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Archive for the ‘N.D. Cal.’ Category

Case Blurb: Nursing Home Pension Fund; Standards for the imposition of ‘lesser sanctions’

Posted by rjbiii on September 15, 2008

The parties debate whether plaintiffs must demonstrate prejudice before the Court can impose lesser sanctions. The Ninth Circuit has recognized that it has sent conflicting signals regarding whether prejudice must be shown in order for the sanction of dismissal to be appropriate. A court in this district recently clarified that the Ninth Circuit has required a showing of prejudice only when courts are acting under Federal Rule of Civil Procedure 37, which applies when a party disobeys a court order regarding discovery. When acting under its inherent authority, however, a district court need not consider prejudice to the party moving for sanctions…and prejudice has not been required when a party moves for lesser sanctions. Here, the Court is considering lesser sanctions in the form of an adverse inference, and even assuming prejudice is required, the Court notes that it would be quite difficult for plaintiffs to demonstrate how they were harmed by evidence to which they do not have access.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *5 (N.D.Cal. Sept. 2, 2008) (internal citations removed).

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Posted in 9th Circuit, Adverse Inference, Case Blurbs, Duty to Preserve, Judge Susan Illston, N.D. Cal., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Process to Determine nature of sanctions a court should impose for destruction of evidence

Posted by rjbiii on September 15, 2008

In determining whether and what type of sanctions to issue, the Third Circuit has explained that courts should consider three factors: 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.” Schmid v. Milwaukee, 13 F.3d 76, 79 (3rd Cir.1994); see also Toste, 1996 WL 101189 at * 2 (“[A] party’s motive or degree of fault in destroying evidence is relevant to what sanction, if any, is imposed.”). The Ninth Circuit has also explained that “[b]efore imposing the ‘harsh sanction’ of dismissal,” courts should consider “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Leon, 464 F.3d at 958. However, district courts “need not make explicit findings regarding each of these factors.” Id.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *4 (N.D.Cal. Sept. 2, 2008)

Posted in 9th Circuit, Case Blurbs, Judge Susan Illston, N.D. Cal., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Court lists ‘three types of sanctions’ available for destruction of evidence

Posted by rjbiii on September 15, 2008

Courts have developed three types of sanctions for destruction of evidence. First, a court can instruct the jury that it may infer that evidence made unavailable by a party was unfavorable to that party.
Second, a court can exclude witness testimony based on the spoliated evidence.
The third and harshest of sanctions is to dismiss the claim of the party responsible for the spoliation.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *4 (N.D.Cal. Sept. 2, 2008).

Posted in 9th Circuit, Case Blurbs, Judge Susan Illston, N.D. Cal., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Court discusses ‘legal control’ of evidence

Posted by rjbiii on September 15, 2008

[Requesting Party] additionally allege[s] that defendants failed to preserve or destroyed documents created in preparation for a book entitled Softwar: An Intimate Portrait of Larry Ellison and Oracle (“Softwar” ). The book was written by Matthew Symonds, an author and editor with The Economist, who conducted at least 135 hours of recorded interviews between March 2001 and August 2002 with defendant Ellison. In October 2006, plaintiffs moved to compel defendants to produce the transcripts and audio files of these Softwar interviews. Defendants argued that the materials were not in their custody or control, and Symonds also asserted that the materials were his sole property. On January 2, 2007, Special Master Infante determined that although such materials were in the physical possession of Symonds, Ellison had legal control of them pursuant to a contract between Symonds and Ellison. Winkler Decl. ex. 194. As a result, Special Master Infante ordered defendants to produce copies of “any interview notes, transcripts or tape recordings relating to the book.” Id. at 4. Shortly thereafter, it was revealed that Symonds no longer had the materials in question, and it appears that Symonds may have discarded the laptop computer containing the transcripts and audio files after he learned of plaintiffs’ motion to compel.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *2 (N.D.Cal. Sept. 2, 2008).

Posted in 9th Circuit, Case Blurbs, Data Sources, Duty to Preserve, Duty to Produce, FRCP 34(a), Judge Susan Illston, N.D. Cal., Possession or Custody or Control Of Evidence | Leave a Comment »

Case Blurb: NSA Telecom Records Litigation; Discussing Preservation of Relevant Data

Posted by rjbiii on November 14, 2007

The duty [to preserve] extends to documents, data and tangible things in the possession, custody and control of the parties to this action…

“Preservation” is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible things reasonably anticipated to be subject to discovery under FRCP 26, 45 and 56(e) in this action. Preservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.

Posted in 9th Circuit, Case Blurbs, Duty to Preserve, FRCP 26, FRCP 45, FRCP 56(e), N.D. Cal. | Tagged: , | Leave a Comment »

Case Blurb: NSA Telecom Records Litigation; What items are covered by the duty to preserve?

Posted by rjbiii on November 14, 2007

The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action…

“Documents, data and tangible things” is to be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voicemail, e-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, disks and cards, printouts, document image files, web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices and metadata, is also included in this definition.

In re Nat’l. Security Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007)

Posted in 9th Circuit, Case Blurbs, Duty to Preserve, N.D. Cal. | Tagged: , | Leave a Comment »

Case Blurb; NSA Telecom Records Litigation; Duty to Preserve Discussed

Posted by rjbiii on November 14, 2007

The duty [to preserve relevant data] extends to documents, data and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. Counsel are under an obligation to exercise efforts to identify and notify such non-parties, including employees of corporate or institutional parties.

In re Nat’l. Security Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007)

Posted in 9th Circuit, Case Blurbs, Duty to Preserve, N.D. Cal. | Tagged: , | Leave a Comment »

Case Blurb: Levi Strauss; Court discusses ‘duty’ to electronically re-produce paper production

Posted by rjbiii on November 14, 2007

Plaintiffs contend that it is “black-letter law” that LS & Co. is obliged to now re-produce its entire [paper] document production in electronic form. However, the cases they cite merely acknowledge the principle that electronically stored information falls within the definition of “document” under Fed.R.Civ.P. 34. See, e.g., Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382-83 (7th Cir.1993) (“[T]he Advisory Committee notes to the 1970 amendment of Federal Rule of Civil Procedure 34 make clear that computer data is included in Rule 34’s description of documents.”); Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y.2002) (“Electronic documents are no less subject to disclosure than paper records.”); Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050, 1053 (S.D.Cal.1999) (“The Court finds that by requesting ‘documents’ under Fed.R.Civ.P. 34, Plaintiff also effectively requested production of information stored in electronic form.”).

LS & Co. has cited some authority (albeit, one case is unpublished) indicating that, under the former version of Fed.R.Civ.P. 34, it was not obliged to produce its documents in electronic and hard copy form. See India Brewing, Inc. v. Miller Brewing Co., 237 F.R.D. 190, 194 (E.D.Wis.2006) (“A party may request information in a specific electronic format, but if it instead simply asks for ‘documents,’ adopting the definition in Rule 34(a), production in electronic format is not required.”); Northern Crossarm Co., Inc. v. Chemical Specialties, Inc., No. 03-C-415-C, 2004 WL 635606 *1 (W.D.Wis., Mar.3, 2004) (“If a party produces its electronic information in a hard copy format that mimics the manner in which that information is stored electronically, then that party has not disobeyed Rule 34.”).

Federal Rule of Civil Procedure 34, as amended, now allows a party to “specify the form or forms in which electronically stored information is to be produced.”FED.R.CIV.P. 34(b). However, plaintiffs do not seem to contend that those amendments apply here. At any rate, the amended Fed.R.Civ.P. 34 provides that where, as here, “a request does not specify the form or forms for producing electronically stored information,” then “a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”FED.R.CIV.P. 34(b)(ii) (emphasis added). Further, unless the parties agree or the court otherwise orders, “a party need not produce the same electronically stored information in more than one form.”FED.R.CIV.P. 34(b)(iii).

Schmidt v. Levi Strauss & Co., 2007 WL 2688467 (N.D. Cal. Sept. 10, 2007) (Do not cite).

Posted in 9th Circuit, Case Blurbs, Form of Production, FRCP 34(b), N.D. Cal. | Tagged: , | Leave a Comment »

E-Discovery Pitfalls: Court dictates collections and search protocols

Posted by rjbiii on November 9, 2007

The latest in our series on e-discovery pitfalls.

K&L Gates has posted an opinion in which U.S. Magistrate Howard R. Lloyd dictates the collection and search protocols of a set of data over which the parties have become somewhat contentious. Let us begin with His Honor’s description of the dispute:

According to defendants, there are two hard drives in question. In July 2007, they reportedly made bit-for-bit copies of those hard drives (including recovered deleted files and fragments) and produced documents responsive to plaintiff’s requests. Plaintiff is skeptical about the production.

Well, the requesting party is always skeptical, isn’t it? What circumstances give merit to plaintiff’s suspicions?

[Plaintiff/Requesting Party] says that, to date, defendant Romi Mayder has produced only one email pertaining to his work at Silicon Test Systems, Inc. whereas Bob Pochowski, a third-party witness, has produced a host of documents (emails, data sheets, and the like) from Mayder that apparently were created during Mayder’s employment at Verigy.

Oops. This illustrates the dangers of working with highly distributable and “copyable” documents, such as e-mail, and not producing a full set (for whatever reason). Even in the days of paper, you never knew where all the copies might have been hiding. In this digital age of ours, with the ease of replication and distribution, the dangers are exponentially higher. So let us remember two things: do a good job on formulating an appropriate search protocol; and, of course, never deliberately exclude relevant documents not subject to privilege from production. But the court isn’t finished with plaintiff’s suspicions.

Verigy also contends that other documents produced to date demonstrate Mayder’s willingness to manipulate evidence. Plaintiff also asserts that, when defendant Mayder left plaintiff’s employ, a system or software upgrade was performed which may have deleted files from defendants’ hard drives.

So now they walk beyond the line of suggesting the producing party could have accidentally failed to produce, but suggest defendant is indifferent with respect to its obligation to produce, or that it even purposefully manipulates data to protect itself. This serves to illustrate the importance of following a defensible, documented collection plan. The documentation may serve to refute allegations of impropriety or mismanagement. The importance of retaining a third party to execute the collection process is also on point, as such an expert tends to lend an objective voice to any dispute over procedure.

Now, this next bit is interesting, and potentially really bad for the defendant.

[Requesting Party] argues that it needs to conduct additional discovery of those hard drives, not only to determine whether any relevant documents have been withheld from defendants’ production, but also to examine what may have happened on the hard drives and why.

The requesting party wants to examine the drives to see if defendants failed in their responsibilities. The request is not made merely for the sake of satisfying their curiosity. The possibility that such intrusive measures might be allowed should be a warning shot over the bow for any party engaged in discovery. Make sure your processes are thorough, managed competently, well documented, and defensible.

[Producing Party does] not dispute that a system or software upgrade was performed which may have deleted files from their hard drives. However, they maintain that all deleted files have been recovered and preserved and that they have produced all information responsive to plaintiff’s requests.

All deleted files have been recovered? That’s far from certain, especially with respect to an operation as extensive as a software upgrade. The percentage of deleted files forensically recovered is based on many factors. Was “wiping” involved? If not, has the drive been defragmented? What is the “data turnover” (number of files deleted vs. number of new files written to the drive) of the drive at issue? Under only a very limited set of circumstances might one be able to say with any semblance of certainty that every single deleted file was recovered. As we see, the judge doesn’t appear convinced either. Upon considering the arguments, the court sets a two-tiered plan into place.

Defendants propose a two-tier protocol which (a) permits discovery in areas that defendants deem presumptively relevant; and (b) allows plaintiff to request that the expert conduct other searches, subject to an opportunity by defendant to review and object to the proposed search requests.

Defendants sought to protect themselves from abuse:

Defendants express concern that plaintiff will propound unduly burdensome or otherwise abusive searches beyond the scope of permissible discovery under Fed.R.Civ.P. 26. At the motion hearing, it was suggested, somewhat facetiously, that Verigy might attempt to request a search for all documents with the letter “A.” Indeed, documents submitted on supplemental briefing indicate that Verigy apparently has previously requested a search for all documents containing the letter “V” (see Pasquinelli Decl., Ex. C)–a request which strikes this court as being patently overbroad.

In an interesting note, the requesting party argued that disclosure of additional search terms it wanted to use might infringe attorney work product. The court, however, was not persuaded.
In concluding its opinion, the court felt the urge to remind counsel and the parties of their duties under the law:

Although it should go without saying, the parties are admonished to proceed in good faith and to refrain from conduct designed to unnecessarily encumber or retard discovery or to impose unnecessary expense or burden on the opposing parties or the court.

To reiterate the lessons of the case: engage in an honest, thorough, and well documented discovery plan; think about retaining a third party to serve as an objective, knowledgeable voice; and scrutinize the implementation of processes (such as software upgrades) that endanger the integrity of the litigation hold.

Posted in 9th Circuit, Case Summary, Computer Forensics, Discovery Requests, Motion to Compel, N.D. Cal., Search Protocols | Tagged: , | Leave a Comment »

Computer system ‘not conducive’ to keyword search?

Posted by rjbiii on November 8, 2007

In reading 3M v. Kanbar, 2007 U.S. Dist. LEXIS 78374 (N.D. Cal. Oct. 10, 2007), an opinion posted at the Electronic Discovery Blog, we ran across this passage:

Upon reviewing the emails produced, the court appreciates 3M’s concern. However, given the assertions by Rollit’s counsel, compelling another search will not cure the problems inherent in a manual search. FN3 Therefore, the court orders (each) Defendant to sign a declaration certifying that all non-privileged, responsive documents have been produced.
The declaration shall detail what Rollit (and each other defendant) and its employees have done to ensure a complete production. Given the concern over the previous omission, Defendant(s) would do well to ensure that all responsive documents have been produced before signing. Accordingly, the motion as it pertains to compelling another search is GRANTED IN PART. The declarations shall be filed with the court within 7 days of the date of this order.

FN3: It does not seem that Rollit’s computer system is conducive to an order compelling an electronic keyword search.

(emphasis added)

I wonder to what unique attributes the court refers when it states that “Rollit’s computer system is [not] conducive to an order compelling an electronic keyword search?” There is no elaboration, but I would love to see what factors convinced the court of this…

Posted in 9th Circuit, Discovery Requests, N.D. Cal., Search Protocols | Tagged: | Leave a Comment »