Case Summary: Bunnell; Terminating Sanctions and Default Judgment appropriate for Willful, Systemic Spoliation

In this copyright infringement case, the court held that terminating sanctions and the entry of default judgment in favor of the requesting party was appropriate the court found:

• User forum postings had been systematically reviewed for the purpose of modifying or deleting those which referred to acts associated with copyright infringement;
• Directory headings where copyrighted content was stored was changed from specific names of television shows to more generalized names (e.g., “TV-Unsorted”).
• Evidence suggested that [Producing Party] may have failed to produce previously existing, unaltered versions of these directories.
• Producing Party failed to produce, and claimed not to possess, the full IP addresses related to clients downloading works protected by copyright laws, where evidence suggested that the party did in fact have this information.
• Producing party failed to produce names of forum moderators, as required.

Columbia Pictures Inc. v. Bunnell, No. 2:06-cv-01093 (C.D. Cal. Dec. 13, 2007) (Order Granting Plaintiffs’ Motion for Terminating Sanctions)

Case Summary: Lakeside School; Court lays out procedure for examining employee’s hard drive

In this employee discrimination case, defendant Lakeside School sought a court order allowing inspection of a hard drive from a laptop belonging to the school, but which had been assigned for use to plaintiff for use in the discharge of his duties while employed at the school. The employee argued that some information on the laptop was covered by attorney-client and marital privilege.

The court ruled that in general, the employee had no expectation of privacy for communications made on the laptop belonging to his employer: he had signed a document indicating that he had read the school’s employee handbook containing a policy allowing the school to inspect any computer it furnishes its employees; any communications made using the e-mail accounts provided by the school similarly was bereft of any expectation of privacy. However, the court ruled that “web based” e-mails made on the computer, communicating with employee’s spouse or attorney, were covered by privilege.

I”m guessing here that the term “web based e-mails” means that the employee had an e-mail account, with an ISP that was not associated with the school (like Yahoo or Hotmail), and that he used his business laptop to access and use those accounts. These are what the court protected.

Another interesting facet of the decision is that, in the absence of an agreed protocol by the parties, the court dictated the procedure the parties would use for inspection of the hard drive. The court allowed the school’s suggested procedure:

Lakeside would be willing to have its own expert, at its own expense [ ], provide both parties’ counsel with a list of files (deleted and active) from Mr. Sims’ computer … Plaintiffs’ counsel can then identify any files they believe are privileged, as well as the nature of the privilege being asserted. Lakeside will then review any remaining files over which no claim of privilege is made, and will determine whether any of plaintiffs’ privilege designations should be challenged.

K&L Gates has their own summary here, and a copy of the opinion here (MS Word format).

Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. Sept. 20, 2007)

E-Discovery Pitfalls: Court dictates collections and search protocols

The latest in our series on e-discovery pitfalls.

K&L Gates has posted an opinion in which U.S. Magistrate Howard R. Lloyd dictates the collection and search protocols of a set of data over which the parties have become somewhat contentious. Let us begin with His Honor’s description of the dispute:

According to defendants, there are two hard drives in question. In July 2007, they reportedly made bit-for-bit copies of those hard drives (including recovered deleted files and fragments) and produced documents responsive to plaintiff’s requests. Plaintiff is skeptical about the production.

Well, the requesting party is always skeptical, isn’t it? What circumstances give merit to plaintiff’s suspicions?

[Plaintiff/Requesting Party] says that, to date, defendant Romi Mayder has produced only one email pertaining to his work at Silicon Test Systems, Inc. whereas Bob Pochowski, a third-party witness, has produced a host of documents (emails, data sheets, and the like) from Mayder that apparently were created during Mayder’s employment at Verigy.

Oops. This illustrates the dangers of working with highly distributable and “copyable” documents, such as e-mail, and not producing a full set (for whatever reason). Even in the days of paper, you never knew where all the copies might have been hiding. In this digital age of ours, with the ease of replication and distribution, the dangers are exponentially higher. So let us remember two things: do a good job on formulating an appropriate search protocol; and, of course, never deliberately exclude relevant documents not subject to privilege from production. But the court isn’t finished with plaintiff’s suspicions.

Verigy also contends that other documents produced to date demonstrate Mayder’s willingness to manipulate evidence. Plaintiff also asserts that, when defendant Mayder left plaintiff’s employ, a system or software upgrade was performed which may have deleted files from defendants’ hard drives.

So now they walk beyond the line of suggesting the producing party could have accidentally failed to produce, but suggest defendant is indifferent with respect to its obligation to produce, or that it even purposefully manipulates data to protect itself. This serves to illustrate the importance of following a defensible, documented collection plan. The documentation may serve to refute allegations of impropriety or mismanagement. The importance of retaining a third party to execute the collection process is also on point, as such an expert tends to lend an objective voice to any dispute over procedure.

Now, this next bit is interesting, and potentially really bad for the defendant.

[Requesting Party] argues that it needs to conduct additional discovery of those hard drives, not only to determine whether any relevant documents have been withheld from defendants’ production, but also to examine what may have happened on the hard drives and why.

The requesting party wants to examine the drives to see if defendants failed in their responsibilities. The request is not made merely for the sake of satisfying their curiosity. The possibility that such intrusive measures might be allowed should be a warning shot over the bow for any party engaged in discovery. Make sure your processes are thorough, managed competently, well documented, and defensible.

[Producing Party does] not dispute that a system or software upgrade was performed which may have deleted files from their hard drives. However, they maintain that all deleted files have been recovered and preserved and that they have produced all information responsive to plaintiff’s requests.

All deleted files have been recovered? That’s far from certain, especially with respect to an operation as extensive as a software upgrade. The percentage of deleted files forensically recovered is based on many factors. Was “wiping” involved? If not, has the drive been defragmented? What is the “data turnover” (number of files deleted vs. number of new files written to the drive) of the drive at issue? Under only a very limited set of circumstances might one be able to say with any semblance of certainty that every single deleted file was recovered. As we see, the judge doesn’t appear convinced either. Upon considering the arguments, the court sets a two-tiered plan into place.

Defendants propose a two-tier protocol which (a) permits discovery in areas that defendants deem presumptively relevant; and (b) allows plaintiff to request that the expert conduct other searches, subject to an opportunity by defendant to review and object to the proposed search requests.

Defendants sought to protect themselves from abuse:

Defendants express concern that plaintiff will propound unduly burdensome or otherwise abusive searches beyond the scope of permissible discovery under Fed.R.Civ.P. 26. At the motion hearing, it was suggested, somewhat facetiously, that Verigy might attempt to request a search for all documents with the letter “A.” Indeed, documents submitted on supplemental briefing indicate that Verigy apparently has previously requested a search for all documents containing the letter “V” (see Pasquinelli Decl., Ex. C)–a request which strikes this court as being patently overbroad.

In an interesting note, the requesting party argued that disclosure of additional search terms it wanted to use might infringe attorney work product. The court, however, was not persuaded.
In concluding its opinion, the court felt the urge to remind counsel and the parties of their duties under the law:

Although it should go without saying, the parties are admonished to proceed in good faith and to refrain from conduct designed to unnecessarily encumber or retard discovery or to impose unnecessary expense or burden on the opposing parties or the court.

To reiterate the lessons of the case: engage in an honest, thorough, and well documented discovery plan; think about retaining a third party to serve as an objective, knowledgeable voice; and scrutinize the implementation of processes (such as software upgrades) that endanger the integrity of the litigation hold.

Case Summary: Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007); Court denies motion to compel production of hard drive

In this employment discrimination case, Magistrate Judge Gerald Rushfelt denied defendant’s request to compel the plaintiff to “produce the hard drive of her personal computer for inspection and copying.” In response to defendants’ discovery requests, some of which sought correspondence between plaintiff and defendant National American University or her students at the university, plaintiff produced one e-mail. After defendant informed plaintiff that it believed her responses to the discovery requests were deficient, and after agreeing to supplement those responses, Ms. Benton declared that all e-mails from her students had been deleted, and therefore could not produced. She also resisted producing her hard drive, as requested by defendants.

Defendants argued that Ms. Benton failed to “produce[] any e-mail communications that took place after February 2007,” and that they believe she had been deleting those emails relating to her employment since that date. Defendants contended that because Ms. Benton had admitted to deleting some emails, and because she had only produced one e-mail dated after February 2007, she must have destroyed other relevant documents.

The court disagreed. Defendants were speculating as to the whether plaintiff complied with their discovery requests, and have not met their burden to support their contentions of spoliation. The court refused to assume the plaintiff’s failure to comply. Therefore, the court denied the motion, and any calls for sanctions, without prejudice to any future motion should further discovery show that plaintiff did, in fact, fail to produce responsive documents or had spoliated relevant evidence.

Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007)

K&L Gates has the full text of the opinion here, as well as their own summary here.

Case Blurb: Lorraine; Data Custodian’s personal knowledge of a specific file not necessary for authentication under FRE 901(b)(1)

Although Rule 901(b)(1) certainly is met by the testimony of a witness that actually drafted the exhibit, it is not required that the authenticating witness have personal knowledge of the making of a particular exhibit if he or she has personal knowledge of how that type of exhibit is routinely made.

It is necessary, however, that the authenticating witness provide factual specificity about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if the result of a system or process that does so, as opposed to boilerplate, conclusory statements that simply parrot the elements of the business record exception to the hearsay rule, Rule 803(6), or public record exception, Rule 803(8). Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Summary: Powers; Counsel’s impatience with adversary grounds for denial of motion for sanctions

In a case in which a law school was accused of failing to grant a student with visual disabilities reasonable accommodations in compliance with a state act, plaintiff’s counsel’s request, during oral arguments concerning defendant law school’s compliance with a production order issued by the court, that his expert be allowed to examine the school’s work order tracking system was denied by the court. Plaintiff’s counsel had not requested access to the system in his brief. Plaintiff’s counsel had also failed to abide by local and federal rules by making his motion before making a reasonable attempt to confer with defendant. Counsel had sent defense counsel a fax requesting information on September 18, 2006. At 2:34 p.m. on the same day, Plaintiff’s counsel called defense counsel’s office and was told that defense counsel was not in the office. Plaintiff left a voice-mail, and then filed a motion with the court at 4:23 p.m.

The court found that by allowing defense counsel “less than one business day,” that defense counsel had been given an “unreasonable time” in which to respond. Furthermore, Plaintiff’s counsel had “displayed impatience” and had not displayed “a good-faith effort to resolve [this particular] discovery dispute.” This failure, in and of itself, was grounds for denial of the motion and imposition of sanctions. Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. 2006).

Case Summary: Napster C/R Litigation; Producing Party’s duty to preserve not relieved after suit ends

Court held that a producing party’s obligation to preserve documents was not relieved despite the dismissal of a lawsuit to which it was a party, because counsel for plaintiff’s sent producing party a letter threatening litigation the month following the dismissal, and an executive for the producing party displayed anticipation of that litigation by stating in an email “we know we are going to be sued.” Producing party’s claim that the unequivocal statement in the email was merely a negotiating tactic designed to secure an indemnification provision in a contract did not persuade the court that the statement was unimportant because even if this was true the mere fact that the party was pursuing such indemnification demonstrates there was a reasonable probability of litigation of which the party was aware. In re Napster, Inc. Copyright Litigation, 462 F.Supp.2d 1060 (N. D. Cal. 2006).

Case Summary: Kraft Foods N. Am.; Discovery request for documents over a 7 year period not overly broad

Court ruled that a discovery request seeking documents from January 1, 1999 to [April 7, 2006] did not represent an overly broad temporal scope. Although the “last discriminatory act” for the purposes of the action at bar would have occurred in April 2004, information from the two-years and three-months prior to the April 2002 liability period may be relevant to demonstrate the pattern and practice of discriminatory conduct alleged by Plaintiffs. Moreover, defendants provided no evidence that production of documents for this twenty-seven month period would impose any burden on defendants.

Court ruled “not overly broad” in departmental or organizational scope discovery requests seeking documents relating to “sales representatives” and “region managers” in the Kraft Sales Organization over the objection of the responding party. Responding party had argued that because no plaintiffs had ever held the position of regional manager, individuals in those positions were not similarly situated to Plaintiffs, making the documents irrelevant to the matter at hand. The court disagreed, finding that the requests were not overly broad on their face; that defendant’s lack of assertion to demonstrate that discovery would impose a burden; and that although the title of “region manager” no longer exists, responding party should produce documents of the position regardless of its new title.

Court ruled discovery requests seeking documents for the “Kansas City Region” were not overly broad in geographic scope, because the motives behind employment decisions made by managers at the regional level were relevant to the matter at hand. Because the some of the wrongdoing was alleged to have occurred at a regional level within defendant’s organizational structure, the court found defining the geographic scope of the requests as the Kansas City region is reasonable. Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648 (D. Kan 2006).

Case Summary: School Dist. #70; Overly Broad Discovery Request

In a wrongful termination suit, Court disagreed with Plaintiff’s assertion that Defendant School District should have altered their document retention practices because they should have reasonably anticipated litigation in October 2004, because this was before plaintiff took FMLA leave and before the Board decided to replace plaintiff in March 2005. Furthermore, the Board could not have anticipated that all e-mails from that time on would be within the bounds of a discovery request for this particular matter. The court denied plaintiff’s request for production on this and other grounds.

Discovery Request seeking “[a]ll emails with attachments sent or received by anyone at the school since 1-1-97″ found overly broad, would clearly encompass e-mails not relevant to the litigation, and was not enforceable by the court. The court denied the Plaintiff’s request for production on this and other grounds.
Lewis v. School District #70, 2006 WL 2506465 (S. D. Ill).

Case Summary: Ponca Tribe Indians; Discovery Request for data in a proprietary format denied

In a case concerning numerous allegations concerning the operation of a carbon black production plant, the court determined that the discovery request of all data maintained by an application named the “Data Historian” imposed an undue burden on the producing party, and was overly broad. Producing party had established its right to object by demonstrating that the expense of providing the information sought outweighed any benefit it might provide requesting party, while the requesting party failed to put forward a sufficient argument their need for the information within the data historian outweighed the burden of production.

The data historian, a proprietary software package not licensed to the requesting party, recorded data from 719 data points in one minute increments. Requesting party had refused producing party’s suggestion the requesting party could, using a key provided by producing party, identify specific data points to review, thereby “greatly reducing the volume of information sought.” Likewise, the requesting party refused to narrow their search by identifying relevant time and date periods, as suggested by the producing party. Requesting party argued that using these narrowing techniques wasn’t feasible, but they “offered no evidence demonstrating the basis for this conclusion.” Therefore, requesting party’s request to image or download the data base from the data historian was denied. However, to the extent that the requesting party express a willingness to purchase the necessary software and pay for the necessary programming, and post a bond suggested by producing party, the court will revisit the issue should the parties still be unable to agree on their own. The Ponca Tribe of Indians of Oklahoma v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11, 2006).