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Case Summary: In re Delta/AirTran; Preservation Trigger for Civil Suit following DOJ Anti-Trust Investigation Discussed

Posted by rjbiii on April 1, 2011

In Re Delta/AirTran Baggage Fee Antitrust Litigation, CIVIL ACTION FILE NUMBER 1:09-md-2089-TCB, 2011 U.S. Dist. LEXIS 26945 (N.D. Ga. Feb. 22, 2011).

Plaintiffs brought their respective actions against Delta and AirTran for collusion on baggage fees after a Department of Justice (DOJ) investigation. During its action, the DOJ served a Civil Investigative Demand (CID) on Delta, requiring the airline to produce certain documents. There were some missteps along the way for Delta in its attempts to preserve the targeted data:

  • A litigation hold notice failed to include the CEO on it, despite the fact that he was a custodian in the case. The court appears to dismiss concerns on this ground, reasoning that the CEO received verbal instructions, his exchange mailbox was already being preserved by the company’s IT staff, and he did produce documents in accordance with the DOJ’s request.
  • Some data from back-up tapes was lost, and there was a dispute as to whether Delta was responsible. Delta claimed they had verbally instructed a third party vendor not to continue the process of rotating (and overwriting) tapes. The process wasn’t changed by the vendor until later, resulting in the deletion of data from some of those tapes.

While plaintiffs argued that the DOJ had been concerned about spoliation because of these missteps, the court noted that:

  • Delta worked closely with the DOJ “to ensure all relevant documents were…produced,” and
  • The DOJ has not requested additional information from the airline since December 2009.

After the court stated the standard that it would typically use for spoliation analysis, it came to the crux of the issue:

Unlike the quintessential spoliation situation, Plain-tiffs do not contend that Delta destroyed or altered evidence during the course of this litigation. 7 Plaintiffs’ argument is more nuanced; they contend that they are entitled to spoliation sanctions because Delta did not immediately comply with the CID issued by the DOJ.

The court explained that in order to be successful, plaintiff’s must argue that they, as private civil litigants, can enforce the provisions of a CID when the DOJ has not taken such action and where the CID was issued three months prior to the first case in this action.

The court noted that:

Plaintiffs have not cited any authority that would support such a sweeping and novel theory of spoliation. 10 In the absence of such authority, the Court is unwilling to conclude that upon service of a DOJ-issued CID, a duty to Plaintiffs to preserve documents devolved upon Delta even though Plaintiffs did not file this action until three months later. The Court’s caution in this regard is particularly justified given the severe sanctions that Plaintiffs seek.

And the opinion further explained:

During oral argument, Plaintiffs suggested that the duty to preserve documents is a duty that does not attach to any party. Thus, Plaintiffs posit that anyone (including them) could advance a spoliation argument against Delta for its alleged failure to comply with the DOJ’s CID. However, not only is such a suggestion unsupported by any case law, but it flies in the face of the legal definition of the word duty, which defines duty as a “legal obligation that is owed or due to another . . . .” BLACK’S LAW DICTIONARY 580 (9th ed. 2009).

During oral argument, Plaintiffs also chastised Delta for not having found a case that supports its position on the duty issue. However, Plaintiffs, not Delta, have the burden of proof on the spoliation issue, including the legal elements needed to establish spoliation. See Eli Lilly & Co. v. Air Express Int’l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010).

In essence, Plaintiffs ask this Court to hold that, as a matter of law, when a business is served with a CID, an irrebuttable presumption arises that civil litigation filed by one or more parties against the business receiving the CID is reasonably foreseeable. No court has so held, and this Court is unwilling to be the first.

The court concluded with this:

Two important points about the CID must be emphasized. First, it triggered the commencement of a confidential investigation. Indeed, the Government did not publicize its investigation, and all documents and testimony provided to the Government in response to the CID remain confidential. Second, the first case in this MDL action was not filed until May 22, 2009, over three months after Delta was served with the CID. As Delta explains in its briefs, it has been the recipient of numerous CIDs, subpoenas, or similar formal demands for information from the DOJ that have not led to either private or government litigation. For these reasons, when Delta received the CID, it cannot be said that Delta should have anticipated this lawsuit. Consequently, Delta owed no preservation duty to Plaintiffs that it could have breached. If Delta failed to comply with the CID, the DOJ–not Plaintiffs–is the appropriate party to take action.

Posted in 11th Circuit, Case Summary, Civil Investigative Demand, Duty to Preserve, Judge Timothy C. Batten, N.D. Ga., Reasonable Anticipation of Litigation | Leave a Comment »

Case Blurb: Lebowitz; Authentication of ESI Discussed

Posted by rjbiii on May 17, 2010

The Defendant questioned the authenticity of email transcripts, “instant messages,” and “chats” due to the incompleteness and integrity of the evidence. “The requirement of authenticity . . . as a condition precedent of admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Though K.S. did not testify at the hearing, Officer Suber testified that the communications were provided to her by K.S. FN2. Also, other evidence, including recorded telephone conversations, corroborated the communications. There are obvious omissions in some of the communications. However, the Court finds that those omissions do not support excluding the communications. The omissions go to the weight rather than the admissibility of the evidence. Based upon the evidence presented at the hearing, the Court finds that Defendant has not demonstrated that the evidence should be excluded at this time. Defendant’s Motion on the Authenticity of Purported Electronic Communications is DENIED.

FN2: For purposes of the hearing, Officer Suber’s testimony was sufficient. However, before the communications will be admissible at trial, the testimony of K.S. or someone with actual knowledge about the communications will be required.

United States v. Lebowitz, 2010 U.S. Dist. LEXIS 7026 at *4-5 (N.D. Ga. Jan. 27, 2010)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content, email, FRE 901(a), Instant Messaging, Judge Richard W. Story, N.D. Ga., Uncategorized | Leave a Comment »

Case Summary: Return Path Inc.; Court Examines Taxation of EDD Costs to Losing Plaintiff in Patent Case

Posted by rjbiii on January 19, 2010

CBT Flint Partners, LLC v. Return Path, Inc., 2009 U.S. Dist. LEXIS 121188 (N.D. Ga. Dec. 30, 2009)

CBT Flint Partners (“CBT”) sued Return Path, Inc. (“Return Path”) and Cisco IronPort Systems LLC, (“Cisco IronPort”) alleging that the Defendants’ Bonded Sender Program infringed CBT’s two patents.

The Bonded Sender Program allows a sender of an email to place its IP address on a publicly available list of trusted senders that is used in connection with email filtering. When a sender applies to be in the Bonded Sender Program, a third party determines whether the applicant is a good user of email. If accepted, the sender posts a bond, and its IP addresses are included on the Bonded Sender list. Emails from IP addresses on the Bonded Sender list are not filtered as spam.

Plaintiff contested the imposition of certain costs, including e-discovery costs, to Plaintiff and its counsel after Defendants were granted summary judgment.

The court noted grumpily that CBT was vigorous in their objections to being taxed for any of their adversaries’ various costs:

CBT filed thirty-five pages of briefing objecting to something in every category of Cisco IronPort’s bill of costs. In order to accomplish this feat, CBT objects to a $ 146.82 fee for an unsuccessful attempt to serve a subpoena. The Plaintiff’s briefing of this objection consists of 1 full page. The Defendant’s response to this objection consists of 2 pages of briefing plus 2 exhibits. What an incredible waste of time! The Plaintiff’s objection to taxing the first unsuccessful attempt to serve Gardner Groff is overruled.

The court then moved to the objection specific to electronic discovery:

The Plaintiff objects to $ 243,453.02 in fees for Cisco IronPort’s e-discovery vendor, Gallivan Gallivan O’Melia. The Plaintiff says that: “IronPort retained a computer consultant to collect, search, identify and help produce electronic documents from IronPort’s network files and hard drives in response to CBT’s discovery requests.” FN1 This appears to be a fair characterization of the services provided by the firm. CBT objects that fees associated with collecting documents for production are not taxable under 28 U.S.C. § 1920. This is a serious objection which deserves careful and deliberate consideration by the Court.

FN1: Cisco IronPort describes the services of the e-discovery consultant as follows: “GGO conducted highly specialized technical tasks to acquire, process, preserve, and track the voluminous amount of electronic data that CBT requested in discovery. As further described in GGO’s invoices, attached at Exhibit B, these acquisition and processing activities included forensically sound preservation of custodian computers; extraction of documents from multiple operating systems, corporate servers, and network shares while preserving meta-data; cataloging, extracting e-mail and attachments, and processing; compilation of keyword and meta-data indices for analysis and reporting as requested by the plaintiff; auditing and logging of files and ensuring compliance with Federal Rules; decryption and extraction of proprietary data; triage and advanced processing of files with errors; statistical and keyword analysis with related reporting; and compilation of native file production and load files to provide usable documents to plaintiff.”

The court acknowledged that opinion was split as to whether these types costs were recoverable under 28 U.S.C. § 1920. Some courts have allowed them, considering them the modern equivalent of “exemplification and copies.” Others have not allowed them, reasoning that assembling records for production is ordinarily a task done by attorneys and paralegals and is not a recoverable cost.

The court, while quoting Cargill Inc. v. Progressive Dairy Solutions, decided in favor of allowing the costs to be recovered, shifting them to the plaintiff.

CBT requested, and Cisco IronPort produced, a massive quantity of data. In response to the Court’s Scheduling Order, the parties agreed that document production would be made in electronic format. Cisco IronPort has asserted — without contradiction — that production in paper form of the 1.4 million documents plus 6 versions of source code would have cost far more than the fees sought for the e-discovery consultant. A careful review of the GGO invoices reveals that the services provided are not the type of services that attorneys or paralegals are trained for or are capable of providing. The services are highly technical. They are the 21st Century equivalent of making copies. See Cargill Inc. v. Progressive Dairy Solutions, Inc., No. CV-F-07-0349, 2008 U.S. Dist. LEXIS 101983, 2008 WL 5135826, at *6 (E.D. Cal. 2008) (“Progressive provides an explanation of the invoice-case management was done electronically because of the volume of documents; scanning of documents was necessary to provide an adequate defense to the several motions and trial presentation. Accordingly, this cost [] is recoverable.”). The services are certainly necessary in the electronic age. The enormous burden and expense of electronic discovery are well known. Taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery. The objection to taxation as costs of the e-discovery consultant’s fees is overruled and denied. Cisco IronPort has revised its bill of costs in response to many of the Plaintiff’s other objections. The remaining objections are overruled and denied for the reasons given by Cisco IronPort in its response to the motion.

Posted in 11th Circuit, Case Blurbs, Cost of Discovery, Judge Thomas W. Thrash Jr., N.D. Ga. | Leave a Comment »