Post Process

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Archive for November 14th, 2007

Case Blurb: NSA Telecom Records Litigation; Discussing Preservation of Relevant Data

Posted by rjbiii on November 14, 2007

The duty [to preserve] extends to documents, data and tangible things in the possession, custody and control of the parties to this action…

“Preservation” is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible things reasonably anticipated to be subject to discovery under FRCP 26, 45 and 56(e) in this action. Preservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.

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Posted in 9th Circuit, Case Blurbs, Duty to Preserve, FRCP 26, FRCP 45, FRCP 56(e), N.D. Cal. | Tagged: , | Leave a Comment »

Case Blurb: NSA Telecom Records Litigation; What items are covered by the duty to preserve?

Posted by rjbiii on November 14, 2007

The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action…

“Documents, data and tangible things” is to be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voicemail, e-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, disks and cards, printouts, document image files, web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices and metadata, is also included in this definition.

In re Nat’l. Security Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007)

Posted in 9th Circuit, Case Blurbs, Duty to Preserve, N.D. Cal. | Tagged: , | Leave a Comment »

Case Blurb; NSA Telecom Records Litigation; Duty to Preserve Discussed

Posted by rjbiii on November 14, 2007

The duty [to preserve relevant data] extends to documents, data and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. Counsel are under an obligation to exercise efforts to identify and notify such non-parties, including employees of corporate or institutional parties.

In re Nat’l. Security Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007)

Posted in 9th Circuit, Case Blurbs, Duty to Preserve, N.D. Cal. | Tagged: , | Leave a Comment »

Case Blurb: Levi Strauss; Court discusses ‘duty’ to electronically re-produce paper production

Posted by rjbiii on November 14, 2007

Plaintiffs contend that it is “black-letter law” that LS & Co. is obliged to now re-produce its entire [paper] document production in electronic form. However, the cases they cite merely acknowledge the principle that electronically stored information falls within the definition of “document” under Fed.R.Civ.P. 34. See, e.g., Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382-83 (7th Cir.1993) (“[T]he Advisory Committee notes to the 1970 amendment of Federal Rule of Civil Procedure 34 make clear that computer data is included in Rule 34’s description of documents.”); Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y.2002) (“Electronic documents are no less subject to disclosure than paper records.”); Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050, 1053 (S.D.Cal.1999) (“The Court finds that by requesting ‘documents’ under Fed.R.Civ.P. 34, Plaintiff also effectively requested production of information stored in electronic form.”).

LS & Co. has cited some authority (albeit, one case is unpublished) indicating that, under the former version of Fed.R.Civ.P. 34, it was not obliged to produce its documents in electronic and hard copy form. See India Brewing, Inc. v. Miller Brewing Co., 237 F.R.D. 190, 194 (E.D.Wis.2006) (“A party may request information in a specific electronic format, but if it instead simply asks for ‘documents,’ adopting the definition in Rule 34(a), production in electronic format is not required.”); Northern Crossarm Co., Inc. v. Chemical Specialties, Inc., No. 03-C-415-C, 2004 WL 635606 *1 (W.D.Wis., Mar.3, 2004) (“If a party produces its electronic information in a hard copy format that mimics the manner in which that information is stored electronically, then that party has not disobeyed Rule 34.”).

Federal Rule of Civil Procedure 34, as amended, now allows a party to “specify the form or forms in which electronically stored information is to be produced.”FED.R.CIV.P. 34(b). However, plaintiffs do not seem to contend that those amendments apply here. At any rate, the amended Fed.R.Civ.P. 34 provides that where, as here, “a request does not specify the form or forms for producing electronically stored information,” then “a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”FED.R.CIV.P. 34(b)(ii) (emphasis added). Further, unless the parties agree or the court otherwise orders, “a party need not produce the same electronically stored information in more than one form.”FED.R.CIV.P. 34(b)(iii).

Schmidt v. Levi Strauss & Co., 2007 WL 2688467 (N.D. Cal. Sept. 10, 2007) (Do not cite).

Posted in 9th Circuit, Case Blurbs, Form of Production, FRCP 34(b), N.D. Cal. | Tagged: , | Leave a Comment »

Preservation on Demand (Maybe)

Posted by rjbiii on November 14, 2007

Tom Lahiff, blogging on Retention and Preservation, writes a great post about the effect of demand letters. The narrative takes a surprising turn when he discusses not only the letter’s effect on the recipient, but also on the sender:

Two recent decisions by magistrate judges resolving motions for sanctions based on defendants’ discovery violations illustrate that (i) a party’s own conduct can inadvertently trigger an obligation to preserve, and (ii) unless a demand letter is specific regarding the possibility of litigation, a court might refuse to find that receipt of such a letter triggered an obligation to preserve. Google Inc. v. American Blind & Wallpaper Factory, Inc., 2007 WL 1848665 (N.D. Cal. June 27, 2007); Cache La Poudre Feeds, LLC. V. Land O’Lakes, Inc., 2007 WL 684001 (D. Colo. Mar. 2, 2007).
[…]
Indeed, depending on the circumstances, it may be that by sending a demand letter you may have imposed a duty on yourself without imposing a corresponding duty on the other side.

Neat little twist, there; isn’t it? Read the rest of the article, you’ll be glad you did.

[HT: Information Governance Engagement Area]

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