Case Blurbs-OR: In re Helicopter Crash near Wendle Creek; Dist. Court Predicts Oregon will allow Spoliation Cause of Action

Post Process-This is an opinion by a district court in Connecticut sitting in judgment of a diversity case to be tried under the laws of the state of Oregon.

The Oregon Supreme Court has not yet considered whether intentional or negligent spoliation claims present cognizable causes of action. In such instances, “[i]n the absence of controlling forum state law, a federal court sitting in diversity must use its own best judgment in predicting how the state’s highest court would decide the case.”

In [Blincoe v. Western States Chiropractic College, 2007 U.S. Dist. LEXIS 51955, 2007 WL 2071916 (D. Or. July 14, 2007)], Magistrate Judge Papak recommended granting the defendant’s motion to dismiss an intentional spoliation claim and concluded that “Oregon law does not recognize the tort of intentional spoliation of evidence by a party.” Judge Papak’s analysis considered the law of other states, as well as Oregon’s numerous statutory, non-tortious remedies dealing with spoliation of evidence, in reaching that conclusion. FN2.

In Marcum v. Adventist Health System/West, 215 Ore. App. 166, 168 P.3d 1214, 1228-29 (Or. App. 2007), rev’d on other grounds, 345 Ore. 237, 193 P.3d 1 (Or. 2008), the Oregon appellate court acknowledged the parties’ dispute regarding spoliation causes of action under Oregon law, declined to “address the precise contours” of a negligent spoliation claim, and ultimately held that the plaintiff-appellant’s negligent spoliation claim failed. Nonetheless, the Marcum court discussed the merits of that claim:

We need not, and do not, address the precise contours of a cognizable claim for “negligent spoliation” under Oregon law. That is so because plaintiff here failed to make a prima facie showing that defendants’ alleged failure to maintain or produce the allegedly “missing” records materially impaired her prosecution of her medical negligence and informed consent claims.

Plaintiff’s “negligent spoliation” claim is akin to a legal malpractice claim in that “damages arise from the loss” — or diminution of value — of an underlying claim. . . . [P]laintiff’s primary medical negligence and informed consent claims ultimately failed for lack of proof of scientific/medical causation. Plaintiff argues that, if the allegedly absent records had been created or maintained and produced, Williamson might have been provided with the “missing link” that would have enabled him to identify and persuasively explain the causal relationship between gadolinium extravasation and Raynaud’s syndrome. Specifically, plaintiff points to the fact that no records reflect the amount of gadolinium used during the procedure. . . .

Accordingly, on this record, there is no evidence that plaintiff’s prosecution of her primary claims was materially impaired by the absence of such information-whether because of affirmative “spoliation” or by any negligent failure to create, maintain, or produce records pertaining to the MRI procedure.

Even without discussing the precise nature and elements of a negligent spoliation claim, absent further guidance or development from the Oregon Supreme Court, the appellate court’s decision in Marcum indicates that Sikorsky’s proposed amendments adding spoliation claims would not be futile. Absent a more recent or more authoritative ruling to the contrary, I predict on the basis of the Marcum decision that the Supreme Court of Oregon would recognize intentional and negligent spoliation of evidence as causes of action. FN3. “In the absence of a pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state unless there is convincing evidence that the highest court of the state would decide differently.” Here, there is no convincing evidence that the Oregon Supreme Court would not recognize spoliation causes of action.

FN2: Although Judge Papak’s findings and recommendation in Blincoe were adopted by the district court, the district court did not consider or develop the spoliation questions any further; neither did Magistrate Judge Papak in later proceedings.

FN3:The Court of Appeals of Oregon discussed negligent spoliation of evidence, but did not address the question of intentional spoliation. Because intentional spoliation, by its nature, involves a more deliberate action than negligent spoliation, I believe that, if the Oregon Supreme Court were to recognize negligent spoliation as a cause of action, the court would also recognize intentional spoliation of evidence as a cause of action.

In re Helicopter Crash near Wendle Creek, 2009 U.S. Dist. LEXIS 41477 (D. Conn. May 18, 2009)(internal citations omitted).

Case Summary: William A. Gross Constr. Assocs.; Court Issues ‘wake up’ call to counsel on keywords

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

The opinion addressed the creation of a search protocol in this case over “alleged defects and delay in the construction ofthe Bronx County Hall of Justice.” The court began by lecturing counsel, and the district’s bar in general, over its (evidently perceived lax) attitude toward formulating search criteria:

This Opinion should serve as a wake-up call to the Bar in this District about the 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 (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.

The lesson began, the court complained that counsel had not adequately communicated in order to arrive at a suitably agreed-upon search criterion, and the protocol that had been formulated was not the result of a sufficiently methodological process:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

The court then stated that it found itself in the “uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information…”

After making certain additions to the keywords comprising the search criterion, the court then cited opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) (Grimm, MJ.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, MJ.) for supporting the supposition that formulating keywords “requires careful advance planning by persons qualified to design effective search methodology” and designing search protocols “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.” The court continued by noting that the “best solution” was for opposing counsel to cooperate in formulating a search protocol, and strongly endorsing the Sedona Conference’s Cooperation proclamation.

Lessons learned:

1. The formulation of search protocols is to be taken seriously, and accomplished with careful thought, quality control, and testing.
2. Initial assumptions should not be generated blindly or in an arbitrary fashion, and should be tested and, if necessary, modified.
3. Counsel should be prepared for greater levels of communication, cooperation, and transparency than in the past.
4. Even an admittedly imperfect protocol, if the above elements are present, may suffice.

Case Blurb: William A. Gross. Constr. Assocs., Inc; Court helps to craft Search Protocol

This case involves a multi-million dollar dispute over alleged defects and delay in the construction ofthe Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. The Dormitory Authority of the State of New York (“DASNY”) was the “owner” of the project. Non-party Hill International is DASNY’s current construction manager, and DASNY has agreed to produce Hill’s project-related documents and ESI to the other parties to this suit. The issue before the Court is the production of Hill’s emails, stored on its server at its New Jersey office, and how to separate project-related emails from Hill’s unrelated emails.

DASNY’s proposed search terms included “DASNY,” “Dormitory Authority,” and “Authority,” FN1 and the names of the other parties to the action. DASNY also added “Court! in connection with Bronx,” “Hall of Justice,” and “Bronx but not Zoo” (since Hill worked on an unrelated project involving the Bronx Zoo). The other parties requested the use of thousands of additional search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” “electrical” — you get the picture. DASNY correctly pointed out that use of such extensive keywords would require production of the entire Hill email database, since Hill’s business is construction management, and those terms would be used for any construction project.

FN1: The Court is no keyword expert, but if one is searching for “Authority,” to also search for “Dormitory Authority” is clearly redundant.

Hill’s only contribution to the discussion was to agree that DASNY’s search [*10] terms were probably too narrow but the other parties’ terms were overbroad, and that Hill did not want to produce emails that did not relate to the Bronx Courthouse project. This problem would have been avoided, of course, if Hill used a standard “Re” line in its Bronx Courthouse emails to distinguish that project from its other work. It did not do so, however. Moreover, while Hill was in the best position to explain to the parties and the Court what nomenclature its employees used in emails, Hill did not do so — perhaps because, as a non-party, it wanted to have as little involvement in the case as possible.

That left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill). The Court ruled at yesterday’s conference that in addition to DASNY’s proposed terms (including variations on and abbreviations of party names), the search should also include the names ofthe parties’ personnel involved in the Bronx Courthouse construction. FN2

FN2: The Court acknowledges that this result is less than perfect, and that there is a risk that as information later comes out at depositions of the Hill employees, another search may have to be done.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

Case Blurb: William A. Gross. Constr. Assocs., Inc; Need for cooperation and communication during E-Discovery

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar — even those lawyers who did not come of age in the computer era — understand this.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 at *13-14 (S.D.N.Y. Mar. 19, 2009)

Case Blurb: Collins & Aikman Corp.; Deliberative Process Privilege discussed

The deliberative process privilege protects from disclosure “‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” The privilege is intended “‘to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government.’”

In order to qualify for the privilege, a document must be “predecisional” and “deliberative.” A document is predecisional if it was “‘prepared in order to assist an agency decisionmaker in arriving at his decision.’” The agency claiming privilege “must be able to demonstrate that . . . the document for which . . . privilege is claimed related to a specific decision, facing the agency.” Moreover, the privilege does not extend to “‘purely factual’ material” or subjective discussions insofar as they were later adopted or incorporated in a final agency opinion. A document is deliberative if it is “‘actually . . . related to the process by which policies are formulated.’” Factors used to determine whether a document is deliberative include “whether the document ‘(i) formed an essential link in a specified consultative process, (ii) reflects the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.”

SEC v. Collins & Aikman Corp., 2009 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009)(internal citations removed).

Case Blurb: Collins & Aikman Corp.; Form of Document Production for Gov’t Entities Conducting Investigations

Under Rule 34 of the Federal Rules of Civil Procedure, a party has two options for the production of documents in response to a discovery request. The litigant may either produce documents “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” The Advisory Committee Note states that the purpose of this new rule language — added in 1980 — was to eliminate the practice of “‘deliberately [mixing] critical documents with others in the hope of obscuring significance.’” Allowing the production of documents as they “are actually kept in the usual course of business” was intended to minimize the burden of production while maintaining the “internal logic reflecting business use.”

Rule 34 does not elaborate on the term “usual course of business.” A party choosing to produce documents as maintained in the ordinary course of business “bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate.” In most cases, documents produced pursuant to Rule 34 will be organized by subject matter or category. The provision prohibits “simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought.”

The SEC [(producing party)] contends that even if the compilations are not protected as work product, it has the option of producing the complete, unfiltered, and unorganized investigatory file, as this is how the documents are maintained in the usual course of its business. As noted above, Rule 34 mandates that documents must be produced organized by the subjects of the request or organized as they are kept in the usual course of business by the producing party. The key to this dichotomy is the assumption that in either case the documents will be organized — that records kept in the usual course of business would not be maintained in a haphazard fashion. Thus regardless of the form chosen, the production will be useful to the requesting party, and neither choice will inject unnecessary time and cost into litigation.

In order to determine what constitutes an appropriate production of records as they are kept in the “usual course of business,” it is first necessary to define that term. To begin with, not every litigant is a business or functions in the manner of a business. Black’s Law Dictionary defines a business as “[a] commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.” Only as a secondary definition, business constitutes “[b]y extension, transactions or matters of a noncommercial nature.”
[...]
By rough analogy to Rule 803(6), the option of producing documents “as they are kept in the usual course of business” under Rule 34 requires the producing party to meet either of two tests. First, this option is available to commercial enterprises or entities that function in the manner of commercial enterprises. Second, this option may also apply to records resulting from “regularly conducted activity.” Where a producing party’s activities are not “routine and repetitive” such as to require a well-organized record-keeping system — in other words when the records do not result from an “ordinary course of business” — the party must produce documents according to the sole remaining option under Rule 34: “organize[d] and label[ed] . . . to correspond to the categories in the request.”

The logic of Rule 34 supports this limitation. When records do not result from “routine and repetitive” activity, there is no incentive to organize them in a predictable system. The purpose of the Rule is to facilitate production of records in a useful manner and to minimize discovery costs; thus it is reasonable to require litigants who do not create and/or maintain records in a “routine and repetitive” manner to organize the records in a usable 55 fashion prior to producing them.

However conducting an investigation — which is by its very nature not routine or repetitive — cannot fall within the scope of the “usual course of business.” While the SEC routinely collects and maintains regulatory submissions such 10-K reports, in its investigative capacity the agency conducts tailored probes of a company or an industry, requiring the gathering of records from diverse sources. Many if not most of the 1.7 million documents in the SEC production here were likely collected in the agency’s investigatory role. Thus it is no surprise that the complete collection is maintained as it was collected — in large disorderly databases. The documents can only be provided in a useful manner if the agency organizes or labels them to correspond to each demand. Based on the SEC’s submission, it appears that this has already been done through the lead litigation attorney’s creation of the 175-plus file folders at issue.

Therefore, the SEC must respond to [Requesting Party's] request for production by providing him with the documents that respond to those requests. [Requesting Party] has not requested the SEC file folders as such, but many of them correlate with the factual allegations in the Complaint, the subjects of the requests. Thus, to the extent that one or more of the 175 folders assembled by the SEC’s attorneys constitute the complete set of documents relevant to a particular request…

SEC v. Collins & Aikman Corp., 2009 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009)(internal citations removed).

Case Blurb: Collins & Aikman Corp.; Attorney Work Product Protection Applied to Selection and Compilation-2d Circuit

The Second Circuit has recognized that the selection and compilation of documents may fall within the protection accorded to attorney work product, despite the general availability of documents from both parties and non-parties during discovery. 18 However, it has labeled this protection a “narrow exception” aimed at preventing requests with “the precise goal of learning what the opposing attorney’s thinking or strategy may be.” Moreover, equity favors rejection of work product protection to a compilation of documents that are otherwise unavailable or “beyond reasonable access.” The Circuit has suggested that a court may permit ex parte communication of the strategy the withholding party wishes to conceal and in camera review of documents, so that the court may make an educated assessment whether production of the compilation will reveal a party’s litigation strategy.

If a court does find that work product protection applies to a document compilation, the requesting party must show “substantial need” for the materials and inability to obtain the substantial equivalent by other means without “undue hardship.” The showing of need must be “‘highly persuasive’” when discovery of “core work product is sought.” “Core work product” is defined as an attorney’s “mental impressions, conclusions, opinions, or legal theories” and is contrasted with “ordinary fact work product.”
[...]

It is first necessary to determine the level of protection afforded to the selection of documents by an attorney to support factual allegations in a complaint. Such documents are not “core” work product. Core work product constitutes legal documents drafted by an attorney — her mental impressions, conclusions, opinions, and legal theories. This highest level of protection applies to a compilation only if it is organized by legal theory or strategy. The [Producing Party's] theory — that every document or word reviewed by an attorney is “core” attorney work product — leaves nothing to surround the core. The first step in responding to any document request is an attorney’s assessment of relevance with regard to potentially responsive documents. It would make no sense to then claim that an attorney’s determination of relevance shields the selection of omnibus production similar to the one in this case.

SEC v. Collins & Aikman Corp., 2009 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009) (internal citations removed)(emphasis in original).

Case Blurb: Aguilar; Court defines term ‘embedded metadata’, calls it ‘generally discoverable’

Embedded metadata consists of “text, numbers, content, data, or other information that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display” of the native file. Examples include spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information. This type of metadata is often crucial to understanding an electronic document. For instance, a complicated spreadsheet may be difficult to comprehend without the ability to view the formulas underlying the output in each cell. For this reason, the District of Maryland working group concluded that embedded metadata is “generally discoverable” and “should be produced as a matter of course.”

Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 at *14-15 (S.D.N.Y. Nov. 20, 2008) (internal citations removed).

Case Blurb: Aguilar; Metadata Production Requests Should be Made Early

There is a clear pattern in the case law concerning motions to compel the production of metadata. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. On the other hand, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests, often concluding that the metadata is not relevant.

In sum, as a recent article has noted, if a party wants metadata, it should “Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.” Hagenbuch [v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 U.S. Dist. LEXIS 10838 (N.D. Ill. Mar. 8, 2006)] illustrates the wisdom of this advice. In that patent infringement suit, the plaintiff demanded electronic document production in native form in his first document request. The defendants rejected this request and produced the documents in TIFF format without metadata. The court noted that the TIFF documents did not contain such relevant information as the creation and modification dates of documents, email attachments and recipients, and other metadata. The court also observed that the metadata was relevant to the plaintiff’s infringement claim because it “will allow him to piece together the chronology of events and figure out, among other things, who received what information and when.” The court therefore ordered production in native form despite the fact that the defendants could not Bates stamp the documents and had already made a production.

By comparison, in [Autotech Techs. Ltd. P'ship v. AutomationDirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008)], the court denied a motion to compel the production of metadata for Word documents after the plaintiff had already produced the documents in both PDF and paper format. In that case, the initial production request did not specify a form for production. As the court noted, the plaintiff therefore could have produced its documents in the form in which they were ordinarily maintained or in a reasonably usable form. In concluding that production in PDF form constituted a reasonably usable form, the court relied heavily upon the defendant’s failure to ask for metadata at the outset. The court stated that it “seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.” . The court also noted that, “[o]rdinarily, courts will not compel the production of metadata when a party did not make that a part of its request.” It concluded that the defendant “was the master of its production requests; it must be satisfied with what it asked for.”
[...]
The Federal Rules of Civil Procedure, case law, and the Sedona Principles all further emphasize that electronic discovery should be a party-driven process. Indeed, Rule 26(f) requires that the parties meet and confer to develop a discovery plan. That discovery plan must discuss “any issues about disclosure or discovery of [EST], including the form or forms in which it should be produced.” In fact, the commentary to the rule specifically notes that whether metadata “should be produced may be among the topics discussed in the Rule 26(f) conference.” As the commentary further observes, early identification of disputes over the forms production may help avoid the expense and delay of searches or productions using inappropriate forms.” Thus, at the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention.

Likewise, courts have emphasized the need for the parties to confer and reach agreements regarding the form of electronic document production before seeking to involve the court.
[...]

Metadata has become “the new black,” with parties increasingly seeking its production in every case, regardless of size or complexity. In keeping with that trend, the Plaintiffs in this case argue that all metadata for all electronic documents should be produced, both because the metadata is relevant to their claims and because it will enable them to search and sort the documents more efficiently. In evaluating these assertions, the timing of the Plaintiffs’ request is important. The first Rule 26(f) conference was held on January 18, 2008. Thereafter, the first request for production of documents was made on February 15, 2008. Throughout this time period, the Plaintiffs made no mention of metadata even though the Defendants had started to harvest their documents. Indeed, by the time the Plaintiffs first informed the Defendants of their desire for metadata (in passing on March 18 and formally on May 22, 2008), the Defendants’ document collection efforts were largely complete and they had already produced many of their electronic documents in PDF format without accompanying metadata. In these circumstances, the Plaintiffs face an uphill battle in their efforts to compel the Defendants to make a second production of their ESI.

Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (internal citations removed).

Case Blurb: YouTube; Court Denies Motion to Compel Production of “Private” Videos and Related Data-For the Most Part

Private Videos and Related Data

YouTube.com users may override the website’s default setting–which makes newly added videos available to the public–by electing to mark as “private” the videos they post to the website. Plaintiffs move to compel production of copies of all those private videos, which can only be viewed by others authorized by the user who posted each of them, as well as specified data related to them.

Defendants are prohibited by the Electronic Communications Privacy Act (“ECPA”) (18 U.S.C. § 2510 et seq.) from disclosing to plaintiffs the private videos and the data which reveal their contents because ECPA § 2702(a)(2) requires that entities such as YouTube who provide “remote computing service to the public shall not knowingly divulge to any person or entity the contents” of any electronic communication stored on behalf of their subscribers, FN8 and ECPA § 2702 contains no exception for disclosure of such communications pursuant to civil discovery requests.

FN8:The prohibition against divulgence of stored subscriber communications set forth in ECPA § 2702(a)(2) applies only “if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing” (id. § 2702(a)(2)(B)), but defendants satisfy that condition here because their authorization to access and delete potentially infringing private videos is granted in connection with defendants’ provision of alleged storage services.

Plaintiffs claim that users have authorized disclosure of the contents of the private videos pursuant to ECPA § 2702(b)(3) (remote computing service providers “may divulge the contents of a communication * * * with the lawful consent of * * * the subscriber”) by assenting to the YouTube website’s Terms of Use and Privacy Policy, which contain provisions licensing YouTube to distribute user submissions (such as videos) in connection with its website and business, FN9 disclaiming liability for disclosure of user submissions, FN10 and notifying users that videos they divulge online in the public areas of the website may be viewed by the public.

FN11 None of those clauses can fairly be construed as a grant of permission from users to reveal to plaintiffs the videos that they have designated as private and chosen to share only with specified recipients.

FN9: “However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive * * * license to * * * distribute * * * the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business.” This authorizes YouTube to post the video on the website; the privacy designation restricts to whom it may be shown.

FN10: “YouTube does not guarantee any confidentiality with respect to any User Submissions.”

FN11: The record shows that the provision of the Privacy Policy plaintiffs point to, which states that “Any videos that you submit to the YouTube Sites * * * may be viewed by the general public” refers to “personal information or video content that you voluntarily disclose online (on discussion boards, in messages and chat areas, within your playback or profile pages, etc.)” which “becomes publicly available.”

But the ECPA does not bar disclosure of non-content data about the private videos (e.g., the number of times each video has been viewed on YouTube.com or made accessible on a third-party website through an ‘embedded’ link to the video). Plaintiffs argue that such data are relevant to show whether videos designated private are in fact shared with numerous members of the public and therefore not protected by the ECPA, and to then obtain discovery on their claim (supported by evidence) FN12 that users abuse YouTube’s privacy feature “to share infringing videos with any interested member of the public while evading detection by content owners.” It is not clear from this record whether plaintiffs’ interpretation of the ECPA is correct, but their view is colorable, as the statute’s legislative history states that “a subscriber who places a communication on a computer ‘electronic bulletin board,’ with a reasonable basis for knowing that such communications are freely made available to the public, should be considered to have given consent to the disclosure or use of the communication.” Plaintiffs need the requested non-content data so that they can properly argue their construction of the ECPA on the merits and have an opportunity to obtain discovery of allegedly infringing private videos claimed to be public.

FN12: Plaintiffs submitted a snapshot of a YouTube user’s web page entitled “THE_RUGRATS_CHANNEL” which states “Disclaimer: Rugrats_and all Rugrats_related items are a copyright of Viacom” and on which the user states:

WELCOME TO MY_RUGRATS_PAGE. Previously rbt200, this is my new channel. The old one got deleted so I thought I’d start again, but this time, it’s JUST_RUGRATS! A whole channel dedicated to this fantastic cartoon! I will be posting whole episodes over the coming weeks so be sure to subscribe or add me as a friend because they might be set to private.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *25-30 (S.D.N.Y. July 1, 2008 ) (internal citations removed).