Post Process

Everything to do with E-discovery & ESI

Archive for the ‘3d Circuit’ Category

Case Blurb: Au Optronics Corp., Burden of Proof for Authentication is Slight

Posted by rjbiii on May 18, 2010

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.” Fed. R. Evid. 903. Authentication by circumstantial evidence, in lieu of testimony, is permissible. McQueeny v. Wilmington Trust Company, 779 F.2d 916, 928 (1985). Circumstantial evidence that may be considered includes, but is not limited to, the source of the document, its appearance, content, substance, internal pattern, distinctive characteristics, and its age. Fed. R. Evid. 901. “The burden of proof for authentication is slight. ‘All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.'” McQueeny, 779 F.2d at 928 (citations omitted).

In this case, the Court concludes that AUO has met its burden of authenticating the documents in question…

LG Display Co., Ltd. v. Au Optronics Corp., 265 F.R.D. 189, 196 (D. Del. 2010)

Posted in 3d Circuit, Authentication, Case Blurbs, D. Del., FRE 901, Judge Joseph A. Farnan Jr. | Leave a Comment »

Case Summary: Bensel; Tests for Spoliation and Imposition of Sanctions

Posted by rjbiii on January 24, 2010

Bensel v. Allied Pilots Assoc., 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009)

Background: Plaintiffs, former members of the Allied Pilots Association (ALPA), sued the association, alleging breach of duty of representation of its members.

Procedural History: Plaintiffs accuse Defendant Association of intentionally or recklessly destroyed documents, emails and other communication well into the discovery period for this lawsuit.

Discussion: The court begins by defining spoliation as: “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” The court noted that when relevant documents are lost or destroyed “the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.” The court qualified that statement by adding that there must be a finding that the spoliation was intentional and that there was fraud and a desire to suppress the truth before the Court will make a finding of spoliation. The court then articulated the following test for a finding of spoliation.

Generally, to determine spoliation of evidence, four factors must be found:
(1) the evidence in question must be within the party’s control;
(2) it must appear that there has been actual suppression or withholding of the evidence;
(3) the evidence destroyed or withheld was relevant to claims or defenses; and
(4) it was reasonably foreseeable that the evidence would later be discoverable.

The court added that the duty to preserve relevant documents could attach even prior to litigation, although a party is certainly not required to retain every document in its possession. The court then stated the Third Circuit’s test for the imposition of sanctions for spoliation:

(1) the degree of fault of the party who altered or destroyed the evidence;
(2) the degree of prejudice suffered by the opposing party; and
(3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.

The court then opined that in the first standard, that for finding spoliation, the second the element appeared to require bad faith. It then decided that the first prong of the test for sanction required bad faith as well.

The court noted that Defendant had only grudgingly complied with its discovery obligations, and recited examples suggesting that there was strong evidence that Defendants had failed to preserve evidence. However, the court also stated that Plaintiffs had not pointed to any evidence of bad faith, and relied only on speculation to explain the deletion of email by Defendants.

The court also wrote that Plaintiffs made vague statements, such as: “ALPA’s spoliation was so widespread and covered such a long period of time it can only be concluded that substantial evidence was destroyed which would have been favorable to Plaintiffs.” Such a catch-all statement, along with vague speculation as to whether evidence has been destroyed or even whether evidence was relevant does not rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation. While Defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data, the Court saw no evidence of bad faith. The court, therefore, denied the motion for sanctions at this time.

Posted in 3d Circuit, Bad Faith, Case Summary, D.N.J., Judge Joseph E. Irenas, Sanctions, Spoliation | Leave a Comment »

Case Summary: Rhoads Indus.; Attorney Client Privilege, the Waiver of Privilege, and Reasonable Precautions

Posted by rjbiii on December 8, 2008

Case Summary: Rhoads Indus. v. Bldg. Materials Corp. of Am., 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008 )

In a question of the adequacy of a keyword screening protocol, the court entertains a motion to deem plaintiff had waived privilege as to approximately 800 inadvertently produced documents. Rhoads filed the action against Bldg. Materials Corp. of America (“GAF”) for, inter alia, breach of contract, and against R.W. Cooper & Co. (“Cooper”) for negligent misrepresentation.

Rhoads began preparing for the litigation in February, 2007. In June 2007, upon realizing that e-discovery would be extensive in the case, he hired Salvatore Gramaglia as an IT expert. Mr. Gramaglia, after conducting tests, Mr. Gramaglia purchased a license for “Discovery Attender” to be used in electronic searches. Mr. Gramaglia and Kimberly Buchinsky, an associate at Gowa Lincoln P.C., began identifying mailboxes containing relevant information to Rhoads’ project with GAF. The court stated that “Gramaglia and Buchinsky reasonably believed that the computer program would screen out all privileged materials.” Efforts to settle the dispute were unsuccessful, and on November 13, 2008, Rhoads filed the complaint. Discovery commenced shortly thereafter. Sam Washawer, a was bought in by Rhoads for the litigation. He discussed the scope of e-discovery with Mr. Gramaglia and Ms. Buchinsky, and observed the performance of Discovery Attender. He also conferred with Gramaglia and Buchinsky over the topic of search terms for searches.

During January and February of 2008, Gramaglia performed searches using terms supplied by counsel, initially identifying 210,635 documents as “being responsive.” His priv filter consisted of searching the “address line of all e-mails for these terms: *rhoadsinc* and either *gowa*, *ballard*, or *cpmi*. “Gowa” and “Ballard” represents Rhoads’ law firms, while “CPMI” refers to a non-testifying expert for plaintiff. This search resulted in the designation of 2,000 documents as “privileged,” although they were not placed on a privilege log at that time.

In response to the large volume of documents initially returned, counsel narrowed the responsive search criteria, reducing the total documents returned to 78,000 that plaintiff believed were responsive and non-privileged. Ms. Buchinsky then manually reviewed documents from specific mailboxes for privilege. She removed certain documents from the production, and entered them on a privilege log. Meanwhile, counsel also reviewed twenty-two boxes of hard copy documents for responsiveness and privilege.

On May 13, 2008, Rhoads produced to Δ’s, three hard drives containing responsive electronic documents, including the 78,0000 documents returned by the responsive “screen.”

On June 6, 2008, Rhoads produced two privilege logs to Δ’s, in response to a court order. One log was associated with Ms. Buchinsky’s manual review, while the other contained hard copy documents.

On June 5, 2008, Δ’s GAF notified Π’s counsel that some privileged e-mails may have been produced. Π immediately responded by asserting that no privilege had been waived, and that this was likely a case of inadvertent production. Over the next two and a half weeks, Π then conducted nine depositions and responded to Δ Cooper’s Motion to Dismiss before addressing the privilege issue.

On or about June 23, 2008, Ms. Buchinsky began reviewing the 78,000 e-mails produced as a result of the responsive searches executed in Discovery Attender. She generated a new privilege log identifying 812 emails as privileged, producing it to Δ’s on June 30, 2008 as an attachment to a letter invoking FRCP 26(b)(5)(B) to have Δ’s sequester the inadvertently produced documents.

On August 19, 2008, Δ Cooper filed a Motion to Deem that Plaintiff had waived the Privilege to the approximately 800 documents. Δ GAF filed a motion joining Cooper’s motion on August 25, 2008. Defendants did not dispute that the production was inadvertent and that the software purchased by Rhoads was designed to ferret out privileged documents. Defendants did argue that Rhoads’s technical consultant and counsel were not sufficiently careful to review the software screening and to take steps to prevent disclosure when it appeared obvious that privileged material had filtered through the screening procedure.

On November 5, 2008, the first hearing on the waiver of privilege was conducted. All three privileged logs were produced. Mr. Gramaglia and Ms. Buchinsky testified as to the method of creation of the logs, and their relationship to each other. Rhoads admitted that 2,000 e-mails previously designated as privilege had not yet been disclosed in a privilege log. Ms. Buchinsky testified to her belief that a manual review of all 78,000 emails would have resulted in the timely identification of those documents in a privilege log. The court then ordered that any documents not on a privilege log as of the date of that hearing should be produced, absent exceptional circumstances.

After the hearing, Rhoads inspected the 2,000 documents earlier set aside, but not identified in a log, as privilege. The results of this inspection were discussed on a hearing on November 13, 2008. Rhoads concluded that 941 documents were duplicative. Of the 1059 unique documents, 511 were responsive, consisting of 335 privileged documents and 176 non-privileged documents. Of the 335 privileged documents, 215 had been previously identified in other logs. Rhoads agreed to produce the 176 responsive non-privileged documents, and generated a fourth privilege log. The court expressed its opinion that Rhoads might still retain privileged and un-logged documents.

The court then weighed the facts using the five factor test laid out in Fidelity & Deposit Co. of Md. v. McCulloch, 168 F.R.D. 516 (E.D. Pa. 1996). These factors are:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production.
(2) The number of inadvertent disclosures.
(3) The extent of the disclosure.
(4) Any delay and measures taken to rectify the disclosure.
(5) Whether the overriding interests of justice would or would not be served by relieving the party of its errors.

On the first factor (reasonableness taken to prevent inadvertent disclosure), the court found that the following factors favored the plaintiff (producing party):

1. Plaintiff purchased a special software program, Discovery Attender, for the purposes of complying with discovery in this litigation.
2. Plaintiff’s technical consultant (Mr. Gramaglia) conducted trial searches prior to purchasing the software and was satisfied with its reliability and accuracy.
3. Mr. Gramaglia was experienced with Rhoads’s computer system.
4. Plaintiff believed that its search terms would pick up all attorney-client communication.
5. Plaintiff did not use “Warshawer” or “Costello” (outside counsel) as search terms because counsel believed Gowa was included on all e-mails going to the client.
6. Plaintiff did not include “privileged” or “confidential” as keyword search terms because all Rhoads e-mails use these words in the signature line at the bottom of every e-mail, and thus use of these words would have identified every Rhoads document as privileged.
7. Ms. Buchinsky spent over 40 hours reviewing documents for privilege before production. Additional attorneys spent significant hours on the privilege review.

The court found the following factors favored defendants (requesting parties):

1. Plaintiff should have used additional search terms to weed out potentially privileged documents, especially the names of all of its attorneys. Here the court cited Bensel v. Air Line Pilot Ass’n, 248 F.R.D. 177, 180 (D.N.J. 2008).
2. Ms. Buchinsky had no prior experience doing a privilege review and her supervising attorneys did not provide any detailed oversight.
3. Plaintiff’s search for privileged documents was limited to e-mail address lines (as opposed to the e-mail body). Therefore any potentially privileged e-mails (as defined by Plaintiff’s search terms) that were subsequently forwarded outside of Rhoads and either Gowa, Ballard, or CPMI would not be captured by its search.
4. Plaintiff produced documents that its limited search should have caught. Therefore Plaintiff not only failed to craft the right searches, but the searches it ran failed. Plaintiff has no explanation for this.
5. As Stanley notes, relying exclusively on a keyword search for the purpose of conducting a privilege review is risky, and proper quality assurance testing is a factor in whether precautions were reasonable. Victor Stanley, 250 F.R.D. at 257, 260. Here there was no testing of the reliability or comprehensiveness of the keyword search.
6. Plaintiff’s only testing of its search was to run the same search again

On the second factor, the number of inadvertent documents produced, the court found this fact favored plaintiffs:

1. The number of documents inadvertently produced represent a small percentage (1-2%) of the total production.

The court found these facts weighed in favor of defendants:

1. 800 inadvertently produced documents plus at least 120 privileged documents that this Court now orders be produced is still a large number of documents regardless of the percentage produced.
2. The court in Stanley found that 165 documents was a sufficiently large number to favor waiver of the privilege.

The court stated that nothing in the record indicated whether the third factor (the extent of the disclosure) weighed in favor of one party over the other.

On the fourth factor (Any delay and measures taken to rectify the disclosure), the court found these facts favored plaintiffs:

1. Plaintiff immediately responded to Defendant’s e-mail that some potentially privileged documents had been produced by stating that production was inadvertent and inquiring which documents Defendant was referring to;
2. As relied on in Fidelity, Plaintiff was under a tight discovery schedule at the time it was notified of the inadvertent production. Fidelity & Deposit Co., 168 F.R.D. at 522. Ms. Buchinsky was helping prepare for nine depositions taken over the course of twelve days. Plaintiffs also had to respond to Defendant Cooper’s Motion to Dismiss during this time.
3. Plaintiff invoked the remedial measure of FRCP 26(b)(5)(B) to have the inadvertently produced documents sequestered at the same time it produced the June 30th privilege log (Ex. D-1), three weeks after learning of the disclosure.
4. Plaintiff was willing to produce a cleansed hard drive (i.e. without the privileged documents) to Defendants in September, but Defendants refused the hard drive.
5. Defendant did not file their Motion to Deem that the Privilege was Waived until two months after Plaintiff produced the June 30th privilege log.

Those facts favoring defendants:

1. Plaintiff had abundant time to review its own documents and segregate any privileged documents before it started the litigation and also before it began producing documents in May 2008;
2. The crunch and time pressure that Plaintiff claims it suffered in June 2008 were caused by Plaintiff not providing adequate resources (e.g. attorneys or paralegals) to the privileged communication issue;
3. Defendants had to bring Plaintiff’s error to its attention instead of Plaintiff catching its own mistake (cites Victor Stanley).
4. It took Plaintiff over three weeks to produce a privilege log of the inadvertently produced documents once it was aware of its mistake.
5. The June 30th privilege log required Defendants to cross-reference each document produced to them against the log to check whether documents were in fact privileged. Plaintiff did not offer Defendants a cleansed hard drive until September.
6. Plaintiffs did not offer suggestions to rectify the inadvertent production until October, after many depositions had been taken.

On the final factor (Whether the overriding interests of justice would or would not be served by relieving the party of its errors), the court found these facts weighed in favor of the plaintiffs:

1. Plaintiff has shown general compliance with the three conditions of Rule 502, although considering the factors in the prior case law, Plaintiff is responsible for the confusion and delay noted above;
2. The loss of privilege would be highly prejudicial to the Plaintiff;
3. Defendants have not demonstrated substantial unfairness that they have suffered because of their inability to review the privileged documents beyond having to cross-reference documents against the June 30th privilege log.

Favoring defendants:

1. Plaintiff should have conducted a more rigorous privilege review and allowing Plaintiff to retain the privilege in these documents may not deter similar conduct in the future.

The court then concluded its opinion by ruling the following:
Those documents that were never logged after designation (part of the 2000 e-mails initially designated as privileged, but not listed in a privilege log until after the Nov. 5 hearing) were not subject to protection, as a failure to identify privilege documents in a log in a timely manner violates FRCP 26(b)(5).

With respect to the documents that were inadvertently produced, the court stated that neither Victor Stanley or Amersham were controlling. The court stated that although the facts in Victor Stanley were similar to those in the instant matter, Judge Grimm’s analysis reflects, to a more significant degree than [the court] believe[s] appropriate, application of hindsight, which should not carry much weight, if any, because no matter what methods an attorney employed, an after-the-fact critique can always conclude that a better job could have been done. The court found that factors one through four favored defendants, while the fifth strongly supported plaintiffs. As defendants have the burden of proof as the moving party, the court concluded that this burden had not been met, and privilege was not waived for these documents.

Posted in 3d Circuit, Attorney Client Privilege, Case Summary, E.D. Pa., Judge Michael M. Baylson, Privilege, Privilege Log, Search Protocols, Waiver of Privilege | Leave a Comment »

Case Blurb: Rhoads Indus.; Keywords and Emails

Posted by rjbiii on December 8, 2008

The advent of electronically stored information (“ESI”) has been widely discussed and has already resulted in amendments to the discovery rules. Keyword and name searches are frequently employed as an initial method to screen and sort documents, but they are not foolproof. For instance, privileged communications frequently creep into e-mail “chains,” but may appear only to some participants in the chain depending on a user’s application of the “reply” and “forward” commands. These issues [invariably] led to at least some of Rhoads’ inadvertent disclosures.

Rhoads Indus. v. Bldg. Materials Corp. of Am., 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008 )

Posted in 3d Circuit, Case Blurbs, E.D. Pa., email, Judge Michael M. Baylson, Key Words, Search Protocols | Leave a Comment »

Case Blurb: Bright; Court Discusses History and Application of the Adverse Inference

Posted by rjbiii on September 9, 2008

[Requesting Party] contends that a jury should be allowed to infer from Plaza’s destruction of the recorded surveillance footage that the tenor of the evidence in the footage was unfavorable to Plaza’s case. According to Bright, therefore, the destruction of the footage showing the area prior to Bright’s fall gives rise to an inference of spoliation. The Third Circuit Court of Appeals explained the history of the spoliation inference in In re Hechinger Inv. Co. of Delaware, Inc.:
Since the early 17th century, courts have admitted evidence tending to show that a party destroyed evidence relevant to the dispute being litigated. Such evidence permitted an inference, the “spoliation inference,” that the destroyed evidence would have been unfavorable to the position of the offending party.
The Court went on to note that
the “key considerations in determining whether such a sanction is appropriate should be: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.”

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008).

Posted in 3d Circuit, Adverse Inference, Case Blurbs, Justice Edgar D. Ross, Sup. Ct. Virgin Islands | Leave a Comment »

Case Blurb: Bright; Court Discusses Company’s Retention Practices of Surveillance Tapes and Spoliation

Posted by rjbiii on September 9, 2008

This appeal concerns a slip and fall accident that took place at the Plaza Extra supermarket in Estate Sion Farm, St. Croix on June 20, 2004. […]

The Superior Court granted summary judgment in favor of Plaza, holding that, because [Plaintiff] Bright failed to provide any evidence that Plaza knew or should have known about the substance on the floor, no reasonable jury could find that Plaza had breached its duty to Bright as a matter of law. The instant appeal followed. […]

Bright’s fall was captured on Plaza’s closed-circuit video surveillance system, which is comprised of both a digital hard drive that records only a finite amount of data before reusing itself and a video recorder. The digital footage is automatically recorded over every few weeks unless it is manually copied from the digital hard drive to the video recorder. At his June 2005 deposition, Plaza’s manager testified that he examined the footage of Bright’s fall immediately after being notified of her fall, the video failed to show anything visible on the floor at the time of the fall. Concluding that Bright “probably tripped on herself,” the manager testified that he elected not to review or copy any of the footage prior to or after the fall. He also testified that the store had no set procedure for retaining video footage of slip and fall accidents and that the store simply retained the footage of the actual fall in Bright’s particular circumstance. […]

Therefore, the record contains no video evidence indicating when or if someone spilled anything on the floor prior to Bright’s fall. The only evidence in the record which indicates length of time is Bright’s deposition testimony. When asked if anything indicated how long the substance had been there, she testified that there was a little dust on the drops which indicated to her that it had to be there “for a little while.” […]

Plaza filed a motion for summary judgment asking the trial court to find that Bright had failed to establish that Plaza had actual or constructive notice of any substance on the floor that may have caused Bright’s injuries. Bright opposed the motion arguing she was entitled to a spoliation inference because Plaza had intentionally erased the video footage depicting what had transpired prior to and after her fall. Plaza replied to the opposition by contending that Bright failed to show that the store had engaged in bad faith, malicious, or fraudulent conduct, which is a prerequisite to the application of a spoliation inference. In a Memorandum Opinion, dated June 11, 2007, the Superior Court granted summary judgment in favor of Plaza, holding that Bright failed to provide sufficient evidence that Plaza knew or should have known of the substance on the floor and failed to demonstrate fraud or deceit that would permit deliberation on the availability of the spoliation inference. Bright timely filed her Notice of Appeal… […]

On appeal, Bright contends that Plaza’s destruction of the surveillance video establishes constructive notice because it permits a jury to infer that the video would have shown that the liquid was on the floor long enough for Plaza to have discovered it prior to her fall. According to Bright, the adverse inference created by Plaza’s destruction of the tape defeats summary judgment. Plaza contends that Bright is not entitled to a spoliation inference, and that even if she was, common law precludes the use of a spoliation inference to substitute for actual evidence supporting constructive notice. According to Plaza, a spoliation inference is improper where the evidentiary destruction was a matter of routine and was devoid of any fraudulent intent, and the inference cannot be utilized to establish an essential element of a negligence claim. […]

There is no dispute in this matter that the recorded surveillance footage was at all times within the exclusive possession and control of Plaza. The parties dispute, however, whether there was an actual suppression or withholding of evidence. Bright argues that Plaza intentionally destroyed the recorded surveillance footage in order to conceal evidence which was unfavorable to Plaza. Plaza argues that as a regular course of business, the store only maintains the relevant footage of any recorded fall. Therefore, according to Plaza, the failure to retain footage of the time preceding and following the fall was neither fraudulent nor intentional. The trial court found that “Bright offer[ed] no evidence that Plaza … attempted to perpetrate a fraud or that Plaza’s conduct was anything other than a matter of routine.” (App. at 12-13.) The evidence, however, belies the trial court’s determination. […]

During his deposition, Plaza’s manager testified that he retained only the portion of the surveillance footage which captured Bright’s fall. (App.211-12.) The manager’s conscious and intentional choice not to review or retain the recorded footage prior to or after the fall resulted in the destruction of relevant evidence. […]

We find this case to be very analogous to Stevenson v. Union Pacific R.R. Co., 354 F.3d 739 (8th Cir.2004). In analyzing a routine document retention policy, the Eighth Circuit Court of Appeals applied the Gumbs test and held that the trial court did not abuse it discretion in permitting a spoliation inference as a sanction for the defendant’s pre-litigation destruction of a voice recording. Id. at 747-48. Similar to Plaza, the Stevenson defendant learned of the accident shortly after it occurred and began his investigation immediately thereafter, but failed to take the steps necessary to preserve the recorded evidence. Also like Plaza, the Stevenson defendant had previously been involved in several accidents and knew that such recorded evidence would be relevant to any potential litigation. FN1 Additionally, Bright, like the Stevenson plaintiff, was prejudiced by the destruction of the evidence because there is virtually no other evidence establishing the dispositive issue. In concluding that fraudulent intent was present, the Eighth Circuit Court of Appeals recognized that the case “tests the limits of what [the court is] able to uphold as a bad faith determination.” Id. Nevertheless, the particular circumstances present in that case, which were similar to those present in the case before this Court, warranted a spoliation inference.

FN1:Remarkably, in another case currently before this Court, Plaza’s management applied a different procedure in determining what portion of a recorded slip and fall accident to retain. In Williams v. Plaza Extra, S.Ct. Civ. No.2007/118, where the recorded surveillance footage appeared to vindicate Plaza, management retained a large portion of the footage, including footage from depicting a custodian cleaning the area twelve minutes prior to the fall and several minutes of footage after the fall. The fall in Williams occurred in the same store on April 8, 2002, nearly two years before the fall at issue in this case. […]

While this Court does not find any statutory or case law indicating precisely what portion of surveillance footage capturing a slip and fall accident should be retained, common sense dictates the retention of comprehensive surveillance footage of any accident, including a reasonable period of time preceding and following the accident.

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008).

Posted in 3d Circuit, Adverse Inference, Case Blurbs, Data Retention Practices, Data Sources, Document Retention, Justice Edgar D. Ross, Sup. Ct. Virgin Islands, Video Files | Leave a Comment »

Case Summary: Harding, Earley; The “do’s” and “don’ts” of Website Captures

Posted by rjbiii on June 22, 2008

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 650 (E.D. Pa. 2007)

Healthcare Advocates (“HA”), a patient advocacy group that helps its members deal with health care providers, brought an action against a competitor alleging trademark infringement and misappropriation of trade secrets. The competitor was represented by Harding, Earley, Follmer & Frailey (“Harding”), a “boutique” law firm specializing in intellectual property matters. Harding began investigating HA, and part of that investigation consisted of using the internet to do searches and view the the group’s website. Harding also used a tool known as the “wayback” machine to look at materials that had been posted to the web in the past.

The wayback machine, maintained by the Internet Archive, stores screenshots from websites that can be looked up by any interested internet surfer. This allowed Harding to HA’s website pages as they would have appeared before the litigation began. Harding printed some of these pages, and some of these prints were during the course of the litigation. Harding did not save any of the images to hard drives.

HA had placed a file, named Robots.txt, on its website server to direct indexing engines and the wayback machine from pages that HA did not want accessed or displayed by the public. On this occasion, however, this protective measure failed, and the wayback machine displayed “forbidden” content to Harding. The failure was due to an issue with the wayback machine’s servers, and not with any action taken by Harding.

Nevertheless, HA brought this action against Harding, alleging, inter alia, that Harding had: violated provisions of the Digital Millenium Copyright Act (“DMCA”); infringed upon their copyrights by printing and unknowingly saving copies of the archived web pages in temporary memory, and distributing copies of the pages to co-counsel; committed spoliation by failing to preserve the copies in temporary memory, violated provisions of the Computer Fraud and Abuse Act (“CFAA”) “by intentionally exceeding their access and obtaining information from protected computers used in interstate commerce;” and violated Pennsylvania laws with respect to conversion and trespass.

Harding requested summary judgment in its favor on all counts.

Copyright Infringement: The court found that HA had established both elements for infringement. HA had a valid copyright on the materials found on its website, and had demonstrated that Harding had “reproduced” and “publicly displayed” these materials. The court then conducted an analysis to determine whether Harding’s actions were permissible under the Fair Use Doctrine.

The court began by listing the factors considered for Fair Use:

  1. “the nature and character of the use” by the alleged infringer;
  2. “the nature of the copyrighted work;”
  3. “the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and”
  4. “the effect of the use upon the potential market for or value of the copyrighted work.”

The court then continued its examination. For the first factor, although it noted that the display and copying of the website content was in pursuit of a profitable activity, that it nevertheless cut in favor of the law firm. The court noted that “[Harding] copied these materials as supporting documentation for the defense they planned to raise for their clients against the allegations,” and stated that “[i]t would be an absurd result if an attorney defending a client against charges of trademark and copyright infringement was not allowed to view and copy publicly available material, especially material that his client was alleged to have infringed.”

The court held that the second factor also cut in favor of Harding, because the the data copied was of an informational nature.

The third factor cut in favor of HA, as Harding copied and displayed the entire website, however, because the information was relevant in a pending litigation, and the firm had a duty to preserve such material, “the substantiality of the portion used does not militate against a finding of fair use.”

The fourth factor “militate[d] in favor of a finding of fair use.” Harding’s actions in copying and displaying the material were for the use in a lawsuit, and not for the purpose of “gaining a competitive advantage.” The court’s analysis concluded with a determination that Harding’s “infringing use is excusable under the doctrine of fair use.” The court granted Harding’s motion for a summary judgment with respect to HA’s copyright infringement claim.

Spoliation of Evidence: With respect to the specific case of the data copied to temporary files, the court noted that HA had not presented any evidence of what had been copied. HA argued that it deserved a “spoliation inference” because the Harding’s duty to preserve existed with respect to this data. The court began by discussing the three factor test used in the third circuit for spoliation determinations. “The considerations are: (1) the degree of fault of the party who altered or destroyed the evidence, (2) the degree of prejudice suffered by the opposing party, and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and where the offending party is seriously at fault, will serve to deter such conduct by others in the future.”

In examining the facts in the context of the first factor, the court found that because the files were deleted automatically, and not by an affirmative action on the part of Harding, the factor weighed in favor of Harding. The court was not convinced by HA’s argument that Harding’s failure to immediately “remove the computers from further use” did not “shock the conscience.” Nor did the court find persuading HA’s argument that Harding should have taken measures once it received a subsequent letter demanding all evidence be preserved, as the firm felt that nothing relevant had been saved onto the hard drives of its computers.

The second factor, likewise, weighed in favor of a finding against spoliation, because the court concluded that HA suffered no real prejudice from the loss of this data.

The court determined that the final factor cut the same way as the other two, when it stated: “[t]he Harding firm did not purposefully destroy evidence. To impose a sanction on the Harding firm for not preserving temporary files that were not requested, and might have been lost the second another website was visited, does not seem to be a proper situation for an adverse spoilation inference.”

The Claim under the DMCA: The court then turned to examine HA’s claim that Harding had violated the provision in the DMCA under 17 U.S.C. § 1201(a)(1)(A), prohibiting the circumvention of a technical mechanism designed to protect copyrighted material. Here, HA argued that Harding bypassed the protection of the “robots.txt” file, and thus was in violation of the measure. The court found that, “in this situation,” the placement of the file on the website constituted an anti-circumvention technological measure as defined under the DMCA. The court emphasized, however, that “this finding should not be interpreted as a finding that a robots.txt file universally qualifies as a technological measure that controls access to copyrighted works under the DMCA.”

The court continued by noting that the defect was with Internet Archive’s server, and that when used by Harding, it was as though the protective measure was not present. Harding accessed the data, but not by circumventing the protection, and was therefore not in violation of the DMCA. Harding’s motion for summary judgment on HA’s DMCA claim was granted.

HA’s claim under the CFFA: HA argued that Harding’s viewing of the content prohibited by the Robots.txt file constituted a violation of the CFAA. The court concluded that Internet Archive’s computers were used in interstate commerce, and were protected under the act, and that the costs accrued by HA in investigating the unauthorized access, estimated in excess of $9,600, met the statutory threshold. However, merely using a public website does not create liability under the act, and HA was unable to present evidence of prohibited activity, and Harding’s motion for summary judgment on the CFFA claim was granted.

HA’s claims for trespass to chattels and conversion: The final two claims arose under state law, and the court concluded that these claims were preempted by the federal copyright claims under 17 U.S.C. § 301(a), that the court had already examined. Harding’s motion summary judgement with respect to the state law claims was also granted.

Posted in 3d Circuit, Case Summary, Computer Fraud and Abuse Act, Conversion, Copyright Infringement, Data Sources, Digital Millenium Copyright Act, Duty to Preserve, Duty to Produce, E.D. Pa., Judge Robert F. Kelly Sr., Spoliation, Trespass to Chattels, Website Capture | Tagged: , | Leave a Comment »

Judge: Attorney ‘crossed the line from zealous advocate to sanctionable conduct’

Posted by rjbiii on October 7, 2007

Judge James Gardner, a district court judge in the Eastern District of Pennsylvania, declared:

In his opinion, Gardner said the defendant insurance companies and their counsel interposed a number of legally deficient general objections to discovery requests for the purpose of delaying the case and increasing costs. The judge laid most of the blame on Summers, the former lead counsel for the defense. Attorneys at Hangley Aronchick and Stevens & Lee had withdrawn as counsel last year, Fox said.

“John S. Summers … engaged in a course of conduct which constituted bad faith in this matter. I found his testimony evasive,” Gardner said. “I conclude that but for his actions, that the discovery process would have proceeded in a much more orderly and expeditious manner.

“If not for the actions of attorney Summers, there would have been no need to appoint a Special Discovery Master in this case,” he said. “Thus … it is clear that attorney Summers crossed the line from zealous advocacy to sanctionable conduct.”

The court concluded that the sole reasons for the “legally deficient objections” made by Mr. Summers was to delay discovery. An expert interviewed in the article stated that while such practice was standard trial strategy, Mr. Summers had taken it too far. Mr. Summer’s attorney in the matter, Lawrence Fox of Drinker Biddle & Reath, argued that such sanctions would “have a chilling effect on attorneys trying to protect their clients,” and that “‘a whole cottage industry’ would pop up to file sanctions motions.”

As I am not familiar with the particulars in the case, I won’t comment on the Mr. Summers’ culpability, however I do find it amusing that Mr. Fox defends the “cottage industry” of using delaying tactics in discovery while condemning another, imaginary cottage industry. Everyone on the business end of these sanctions always derides the effect on the practice of law, while ignoring the effects their own practices have had for years. Ethics laws have addressed the issue of delaying tactics, and standard practice or not, they should be greatly curtailed. That isn’t to say that parties involved in discovery shouldn’t be given time sufficient to overcome whatever procedural and technical challenges exist, but once it becomes obvious that counsel is merely objecting for the sake of delay, and is doing so in bad faith, all bets are off.

The sanctions imposed are monetary in nature, designed to cover legal costs incurred in filing motions for sanctions and costs associated with the hiring of a special discovery master. There has been a suggestion that an ethics charge might be forwarded to the appropriate bar committee. The sanctioned parties have vowed appeal the penalties.

Posted in 3d Circuit, Articles, E.D. Pa., Judge James Gardner, Sanctions | 1 Comment »

Case Blurb: Lorraine; Authenticating digital photographs

Posted by rjbiii on September 24, 2007

Photographs have been authenticated for decades under Rule 901(b)(1) by the testimony of a witness familiar with the scene depicted in the photograph who testifies that the photograph fairly and accurately represents the scene.

Calling the photographer or offering exert testimony about how a camera works almost never has been required for traditional film photographs.

Today, however, the vast majority of photographs taken, and offered as exhibits at trial, are digital photographs, which are not made from film, but rather from images captured by a digital camera and loaded into a computer.

Digital photographs present unique authentication problems because they are a form of electronically produced evidence that may be manipulated and altered.

Indeed, unlike photographs made from film, digital photographs may be “enhanced.”

  • Digital image “enhancement consists of removing, inserting, or highlighting an aspect of the photograph that the technician wants to change.”

Examples of enhancement:

  • [S]uppose that in a civil case, a shadow on a 35 mm photograph obscures the name of the manufacturer of an offending product. The plaintiff might offer an enhanced image, magically stripping the shadow to reveal the defendant’s name.
  • Or suppose that a critical issue is the visibility of a highway hazard. A civil defendant might offer an enhanced image of the stretch of highway to persuade the jury that the plaintiff should have perceived the danger ahead before reaching it.
  • In many criminal trials, the prosecutor offers an ‘improved’, digitally enhanced image of fingerprints discovered at the crime scene. The digital image reveals incriminating points of similarity that the jury otherwise would never would have seen.

There are three distinct types of digital photographs that should be considered with respect to authentication analysis:

  • original digital images,
  • digitally converted images, and
  • digitally enhanced images.

Original digital images

  • An original digital photograph may be authenticated the same way as a film photo, by a witness with personal knowledge of the scene depicted who can testify that the photo fairly and accurately depicts it.
  • If a question is raised about the reliability of digital photography in general, the court likely could take judicial notice of it under Rule 201.

Digitally Converted Images

  • [A]uthentication requires an explanation of the process by which a film photograph was converted to digital format.
  • This would require testimony about the process used to do the conversion, requiring a witness with personal knowledge that the conversion process produces accurate and reliable images, Rules 901(b)(1) and 901(b)(9)-the later rule implicating expert testimony under Rule 702.
  • Alternatively, if there is a witness familiar with the scene depicted who can testify that the photo produced from the film when it was digitally converted, no testimony would be needed regarding the process of digital conversion.

Digitally Enhanced Images

  • For digitally enhanced images, it is unlikely that there will be a witness who can testify how the original scene looked if, for example, a shadow was removed, or the colors were intensified. In such a case, there will need to be proof, permissible under Rule 901(b)(9), that the digital enhancement process produces reliable and accurate results, which gets into the realm of scientific or technical evidence under Rule 702.
  • Recently, one state court has given particular scrutiny to how this should be done.
    • In State v. Swinton, the defendant was convicted of murder in part based on evidence of computer enhanced images prepared using the Adobe Photoshop software. 847 A.2d 921, 950-52 (Conn.2004).
    • The images showed a superimposition of the defendants teeth over digital photographs of bite marks taken from the victim’s body.
    • At trial, the state called the forensic odontologist (bite mark expert) to testify that the defendant was the source of the bite marks on the defendant.
    • However, the defendant testified that he was not familiar with how the Adobe Photoshop made the overlay photographs, which involved a multi-step process in which a wax mold of the defendant’s teeth was digitally photographed and scanned into the computer to then be superimposed on the photo of the victim.
    • The trial court admitted the exhibits over objection, but the state appellate court reversed, finding that the defendant had not been afforded a chance to challenge the scientific or technical process by which the exhibits had been prepared.
    • The court stated that to authenticate the exhibits would require a sponsoring witness who could testify, adequately and truthfully, as to exactly what the jury was looking at, and the defendant had a right to cross-examine the witness concerning the evidence.
    • Because the witness called by the state to authenticate the exhibits lacked the computer expertise to do so, the defendant was deprived of the right to cross examine him.

Because the process of computer enhancement involves a scientific or technical process, one commentator has suggested the following foundation as a means to authenticate digitally enhanced photographs under Rule 901(b)(9):

  1. The witness is an expert in digital photography;
  2. the witness testifies as to image enhancement technology, including the creation of the digital image consisting of pixels and the process by which the computer manipulates them;
  3. the witness testifies that the processes used are valid;
  4. the witness testifies that there has been “adequate research into the specific application of image enhancement technology involved in the case”;
  5. the witness testifies that the software used was developed from the research;
  6. the witness received a film photograph;
  7. the witness digitized the film photograph using the proper procedure, then used the proper procedure to enhance the film photograph in the computer;
  8. the witness can identify the trial exhibit as the product of the enchantment process he or she performed.

The author recognized that this is an “extensive foundation,” and whether it will be adopted by courts in the future remains to be seen. Id. However, it is probable that courts will require authentication of digitally enhanced photographs by adequate testimony that it is the product of a system or process that produces accurate and reliable results. Fed.R.Evid. 901(b)(9).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Posted in 3d Circuit, Admissibility of ESI, Authentication, D. Md., Digital Photographs, FRE 901(b)(9), Magistrate Judge Paul W. Grimm | 1 Comment »

Case Blurb: Lorraine; Authenticating Computer Aminations and Computer Simulations

Posted by rjbiii on September 23, 2007

Computer Animation

Defined: “the display of a sequence of computer-generated images.”

The attraction of this form of evidence is irresistible, because:

  • [W]hen there is no movie or video of the event being litigated, a computer animation is a superior method of communicating the relevant information to the trier of fact. Absent a movie or video, the proponent might have to rely on static charts or oral testimony to convey a large amount of complex information to the trier of fact.
  • When the proponent relies solely on oral expert testimony, the details may be presented one at a time; but an animation can piece all the details together for the jury. A computer animation in effect condenses the information into a single evidentiary package.
  • In part due to television, the typical American is a primarily visual learner; and for that reason, in the short term, many jurors find the animation more understandable than charts or oral testimony. Use of an animation can also significantly increase long-term juror retention of the information.

Computer Simulations

The distinction between animation and simulation has been explained usefully as follows:

  • Computer generated evidence is an increasingly common form of demonstrative evidence. If the purpose of the computer evidence is to illustrate and explain a witness’s testimony, courts usually refer to the evidence as an animation. In contrast, a simulation is based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it, and courts generally require proof to show the validity of the science before the simulation evidence is admitted
  • Thus, the classification of a computer-generated exhibit as a simulation or an animation also affects the evidentiary foundation required for its admission.

Courts generally have allowed the admission of computer animations if authenticated by testimony of a witness with personal knowledge of the content of the animation, upon a showing that it fairly and adequately portrays the facts and that it will help to illustrate the testimony given in the case. This usually is the sponsoring witness.

Computer simulations are treated as a form of scientific evidence, offered for a substantive, rather than demonstrative purpose.

The case most often cited with regard to the foundational requirements needed to authenticate a computer simulation is Commercial Union v. Boston Edison, where the court stated:

The function of computer programs like TRACE ‘is to perform rapidly and accurately an extensive series of computations not readily accomplished without use of a computer.’ We permit experts to base their testimony on calculations performed by hand. There is no reason to prevent them from performing the same calculations, with far greater rapidity and accuracy, on a computer. Therefore … we treat computer-generated models or simulations like other scientific tests, and condition admissibility on a sufficient showing that:

  1. the computer is functioning properly;
  2. the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and
  3. the program is generally accepted by the appropriate community of scientists.

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, Computer Animations, Computer Simulations, D. Md., Magistrate Judge Paul W. Grimm | Leave a Comment »