Forensic Discoveries Newsletter - Exciting TBA eDiscovery Seminar

EDiscovery Case Law

COURT ENCOURAGES SEARCH TERM COLLABORATION

On March 19th, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York encouraged collaboration between parties in forming search terms for electronic documents. The case involved disputes over alleged defects and delay in construction of the Bronx County Hall of Justice. The Dormitory Authority of the State of New York (DASNY) "owned" the project but non-party Hill International was the current construction manager for the hall. At issue were Hill's e-mails and how to formulate search terms to separate e-mails concerning only construction of the hall. DASNY selected some search terms, but Hill did not contribute to the discussion. The court explained that it was left in the "uncomfortable position" of selecting search terms without adequate information from the parties. The court ordered production under DASNY's proposed search terms, in addition to the names of the personnel involved in the hall construction. The court then explained the need for care and collaboration in selecting search terms, since the message did not get through in this case. The court quoted decisions by Magistrate Judges Grimm and Facciola, explaining the proper selection of search terms. These opinions stressed that proper implementation requires a specialized knowledge, and that implementation requires careful advance planning. The court advocated that parties should be more cooperative in the future, consistent with the Sedona Conference Co-operation Proclamation. The decision may be found here.

COURT GRANTS MOTION TO COMPEL RE-PRODUCTION OF CERTAIN ESI

On March 18th, the U.S. District Court for the District of Kansas ordered re-production of certain e-mail files in native format after the Plaintiff Julie White, discovered discrepancies between relevant e-mail sent dates and creation dates of their attachments. The lawsuit was a wrongful termination claim, where White was trying to determine when the Defendants, her former employers, made the decision to fire her. White requested re-production of e-mails in native format, production of relevant PST (Outlook Personal Storage) and OST (Offline Outlook Storage) files, and access to the hard drives used to create any of the e-mail attachments. The court partially granted White's motion to compel, and considered each type of production in turn. First the court considered production of the e-mails in native format, and found that production was necessary. Defendants claimed that the e-mails may not be available, but provided no explanation. Further, Defendants' attorneys did not sufficiently familiarize themselves with their clients' e-mail systems, as the briefing did not provide sufficient information for the court to determine where the ESI could be located. Second, the court considered production of the relevant PST files, and also found that production was necessary. The court explained that production of these files would help White resolve the discrepancies between the e-mails and their attachments, given the insufficient information about Defendants' computer systems. Third, the court considered whether the OST files must be produced, and found that it did not have sufficient information to make a decision. The court therefore ordered the parties to meet and confer with their computer experts to determine a process to produce the OST files. Finally, the court explained that Federal Rule of Civil Procedure 34 allows a party to inspect, copy, test, or sample ESI. The court relied on the Advisory Committee notes and explained that the inspection was not routine but may be justified in some circumstances, as inspection of ESI raises privacy concerns. In light of the e-mail discrepancies, the court found that more information was needed. The court again ordered the parties to meet and confer regarding the location of the information needed and a protocol to assess that information. The decision may be found here.

COURT FINDS SANCTIONS WARRANTED WHERE PARTY HAD EMPLOYEES "PRINT AND DELETE" DOCUMENTS

On April 9th, the U.S. District Court for the Southern District of Florida found that sanctions were necessary when a Defendant's attorneys instructed Defendant's employees to print 10,000 documents and then delete the documents from their computers. In the case, Preferred Care Partners Corp. (PCP) alleged that Humana, Inc. violated a confidentiality agreement between the parties. PCP brought the motion for sanctions, alleging that Humana's employees could not be trusted to fully produce the electronic documents. The court first stated that it was clear that Humana did not comply with the Federal Rules of Civil Procedure or the Local Rules when producing these documents. For that reason, the court explained that it could impose sanctions under Federal Rule 37 based on what was reasonable under the circumstances. The court found that a default judgment or adverse inference instruction, particularly harsh sanctions, were not necessary in this case. Although Humana's conduct was careless and showed bad judgment, it was not willful and did not show bad faith. But the court shared PCP's concerns that some documents may be missing, and ordered sanctions to remedy that situation. The court ordered that Humana allow an inspection of its backup system at its own expense to verify that the backup system retains copies of the e-mails that were produced, despite the print and purge directive. Any information not deleted and not produced would be provided to PCP. The decision may be found here.

Court Compels Production of Non-Privileged E-Mails

Schanfield v. Sojitz Corp. of Am., 2009 WL 577659 (S.D.N.Y. Mar. 6, 2009). In this employment discrimination suit, the defendants sought production of thirty-six purportedly privileged e-mails identified in the plaintiff's privilege log. The defendants argued that these e-mails between the plaintiff and his friends, former colleagues and family members that are attorneys, were not protected by privilege. Addressing each e-mail category, the court held that the e-mails sent to friends were not protected since the plaintiff failed to indicate that they were prepared in anticipation of litigation. The court also found that work product protection was waived with respect to the e-mails with colleagues since the material was disclosed. Finally, the court determined the e-mails sent to family members that are attorneys were not attorney-client privileged because a non-attorney was copied on the e-mails; however, those e-mails constituted work product because they were prepared in anticipation of litigation.

Granting Motion to Compel, Court Orders Appointment of Independent Expert "to Retrieve any Deleted Responsive Files from Defendants' Computers"

In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely respond to plaintiff's requests for production of documents and failed to offer adequate justifications or explanations for such behavior. Additionally, despite initial representations that certain documents had been produced or were not in their possession, at hearing it became clear that such representations were not true. For example, despite claiming that all responsive documents had been produced, defense counsel admitted at hearing that defendants had not performed a search of all deleted and unsaved electronic documents. For defendants' discovery failures, the court granted plaintiff's motion to compel and ordered an independent forensic expert be allowed access to defendants' computer systems to search for "deleted responsive files." The court also granted plaintiff's motion for attorney's fees. A copy of the full opinion is available here.

Federal Court Defers Final Ruling on Attorneys' Fees Motion Related to Forensic Examination

In ongoing litigation over sales commissions, Plaintiff Technical Sales Associates, Inc. ("TSA") claims that Defendant Ohio Star Forge Comapny ("OSF") breached two separate sales representative agreements. After a protracted discovery dispute, TSA and OSF agreed to a forensic examination of OSF's computers to search for a particular e-mail. The forensic examination was performed by a company hired by TSA called Midwest Data Group LLC ("Midwest"). During the forensic examination, Midwest found evidence that certain files had been deleted by OSF. Midwest's reporting of its findings to TSA became the subject of cross-motions for sanctions which were ruled upon by the court on March 19, 2009. A copy of the full opinion is available here