~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ TN Rule 37.06 - The "Safe Harbor Rule"
In early 2006, many companies were closely watching the progression and adoption of the updated Federal Rules of Civil Procedure. Speaking from those trenches, we thought the sky was falling. For those companies that were not paying close attention to the rules themselves, the software vendors ready to solve all of the problems with the magic "black box" were very helpful in teaching us some of the rules. Businesses perceived that these laws would force us to keep digital information perpetually. We did not completely understand Rule 37(f), the "Safe Harbor Rule". Rule 37(f), TN Rule 37.06, allows information technology departments to continue with business as usual, until litigation occurs (or is anticipated). As companies began planning for the updated Federal Rules, I began speaking with other large companies in various industries and serving on discussion panels to address how to prepare for these rules. Finally when serving on a discussion panel with a Federal Judge, the significance of Rule 37(f) was given clarity. Rule 37(f) states, "absent exceptional circumstances a court may not impose sanctions on a party for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system." This recognizes that some computer systems routinely alter and delete information without specific direction from an operator. While the software vendors were informative and persuasive in their sales presentations, they failed to convey the significance of this rule. Although the price of storage for digital information continues to decrease, we continue to create and store digital information at an unbelievable pace. According to IDC, by 2010, there will be more bits of data than grains of sand on all the world's beaches (a bit is the smallest increment in which digital information is stored). For various reasons, it is fiscally difficult for companies to keep digital information eternally. Long before the updated Federal Rules were in place, companies already had "routine, good-faith operations of an electronic information system" in the form of electronic data retention practices. The details of a company's data retention practice will be dictated by the regulatory environment in which the company operates and influenced by internal concerns of those within the company. The policies will often address purging age based email, office documents, database records, and voicemail, just to name a few. Now that companies have realized that they can continue to practice their data retention policies, they must be aware of the important details of the "Safe Harbor Rule": - When litigation begins or is "reasonably anticipated", companies must cease relevant aspects of their data retention policies and properly preserve the information under litigation hold requirements.
- The company should have a documented and approved data retention policies that they have been following leading up to litigation. If the company has not been following their document retention policy, they cannot implement it when litigation begins. Enron already demonstrated that this is not a good strategy.
- Companies cannot implement new electronic document retention policies during litigation. See "Policy was created as part of a litigation strategy"
Many companies were preparing for the updated Federal Rules of Civil Procedure in early 2006 and were very concerned about the impact of these rules on their operations. The "Safe Harbor Rule", is interpreted to allow businesses to continue to purge information from their electronic systems based on documented and approved policies that are currently being followed. Under Federal Rule 37(f) and TN Rule 37.06, the company will not be responsible for data that has been purged based on this routine operation. Once litigation begins however, the operation must cease where applicable and all potentially relevant information must be preserved. |
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Mobile Handsets Becoming A 'Smoking Gun'
With the growing relevance of mobile phones and PDAs in both digital forensics and eDiscovery, we will begin providing more articles demonstrating the importance these devices can play in litigation.
The following article explains the role that mobile devices can often play in cases involving intellectual property theft and the sensitivity of the information on these devices.
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Easier Said Than Done: Early Case Assessments Part I
Early Case Assessment (ECA) is quickly becoming a "buzzword" in the realm of electronic discovery. A very good explanation of early case assessment is stated in this article, "making a concerted effort to complete all the major work within the first 90 to 120 days of a lawsuit's filing". There are many methods and tools to accomplish early case assessment. Forensic Discoveries will begin providing links and articles on this topic to keep you informed. This month's link, "Easier Said Than Done: Early Case Assessments Part I", provides a good entry article in early case assessment. The article can be viewed here.
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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~Inadvertent Disclosures in E-Mail
E-mail is part of our way of life. We use it to communicate with colleagues, partners, customers, clients, adversaries, friends, courts and even complete strangers. The use of e-mail is so prevalent -- and accessible with the proliferation of BlackBerrys, smart phones and the like -- that little thought is given to the fact that every message typed at a computer or thumbed out on a BlackBerry creates a permanent record that could be an issue in a legal dispute.
A word to the wise: E-mail can never truly be erased.
Read the entire article on Law.com here
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EDiscovery Case Law
Court Orders Public Office to Absorb Costs for Restoration of Deleted E-Mails
State ex. rel. Toledo Blade Co. v. Seneca County Bd. of Comm'rs, 2008 WL 5157733 (Ohio Dec. 9, 2008).
In this litigation, the plaintiff filed an action seeking a writ of mandamus to compel the defendant to recover the content of requested e-mails that had been deleted. The plaintiff argued that a public office has an obligation to maintain certain records, such as the records at issue here, and make them available for inspection and copying under the Public Records Act. Finding substantial gaps in the responsive e-mails provided by the defendant, the court determined that a reasonable inference was raised that at one time, additional responsive e-mails were deleted in violation of the defendant's document retention schedule. Additionally, through an affidavit of a computer expert specializing in forensic data recovery services, the plaintiff established that there was some likelihood that the recovery of the deleted e-mails would be successful. Therefore, the court also concluded the defendant should be required to attempt to restore deleted e-mails. The court ordered the defendant to bear the expense of the forensic analysis but stated that the "recovery efforts need only be reasonable, not Herculean."
Court Orders Reproduction of Electronic Data in Native Format
Superior Prod. P'ship v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184
(S.D. Ohio Dec. 2, 2008).
In this predatory pricing case, the plaintiff sought production of electronic documents in native format that were previously produced in hard copy. The defendants opposed native production, arguing their computer system did not maintain metadata and therefore no purpose would be served in native production. Citing Fed.R.Civ.P. 26's preference for native format production, the court ordered the defendants to produce the documents natively, finding benefit in the ease at which electronic documents can be stored and manipulated during the litigation process.
Court Denies Production Request for Hard Copies Finding Electronic Format Reasonably Accessible
Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D.Fla. Dec. 17, 2008).
In this patent litigation, the defendants moved to compel production of consumer survey data relied upon in expert reports. The defendants requested hard copy printouts including all metadata that was previously produced in an allegedly "unusable" electronic .sav file format. The plaintiff opposed the motion, asserting that it produced all of its experts' survey data in the same format in which it was reviewed and analyzed, and that such files can be easily accessed with any standard statistical computer package. Finding the plaintiff's production complied with Fed.R.Civ.P. 34(b)(2)(E)'s requirement that data be produced in a reasonably accessible format, the court denied the defendants' motion as the defendants provided no materials to demonstrate that their rebuttal experts were unable to access or review the data.
Court Splits Costs of Privilege Review Due to Failure of Both Parties to Cooperate
Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008).
In this trade secrets misappropriation litigation, the plaintiff moved to compel the defendant to reproduce e-mails in native format that were previously produced in hard copy. Having been written prior to the effective date of the amendments to the Federal Rules, the plaintiff's document production request did not explicitly include electronically stored information and failed to request a particular format for production. Magistrate Judge Facciola held that both parties played with fire by producing and accepting documents in hard-copy form, as they were not reasonably kept in hard copy form in the ordinary course of business. Therefore, Judge Facciola ordered the defendant to produce the requested information in native format on a CD and split the costs of privilege review (capped at $4,000) between the parties. Judge Facciola concluded by stating that, "two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time-consuming, and so easily avoided by the lawyers' conferring with each other on such a fundamental question as the format of their productions of electronically stored information."
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