Forensic Discoveries Newsletter - eDiscovery News and Updates

Tango Transp., LLC v. Transp. Int'l Pool, Inc., 2009 WL 3254882 (W.D. La. Oct. 8, 2009)

In this contract dispute, the defendant sought monetary and adverse inference sanctions alleging that after months of repeated requests for e-mail documents, the plaintiff failed to ask employees to locate, preserve or produce e-mail documentation. The plaintiff placed a litigation hold on e-mail accounts of some custodians; however, in-house counsel for the plaintiff admitted a litigation hold was not placed on three key players until six months after the request. Citing the plaintiff's failure to issue litigation holds, the court determined sanctions were appropriate and awarded the defendant almost $13,000 in attorneys' fees and costs to serve as a deterrent against the plaintiff's future commission of similar discovery abuses. However, because the defendant failed to demonstrate the destroyed e-mails would have supported its case, the court denied the adverse inference request.

Court Finds Copies Made of Opponents' Computer Files Violate Computer Data Access and Fraud Act

Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 2009 WL 3334868 (D.N.J. Oct. 14, 2009)

In this business dispute, the defendants alleged the plaintiffs copied the defendants' computer files in violation of the Computer Data Access and Fraud Act (CDAFA). Prior to the joint venture termination, the plaintiffs' computers were connected to the defendants' server via a virtual private network. After the joint venture ceased, the plaintiffs copied approximately 152,000 documents, including proprietary business information, contained on the defendants' server in an act the court labeled "brazen and surreptitious." The plaintiffs claimed the defendants knew access to the joint system existed, were concerned the defendants would destroy relevant information on the network and that the defendants' litigation hold letter required them to preserve all documents within their possession or control. Finding the plaintiffs' "clandestine copying of computer files" was not performed purely for e-discovery purposes, the court determined the copying of files created after the joint venture dissolved was a clear violation of the CDAFA. Accordingly, the court granted the defendants' motion for partial summary judgment.

Court Conducts Hardship Analysis and Orders Non-Party Compliance with Electronic Discovery Subpoena

Whitlow v. Martin, 2009 WL 33381013 (C.D. Ill. Oct. 15, 2009)

In this employment dispute, the plaintiff subpoenaed a non-party seeking production of electronic information relevant to the defendants' employment practices. The non-party's numerous objections to the subpoena included that the requests were not reasonably likely to lead to the discovery of admissible evidence, could be obtained from more convenient sources, sought not reasonably accessible documents, and were overly broad and unduly burdensome. The non-party claimed complying with the subpoena would cost hundreds of thousands of dollars and would take more than two years to complete because several Microsoft(R) Exchange Servers and 200 to 300 file servers located across the state would have to be searched. Acknowledging the non-party status as a significant factor in determining whether a subpoena presents an undue burden, the court applied a relative hardship test to determine if the burden outweighed the value of the produced material. After considering such factors as relevance, need and particularity, the court, while slightly modifying the production requirements, ordered the non-party's compliance with the plaintiff's subpoena.

Court Sanctions Party for Reckless Spoliation of Video Evidence

Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009)

In this section 1983 claim asserting unreasonable force and lack of probable cause, the plaintiff sought default judgment sanctions alleging the defendants spoliated video-recorded evidence. The defendants argued sanctions were not appropriate because the video's deletion was accidental. Citing the defendants' failure to have a backup system in place to ensure adequate preservation, the court determined the spoliation was the result of recklessness that warranted sanctions. In determining the appropriate sanction, the court found that an adverse inference was insufficient to cure the prejudice to the plaintiff. Although the court did not find an outright default judgment sanction appropriate, the court held that the defendants used unreasonable force. The court recognized this determination would effectively grant summary judgment on the issue of unreasonable force, "and, as such, [was] tantamount to a default judgment."

Court Reprimands Both Parties for Failure to Develop Meaningful ESI Discovery Plan

Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 WL 3347101 (E.D. Wis. Oct. 15, 2009)

In this discovery dispute, the plaintiff requested production of the defendants' "computers and other electronic storage devices" for computer forensics analysis. The defendants argued that the plaintiff failed to demonstrate the need for a sequestering of all of the defendants' electronic devices. Denying the plaintiff's motion, the court found the plaintiff failed to justify the need for the forensic mapping of the defendants' entire computer system. However, the court acknowledged the need for the defendants to develop an organized system for the preservation and production of relevant ESI. The defendants' "click through" process to search e-mails "did not meet the level of diligence required for a fair discovery process." The court noted that the primary motivation for its decision was the failure of both parties to advance alternatives for discovery methods and stated that it expected the parties to develop a meaningful ESI discovery plan.

Court Determines Metadata is a Public Record Subject to Disclosure

Lake v. City of Phoenix, 2009 WL 3461304 (Ariz. Oct. 29, 2009)

In this employment discrimination claim, the plaintiff appealed the appellate court's ruling that metadata is not considered a public record. The plaintiff sought production of electronic public records, including embedded metadata, after suspecting hard copies produced by the defendants were backdated. The Supreme Court of Arizona found the metadata to be a part of the underlying electronic document that could not stand on its own. As a result of this analysis, the court found that any embedded metadata is part of the electronic public record and is subject to disclosure. The court noted that this decision would be unlikely to cause the administrative nightmare the city prophesied because properly responding to a request for metadata would only require producing a copy of the electronic record in native format.