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Archive for March, 2008

Case Blurb: World Trade Ctr Disaster; Court approves Technology Expert to design and maintain Discovery Database

Posted by rjbiii on March 30, 2008

The Special Masters have recommended that Technology Concepts & Design, Inc. (“TCDI”) be retained to build, maintain and operate a database, to store the Core Discovery that the parties have begun to produce, and will continue to produce, pursuant to my order dated November 27, 2007 (“Core Discovery Order”). I approve the recommendation.

The Core Discovery will create a substantial amount of information: insurance data from scores of contractors and subcontractors, and basic details concerning each plaintiff’s claim. Because of the volume of information that will be produced, and the intense time pressures governing production, it is imperative that a means be developed to process and organize the information on a consistent, reliable, and accessible basis. From this information, it should be possible to align plaintiffs readily with the particular defendants against whom they may have a basis to seek recovery, categorize plaintiffs according to their types and severity of injuries, eliminate various defendants from various cases, identify the sequence in which cases should be tried, group those cases with others that appear to be similarly situated, organize and understand the insurance that might relate to particular claims and, perhaps, not to others, and, not least, create paradigms that could lead to settlements.

[…]

There is no substitute for an independently created and managed database. Without a common core of reliable information, the approximately 10,000 cases that are before me will become increasingly difficult to manage. Disputes will proliferate, and progress will be slowed. Depositions and other discovery will become necessary, as each side tries to prove facts that their separate databases treat in different ways. The cases will take years longer to progress towards trial or resolution. Expenses to each side will rise in uncontainable ways, making present complaints insignificant. Meanwhile, individual plaintiffs will incur illnesses and some may die, blaming their heroism in the aftermath of 9/11 as the cause, and criticizing government and the courts for indifference and neglect with respect to their claims.

In re World Trade Ctr. Disaster Site Litig., 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008)

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Posted in 2nd Circuit, Case Blurbs, Data Management, Judge Alvin K. Hellerstein, Litigation Support, Neutral Third Party | Leave a Comment »

Houston Area DA Sanctioned for Contempt after Deleting E-Mails

Posted by rjbiii on March 29, 2008

The strange saga of Harris County District Attorney Chuck Rosenthal is, hopefully, winding down. If you weren’t aware, Rosenthal, has been in the news in Texas for a while, when e-mails containing racist and pornographic content, and love letters to his secretary were found on his work P.C.

In response to civil rights suit against the county, Rosenthal had produced over 1,500 emails to the court.

Newsweek described the situation like this:

Rosenthal is back in the headlines again. Last December, as part of a federal civil rights lawsuit into how justice is meted out in the county, he turned over the (partial) contents of his government e-mail account. And what a batch of e-mails it was. Black ministers called for the Republican to resign because of racist material, including a cartoon depicting an African-American suffering from a “fatal overdose” of watermelon and fried chicken. There were adult video clips and love notes from Rosenthal to his secretary, his mistress during a previous marriage.

Despite the copious production, the DA was found to have failed to have produced another 2,500 e-mails relating to the civil rights case.

A judge listened to testimony…to decide if Harris County’s top prosecutor should be punished for deleting more than 2,500 e-mails after he was ordered to produce them, KPRC Local 2 reported.
[…]
Kelley said he wants the judge to hold Rosenthal in contempt or sanction him for the destruction of the e-mails.

Rosenthal has said in court documents he thought the 2,500 e-mails he is under order to produce were backed up elsewhere and has called the decision to erase them an error in judgment.

As we all know, this is not something a party, especially a party who is an attorney, should do:

Harris County District Attorney Chuck Rosenthal should have known not to delete more than 2,500 e-mails that a court had ordered him to produce, the general counsel for his office testified Thursday in a hearing on whether Rosenthal should be held in contempt.

General Counsel Scott Durfee said Rosenthal was “crestfallen and surprised” when he found out the e-mails had not been backed up elsewhere and could not be recovered. But as an attorney, Rosenthal should have known that the e-mails were evidence and should not be deleted.

“This is not something that would be foreign to a practicing attorney?” U.S. District Judge Kenneth Hoyt asked Durfee.

“It would not,” he replied.

Rosenthal initially resisted calls for resignation, and calls for him to drop out of the next election. Ultimately, though, he found no sanctuary from fellow politicos, and announced his resignation, although he didn’t quite completely acknowledge his responsibility in the affair (no pun intended).

Rosenthal, 62, said a prescription drug combination had impaired his judgment and said media coverage of his e-mails — which included sexually explicit and racist content and affectionate notes to his executive assistant — had taken its toll on his family.

“Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment,” Rosenthal wrote in his resignation letter.

With respect to the emails, he stated:

“I now understand that I am unable to rely on my memory regarding the steps I took to manage the contents of my desktop and need to rely on reconstructing events from available documents and records,” Rosenthal writes in the declaration. “I have now consulted a medical specialist and am informed by him about conditions that have affected my perception and recollections of the past months. While I am seeking treatment to address these matters currently, I am concerned and wish to ask the Court to take into account that my prior testimony and Declaration must be considered in this context.”

Yesterday the Houston Chronicle reported that the Judge, unsurprisingly, was not impressed:

In blistering and scathing language, Hoyt’s court order rebuked Rosenthal for knowingly violating an Oct. 31 subpoena seeking his e-mails.

Hoyt criticized Rosenthal for showing “an intentional willfulness” to disobey the law.

“This conduct reveals a man confident in his status, entrenched in his brand of law,” Hoyt wrote. “He would not or could not acknowledge an authority beyond himself.”

Various contradictions and misrepresentations made Rosenthal’s testimony unreliable and incredible, Hoyt said. “The court views his conduct as venomous and hostile to the judicial process,” Hoyt wrote.

Rosenthal gave several explanations for why he deleted the

e-mails, Hoyt noted, such as believing his general counsel had printed hard copies of the documents and claiming he thought the documents were preserved on the computer network’s backup tapes.

Rosenthal also later testified that he deleted the e-mails to increase his work efficiency and to free memory space on his computer, Hoyt said.

“There is no evidence that Rosenthal’s computer memory space was threatened by additional e-mails or that, in fact, it was short of space. Hence, these reasons — all implausible inconsistencies — defy the law of common sense,” Hoyt wrote.

Rosenthal was fined a total of $18,900; with the County’s General Counsel responsible for $5,000 of that for failing to properly advise Rosenthal on how to properly comply with the subpoena requiring production of the email. The county will meet later to decide how much, if any, of the fine they will assume.

The county has already had to settle the civil suit:

Harris County officials Monday settled a civil rights lawsuit that led to the district attorney’s resignation, KPRC Local 2 reported.
[…]
Harris County commissioners said they were approached with a $1.7 million settlement offer over the weekend.

“The county (Commissioners Court) is concerned about the liability,” Commissioner Steve Radack said. “We are trying to limit as best possible the exposure to the taxpayers in this lawsuit.”

The county will also pay court costs and the Ibarras’ attorney fees.

The newly appointed interim DA now has his hands full with trying to restore confidence in the integrity of the office.

Magidson will serve as interim district attorney until the end of December. During that time, Magidson promised he would restore public confidence
“We’re going to prosecute these cases zealously but they are going to be tempered with justice and we are going to make sure we are doing .the right thing,” he said

The only final comment I have is that the $18,900 is hardly excessive, considering the court’s “blistering” language. Perhaps the court considered the ex-DA’s current plight, and the large settlement amount, in its calculations. If this had been an attorney from a private firm, however, I wonder if the result would have been different?

Posted in Articles, email, Monetary Damages, Sanctions, Scope of Discovery | Tagged: , | Leave a Comment »

Fun with e-mail

Posted by rjbiii on March 28, 2008

Oops. According to the ABA Journal Online:

A misdirected e-mail from Credit Suisse helped set the stage for two lawsuits filed this week by two private equity firms seeking to purchase Clear Channel Communications, the New York Times reports.

The suits accuse Credit Suisse and five other banks of breaching a contract to finance the $19.5 billion sale and interfering with the purchase agreement. The court filings come less than a year after the buyers, Bain Capital and THL Partners, received an unusual e-mail from Credit Suisse. The July e-mail contained confidential documents discussing how the banks planned to renege on terms of the lending agreement, the Times story says.

Posted in Articles, email | Leave a Comment »

ABA Section Journal Addresses Admissibility of Text & Instant Messages

Posted by rjbiii on March 14, 2008

The March Issue of Litigation News (no link available to current issue) contains an article relating to the Admissibility of text and instant messages. According to the article, the major challenge for authenticating the messages is “usually proving the identity of the persons in the conversation.” These challenges are, however, navigable. To wit:

The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstatial evidence. People v. Pierre. The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.

Even so, the witness testified that she knew the defendant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission.

The article contrasts this situation with a decision by a California court to exclude a text message, because prosecutors failed to properly authenticate it, and circumstances were such that more than one person could have sent it. The Second Circuit recently rejected a court’s decision to admit a chat session’s transcript made by cutting a pasting the text from the chat window into another file format (presumably Word?). The article concludes by emphasizing the need for attorneys to engage experts:

“As a practical matter,” says Steven A. Weiss, Chicago, former Co-Chair of the Section’s Technology for the Litigator Committee, “because of the myriad of devices being used to send and receive electronic messages, lawyers will usually need an IT expert to access and retrieve IMs and text messages, and to explain to the cour how the information is stored in a particular device and how it was retrieved.”

Posted in Admissibility of ESI, Articles, Authentication, Chat Room Content, Data Sources, Texting, Trends | Leave a Comment »

Case Blurb: Prof’l Basketball Club; Burden of proving objection to discovery requests falls to movant

Posted by rjbiii on March 11, 2008

In opposing discovery on the grounds of overbreadth, a party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents.” A “court must be able to ascertain what is being objected to. As such, unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” A claim that answering discovery will require the objecting party to expend considerable time and effort to obtain the requested information is an insufficient factual basis for sustaining an objection.

Here, [Producing Party] has not explained why producing the emails at issue would be unnecessarily burdensome, but merely states that producing such emails “would increase the email universe exponentially[.]” PBC also states in its moving papers that the emails add “nothing to the case except mountains of work for no return.” But a bald assertion that discovery will be burdensome is insufficient in light of Fed.R.Civ.P. 26(b)(2)(B). The Court is not permitted to presume the potential burdensome effects upon a party. The parties have already agreed upon a group of search terms that [Producing Party] previously used to search [key players’] emails and the Court assumes those terms may be used again to make further searches efficient.

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)(emphasis added)(citations removed).

Posted in 9th Circuit, Case Blurbs, Discovery Requests, Duty to Produce, FRCP 26(b), Judge Marsha Perchman, Objections to Discovery Requests, Overly Broad Request, Undue burden or cost, Vague Discovery Requests, W.D. Wash. | Leave a Comment »

Case Blurb: Prof’l Basketball Club; Court discusses scope of duty to preserve

Posted by rjbiii on March 11, 2008

Fed.R.Civ.P. 34(a)(1)(A) allows a party to serve on any other party a request for relevant electronically stored information in the “responding party’s possession, custody, or control.”Only one of these requirements need be met. Legal ownership over the electronically stored information is not determinative, nor is possession necessary if the party has custody or control over the items. Further, “[c]ontrol is defined as the legal right to obtain documents upon demand.” Documents may be within the “custody” or “control” of a party even thought they are in the possession of nonparties. A legal right is evaluated in light of the facts of each case, but central to each case is the relationship between the person having actual possession of the document and the party or the transaction at issue. A legal right to obtain upon demand electronic information can also be established by the existence of a principal-agent relationship.

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)(emphasis added)(citations removed).

Posted in 9th Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Judge Marsha Perchman, Scope of Discovery, W.D. Wash. | Leave a Comment »

TX Case Blurb: Honza; Court addresses objection to discovery request based on revealing confidential information, court order

Posted by rjbiii on March 10, 2008

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents

The Honzas contend that Respondent abused his discretion because: (2) the order authorizes the disclosure of information protected by the attorney-client privilege; and (3) the order authorizes the disclosure of confidential information pertaining to the Honzas’ other clients who have no connection to the underlying lawsuit.

The present discovery dispute originated with [Requesting Party’s] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] sought “[i]nformation (the ‘Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” [Requesting Party] explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party’s] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Privileged or Confidential Information

The [Producing Party] also contend[s] that the discovery order improperly authorizes the disclosure of (1) information protected by the attorney-client privilege and (2) confidential information pertaining to the Honzas’ other clients who have no connection to the underlying lawsuit.

Notwithstanding the “unlimited” access necessarily granted the forensic expert, Respondent’s order preserves any privileged or confidential information in several ways. First, the expert is limited in his search to two specific documents or iterations of those documents. [Members of the Producing Party] are then accorded the right to review the documents and information which the expert believes responsive and produce to [Requesting Party] only those documents and information which [members of the Producing Party] themselves believe are responsive. These provisions effectively preclude [Requesting Party] from having any access to documents or information pertaining to other clients of the Honzas not involved in this litigation.

Second, the order allows the [Producing Party executives] to withhold from discovery any documents or information which they claim to be privileged or confidential and provide instead a privilege log, subject to in camera review by Respondent.

Finally, the order provides that: (1) the observation of information by [Requesting Party] representatives during the imaging process shall not constitute a waiver of privilege or confidentiality; (2) all participants in the imaging process are subject to a protective order prohibiting the unauthorized disclosure of information; and (3) [Requesting Party’s] expert must provide proof of being bonded and of having commercial liability insurance by which the [Producing Party] may be “fully indemnified against any monetary loss.”

For these reasons, we hold that Respondent appropriately tailored the discovery order to prohibit the unauthorized disclosure of privileged or confidential information and no abuse of discretion is shown.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Posted in Case Blurbs, Computer Forensics, Data Collection, Data Custodians, Data Sources, Discovery Requests, Duty to Produce, Objections to Discovery Requests, Privacy, Privilege, Privilege Log, Scope of Discovery, Texas, TX Judge Felipe Reyna | Leave a Comment »

TX Case Blurb: Honza; Court addresses objection to ‘overly broad’ discovery requests, court order

Posted by rjbiii on March 10, 2008

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents

The Honzas contend that Respondent abused his discretion because: (1) the discovery order is overbroad and authorizes an improper “fishing expedition”;…

The present discovery dispute originated with [Requesting Party’s] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] sought “[i]nformation (the ‘Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” [Requesting Party] explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party’s] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Overbroad Discovery

The [Producing Party] first contend that the discovery order is overbroad and authorizes an improper “fishing expedition.” In this regard, they argue that Respondent improperly “gave blanket approval for [the Requesting Party] to gain total access to [their] computers and all information stored on them, whether or not it has anything to do with this lawsuit.”

Although it is true that Respondent’s order gives A & W’s forensic expert [FN8]complete access to all data stored on the Honzas’ computers, the order provides that the expert is to index all forensic images acquired from the imaging process “for the limited purpose of searching (the ‘Examination Process’) for two documents, previously Bates-labeled as HONZA 00019 and HONZA 00017, which are drafts of “Assignment of Contract” and any iterations (the ‘Relevant Documents’).” The expert must then compile any documents or information which the expert believes responsive and deliver them to the Honzas to determine for themselves which are responsive to A & W’s discovery request and which they choose to withhold, providing a privilege log instead.

In addition to limiting the expert’s search to two specific documents, the order provides that no waiver of privilege or confidentiality occurs if any otherwise privileged or confidential information is observed by A & W’s counsel or representatives during the imaging process, and they are prohibited from using such information other than in compliance with the terms of the order. The forensic expert is likewise prohibited from disclosing any information observed during the imaging process. And finally, the order requires the expert and all party representatives or counsel participating in the imaging process to sign an acknowledgment agreeing that they are subject to contempt of court for any violation of the order.

Any order requiring the imaging of a computer hard drive necessarily grants the expert who is conducting the imaging process access to all data on that hard drive. Here, Respondent specifically limited the expert’s search to two documents; gave the [Producing Party] a “right of first refusal” with regard to determining which documents or information are relevant to those two documents and responsive to [Requesting Party’s] discovery request; imposed stringent limitations on inadvertent disclosures to prevent any unintended waiver of confidentiality or privilege; and placed all participants in the imaging process under a carefully drawn protective order.

Therefore, we do not agree with the Honzas’ contention that the discovery order is overbroad.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Posted in Case Blurbs, Computer Forensics, Data Custodians, Data Sources, Discovery Requests, Duty to Produce, Form of Production, Objections to Discovery Requests, Overly Broad Request, Privacy, Scope of Discovery, State Courts, Texas, TX Judge Felipe Reyna | Leave a Comment »

TX Case Blurb: Honza; Court outlines process for Forensic Expert’s access to Party’s hard drive and subsequent production

Posted by rjbiii on March 10, 2008

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents

The Honzas contend that Respondent abused his discretion because: (1) the discovery order is overbroad and authorizes an improper “fishing expedition”; (2) the order authorizes the disclosure of information protected by the attorney-client privilege; and (3) the order authorizes the disclosure of confidential information pertaining to the Honzas’ other clients who have no connection to the underlying lawsuit.

The present discovery dispute originated with [Requesting Party’s] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] sought “[i]nformation (the ‘Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” [Requesting Party] explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party’s] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Under these decisions, the following protocol is generally followed. First, the party seeking discovery selects a forensic expert to make a mirror image of the computer hard drives at issue. This expert is required to perform the analysis subject to the terms of a protective order, generally prohibiting the expert from disclosing confidential or otherwise privileged information other than under the terms of the discovery order.

After creating the mirror images and analyzing them for relevant documents or partial documents, courts typically require the expert to compile the documents or partial documents obtained and provide copies to the party opposing discovery. That party is then to review the documents, produce those responsive to the discovery request, and create a privilege log for those withheld. Finally, the trial court will conduct an in-camera review should any disputes arise regarding the entries in the privilege log.

Because our research has disclosed no Texas decisions regarding this type of electronic discovery, we will apply these fairly uniform procedures to the issues presented in this proceeding.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Posted in Case Blurbs, Computer Forensics, Data Collection, Data Custodians, Duty to Produce, Objections to Discovery Requests, Privacy, Privilege, Privilege Log, Scope of Discovery, State Courts, Texas, TX Judge Felipe Reyna | Leave a Comment »