Post Process

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Archive for February, 2009

Case Blurb: Covad Communs Co.; Court examines form of production dispute

Posted by rjbiii on February 23, 2009

On August 4, 2008, [Producing Party] advised [Requesting Party] that it had additional responsive documents available for inspection and copying. [Requesting Party] apparently never responded to that letter, but instead wrote to [Producing Party] on August 18th and demanded that [Producing Party] produce those documents by August 22nd. In an August 20, 2008 conference call, [Producing Party] stated that it would make the 35,000 pages of e-mails that are responsive to [Requesting Party’s] request available in hard copy at [Producing Party’s] office for inspection and copying. [Requesting Party] took issue with [Producing Party’s] offer to produce the documents in hard copy as hard copy is not the documents’ native format. A few weeks later, on September 3, 2008, [Producing Party] offered to make the e-mails available in electronic format as TIFF files, but only on condition that [Requesting Party] agree to pay for the fees incurred by having one of Revonet’s legal assistants delete privileged or otherwise non-responsive documents from the electronic production set. [Requesting Paryt] objects to the form of defendant’s production because printed pages (and TIFF files) are not the native format for e-mails.

Thus, [Producing Party] insists that it be permitted to produce the e-mails in hard copy or as TIFF, provided Covad pays for the necessary deletions.

[…]

Rule 34 of the Federal Rules of Civil Procedure states that (1) the requesting party may designate the form in which the electronically stored information should be produced, and (2) if the request does not specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form. Fed. R. Civ. P. 34(b)(1)(C), 34(b)(2)(E)(ii). Thus, as just explained, the parties’ view of the preliminary inquiry here is whether [Requesting Party] designated the form in which the documents should be produced.

Rule 26(f), as amended, specifically requires the parties to discuss the form that production of electronically stored information should take. Fed. R. Civ. P. 26(f)(3)(C). This controversy predates that provision, and underscores its importance. It does not appear that [the parties] ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others’ behavior: [Requesting Party] expecting its documents in electronic form because [Producing Party] hired a company to collect electronically stored information, and [Producing Party] assuming that they should produce 35,000 pages of e-mails in hard copy because [Requesting Party] produced its documents in that format. As there is no agreement, the parties invite me to turn to the language of the requests themselves to determine whether [Producing Party] can produce the e-mails other than in their native format.

The instructions to [Requesting Party’s] document requests ask that [Producing Party] “[p]roduce all documents in [its] possession, custody or control, as they are kept in the ordinary course of business, including with all staples and clips attached and with all associated file folders, dividers and labels.”

“Documents” are defined as:

[A]ny tangible thing upon which any expression, communication, representation or data has been recorded by any means including, but not limited to, handwriting, printing, photostating, photographing, on a computer, instant messages, magnetic impulse, or mechanical or electronic recording and any non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason), including but not limited to working papers, preliminary, intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or other oral conversations, desk calendars, appointment books, audio or video tape recordings, microfilm, microfiche, computer tape, computer disk, computer printout, computer card, and all other writings and recordings of every kind that are in your actual or constructive possession, custody or control.

Thus, I am supposed to determine by examining ancient boilerplate — designed for discovery in a paper universe — such nice questions as whether an e-mail, existing in a computer’s memory is a “tangible thing” and how e-mails are “maintained in the ordinary course of business.” While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content. Therefore, though [Requesting Party’s] instruction is hopelessly imprecise and [Producing Party] could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that [Producing Party], in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that [Producing Party] operates in this manner, and no suggestion that such a practice would be anything but incredible. Therefore, even though I can’t say I know what [Requesting Party] has asked for, I can say what they have not asked for, and that is what they got.

Covad Communs. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008) (internal citations removed).

Posted in 4th Circuit, Case Blurbs, D.D.C., Form of Production, FRCP 26(f), FRCP 34(b), In the Ordinary Course of Business, Magistrate Judge John M. Facciola | Leave a Comment »

Microsoft introduces Gazelle: the Web Browser as O/S

Posted by rjbiii on February 22, 2009

Microsoft has released a paper introducing Gazelle (Abstract here; Complete PDF Paper here):

Web browsers have evolved to be a multi-principal operating environment where a principal is a web site. Similarly to a multi-principal OS, recent proposals and browsers like IE 8 and Firefox 3 advocate and support abstractions for cross-principal communication (e.g., PostMessage) and protection (for frames) to web programmers. Nevertheless, no existing browsers, including new architectures like IE 8, Google Chrome, and OP, have a multi-principal OS construction that gives a browser-based OS, typically called Browser Kernel, the exclusive control to manage the protection and fair-sharing of all system resources among browser principals.

In this paper, we present a multi-principal OS construction of a secure web browser, called Gazelle. Gazelle’s Browser Kernel exclusively provides cross-principal protection and fair sharing of all system resources.

This document limits its discussion exclusively to its unique resource protection architecture.

[HT: Slashdot]

Posted in Articles, Browsers, Technology, Trends | Tagged: , | Leave a Comment »

EU Working Group Releases Proposal for Reconciling EU Data Privacy Laws with US Discovery Rules

Posted by rjbiii on February 22, 2009

An EU “working group” has released a proposed set of guidelines (warning: PDF document) for companies who are subject to EU Privacy Directives to follow when complying with discovery rules in U.S. matters. The document’s purpose is described thusly:

The working party sees the need for reconciling the requirements of the US litigation rules and the EU data protection provisions. It acknowledges that the Directive does not prevent transfers for litigation purposes and that there are often conflicting demands on companies carrying on international business in the different jurisdictions with the company feeling obliged to transfer the information required in the foreign litigation process. However where
data controllers seek to transfer personal data for litigation purposes there must be compliance with certain data protection requirements. In order to reconcile the data protection obligations
with the requirements of the foreign litigation, the Working Party proposes the following guidelines for EU data controllers.

The document is an excellent primer for EU-US cross-border discovery matters. It also discusses the differences in discovery between common law and civil code systems, and those of the U.S. with other common law nations.

Posted in Discovery, European Union, International Issues, Legislation, Privacy | Leave a Comment »

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

Posted by rjbiii on February 3, 2009

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).

Posted in 2nd Circuit, Case Blurbs, Deliberative Process Privilege, Duty to Produce, Judge Shira A. Scheindlin, S.D.N.Y | Leave a Comment »

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

Posted by rjbiii on February 3, 2009

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).

Posted in 2nd Circuit, Case Blurbs, Duty to Produce, Form of Production, In the Ordinary Course of Business, Judge Shira A. Scheindlin, S.D.N.Y | Leave a Comment »

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

Posted by rjbiii on February 2, 2009

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).

Posted in 2nd Circuit, Attorney Work Product, Case Blurbs, Judge Shira A. Scheindlin, Privilege, S.D.N.Y | Leave a Comment »