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

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).

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

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

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

Everyday we see how technology is used to better our lives. It allows us to do things we couldn’t do in the past. It helps us overcome our limitations. We’ve also seen how folks use it to game the system to their own advantage. Another example of the latter has surfaced in France, where three chess players were caught trying to…game the game:

The French chess federation has suspended three top players for violating sporting ethics at a chess olympiad in Siberia last September.

The trio are alleged to have used an elaborate scheme involving text messages and computer software to help beat opponents at Khanty-Mansiysk

How did the scheme work? Like so:

According to the French federation, while international grand master Sebastien Feller, 19, was involved in a game, Cyril Marzolo followed developments over the internet and used computer software to establish the best next move. The answer was then sent by means of a coded text message to the third member of the team, Arnaud Hauchard.

The third member would then sit himself at a particular table in the competition hall. Each table represented an agreed square on the chess board. This, according to French media reports, was the most delicate part of the operation.

Not sure how that third part worked. How one would do that without drawing attention to oneself is beyond me. All three players deny the accusation.

Carnegie Mellon Changes its CS Program

An interesting change at Carnegie Mellon is occurring. The school is eliminating OOP entirely from its basic curriculum, as stated by one of the CS Professors in his blog, Existential Type:

Object-oriented programming is eliminated entirely from the introductory curriculum, because it is both anti-modular and anti-parallel by its very nature, and hence unsuitable for a modern CS curriculum. A proposed new course on object-oriented design methodology will be offered at the sophomore level for those students who wish to study this topic.

A report from the Department’s Dean provides the following rationale:

The School of Computer Science at Carnegie Mellon University is planning major revisions to its introductory course sequence in ways that will affect not just our own students, but also the many students from across campus who take computer science courses. Major changes include: 1) revising our introductory courses to promote the principles of computational thinking, for both majors and nonmajors, 2) increasing our emphasis on the need to make software systems highly reliable and the means to achieve this, and 3) preparing students for a future in which programs will achieve high performance by exploiting parallel execution.

I remember when object oriented programming was the cool kid on the block. Oy vey.

So can I use OMG in Scrabble?

So the OED is now adding acronyms esuch as OMG, LOL, and IMHO to the official lexicon:

OMG! The exclamatory online abbreviation has won the approval of the Oxford English Dictionary.

The term — short for “Oh my God” or “Oh my gosh” — is one of dozens of new entries in the authoritative reference book’s latest online update.

….

Editors publish updates to the online Oxford every three months. The Internet version of the dictionary, which launched in 2000, gets 2 million hits a month from subscribers and may eventually replace the mammoth 20-volume printed Oxford English Dictionary, last published in 1989.

By the time the lexicographers finish revising and updating a new edition — a gargantuan task that will take a decade or more — publishers doubt there will be a market for the printed form.

I think my old-school English teachers are probably wondering WTH.

Firefox 4 Essentials

Firefox 4 recently made its debut, to great fanfare. One pre-release article gave us 10 Things to Drool over in FF4.

One of my favorite websites, Web Worker Daily, has posted its list of 11 essential add-ons.

Eye in the Sky…or Ear that’s always Near

Finally, a disturbing report from Germany provides a glimpse into the data collected by telecoms. From the article:

But as a German Green party politician, Malte Spitz, recently learned, we are already continually being tracked whether we volunteer to be or not. Cellphone companies do not typically divulge how much information they collect, so Mr. Spitz went to court to find out exactly what his cellphone company, Deutsche Telekom, knew about his whereabouts.

The results were astounding. In a six-month period — from Aug 31, 2009, to Feb. 28, 2010, Deutsche Telekom had recorded and saved his longitude and latitude coordinates more than 35,000 times. It traced him from a train on the way to Erlangen at the start through to that last night, when he was home in Berlin.

…

“We are all walking around with little tags, and our tag has a phone number associated with it, who we called and what we do with the phone,” said Sarah E. Williams, an expert on graphic information at Columbia University’s architecture school. “We don’t even know we are giving up that data.”

The fabled “expectation of privacy” is getting narrowing all the time.

Plaintiff Seven Seas initiated the action against multiple defendants, claiming damages from defendants’ “failure to provide proper ship management, care and oversight for several cruise ships…”. Specific accusations included, inter alia: negligent representations, negligence, and breach of contract. After defendants answered, and both sides filed tit for tat motions for summary judgment, the court issued an order granting a motion to compel filed by Plaintiffs. The motion required defendants to:

• Identify which employees’ systems had been searched;
• Explain the absence of certain documents from production; and
• Describe search terms used to conduct ESI searches.

The order allowed that after defendants filed an affidavit with the information required by the order, plaintiffs were free to renew their motion for to compel further discovery. They elected to do exactly that, resulting in this opinion.

Plaintiffs’ position:

Plaintiffs maintain that they have discovered “gaps” in the production by plaintiffs, despite defendants’ repeated assurances to the contrary. First, plaintiffs contend defendants searched (and produced) the ESI for a mere nine employees, failing to search other custodians likely possessing relevant data. Seven Seas had submitted a list of 19 employees/custodians or email addresses that were incorrectly excluded from searches.

Next, Seven Seas argue that the production for those custodians that were searched was incomplete. To bolster their claim, plaintiffs identified specific time frames where ESI was not produced for those custodians. They claimed this was the case for at least four custodians. Plaintiff’s attorneys approach in pressing their case is described by the court:

At the hearing, Plaintiffs chronologically recounted each request made by Plaintiffs through the course of discovery regarding the production of ESI, and also reiterated the representations made by the Defendants in response to those requests. Generally, throughout the course of the ESI discovery, Defendants assured Plain-tiffs that Defendants were conducting complete ESI searches for materials responsive to Plaintiffs’ requests. Plaintiffs contend, however, that each time such production or representation regarding the thoroughness of the production was made, that Plaintiffs later found out that the production was not, in fact, complete.

In addition, throughout the hearing, Plaintiffs pointed to statements made by Defendants in submissions to the Court wherein Defendants repeatedly asserted that all relevant custodians’ computers and laptops had been searched. According to Plaintiffs, as a result of the repeated assurances by Defendants that ultimately proved to not be true, Plaintiffs have no confidence in the Defendants’ ability to conduct proper ESI searches, and further have no faith in the Defendants’ representations regarding the same.

And then they bring it home with this:

Thus, Plaintiffs argue that because the Defendants’ failure to produce all responsive ESI discovery has prejudiced the Plaintiffs and because such omissions are ongoing and intentional, that the Court should strike the Defendants’ pleadings and enter a final default judgment against both Defendants. In addition, Plaintiffs request that the Defendants be ordered to pay the costs associated with Plaintiffs having to bring the Renewed Motion to Compel.

Post Process Comment: From the outside looking in, it really looks like counsel for Seven Seas went about this the right way. We have analyzed, in the past four years, innumerable cases where the court felt the need to admonish counsel for vagueness, or making conclusory statements without backing them up with evidence. Here, counsel went through a round of “attack analytics,” (we’ll look at this in a moment) during which they analyzed the production, documented what they perceived as deficiencies, and presented their findings as argument, while including specific examples for the court to hang its hat on. Of course, we aren’t done…defendants get their chance to speak.

Defendants position:

Defendants “generally took exception” with some of the “missing custodians” included on Plaintiffs list, and supplemented their arguments with specific information to explain the absence of either custodians from the search, or for data missing for specific time periods from produced custodians.

Defendants then acknowledged that not all relevant ESI had been produced, and then conceded that “in hindsight” and e-discovery consultant or vendor should have been retained to assist them.

Post Process Comment: This is a telling admission. It is an implicit acknowledgment that eDiscovery methodologies weren’t solid due to the inexperience of their staff who were engaged in the project.

In an effort to put the best face on things, V. Ships Leisure reiterated earlier assertions (at least to effort…doesn’t seem possible that they continued to claim the production wasn’t deficient in light of their earlier admission). They also noted that they had supplemented production with additional data, and were prepared to hand over more data that very day. V Ships Leisure then noted went to the “volume defense” by noting that they had already produced hundreds of thousands of documents (ESI and hard copy). They also defended their efforts by noting that some of their custodians were overseas, complicating the logistics behind their project.

V Ships Leisure continued their arguments by stating that the bulk of the relevant evidence was contained in correspondence between plaintiffs and defendants, so plaintiffs already had most of the evidence prior to their suit. Defendants complained that Seven Seas had never alerted them to the gaps prior to filing their motion. Although defendants agreed to re-execute the searches on both already produced custodians and on “missing” custodians, they also claimed that no prejudice to plaintiffs had been demonstrated, an argument plaintiffs could not refute.

Post Process Commentary: Defendants fought back hard, but is it enough? Their admissions may be the most significant part of their arguments, but perhaps their efforts in already producing substantial volumes of data, and the potential lack of prejudice to plaintiffs will carry the day.

The court began by reciting the law behind FRCP 37.

Federal Rule of Civil Procedure 37 addresses a litigant’s failure to make disclosures or to cooperate in discovery and sets forth sanctions that may be imposed by a Court. Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Thus, Federal Rule of Civil Procedure 37 gives a district court the power to enter a default, strike pleadings, or render judgment against a party that disobeys the court’s discovery or pretrial scheduling orders. However, the severe sanction of a default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders. In addition, Rule 37(b) only permits imposition of the ultimate sanction if a party willfully or in bad faith failed to obey a discovery order. It is not justified under Rule 37(b) if a party’s failure to comply with a discovery order was caused by simple negligence or a misunderstanding of the court order. If the party does not provide a credible explanation of how he interpreted an order compelling discovery in a way that excluded certain documents from the scope of the order, the party’s unsupported assertion that it misunderstood the order is insufficient, and it is not clear error for the district court to find that the party’s failure to comply with the discovery order was willful and in bad faith. Further, when a party claims that he was unable to produce documents in the time allowed by the court, but he does not produce any evidence to support the argument, a district court’s finding of willfulness is not clearly erroneous. Nonetheless, a district court is not required to first impose lesser sanctions if the lesser sanction would be ineffective.

Defendants’ Failure to Produce ESI:

The court began by reciting a history of disputes caused by defendant’s failures to produce or thoroughly search for potentially relevant ESI. The court then admonished both parties for failing to conduct an early meet and confer:

[I]t appears that many of the disputes related to the production of e-discovery could have been significantly narrowed, if not totally avoided, had the Parties held an e-discovery conference early-on in the litigation as required by Federal Rule of Civil Procedure 26(f), wherein issues regarding disclosure and production of ESI could have been thoroughly discussed.

Continuing on, the court articulated its first major conclusion:

[I]t is clear that the Defendants have failed to properly conduct complete, thorough and timely searches of ESI responsive to the Plaintiffs’ discovery requests. There is no doubt that the manner and method in which the Defendants conducted their ESI searches were wholly inadequate.

That said, the court noted that because the production gaps had not yet been plugged, the damage done to plaintiff’s case could not yet be determined. The court also applied some blame to Seven Seas, noting that they could have identified missing custodians or data sources earlier. While the court granted that defendant’s deficiencies were more likely due to its staff’s “unfamiliarity” with e-discovery, and not any malfeasance, the continued inability to conduct EDD competently at this point in the game is inexcusable.

On this point, the court stated:

Indeed after this Court’s January 19th Order, if not before, the Defendants should have reasonably known that they needed to retain an E-discovery consultant to ensure that they properly conducted their ESI searches.

Because of this, said the court, sanctions were appropriate. The ordered defendants to engage an electronic discovery vendor to assist in searching and producing ESI from certain custodians included on plaintiff’s “missing custodian list.” Plaintiff’s request to re-execute searches over the data sets associated with custodians whose ESI had already produced was denied, as in the court’s view, the production of this data was sufficient.

The court concluded that the appropriate sanctions were to:

• Deny defendants motion for summary judgment;
• Award plaintiffs attorneys costs, to be paid by defendants.

The court declined to enter a default judgment on behalf of plaintiffs, as had been requested in the Motion to Compel.

Post Process Comment: The sanctions imposed might be considered fairly mild, consider some of the language contained within the opinion. The biggest mitigating factor for defendants appeared to be the lack of any evidence concerning damage done to plaintiffs case by the omissions in production.

Next, plaintiffs looked at material from those custodians whose data was produced, and analyzed its completeness by focusing on chronology. This “production gap” analysis has proven very effective, in my experience. Sometimes such gaps can be legitimately explained, but their existence, especially across multiple custodians, should be explored.

This is a little off-topic, so I apologize in advance. Gizmag has posted an article showing the gear that “paranormal investigators” use when trying “de-ghost” your home or business. It’s a little sad that the subject is taken seriously in some quarters, but consider the following:

In a survey conducted by CBS News in 2005, it was found that 48 percent of Americans believed in ghosts. Other surveys have put the number at anywhere from around 20 to over 50 percent. While such figures certainly don’t imply that ghosts are real, they do suggest that belief in them is relatively common. When someone does suspect that a ghost is present in their home or business, they will sometimes call in “experts” to ascertain if that is, in fact, the case … and what sort of gear do these ghost hunters use to detect said spirits? We decided to find out.

And if you’re tempted (like me) to utter the immortal phrase “I ain’t afraid of no ghost,” allow me to remind you, via video, of the dangers that lurk should we relax our vigil…