searched and provide a general description of the agency’s file system, and articulate reasons why further searching would be unlikely to disclose additional relevant information.  Agencies must establish that they search all custodians who were reasonably likely to possess responsive documents, while setting forth search terms and “the type of search performed.”  The methods used during the search, and not the fruits of the search, are the primary determinants of a search protocol’s validity. However, evidence that relevant records were not released may influence any such analysis.

 

Analysis: 

Decisions on Whose Records Should be Searched

Failure to search an obvious custodian’s records for a year and a half is unreasonable and inadequate as a matter of law, perhaps especially in light of the 56 documents returned by a subsequent search.  However, no sanctions were applied for this failure, due to the rigorous search that the agency eventually did conduct.  Failure to search a leader’s records for a subset of the records associated with a specified time period is not justified when the leader is known to have been involved with the issue at hand outside of the targeted time period and the agency did not specify at what point in time the leader became involved in the matter in its affidavit.

An agency fails to meet its burden in establishing an adequate search when it determines an office was unlikely to possess relevant records despite the office having at least one employee involved in discussions on relevant matters, the office playing a direct role in the matter at issue, and the office being tasked with providing updates on the program at issue in the case. It also fails to meet its burden if the office only searches two custodians’ records while other custodians were intimately involved in the program at issue. 

An agency’s response that an office was not likely to have records is not rendered unreasonable by the fact that the head of that office appeared at a single meeting discussing the program at issue. 

An agency may not simply assume that an office or organization does not have relevant records merely because that office never responded to the agency’s request to search. An agency fails to meet its burden when it does not conduct a search of an office or organization known to have been involved in the program at issue, yet does not explain the lack of a search or declare that the office is unlikely to possess relevant records.

An agency is required to re-draft an affidavit when the initial document failed to relate in sufficient detail search methodologies used to investigate records held by outside contractors. Upon reviewing the revised affidavit, requesting party then may decide whether or not to continue to press their complaints on this item.

An agency meets its burden when an office searches its records and claims in an affidavit to have no relevant records where no evidence exists to suggest otherwise. Although requesting party’s to initial conclusion was reasonable that the office might possess relevant data given the offices’ work and a statement from one employee that he had been “tracking” the matter for some time, some degree of deference is granted to the producing party because they are more familiar with their work and record systems than are the court or requesting parties.

An agency fails to meet its burden when an office known to have significant amounts of responsive documents searches 22 of its active employees’ files, but fails to search the records of seven departed employees. 

Datasets of departed employees are often overlooked.  In those environments where everything associated with projects is stored on network shares, some of the more burdensome measures may be avoided.  However, those archives that are exclusive to that custodian and might contain relevant documents, such as e-mail, should be properly maintained and available for collection.  Similar issues arise with hardware or software application retirements.

An agency meets its burden when an office searches paper and electronic correspondence of a leader whose role likely doesn’t require that leader to generate her own documents that wouldn’t be shared with others.  The search over correspondence examined a universe of documents reasonably calculated to uncover all responsive documents.

An agency has the responsibility of following up on obvious leads, such as recipients of emails that discuss issues relevant to the matter.

Analysis of Search Methodologies 

In earlier times, custodians and searchers were responsible for becoming familiar with the scope of requests and examining documents individually to determine their responsiveness. Now, custodians use computers to do the searching, and knowing the precise instructions that custodians give their computers is crucial to determining the adequacy of a search.

In the past, a court largely relied on the discretion of the searching parties to determine whether a document was responsive; but at least in that era, courts knew that the searching parties were actually looking at the documents with their eyes. With most electronic searches, custodians never actually look at the universe of documents they are searching. Instead, they rely on their search terms and the computer to produce a subset of potentially responsive records that they then examine for responsiveness.

Defendants argue they need not disclose with meticulous documentation the details of an “epic search,” and that custodians should be trusted to execute searches correctly because they use the necessary skill set in their daily work.  The court disagreed, giving two rationales.

First, custodians cannot “be trusted to run effective searches,” without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches; FOIA permits agencies to do so by submitting affidavits that “contain reasonable specificity of detail rather than merely conclusory statements.”

Second, most custodians cannot be “trusted” to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context. Simple keyword searching is often not enough.

There is a “need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information.” And beyond the use of keyword search, parties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents. Through iterative learning, these methods (known as “computer-assisted” or “predictive” coding) allow humans to teach computers what documents are and are not responsive to a particular FOIA or discovery request and they can significantly increase the effectiveness and efficiency of searches. In short, a review of the literature makes it abundantly clear that a court cannot simply trust the defendant agencies’ unsupported assertions that their lay custodians have designed and conducted a reasonable search.

When custodians do track and report their search protocol properly, the court’s determination of adequacy is highly context-specific.  Often, analysis of the effectiveness of criteria used to execute the search and an iterative process of criteria modification and re-execution of queries may be necessary to assure that a search is reasonably calculated to uncover all responsive material.

The involvement of custodians is instrumental to an effective collection protocol.  Custodians associated with the project or incident in question will often be able to identify the most significant sources of relevant data.  However, a search methodology which relies on custodians to execute complex technology-based searches is an inviting target for criticism.  The greater the number of custodians involved, the greater number of “searchers” exist who can be scrutinized.  Consistency may become an issue.  Did all custodians run the protocol with identical (or nearly identical) effort, attention to detail, and methods? Were all custodians sufficiently proficient with the technology used?  Was the documentation generated the same way in each collection? Finally, would any custodian have a motive to omit particular records from the collection?  A skilled, knowledgeable, and objective individual who would execute queries in consistent fashion would deflect many of the obvious criticisms that could be leveled at “self-collecting” custodians.

Plaintiff’s e-discovery expert argued that “there is no indication that [the agencies] undertook any analysis” to review the effectiveness of their criteria, and there is an “absence of any evidence of a thoughtful process in selecting and testing search terms.”  The court agreed that many of the searches weren’t “perfect.” In the absence of evidence showing the efficacy of the terms used, it is impossible to determine the adequacy the search protocol. While repeating “vast swaths” of the search to ensure adequacy is a waste of resources, and the costs to all parties would surely outweigh the benefits to plaintiffs, FOIA requires the government to respond adequately to requests.  Rather than revisit old searches, the parties must cooperate to design and execute a small number of new, targeted searches.

Here, the court continues the march towards numbers-based analyses. An iterative process that provides solid data to validate the initial search criteria, subsequent modifications, and decisions to omit certain data sources has become something of a Holy Grail.  But does a court really want to set a numerical threshold exempting data sources from further consideration? How does one calculate the proper number that triggers the determination that although some relevant documents may exist in a particular repository, the effort of collecting, processing, reviewing, and producing from an archive is not reasonable? Proportionality is a touchstone of the current process, but it is not clearly defined, and is generally tethered closely to the circumstances of individual matters.  Coming up with an “reasonableness quotient” may be beyond the abilities of the average court.

Custodians who should have searched their records must now do so.  A sample of the custodians who conducted searches but failed to provide the Court with appropriate details regarding the methodologies behind those searches must conduct new, fully-documented searches.  A smaller group of the custodians who listed the search terms but did not provide evidence on the efficacy of those terms must repeat the searches to allow the court to efficiently evaluate whether the initial searches were adequate.  The parties will need to agree on search terms and protocols, and might need to conduct testing in order to evaluate and refine those terms.

The parties may also agree to use innovative methods, such as predictive coding techniques, if desired.  The court then listed specific custodians that would be required to conduct new searches.

Here we see a court not only accepting predictive coding, but nearly recommending its use on its own volition.  In the opinion, at least, there is no reference to plaintiffs or defendants proposing “innovative methods.”  It is possible that the significant time, effort, and cost already associated with document searches—many of which must now be repeated—led the court to make the offer.

Posted in 2nd Circuit, Case Summary, FOIA, Judge Shira A. Scheindlin, S.D.N.Y, Search Protocols | Leave a Comment »

Case Blurb: US v. Lebowitz; Authentication of Chat Printouts

Posted by rjbiii on April 9, 2012

As to the authenticity of the chat printouts, Investigator Suber testified that [minor child] K.S. printed the chats and delivered them to her. K.S. confirmed to Investigator Suber that the messages were exactly what was on his computer. Investigator Suber testified that a section of chat messages was missing, but that the remainder appeared unaltered. In his trial testimony, K.S. confirmed Investigator Suber’s account.

In response, [Defendant] offered the testimony of Jim Persinger, a computer forensics expert. Persinger testified that K.S.’s method of producing the printouts created a possibility for alteration. However, Persinger admitted that he had no evidence of any alteration or tampering. Persinger also admitted that the substance of many of the chats was corroborated by e-mail messages and subsequent events. The district court determined that the Government had made a prima facie showing of authenticity, and refused to exclude the printouts.

U.S. v. Lebowitz, 2012 WL 1123845, 3 (C.A.11 (Ga. (C.A.11 (Ga.),2012)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content | Leave a Comment »

Case Blurb: Santana; Awarding of Attorney’s Fees Under FRCP 37(a)(5)

Posted by rjbiii on April 8, 2011

Rule 37(a)(5) provides that if a court grants a motion to compel discovery “– or if the disclosure or requested discovery is provided after the motion was filed — the court must . . . require the party or deponent whose con-duct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees,” unless the court finds that “that opposing party’s nondisclosure, response, or objection was substantially justified” or “other circumstances make an award of expenses unjust.”

Santana v. RCSH Opers. LLC., CASE NO. 10-61376-CIV-SELTZER, 2011 U.S. Dist. LEXIS 21785 @ *15 (S.D. Fla Feb. 18, 2011).

Posted in 11th Circuit, Case Blurbs, FRCP 37(a), Magistrate Judge Barry S. Seltzer, S.D. Fla., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Santana; Federal Court Cites Florida Law on Spoliation Sanctions

Posted by rjbiii on April 8, 2011

Under Florida law, the party seeking spoliation sanctions must prove
(1) that the missing evidence existed at one time;
(2) that the alleged spoliator had a duty to pre-serve the evidence; * and
(3) that the evidence was crucial to the movant being able to prove its prima facie case or defense.”

Even if these three elements are met, before a court may impose spoliation sanctions, the movant must also show, through direct or circumstantial evidence, that the alleged spoliator acted in bad faith.

* “A party has an obligation to retain relevant documents . . . where litigation is reasonably anticipated.” Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 2010 WL 3368654, at *6; see also Wilson, 2008 U.S. Dist. LEXIS 88429, 2008 WL 4642596, at *2 (stating that “[t]he law imposes a duty upon litigants to keep documents that they know, or reasonably should know, are relevant to the matter.”) (footnote omitted).

Santana v. RCSH Opers. LLC., CASE NO. 10-61376-CIV-SELTZER, 2011 U.S. Dist. LEXIS 21785 @ *4-6 (S.D. Fla Feb. 18, 2011).

Posted in 11th Circuit, Case Blurbs, Case Blurbs-FL, Florida, Magistrate Judge Barry S. Seltzer, S.D. Fla., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Santana; Courts May Look to State Law for Guidance (11th Cir. / Fla.)

Posted by rjbiii on April 8, 2011

Federal law governs the imposition of sanctions for spoliation of evidence, even in diversity cases. Because the the Eleventh Circuit has not set forth specific guidelines for the imposition of spoliation sanctions, the “courts may look to state law for guidance so long as the principles are consistent with federal spoliation principles.” Although the Eleventh Circuit has not expressly found Florida law to be wholly consistent with federal spoliation principles, lower federal courts have routinely looked to Florida law for guidance on when to impose sanctions for spoliation.

Santana v. RCSH Opers. LLC., CASE NO. 10-61376-CIV-SELTZER, 2011 U.S. Dist. LEXIS 21785 @ *3 (S.D. Fla Feb. 18, 2011).

Posted in 11th Circuit, Case Blurbs, Florida, Magistrate Judge Barry S. Seltzer, S.D. Fla., Sanctions, Spoliation | Tagged: , | Leave a Comment »

Case Blurb: Santana; Spoliation Sanctions for the 11th Cir.

Posted by rjbiii on April 8, 2011

In the Eleventh Circuit, spoliation sanctions may include:
“(1) dismissal of the case;
(2) exclusion of expert testimony; or
(3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator.”

Santana v. RCSH Opers. LLC., CASE NO. 10-61376-CIV-SELTZER, 2011 U.S. Dist. LEXIS 21785 @ *3 (S.D. Fla Feb. 18, 2011).

Posted in 11th Circuit, Case Blurbs, Magistrate Judge Barry S. Seltzer, S.D. Fla., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Santana, Definition of Spoliation (11th Cir.)

Posted by rjbiii on April 8, 2011

Spoliation is defined as the ‘destruction of evidence’ or the ‘significant and meaningful alteration of a document or instrument.’

Santana v. RCSH Opers. LLC., CASE NO. 10-61376-CIV-SELTZER, 2011 U.S. Dist. LEXIS 21785 @ *2 (S.D. Fla Feb. 18, 2011).

Posted in 11th Circuit, Case Blurbs, Magistrate Judge Barry S. Seltzer, S.D. Fla., Spoliation | Leave a Comment »

Case Summary: In re Delta/AirTran; Preservation Trigger for Civil Suit following DOJ Anti-Trust Investigation Discussed

Posted by rjbiii on April 1, 2011

In Re Delta/AirTran Baggage Fee Antitrust Litigation, CIVIL ACTION FILE NUMBER 1:09-md-2089-TCB, 2011 U.S. Dist. LEXIS 26945 (N.D. Ga. Feb. 22, 2011).

Plaintiffs brought their respective actions against Delta and AirTran for collusion on baggage fees after a Department of Justice (DOJ) investigation. During its action, the DOJ served a Civil Investigative Demand (CID) on Delta, requiring the airline to produce certain documents. There were some missteps along the way for Delta in its attempts to preserve the targeted data:

  • A litigation hold notice failed to include the CEO on it, despite the fact that he was a custodian in the case. The court appears to dismiss concerns on this ground, reasoning that the CEO received verbal instructions, his exchange mailbox was already being preserved by the company’s IT staff, and he did produce documents in accordance with the DOJ’s request.
  • Some data from back-up tapes was lost, and there was a dispute as to whether Delta was responsible. Delta claimed they had verbally instructed a third party vendor not to continue the process of rotating (and overwriting) tapes. The process wasn’t changed by the vendor until later, resulting in the deletion of data from some of those tapes.

While plaintiffs argued that the DOJ had been concerned about spoliation because of these missteps, the court noted that:

  • Delta worked closely with the DOJ “to ensure all relevant documents were…produced,” and
  • The DOJ has not requested additional information from the airline since December 2009.

After the court stated the standard that it would typically use for spoliation analysis, it came to the crux of the issue:

Unlike the quintessential spoliation situation, Plain-tiffs do not contend that Delta destroyed or altered evidence during the course of this litigation. 7 Plaintiffs’ argument is more nuanced; they contend that they are entitled to spoliation sanctions because Delta did not immediately comply with the CID issued by the DOJ.

The court explained that in order to be successful, plaintiff’s must argue that they, as private civil litigants, can enforce the provisions of a CID when the DOJ has not taken such action and where the CID was issued three months prior to the first case in this action.

The court noted that:

Plaintiffs have not cited any authority that would support such a sweeping and novel theory of spoliation. 10 In the absence of such authority, the Court is unwilling to conclude that upon service of a DOJ-issued CID, a duty to Plaintiffs to preserve documents devolved upon Delta even though Plaintiffs did not file this action until three months later. The Court’s caution in this regard is particularly justified given the severe sanctions that Plaintiffs seek.

And the opinion further explained:

During oral argument, Plaintiffs suggested that the duty to preserve documents is a duty that does not attach to any party. Thus, Plaintiffs posit that anyone (including them) could advance a spoliation argument against Delta for its alleged failure to comply with the DOJ’s CID. However, not only is such a suggestion unsupported by any case law, but it flies in the face of the legal definition of the word duty, which defines duty as a “legal obligation that is owed or due to another . . . .” BLACK’S LAW DICTIONARY 580 (9th ed. 2009).

During oral argument, Plaintiffs also chastised Delta for not having found a case that supports its position on the duty issue. However, Plaintiffs, not Delta, have the burden of proof on the spoliation issue, including the legal elements needed to establish spoliation. See Eli Lilly & Co. v. Air Express Int’l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010).

In essence, Plaintiffs ask this Court to hold that, as a matter of law, when a business is served with a CID, an irrebuttable presumption arises that civil litigation filed by one or more parties against the business receiving the CID is reasonably foreseeable. No court has so held, and this Court is unwilling to be the first.

The court concluded with this:

Two important points about the CID must be emphasized. First, it triggered the commencement of a confidential investigation. Indeed, the Government did not publicize its investigation, and all documents and testimony provided to the Government in response to the CID remain confidential. Second, the first case in this MDL action was not filed until May 22, 2009, over three months after Delta was served with the CID. As Delta explains in its briefs, it has been the recipient of numerous CIDs, subpoenas, or similar formal demands for information from the DOJ that have not led to either private or government litigation. For these reasons, when Delta received the CID, it cannot be said that Delta should have anticipated this lawsuit. Consequently, Delta owed no preservation duty to Plaintiffs that it could have breached. If Delta failed to comply with the CID, the DOJ–not Plaintiffs–is the appropriate party to take action.

Posted in 11th Circuit, Case Summary, Civil Investigative Demand, Duty to Preserve, Judge Timothy C. Batten, N.D. Ga., Reasonable Anticipation of Litigation | Leave a Comment »

 
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