Post Process

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Archive for the ‘FRCP 26(b)’ Category

Case Summary: Nissan N. Am; Court examines Collection Protocol and Request for Protective Order

Posted by rjbiii on March 21, 2011

Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., CIVIL ACTION NO. 09-CV-11783, 2011 U.S. Dist. LEXIS 16022 (E.D. Mich. Feb. 17, 2011).

Nissan had already produced “1.79 million” pages of documents, and 84,000 pages of documents from its non-party parent company. The court had ordered Nissan to supplement this production with information specifically identifying data sources not previously searched because, in Nissan;s view, they were “not reasonably accessible.” Johnson Electric, defendant company, crafted “informal” discovery requests requesting that Plaintiff produce:

  1. a data map showing what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived;
  2. document retention policies;
  3. tracking records and/or requests for restores; and
  4. backup policies.

Johnson Electric believed Nissan was obligated to produced the above to comply with the court’s order. Nissan responded by filing for a protective order denying Defendant discovery on:

  1. system-wide searches of Plaintiff’s systems and custodians beyond what has already been provided;
  2. sources identified by Plaintiff as “not readily accessible,” including back-ups;
  3. Plaintiff’s record retention practices or disaster recovery backup policies;
  4. Plaintiff’s tracking records and requests for computer restores to IT and vendors; and
  5. a “data map” to provide information on all of Plaintiff’s systems.

Johnson Electric filed a brief in response, and a cross-motion to compel Nissan’s compliance with the earlier order. Johnson Electric also asked the court to impose sanctions on Nissan, arguing that Nissan had failed to comply with their discovery obligations under that order.

The court began by stating the governing standard for its analysis, and the party’s respective arguments:

Federal Rule of Civil Procedure 26(c) allows the Court to issue a protective order for good cause shown to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Plaintiff has the burden of showing good cause for a protective order. Plaintiff first asks for a protective order denying Defendant discovery of system-wide searches of Plaintiff’s systems and custodians beyond what Plaintiff has already provided. Defendant argues in response that it has not asked Plaintiff to conduct additional searches. Rather, Defendant argues that it merely asked for confirmation that Plaintiff searched its systems for relevant ESI for forty-one employees who are either members of the Task Force assigned by Plaintiff to the recall issue, or who are listed in Plaintiff’s Rule 26 disclosures.

About those Additional System-Wide Searches…
The court concluded that Nissan was barking up the wrong tree. “Letter correspondence” proved that Johnson Electric did not ask for additional searches, but rather that Nissan merely confirm that the computers, email accounts, network shares, and databases associated with 41 specific custodians had been searched. The court ruled against Nissan here, because it couldn’t deny Johnson Electric something for which it hadn’t asked.

Data Sources that aren’t readily accessible
The court first noted Nissan’s description of its Identification protocol:

[] Plaintiff claims to have searched Outlook email data and PST files; hard drives on individual computers, network shares mapped as various drive letters; and the ANEMS, IDOCS, IDEAS, GCARS, WRAPS, CPIA, VHF, CICS PO system, and Legacy business databases. In addition, Plaintiff states that it identified key custodians who were likely to have responsive information relevant to this case and had their documents searched. Plaintiff also asserts that it requested documents and information from its non-party parent company, and that both it and its parent company searched hard copy files for paper documents, for documents stored on CD, DVD, or other external sources, and for physical parts.

Plaintiff has identified in table format electronic data sources identified by key custodians as being potential sources of responsive information and claims that it identified, processed, and produced responsive information from these systems. (Docket no. 79 at 4-7). Plaintiff contends that the only systems it did not search are its disaster recovery or backup systems for email, network shares, and business databases because they are not readily accessible.

Nissan argued that information on its back-up systems are not reasonably accessible because of “undue burden and cost,” evidently supported by an estimate submitted to court. Nissan further contended that searches over these sources wouldn’t produce any new data “because the information on these systems is duplicative of information on [Nissan’s] main systems,” which have already been examined.

The court quoted FRCP 26(b)(2)(B):

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue bur-den or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

The court agreed with Nissan that it had shown “that Plaintiff’s backup systems are not reasonably accessible and that Defendant has not shown good cause to search these systems.” Alas for Nissan, however, the court once again stated that Nissan’s argument were off point, stating that Johnson Electric did not appear to ask Nissan to search their back-up systems, but rather, “asked for Plaintiff’s backup policies, and its tracking records and requests for restores, claiming that data that has been restored is reasonably accessible.” The court concluded that Nissan had not shown “good cause” to preclude Johnson Electric from seeking discovery of this data. As Johnson Electric had not asked for searches of back-up systems, there was no reason for the court to grant Nissan’s request on that issue.

Retention Policies

The court quickly denied Nissan’s request to protect it from having to produce its retention policies, stating that Nissan failed to show “good cause” to preclude the production request.

Data Map

The court noted that Johnson Electric had asked Nissan for a data map “to show what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived.” The court further noted that Johnson Electric attempted to tie Nissan’s failure to provide the data map to non-compliance to the previously mentioned court order requiring supplemental production from Nissan.

FRCP 26 requires certain mandatory disclosures be made. Nissan claims that Johnson Electric has failed to commit to specific search terms or system limitations. The court warned Johnson Electric that if true, it could see no reason for such a failure. Beyond that, there was no connection between the previous court order and this request from Johnson Electric. This request, the court said, was for new material, separate and distinct from that associated with the earlier order. Although the court could not see compelling production of a data map, it again stated that Nissan had failed to show good cause to preclude production. The court, therefore, denied Nissan’s motion for a protective order, both on this part, and in whole.

Posted in 6th Circuit, Case Summary, Collection Protocol, Data Retention Practices, Duty to Disclose, E.D. Mich., FRCP 26(b), FRCP 26(c), Good Cause, Magistrate Judge Mona K. Majzoub, Objections to Discovery Requests, Protective Order, Reasonably Accessible, Undue burden or cost | Leave a Comment »

Case Summary: Genworth Fin. Wealth Mgmt.; Court Mandates Forensic Imaging and Imposes Sanctions

Posted by rjbiii on December 12, 2010

The case: Defendants were former employees of Plaintiff company, and were alleged to have misused plaintiff’s proprietary client information, including a database, after leaving. Defendants, according to Plaintiff, used this information to solicit clients of their ex-employer in violation of the Computer Fraud and Abuse Act, the Connecticut Uniform Trade Secrets Act, the Stored Communications Act, and Connecticut common law’s prohibition of tortious interference with business relationships. Defendants asserted that they identified client information for solicitation through permissible means including internet searches and memory.
At Issue Here: Plaintiff filed a motion to compel defendants to submit their computers and media for production and inspection. Plaintiff further requested reasonable attorney’s fees and costs associated with its motion.
Discussion: Defendants productions in response to Plaintiff’s discovery requests, failed to include any e-mail, TJT’s Junxure client management database, or the Portfolio Center client invoicing database (allegedly stolen by Defendants). The Plaintiff sought the Defendants’ assurance that forensic imaging had been undertaken, noting concerns that relevant data was at risk of being erased through automatic deletion of temporary and inactive files. Defendants’ counsel conceded that the Defendants had no intention of imaging any of their computer devices, causing Plaintiff to file the motion to compel. After the Plaintiff filed its motion, Onsite IT Consulting performed imaging of TJT Financial’s computer devices and business laptops used by Defendants McMullan, Cook, and McFadden.
Pursuant to a subpoena, the Charles Shwabb Corp., a custodian of assets for TJT Financial, produced email correspondence from Defendant McMullan and Cook’s personal email account and computer that was not produced as part of the Defendants’ response to Genworth’s discovery requests. The correspondence reflects the Defendants’ submission of Genworth client data and information to Schwab, while still employed by Genworth, as part of efforts to establish TJT Capital and secure Genworth clients for the new entity.
During the proceeding, Defendant McMullan testified that, prior to the start of the instant litigation, he discarded the personal computer onto which he downloaded ACT client information and from which he conducted correspondence with Schwab in anticipation of his departure from Genworth and the formation of TJT Financial. Testimony further reflected however, that the disposal of the personal computer may have occurred after Genworth submitted letters to the Defendants to preserve all relevant documents in anticipation of litigation.

Court’s Analysis: The court began by noting that Rule 34 and Rule 26(b)(2)(B) “strongly suggested” that on such requests is discretionary and should take into account substantive considerations of the burden and expense of the request. . . . and that such relief is entirely within the discretion of the Court to grant or deny.
Defendants contended that the Plaintiffs have “not proffered a sufficient basis with which to justify its demands.” The court referred to FRCP 26(b)(1), however, to quote the rule that a party is entitled to discover any unprivileged matter relevant to a party’s claim or defense, where the discovery “appears reasonably calculated to lead to the discovery of admissible evidence.”

Referring to Rule 34(a) the court noted that a party is required to “produce and permit the party making the request . . . to inspect, copy, test, or sample any . . . electronically stored information.” This right is counter-balanced, however, by a responding party’s confidentiality or privacy interests. A party is therefore not entitled to “a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.”
In defining the extent of discovery to afford to a party, a court should: consider the relationship between the plaintiff’s claims and the defendants’ computers and, in some cases, whether the defendant has fully complied with discovery requests, in determining how the requested electronic discovery should proceed. Even in cases where courts have nonetheless adopted procedures to protect privilege and privacy concerns (quoting Calyon v. Mizuho Securities USA Inc., No. 07 CIV0224IRODF, 2007 U.S. Dist. LEXIS 36961, 2007 WL 1468889, at *3 (S.D.N.Y., May 18, 2007).
The court found persuasive the opinion from Ameriwood Industries, Inc. v. Liberman, No. 4:06 CV 524-DJS, 2006 U.S. Dist. LEXIS 93380, 2006 WL 3825291, at *3, *6 (E.D. Mo. Dec. 27, 2006), amended by 2007 U.S. Dist. LEXIS 98267, 2006 WL 685623 (E.D. Mo. Feb. 23, 2007).

Courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature. For example, a party may not inspect the physical hard drives of a computer merely because the party wants to search for additional documents responsive to the party’s document requests. [A court has previously] declined to allow the examination of any ESI other than the information that had been deleted because the requesting party had not demonstrated that the producing party was unwilling to produce relevant evidence. [Evidence] raises the question of whether defendants have in fact produced all documents responsive to plaintiff’s discovery requests. Furthermore, in cases where a defendant allegedly used the computer itself to commit the wrong that is the subject of the lawsuit, certain items on the hard drive may be discoverable. Particularly, allegations that a defendant downloaded trade secrets onto a computer provide a sufficient nexus between the plaintiff’s claims and the need to obtain a mirror image of the computer’s hard drive.

The Ameriwood court therefore concluded that because the defendants were accused of using “the computers, which [were] the subject of the discovery request, to secrete and distribute plaintiff’s confidential information. How and whether defendants handled those documents and what defendants did with the documents [were] certainly at issue.” The court then adopted the Ameriwood three step protocol for imaging, discovery, and disclosure for hard drives.

Ameriwood Imaging and Production Protocol:

  • Imaging:The parties select a computer forensic expert who, operating pursuant to a confidentiality agreement, inspects, copies and images the targeted computer systems at a “non-disruptive” time. The expert provides a detailed report of the “equipment produced and expected.”
  • Recovery:The expert recovers, from the mirrored images, all available targeted file types. In Ameriwood, these consisted of word-processing documents, incoming and outgoing email messages, presentations, and files, including “deleted” files. The expert provides the recovered documents in a reasonably convenient and searchable form to the producing party’s counsel, with notice to the requesting party.
  • Disclosure:Producing party’s counsel reviews the recovered files for privilege and relevance, supplements earlier responses, creates or appends to a privilege log, and produces relevant non-privileged documents to opposing counsel.

Post Process Note: The court is merely describing a micro version of any e-discovery review project, in which data must first be collected, filtered, reviewed, and finally produced. While the court describes the process as three steps, we prefer to break it down a little differently, as visually depicted in the figure below. Even with the slight increase in granularity below, we note that the process can continue be visually depicted in far more detail than we choose to do.

Neutral Forensics Expert Needed:

The court reasoned that the instant case was sufficiently analogous to Ameriwood to warrant using the imaging protocol. Factors present mandating the use of a neutral forensics expert included:

  • One of the defendants used his personal computer and personal e-mail address to download, access, and transmit the Plaintiff’s proprietary information without a scintilla of a reasonable expectation to his entitlement thereto.
  • One of the defendants admitted that he spoliated evidence when he discarded a personal computer after having been advised by counsel that he had no right to the data that he had downloaded whille employed by Plaintiff;
  • Defendants’ testimony on handling electronic media and on how they had obtained the information at issue in the case had been impeached, indicating inaccuracy or deception on the part of defendant.

Cost-Shifting Analysis:

Producing party contended that they should not be forced to pay for the forensics expert, because they had already hired an expert (although they did not image the drives of the systems at issue here). They also claimed that they were unable to pay. The court was unconvinced by their arguments. The court noted that producing party had initially refused to image any of their systems, and only relented once the motion to compel had already been filed with the court. The motion to compel was only filed once producing party admitted they did not intend to image any of their systems. Their initial refusal was “wholly unjustified” as they “tacitly admitted” by their belated engagement of an expert. The court assigned the producing party 80% of the costs, and the requesting party 20%.

Conclusion:
The court ordered the following:

  1. Granted the Plaintiff’s motion to compel forensic imaging to be performed by a neutral court-appointed expert.
  2. Producing party was required to submit the targeted systems for inspection by a specific date.
  3. The expert is to format the targeted data types in an appropriate structure and provide producing party’s counsel access for privilege and responsiveness review.
  4. Cost is distributed, as described above, 80% for producing party, 20% for requesting party.
  5. Reasonable attorney fees awarded to requesting party, pending a detailed accounting of those costs.
  6. Further sanctions will be imposed should producing party again fail in their obligations.

Genworth Fin. Wealth Mgmt. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010)

Posted in 2nd Circuit, Case Summary, Computer Fraud and Abuse Act, Connecticut Uniform Trades Secrets Act, D. Conn., FRCP 26(b), FRCP 34, FRCP 37(a), Judge Vanessa L. Bryant, Motion to Compel, Neutral Third Party, Stored Communications Act | 3 Comments »

Case Summary: Calixto; Court Analyzes Preservation Methodology

Posted by rjbiii on April 16, 2010

Calixto v. Watson Bowman Acme Corp., 2009 U.S. Dist. LEXIS 111659 (S.D. Fla. Nov. 16, 2009)

Case Background: Plaintiff Calixto brought this action against defendants CRT and Watson Bowman Acme Corp. (WABO), alleging infringement of patent and trademark, breach of contract, and tortious interference of an agreement between plaintiff and another party. CRT had signed an Asset Purchase Agreement and was negotiating with Calixto on a licensing agreement for the Asian territory, for use of a patented system for joining concrete slabs that may be used in the construction of parking garages or vehicular roadways and an associated trademark. WABO was to be a sub-licensee of CRT’s rights.

Procedural History: The court addresses a motion to compel by Calixto.

Basic Points:

  • Restoration of 30 back-up apes was found to be unnecessary when moving party failed to establih a reasonable expection that doing so would yeild relevant documents not already produced.
  • Restoration of a single back-up tape was ordered because of sufficient possibility that new information would be found
  • Failing to object to search methodology might be a factor in losing your motion to compel
  • Failing to counter expert opinion on pricing might be a factor in losing your motion to compel
  • When sending a deman letter to trigger the duty of preservation, make sure it explicitly cites all possible causes of action and directly addresses every potential litigant.

Factual Background: During a deposition, WABO’s former CEO discussed a document retention policy that included measures to ensure the retention of e-mails on offsite storage for, as best as he could recall, a minimum of ten years. In a 30(b)(6) deposition, WABO’s witness implied that there was a systematic data purge for e-mails older than six months that was implemented when BASF AC acquired WABO. However, the deponee was unable to say whether such a purge had been in place prior to the acquisition. Based on this testimony, however, Calixto filed a motion to compel, requesting the court find spoliation had occurred in the face of ongoing litigation.

During the hearing on the motion to compel, Calixito challenged WABO’s actions on two grounds:
1. the destruction of former CEO Burri’s e-mails on his hard drive after Burri left WABO; and
2. WABO’s refusal to restore monthly back-up tapes.

WABO argued that its policy was to destroy ESI from the hard drives of separated employees, and that Mr. Burri left prior to December 1, 2004, which was the earliest date from which it still retained data on back-up tapes. Therefore, no record of Burri’s e-mails existed, and WABO could not recover the e-mails from anywhere.

With respect to the second issue, WABO claimed that nothing relevant that existed on the back-up tapes had not already been produced to Calixto.

The Court ordered WABO to produce an affidavit explaining, among other matters,
(1) how WABO conducted its search for documents responsive to the deposition notice and discovery obligations;
(2) what, if any, documents had been deleted from WABO’s IT system, and the circumstances surrounding any such deletions; and (3) what, if any, options existed for recovery of any deleted documents.

Subsequently, WABO filed the affidavit with the court.

Process Used for Conducting a Search and Collection of Relevant ESI:
WABO first identified and contacted all WABO employees who:
1. had any possible contact with Plaintiff;
2. Who had any possible knowledge of the Trademarks or Patent at issue; or
3. Who possibly had any information relating to the Lawsuit or to Plaintiff’s document requests.

WABO instructed these individuals to search their personal electronic records, including their personal hard drives and computer files, and their personal hard copy records for any responsive documents or information. WABO searched the Lotus Notes mailboxes of the selected group of custodians.

WABO IT searched the server house directories, the shared drives, and the individual files (including archive files) for the identified individuals for keywords and terms, including the terms “Degussa,” “BASF,” “CORTE,” 4 “Calixto, “Asset Purchase Agreement,” “‘381 Patent,” “JEENE,” and “ALADIN.” WABO also directed the identified individuals to search their local hard drives and Lotus Notes mailboxes for the same search terms. WABO officers also made personal inquiries of those identified as possibly having responsive information or documents, asking about their knowledge and the location of any pertinent information.

WABO made available to its counsel all documents obtained through the efforts outlined above. Counsel then provided relevant documents to Calixto and listed privileged documents on a log.

The court observed that testimony in the declaration implicitly suggested that reconfiguring the back-up tapes into a searchable format and then searching the reformatted version would not yield additional responsive documents because everything reasonably anticipated to be relevant to the litigation was preserved via the litigation hold and searched pursuant to the procedures articulated above.

WABO stated that the it was a routine business practice to delete a former employee’s email upon separation, although no written policy existed. No documentation recording the deletion operation was generated, and the exact date of deletion could not be recalled, although WABO insisted that the deletion did occur prior to receiving a letter from Plaintiffs threatening litigation.

Back-up Tapes:
Because back-up tapes used a compressed format that rendered data contained by them inaccessible, WABO claimed that the data must be restored in order to render it accessible. Because of the tape rotation schedule, WABO only held data for approximately 30 months, meaning that WABO now only retained tapes containing data from December of 2004. WABO has preserved data from that time forward in order to comply with its discovery obligations.

In reviewing WABO’s IT representative’s testimony, the court noted that IT felt they needed to deleted data to increase performance and liberate memory and disk space. IT generated the policy of deleting emails of departed employees at its own initiative, although it did communicate the fact that it was engaged in this practice to executives at the time. BASF’s newly implemented automatic deletion program exempts those custodians on a litigation hold.

WABO (and BASF) Counsel:

Senior counsel at BASF, who also had a history with WABO also testified on the existence of two letters and their effects on the litigation hold process. The first, dated March 1, 2004, was sent to WABO president Burri, described negotiations with respect to licensing at an impasse, and concluded that no further discussions would occur. The “re” block was “Proposed Exclusive License Agreement Between Jorge Calixto and Shanghai Master Builders Co., Ltd.” It reminded WABO that they were prohibited from making, distributing, or selling any product using the process set forth in the Patent and from using the JEENE trademark in the Asia/Pacific Territory. It warned that Calixto would enforce his rights and remedies under an earlier signed Asset Purchase Agreement, as well as any common law and/or statutory rights in the relevant jurisdiction.

Counsel claimed never to have seen that letter, but contended that he did not view it as threatening imminent litigation against WABO because:
(1) he saw the letter as a demand letter for royalty payments; and
(2) WABO is not a signatory to the Asset Purchase Agreement discussed in the letter

The second letter was dated September 9, 2004. The “re” block on this letter reads, “Breach of Asset Purchase Agreement dated November 17, 2003 by and Between [CRT] and . . . Calixto.” the letter alleges that CRT was engaging in precisely these activities within the Asia/Pacific Territory. Among other instances, Plaintiff’s counsel cited a WABO announcement that it had “changed the name of the ‘JEENE’ system to ‘Aladin’ as of 1st January 2004.'” The letter concluded by demanding that CRT:

cease and desist from engaging in [such] activities. Furthermore, . . . Calixto is entitled to damages as a result of the breach of the Agreement, including the attorneys’ fees and costs he has incurred pursuant to Section 10.2 of the Agreement. Unless we receive a written response from [CRT] within ten (10) days of your receipt of this notice detailing its intended actions for addressing these matters and compensating . . . Calixto, . . . Calixto has authorized us to pursue all rights and remedies available to him under the Agreement and in accordance with applicable law.

Senior counsel testified that he remembered receiving this letter, but he did not view it as triggering document retention requirements at WABO because:
(1) the letter was about CRT’s alleged breach of the Agreement, and WABO was not a party to that Agreement,
(2) it did not appear to him as though litigation was imminent, based on this letter, and
(3) even had it appeared so, because CRT is a German entity and Calixto is a citizen of Brazil, Pendergast did not anticipate that litigation in the United States would occur, and document preservation and discovery requirements in other countries can differ substantially from those in the United States.

Counsel stated he did not consider that WABO might be sued until Calixto actually filed suit against WABO and others in Florida Circuit Court and served it on WABO. More specifically, Pendergast stated, on March 30 or 31, 2005, after learning of the lawsuit, he put a litigation hold in place.

As mentioned above, Calixto sought to obtain letters of request enabling service of subpoenas duces tecum to proceed against BASF SE Construction Chemicals Division, in Germany; BASF Construction Chemicals Asia Pacific in Shanghai, China; Sanfield Industries Ltd. in Hong Kong; and Vispack Co., Ltd., in Thailand. WABO objected, asserting that it had already provided Calixto with documents in its possession regarding all sales during the relevant time frame.

Analysis:

The court observed that it must address two issues in resolving Plaintiff’s Motion to Compel:
(1) Whether WABO’s alleged destruction of the Burri e-mails or its process of searching for documents relevant to this litigation and responsive to Calixto’s requests was so deficient as to justify an order from the Court directing WABO to engage in sampling or some other methodology requiring WABO to reconfigure any or all of its back-up tapes and conduct a search of them; and
(2) Whether WABO’s destruction of the Burri e-mails in 2004 constituted spoliation warranting some type of sanction.

Sufficiency of WABO’s Search:
The court began this part of its analysis by citing FRCP 26(b)(2)(B):

Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Rule 26(b)(2)(C), in turn, directs the court to limit discovery when it finds that the discovery sought is, as relevant to the analysis in this case, unreasonably cumulative or duplicative. The burden fell on WABO to demonstrate that the information that Calixto seeks is not reasonably accessible because of undue burden or cost.

WABO submitted an estimate from e-discovery vendor Kroll Ontrack, stating the cost to restore these back-up tapes to a searchable format would be approximately $ 40,000.00. WABO would then have to spend further funds for a review for relevance and privilege any documents resulting from this endeavor. The Court concluded that WABO satisfied its initial burden of showing that the materials that Calixto seeks from the back-up tapes are not reasonably accessible because of undue burden or cost. The court then concluded that Calixto has not established good cause for the Court to require WABO to restore and search the back-up tapes, despite the cost and burden.

The court continued by finding that Calixto has failed to establish a reasonable expectation that restoring and searching all of the back-up tapes will yield relevant documents that WABO’s other search methods have not. Calixto raised no objections to the adequacy of WABO’s search methods, including, among other procedures, the keywords that WABO chose to use in performing its search for relevant and responsive material from its electronic databases. Moreover, the Court’s independent review of WABO’s specified search methodology revealed that it appeared to have been designed to find relevant information, and no obvious significant gaps in the methodology.

The court did find, however, that the very earliest back-up tape should be restored and searched, because of doubts about the actual date of the deletion of former CEO Burri’s email. The court stated that it was possible that such a search would not return merely duplicative data, and the court was not persuaded that searching a single back-up tape would constitute an undue burden.

Spoliation Sanctions:
Spoliation sanctions constitute an evidentiary matter, and in diversity cases, the Federal Rules of Evidence govern the admissibility of evidence in federal courts. The key to unlocking a court’s inherent power requires a finding of bad faith.

Where no direct evidence of bad intent exists, in this Circuit, bad faith may be found on circumstantial evidence where all of the following hallmarks are present:
(1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case;
(2) the spoliating party engaged in an affirmative act causing the evidence to be lost;
(3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and
(4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.

In applying these factors to the deleted emails, it first concluded that it was likely that Burri’s email store contained relevant documents. There was no doubt that WABO affirmatively caused the data to be destroyed. However, the court was not convinced that a duty to preserve attached at the time of destruction, as it decided that neither of the letters discussed above triggered that duty. The court emphasized that WABO was not a signatory of the Asset Purchase Agreement cited in the letters, and that it appeared that WABO was not a proper defendant for a breach of contract claim based on that document.

WABO IT’s representative credibly testified that, as a senior information systems analyst, her primary job was to ensure the security and proper functioning of WABO’s computer system, something that too much information storage threatened. Therefore, no deliberate act of destruction of evidence occurred.

Ultimately, the court agreed to require the restoration and search of a single back-up tape while denying the other requests discussed here.

Posted in 11th Circuit, Case Summary, Demand Letter, Document Retention, Duty to Preserve, FRCP 26(b), FRCP 28(b), Litigation Hold, Magistrate Judge Robin S. Rosenbaum, Reasonable Anticipation of Litigation, S.D. Fla., Spoliation, Undue burden or cost, Unreasonably Cumulative | Leave a Comment »

Case Blurb: Mirbeau of Geneva Lake; Looking for Standardization of ESI Scope? Don’t.

Posted by rjbiii on December 29, 2009

Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party. Relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. The Court has broad discretion when reviewing a discovery dispute and “should independently determine the proper course of discovery based upon the arguments of the parties.” The court should consider “the totality of the circumstances, weighing the value of material sought against the burden of providing it, and taking into account society’s interest in furthering the truth-seeking function in the particular case before the court.”

Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 U.S. Dist. LEXIS 101104 at *2 (E.D. Wis. Oct. 15, 2009)(internal citations removed)(emphasis added).

Posted in 7th Circuit, Case Blurbs, E.D. Wis., FRCP 26(b), Judge J.P. Stadtmueller, Relevance, Scope of Discovery | Leave a Comment »

Case Blurb: Asher Assocs LLC; Reason for Existence of Duty to Preserve

Posted by rjbiii on July 12, 2009

To ensure that the discovery permitted by Rule 26(b)(1) does not become a futile exercise, putative litigants have a duty to preserve documents or materials that may be relevant to potential future litigation.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *15-16 (D. Colo. May 12, 2009)(citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)).

Posted in 10th Circuit, Case Blurbs, D. Colo., Duty to Preserve, FRCP 26(b), Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Asher Assocs LLC, Purpose of Discovery Procedures

Posted by rjbiii on July 12, 2009

Discovery procedures set forth in the Federal Rules of Civil Procedure seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information. To that end, Rule 26(b) permits discovery “regarding any matter . . . that is relevant to the claim or defense of any party” or discovery of any information that “appears reasonably calculated to lead to the discovery of admissible evidence.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *15 (D. Colo. May 12, 2009)(internal citations removed).

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery, FRCP 26(b), Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Ahner; Attorney-Client Privilege Basics

Posted by rjbiii on October 17, 2008

Once the proponent has properly asserted the privilege claim and the requisite information about the allegedly privileged document provided to the opponent, the proponent must substantiate all actual assertions about the claim. This is usually done through supporting affidavits from individuals with personal knowledge of the relevant facts, exhibits attached to the motion and briefs, discovery responses, pleadings and other undisputed facts…. To the extent that evidentiary support for the factual basis of the privilege is not forthcoming, the claim is little more than a bald, conclusory, or ipse dixit assertion. The court will deny such an assertion because it forecloses meaningful independent inquiry by the finder of facts (the judge) into the validity of the claim…. Although an attorney’s word may be “taken on its face,” a privilege claim is not self-executing. It requires more proof than a conclusion by the party asserting the claim (or his attorney) that it is justified.
Thus, any objection based on Rule 26(b)(3) may ultimately be sustained only if the objection is both properly asserted and the facts supporting it are established by evidence. [Movant] bears the burden of proof on this claim.
[…]
The mere assertion of a lawyer in oral argument that materials were prepared in anticipation of litigation is not evidence sufficient to bear the burden.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (citing P. Rice, Attorney-Client Privilege in the United States § 11:10 at 977-80 (Lawyers Cooperative 1993))(emphases in the original)

Posted in 5th Circuit, Attorney Client Privilege, Case Blurbs, E.D. La., FRCP 26(b), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »

Case Blurb: Ahner; Fact that Producing Party is Testifying Witness Magnifies Need for Disclosure During Discovery

Posted by rjbiii on October 17, 2008

[Producing Party] argues…Rule 26(b)(4) precludes the [Requesting Party] from seeking information from it by subpoena because it is [Plaintiff’s] retained expert and its former employee, Nickie G. Cammarata, has been listed as an expert trial witness by [Plaintiff]. On the contrary, [Producing Party’s] status as a party’s testifying expert makes it more important, not less, that the facts and documents underlying its opinions be disclosed in response to a valid discovery request.

Indeed, Rule 26(a)(2) provides that parties must initially disclose, without awaiting a discovery request, the identity of any expert witness, “the data or other information considered by the witness in forming the opinions; [and] any exhibits to be used as a summary of or support for the opinions.” Although this court’s scheduling order altered the deadline imposed by the Federal Rules by which parties must provide their expert reports, underlying data and exhibits, neither that order nor Rule 26(b)(4) precludes the [Requesting Party] from propounding a subpoena duces tecum that seeks such underlying information as already exists. Rule 26(b)(4) only restricts when a party may depose its opponent’s testifying and non-testifying experts or propound interrogatories to its opponent’s non-testifying experts; it does not limit document requests.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *3 (E.D.La. Aug. 29, 2007) (internal citations removed)

Posted in 5th Circuit, Case Blurbs, Duty to Produce, E.D. La., Expert Witness, FRCP 26(a), FRCP 26(b), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »

Case Blurb: Faber (II); Limitations on Discovery under FRCP 26(b)(2)(C)

Posted by rjbiii on July 26, 2008

Rule 26(b)(2)(C) limits otherwise permissible discovery if the court determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 at *4 (D.D.C. July 7, 2008 )

Posted in 4th Circuit, Case Blurbs, D.D.C., FRCP 26(b), Magistrate Judge John M. Facciola, Scope of Discovery | Leave a Comment »

Case Blurb: Faber (II); Cost Shifting Good Cause Determination

Posted by rjbiii on July 26, 2008

The following factors guide the “good cause” inquiry required under Rule 26(b)(2)(B): “(1) the specificity of the discovery request; the quantity of information available from other and more easily accessed sources; (2) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’
resources.” Fed. R. Civ. P. 26, advisory committee’s notes (2006).

Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 at *3-4 (D.D.C. July 7, 2008 )

Posted in 4th Circuit, Case Blurbs, D.D.C., FRCP 26(b), Good Cause, Magistrate Judge John M. Facciola | Leave a Comment »