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DATA & DOCUMENTS
© Richard E. Best, 1998,1999,2000,2001,2002 All rights reserved
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DISCOVERY CASE OUTLINES
see also document case outline
"Because of their ubiquitous nature documents stored in electronic
form... should be specifically targeted by counsel in developing their discovery plans. Failing to do so may not
only prejudice their case, but may also constitute malpractice."
Michael R. Overly, California Continuing Education of the Bar (1998 3d Ed),
Civil Discovery Practice 3rd Ed., Vol. 2, §8.24, p. 711
SEE ALSO:
ELECTRONIC DISCOVERY WEB SITES
CALIFORNIA ELECTRONIC DISCOVERY STATUTES
VIRTUAL DISCOVERY
PROPOSED RULES FOR ELECTRONIC DISCOVERY
TECH GLOSSARY GUIDE
CONTENTS
OVERVIEW OF CONTENTS
WHY DISCOVER ELECTRONIC DATA?
LEGAL AUTHORITY FOR DISCOVERY
EXPERT ADVICE & ASSISTANCE
PRELIMINARY AND EMERGENCY DISCOVERY / PRESERVATION
GENERAL DISCOVERY OF ELECTRONIC DATA
DOCUMENT RETENTION POLICIES
ADMISSIBILITY OF EVIDENCE
ELECTRONIC DISCOVERY WEBSITES for further information and vendors
VIRTUAL DISCOVERY using technology to conduct discovey
WHY DISCOVER ELECTRONIC DATA ?
BECAUSE IT'S THERE: vast accumulations of data, documents and information that may be unknown to your opponent await your discovery
NEW DOCUMENTS THAT DO NOT EXIST IN HARD COPYElectronic documents not existing in other forms
Electronic forms of documents at variance to or in lieu of hard copy
Information remnants when deletion or overwriting is incompleteBEYOND CONVENTIONAL DOCUMENTS: other electronic information
NEW INFORMATION THAT IS UNAVAILABLE FROM HARD COPY
NEW SOURCES OF INFORMATION OR DOCUMENTS
INCREASED ACCESS, ANALYSIS & MANIPULATION OF DATA & INFO
COST EFFECTIVE DISCOVERY
PROFESSIONAL RESPONSIBILITY
CALIFORNIA
FEDERAL RULES
CASE LAW
PRELIMINARY AND EMERGENCY DISCOVERY / PRESERVATION
PROBLEM: data destruction in normal course
PRESERVATION LETTER asap prior to actual litigation
PRESERVATION DUTY [Spoliation and Sanctions]General background
EX PARTE ORDERS: preservation order; seizure or copy and preservation
PROTECTIVE ORDERS for preservation order on noticed motion
PRESERVATION ORDER: What is reasonable restraint ?
GENERAL DISCOVERY OF ELECTRONIC DATA
DISCOVERY OF BACKGROUND INFORMATION
Alternative discovery devices
Background information to be obtainedPRESENTATION OF DISPUTES TO COURT
DENIAL OF DISCOVERY FOR OVERBREDTH
FORM OF PRODUCTION:
COST SHIFTING
CREATION OF DOCUMENTS FROM DATA
HARD DRIVE PRODUCTION
ON-SITE DISCOVERY OF OPPONENT'S DATA
PRIVILEGES, TRADE SECRETS, PRIVACY
SANCTIONS IN CALIFORNIA FOR FAILURE TO PRESERVE DATA
SANCTIONS / ADVERSE JURY INFERENCE
REASONABLE RECORDS RETENTION POLICY
WHY DISCOVER ELECTRONIC DATA ?
Can a lawyer's discovery strategy ignore significant amounts of relevant, possibly critical,
material?
Can lawyers rely on opposing parties to search and produce electronic information ?
NO. Lawyers must be proactive in seeking electronic information. They cannot expect opposing parties or lawyers to seek and produce electronic versions of documents or electronic information existing outside of the conventional document category even if they expressly include such in their definition of documents or expressly request electronic data. Surveys in the past have revealed that a large majority of lawyers and clients did not believe that electronic data was not subject to discovery, or that they must seek it as part of a reasonable search, or that they must preserve it. Lawyers seeking all relevant information must know what they are seeking, specifically request it and actively pursue it. If they don't possess the knowledge to pursue electronic information they may need to retain expert assistance.
Limiting discovery to hard copy may neglect significant accumulations of data, documents and information that may be unknown to your opponent await your discovery
93% of documents are created electronically
Some estimate only 30% of documents are in hard copy
Counsel limiting discovery to hard copy neglect potential evidence that is not reflected in hard copy
"Smoking guns" and other documents may be overlooked
See primer on the types of info found on computers: Secure File Deletion, Fact or Fiction? by John R. Mallery, July 16, 2001, found at http://rr.sans.org/incident/deletion.php
Unobtrusive accumulation & retention of documents or portionsEmbedded information created without user's knowledge; does not appear in printed documents:
edit history [e.g. date, time and person accessing network or document] and
hidden comments [may explain changes, authenticate documents]Copies of documents or drafts created by the operating system without the user's knowledge to allow recovery in case of power failure or other incidents that might result in lost work; slack files, swap files, temp files
Obsolete information not deleted from computers or backup tapes
Undo feature on software may reveal important revisions of documents
Deletions undeleted until overwritten after indefinite period
Evidence of systematic destruction when not the norm as evid of cover-up
See RKI v. Grimes (N.D.Ill.2001), 177 F.Supp.2d 859, 877 ["...the defendants' spoliation of evidence on their computer supports a negative inference that defendants destroyed evidence of misappropriation." Misappropriation of trade secrets established by circumstantial evidence; deletions and defragmentation was highly suspicious and provided circumstantial evidence]
Nefarious inferences from variations from official document retention policy
Unknown copies, file remnants, versions, drafts or portions of documents
File clones on hard drive, servers, home computers, email attachments etc.
Automatic backup copies : created & saved by OS to provide backup in case of emergencies
Timed document backup
Original document backup
Undo and redo features of word processing application
Backup tapes, diskettes, email storage
"Deleted" files not deleted:
undelete or salvage commands in OS or special program
remain indefinitely until overwritten or wiped
Proliferation of copies; email to group; to entire organization + forwarded copies
Versions of documents from collaborative efforts
Hidden comments to co-workers
Multiple Memory: PC, email, voice mail, multiple servers, ISP, VAN, VPN
Buffer memory in fax, printer, voice mail
NEW DOCUMENTS THAT DO NOT EXIST IN HARD COPY
Documents existing only in electronic form that might be produced, in part, by creating hard copies.
However, hard copies may not include useful information such as creation dates, access information, hidden comments
etc. that are included in electronic documents.
Electronic documents not existing in other forms
Email text and attachment of documents otherwise unavailable
Email header: communication trail, and information re creation, recipients, transmittal & receipt times
EDI [Electronic Data Interchange] audit trails of business purchases through VAN [value added network]
Fax text and related information[sender, date, time]
Voice mail
Electronic calendars etc.
Corporate intranets: manuals, employee suggestions
Web site log files re visitors [date & time of access and Internet address; prior web sites]
Browser informationcache of visited sites [may not be overwritten for some time]
bookmarks or favorites indicate web sites frequently visited
history of time or date of sites visited
"cookies"deposited on hard drive by web sites to id visitors, etc.
may identify interests and provided relevant information by showing sites visited
For description of how "cookies" work see In re Doubleclick, Inc Privacy Litigation (S.D.N.Y.2001), 154 F.Supp.2d 497 and In re Pharmatrak, Inc Privacy Litigation (D.Mass. 2002), F.Supp.2d , 2002 WL 1880387Postings on Internet newsgroups [search by user or email ] or bulletin boards by e.g. disgruntled employees
Instant MessagingPeople v. Ulloa (2002), 101 Cal.App.4th 1000 [In search of home computer for pictures and videos the only evidence from the search introduced at trial was AOL instant messages; motion to suppress for unreasonable search denied; criminal conviction of oral copulation with minor affirmed]
Dissemination logs to track persons who access sensitive data & reports
Electronic forms of documents at variance to or in lieu of hard copy
Deleted documents that can be recovered from the hard drive or other storage
Prior versions, drafts etc.on backup tapes, diskettes, home computersCommonwealth v. Copenhafer, 587 A2d 1353(Pa 1991) [murder conviction from recovery of "deleted" files from PC including drafts of ransom notes and outline of the plan]
Information remnants when deletion or overwriting is incomplete
File fragments in slack space not overwritten with new data after "deletion"
BEYOND CONVENTIONAL DOCUMENTS: other electronic information
Electronic data is different in that it is not just an electronic picture of a conventional "document" that is simply printed to hard copy. It is data or bits and bytes in cyberspace that requires proper hardware and software to read. Electronic sources have proliferated as the average business and individual has embraced technology that stores information. Lawyers must think of alternative sources of information and actively pursue themPersonal data assitants, laptops, personal computers
Surveillance cameras and web cameras everywhere
GPS tracking of rental cars and trucks
Cell phone records of calls and locations of callers
Voice- mail and audio files
Data bases
Toll booth records showing presence and speeds
Credit card and banking records showing transactions and locations
Access records to buildings and rooms
Grocery store discount cards
Employer software to record activities of employees, audit trails and computer logsprograms used
files accessed: who, where, when & for how long
modifications, by who, when
downloads --- when, who, where-copy, print or purge
e-mail sent and received
Web sites visited, date & how long
computer bulletin boards contacted.
NEW INFORMATION THAT IS UNAVAILABLE FROM HARD COPY
Network and PC operating systems and applications and other electronic devices [e.g. fax machines] create
information in addition to the text of documents that may reflect on the authenticity of the document or provide
additional information that is of more value than the text.
Information generated by application or OS on PC or network;
File header information: date creator, who worked on file and when
Name date & time of creation, review, access or modification
File names and changes thereto;
Alterations, versions, earlier drafts of documents
Relationship/arrangement of files may indicate authenticity [dates w/in]
Structures of tables and records
Hidden Comments in inserts, headers or footers that don't appear on hard copy
Temporary files, automatic backup of drafts: .tmp, .bak, .bk, .wk, .swp
Email threads provide context and informality; message numbers; connections, replies, activity logs
Acknowledgment of receipt of email
Voice mail & voice mail backup, forwarding
Directory may show content of information though information was erased
Distribution lists may reveal sources of information, potential witnesses, repository or documents
File fragments: only part of deleted file overwritten; slack space
Evidence of destruction, back dating or variations from retention policy
Evidence of other documents or activity from e.g.email headers
Employer software to monitor activities of employee: email, files, web sites
NEW SOURCES OF INFORMATION OR DOCUMENTS THAT MIGHT
OTHERWISE HAVE BEEN DESTROYED
Documents that may not be available in hard copy or from the original electronic source by normal search
techniques, may be located from other sources in electronic form due to multiple copies or from the original source
via more sophisticated search and recovery techniques. Documents that have been deleted from one data base or memory
may be retained on other hardware or in storage media or may be recovered in whole or part. Computers allow for
the unobtrusive accumulation and retention of vast amounts of data that may be obsolete and unnecessary but interesting.
Backup tapes
Provides a periodic snapshot of files on a particular system on a specified date; deleted documents may be retained indefinitely on backup tapes. The purpose is to protect against catastrophe rather than provide access; legitimately, the data may not be easily accessed or complete. Storage may be offsite or via the Internet for protection. Some are overwritten periodically due to normal rotation of tapes and may necessitate a protective order for preservation to stop rotation and preserve those from routine destruction. Those overwritten may leave file fragments to be discovered. Others may be preserved indefinitely. Analysis may allow comparisons of backup copies with other copies to suggest tampering, modifications, or intentional destruction of evidence. Examination is time consuming and expensive due to extensive data, lack of organization, search difficulties, and need for special hardware or software to read or restore data. See Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 re denial of discovery from archives and backup tapes that would require heroic efforts when probability of additional discoverable documents or files was not likely.
Multiple locations of copies
Copies of email stored on original computer, the sender's server, recipient's server, recipient's computer plus similar storage for all persons receiving copies
Other storage media:
Diskettes, floppies
Magnetic tapes
Jazz and zip drive backups
Servers that may retain copies: networks, VAN, ISP, VPN
Buffer memory in fax machines, printers, digital copiersRAM 2-5MB[several 100 pages] in office/commercial printers
Lost when printer turned offDocuments created on one device may be inadvertently copied on another e.g. document copied onto floppy from office and printed on the home computer may be copied into a temporary file on the home computer
Voice mail
Hardware memory alternatives
LAN with document saved on server and PC or only one
PDA, palmtops, electronic calendars
Laptops
Home computers
Discarded, "damaged" hard drives and floppies with recoverable information
Video cameras
Printers
Fax machines
Copy machines/1202
Proxy servers
Information in one application may exist in another format
Spreadsheet info transferred to report
COST EFFECTIVE DISCOVERY
See also Virtual Discovery
See also Managing Discovery Documents through Imaging
by George J. Socha, Jr.
Purpose of computerization, efficient and cost effective processing of data for the production of information in
a more useable form, should be applied to discovery to reduce costs and burden
State of the art search, analysis, storage and retrieval technologies should be a factor in determining discovery
obligations as well as developing protocols for cost effective discovery
Cost resulting from inadequate organization, technology etc should not impede discovery
Consider in connection with issues such as reasonableness of search efforts, relevancy vs burden equation
Volume alone should not overly impress the parties or courts
Production of data in electronic form to reduce or eliminate
the need and costs to scan or copy documents,
the time and costs to inspect, extract and copy information, use in differenct form
the need and costs to ship, store & handle documents
Production of data in electronic form to allow integration into litigation support databases
Production of data in electronic form to allow integration into electronic trial presentation
Review and management of high volumes of documents may require new approaches
Analysis of all systems by all parties to identify and preserve relevant data
Search and preservation duties of producing parties; spoliation consequences
Reasonable particularity requirement on requesting party
Background for follow-up by requesting party to assure adequate search & production
Identify specific computers for on-site discoveryKey word and content searches
Filtering out of duplicative documents or files by types that do not contain data
Privilege and privacy protection may have to be satisfied by procedures less than document by document examination by an attorney or paralegal with reasonable relief for inadvertent production of suchSee Attorney-Client Privilege case outline under Waiver / Inadvertant disclosure
INCREASED ACCESS, ANALYSIS & MANIPULATION
OF DATA & INFORMATION
Purpose of computerization, efficient and cost effective processing of data for the production of information in
a more useable form, should be applied to discovery to facilitate discovery and to reduce costs and burden
Paper may be inadequate and production of e-docs the most cost effective
State Farm v. Engelke (Tex. 1992), 824 S.W.2d 747 [Insurer estimated discovery of bad faith lawsuits would have required expenditure $2.7 million and 27 person years of labor but cross examination revealed information could be provided by computer generated response. As to information available from public records "State Farm's representative testified ...computer system could be programed to produce the information sought...."]
State of Missouri v. Ely (Mo.1994), 875 S.W.2d 579 [Burden objection to prior similar claims rejected because computer database covering most of the time period. Lack of indexing preventing or inhibiting access or storage without a convenient system of retrieval is not a basis for opposing discovery.]
Williams v. Owens - Illinois (9th Cir. 1982), 665 F.2d 918, 933 [Not abuse of discretion to deny electronic documents when hard copy provided merely to save time and money and allow for ease of analysis and use. "While using cards may be more time consuming, difficult and expensive, these reasons, of themselves, do not show that the trial judge abused his discretion in denying the appellants the tapes."]
Databases and spreadsheets may be of limited value unless produced in electronic form that allows for manipulation and changes of data in fields or formula for calculations
Anti-Monopoly Inc. v. Hasbro Inc (S.D.N.Y. 1995) 1995 U.S. Dist. LEXIS 16355 [electronic documents discoverable even if hard copy provided; discoverability of computerized data is black letter law]
Armstrong v. Executive Office of President(DC Cir 1993), 1 F3d 1274,1281 [Hard copy insufficient; "may omit fundamental pieces of information which are an integral part of the original electronic records, such as the identity of the sender and / or recipient and the time of receipt"; may lack other information: directories, distribution lists, acknowledgment of receipts, ]
American Brass v. United States (CIT 1988), 699 F. Supp.934
Timken v. United States ( ), 659 F. Supp.239
Public Citizen v. Carlin (D.D.C. Oct.1997), 1997 WL 669637
Need for expert assistance & special software;
Potential for greater efficiency of cost effective discovery
Key word searches of data for relevant information or files
Exclusion of files likely to contain privileged or other nondiscoverable information
New issues regarding restoration, management, sorting, searching, analyzing and reviewing data
Data Mining Tools to analyze, search, sort & calculate
Technology and electronic tools change rapidly; businesses and governments recognize both the value of data and the need to anylyze and utilyze it
Applications designed for business to access, analyze and use data for marketing purposes may be useful to acess such data for discovery purposes
e.g.80-20.com
CaptureIt software from Ontrack for gathering electronic data w/o business disruption
datajunction.com
Technology changes burden vs relevancy equation
Opponents of discovery will claim greater burden and expense
Proponents should show cost reductions, efficiency and lack of intrusion into privileged and confidential informationState Farm v. Engelke (Tex. 1992), 824 S.W.2d 747 [Insurer estimated discovery of bad faith lawsuits would have required expenditure $2.7 million and 27 full time man years of labor but cross examination revealed information could be provided by computer generated response. As to information available from public records "State Farm's representative testified ...computer system could be programed to produce the information sought...."]
State of Missouri v. Ely (Mo.1994), 875 S.W.2d 579 [Burden objection to prior similar claims rejected because computer database covering most of the time period. Lack of indexing preventing or inhibiting access or storage without a convenient system of retrieval is not a basis for opposing discovery.]
Williams v. Owens - Illinois (9th Cir. 1982), 665 F.2d 918, 933 [Not abuse of discretion to deny electronic documents when hard copy provided merely to save time and money and allow for ease of analysis and use]
Willaims v. E. I. duPont de Nemours & Co. (W.D.Ky. 1987) 119 F.R.D. 648 [expert database based on documents obtained from employer discoverable in part due to expense of recreating same]
New problems created by ability to modify or fabricate documents create issues for authentication
See R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 where plaintiff filed a complaint based on an allegedly altered contract; discovery obtained by stipulation to examine hard drive to detect alteration of contract but complaint amended conceding the version was not valid.
See Fennel v. First Step Designs Ltd. (1st Cir.1966), 83 F.2d 526 where plaintiff was denied examination of a hard drive to determine if critical memo was predated to avoid liability for wrongful discharge.
PROFESSIONAL RESPONSIBILITY
ABA Civil Discovery Standards
10 & 29 (1999)
IV. DOCUMENT PRODUCTION
10. The Preservation of Documents. When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents and of the possible consequences of failing to do so.
VIII. TECHNOLOGY
29. Preserving and Producing Electronic Information.
a. Duty to Preserve Electronic Information.
i. A party's duty to take reasonable steps to preserve potentially relevant documents, described in Standard 10 above, also applies to information contained or stored in an electronic medium or format, including a computer word-processing document, storage medium, spreadsheet, database and electronic mail.
ii. Unless otherwise stated in a request, a request for "documents" should be construed as also asking for information contained or stored in an electronic medium or format.
iii. Unless the requesting party can demonstrate a substantial need for it, a party does not ordinarily have a duty to take steps to try to restore electronic information that has been deleted or discarded in the regular course of business but may not have been completely erased from computer memory.
CEB California Civil Discovery Practice 3rd Ed Vol. 2, §8.24 p 711 (1998)
Attorney obligation to acquire skills
Attorney's professional obligation to obtain expert assistance
Attorney may not be required to be a computer expert but must know what questions to ask. To do so, the attorney
needs to know what data may exist and where it may be located.
LEGAL AUTHORITY FOR
ELECTRONIC DISCOVERY
See also Department of Justice Outline at http://www.cybercrime.gov/s&smanual2002.htm
CALIFORNIA PRODUCTION & INSPECTION
CALIFORNIA CODE OF CIVIL PROCEDURE §2031
Production of documents, etc. pursuant to written request to party and written response
See Document Production Case Outline for procedure and case outlines
See Discovery Act & Outline for text
Subject matter of CCP §2031 Request for Production(a) "tangible things...or other property"
(a)(2) "produce and permit...to inspect...any tangible things"
(a)(3) "to enter on ...property to inspect...or sample..any designated object ...on it
CCP §2016(a)(3) definition: "document" and "writing" refers to Evid.Code §250 - see belowProcedures for conducting electronic discovery [enacted 2001, see description and text ]
CCP §2017(e) discovery of electronic data or in electronic media
CCP §2025(h)(3) depositions by telephone or other remote electronic meansForm of production of electronic data
CCP §2031(f)(1) 2nd ¶ "If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations...into reasonably usable form."
CALIFORNIA EVIDENCE CODE definition sections supporting discovery of electronic dataEvid.Code §250 "other means of recording upon any tangible thing any form of communication...including symbols"
Evid.Code §255 "Original" re "data ...stored in a computer or similar device" is "any printout or other output readable by sight"See also CIVIL DISCOVERY PRACTICE (3d Ed.1998 CEB),§8.23, p.710 et. seq.
For text of rules see Cornell Law
FRCP Rule 34"including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form"
FRCP Rule 26 early disclosure rule: at or within 10 days after the meeting of the parties under subdivision (f)"a party shall, without awaiting a discovery request, provide to other parties:
(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;Amendment December 2000; former provision
(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered"
Note alternatives in (B): produce OR identify
ELECTRONIC DATA DISCOVERABLE AS OTHER DOCUMENTS
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [request for documents includes electronic documents such as email and was basis for production, copying and examining opponent's hard drive for relevant email; only limitation is burden and court sets forth factors to consider on burden issue]
Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 ["A discovery request aimed at the production of records retained in some electronic form is no different, in principle, from a request for documents contained in an office file cabinet. While the reality of the situation may require a different approach and more sophisticated equipment than a photocopier, there is nothing about the technological aspects involved which renders documents stored in an electronic media "undiscoverable."]
Anti-Monopoly Inc. v. Hasbro Inc (S.D.N.Y. 1995) 1995 U.S. Dist. LEXIS 16355 [electronic documents discoverable even if hard copy provided; Producing party "can be required to design a computer program to extract the data from its computerized business records; consider cost/benefits, need, shifting of expenses]
Adams v. Dan River Mills, Inc., 54 F.R.D. 220, 222 (W.D. Va. 1972) [FR 34 and 1970 Advisory Committee comments to amendments make discoverability clear; computer tapes proper subject of discovery]
Emerick v. Fenick Industries (5th Cir. 1976), 539 F.2d 1379 [default entered when defendant failed to produce books and records claiming unable to do so since data was on computers]
Santiago v. Miles 121 F.R.D. 636 (W.D.N.Y. 1988), [Federal work product issue re computer generated production of data after counsel participated in the development of the software that produced the printout. The court noted "A request for raw information in computer banks is proper and the information is obtainable under the discovery rules." ]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [discoverable computer records include deleted documents that can be recovered]
Daewoo Electronics Company, Ltd. v. United States, 650 F. Supp. 1003, 1006 (C.I.T. 1986);National Union Electric Corporation v. Matsushita Electric Industrial Co., Ltd., 494 F. Supp. 1257, 1260-62 (E.D. Pa. 1980)."]
Gates Rubber Co. v. Bando Chemical Indus., Ltd 167 F.R.D. 90, 112 (D.Colo. 1996) [site inspection order prohibiting destruction & permitting expedited discovery on computerized files. Expert criticized for not making a image copies of drive; party has "a duty to utilize the method which would yield the most complete and accurate results."]
Kleiner v. Burns (2000 D.Kan), 2000 WL 1909470 [Former FR 26 production. Defendant produced correspondence between it and plaintiff. Plaintiff sought emails, voice mails, web sites, web pages. Court said try harder,sanctions, and cited adviory comment 1993 notes re inclusions in date of voice mesages, deleted data, backup and archival data, history files, etc.]
Crown Life Ins. v. Craig Ltd, 995 F.2d 1376 (7th Cir.1993) [sanctions precluding evidence for failure to comply with discovery order; "documents" include computer data and are not limited to writtten hard copy]
Bills v. Kennecott, 108 F.R.D. 459, 462 (D. Utah 1985) [ "Computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information.]
Brand Name Prescription Drug Antitrust Litigation (ND Ill. 1995) [email discoverable at producing party's expense, $50-70,000, but discovering party to pay copy costs]
EXPERT ADVICE & ASSISTANCE
See also Expert Case Outline
THE ROLE OF EXPERT CONSULTANTS AND WITNESSES
Professional obligations of attorneys to obtain skills and expert assistance
Need for precautions and concerns in accessing and preserving data
Booting, turning the system on, may alter critical time-stamps and other hidden evidence
Recycling tapes used for backup purposes overwrites old evidence
Performing system maintenance activities such as deleting, de-fragmenting, or compressing data, or disposing of any electronic media may alter or destroy evidence
Saving new data to media containing data may overwrite existing data.
Installing new software on any media with data may overwrite evidence
Using inadequate software to make duplicate copies of the storage media may alter data
Virus program operation may alter data
Problems of accessing and reading legacy data created with hardware or software no longer available
Problem of accessing data stored without meaningful search and retrieval protocols
Transferring data to new media may cause loss of data
Disorganized backup tapes may not be easily searched
Presentation to court
Credibility of outside, independent expert
Testimony re meeting industry standards for quality and reliability
Authentication of data
Chain of custody testimony
Certifications, training and experience on variety of hardware and software
Knowledge of outmoded software and programming language of legacy systems
Familiarity with diverse array of software and hardware
Capable of providing advice, analysis, recovery, testimony
Familiar with legal requirements for admissibility of evidence
May need multiple experts with different computer and electronic skills and specialized knowledge
See also Expert Case Outline
Advise re your client's data identification, preservation;
Formulate and/or advise re discovery and follow-up
Identify sources of information and formulate search protocols
Nature of computer software, system, network, backup and storage
ID & access databases, documents, and data
ID original software and hardware used to create data
Advise re software, command structure, & how to access data
Formulate procedure for sampling data to determine probability of locating relevant data
Perform basic discovery
Maintain control copy of evidence to avoid damage, claims of tampering or alteration
Create mirror image of hard drive; document system configuration used to create evidenceSimon Property Group v. mySimon (S.D.Ind.2000), 194 F.R.D.639
Gates Rubber Co. v. Bando Chemical Industries (D.Colo. 1996), 167 F.R.D. 90Search, retrieve and sort data using specialized software
Search and retrieve software
Index created
Search with Boolean logic
Document comparison softwareNegotiate with opposing experts, instruct on searches to be performed by opponent
Advise during deposition of opponent's computer personnel
Access data protected by passwords or encryption
Guard against virus infections and logic bombs planted by opponent
Protect against infection of opponent's system with virus
Perform recovery work: trained computer expert required to recover some items
Evaluate email headers for forgeries and true sources;
Anonymous remailers to delete headers; sent through numerous remailers in various juris.
Software for review of electronic data produced
Software for old disks & tapes otherwise inaccessible
Knowledge of outmoded software and programming language
Make complete copy [sector by sector or "image copy" or mirror image]All data including residual data [deleted files & fragments]
File by file copy only gets active data & may be inadmissible
Gates Rubber Co. v. Bando Chemical Indus.(D.Colo. 1996) [criticized for not imaging hard disk]Reliable copy process: software and media
Industry standard for quality & reliability
Capable of independent analysis and verification of accuracy
Tamper proof copies: write protectionWrite protect and virus check: assure accuracy and lack of modification
Document fully all steps taken in acquiring electronic evidence to establish chain of custody
document system configuration: hardware, software, OS used
how the file was found
what tools were used to locate it
where it was found
how it was transferred to its current format
show document is actually what it purports to be
trace document back to original source
Protection of data during acquisition to avoid
damage or change to the original format
altering or tampering with data
introduction of virus into the computer being searched
inadvertently damaging or destroying data
Write protect originals before exam or copy to prevent alteration
Virus check with up to date virus checkcomputer, software, media to be used
cleaning virus alters document
Protection of data obtained - write protect & virus check
Analysis performed on copies: no alteration during analysis or manipulation `
Store originals in a secure place with limited and controlled access to avoid possibility of the data being corrupted through alteration or destruction.[? Use of independent 3rd party]
Expert witness:
Independent, objective witness with increased credibility
Declaration for discoveryPlayboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required an expert declaration confirming the feasibility and probability of discovery ---just as likely as not---and that no damage would occur to the opponent's computer]
Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [quality of expert declaration determinative]
Simon Property Group v. mySimon (S.D.Ind.2000), 194 F.R.D.639, 640-41 [court critical of sparse showing made re types of computers, networks, use, costs, potential disruption etc citing Alexander Court follows in part Playboy Enterprises, supra]Trial witness: authentication & chain of custody for admissibility
Authentication problems with electronic documentsEase and lack of signs of alteration on hard copy
Verification of sender or recipientData & compilations: testify re retrieval of data , reliability of methods, chain of custody, lack of manipulation or corruption
Testify re reasonable efforts to preserve your client's data in case of spoliation claims
NEUTRAL / COURT APPOINTED EXPERTS
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct established protocol including mirror image by neutral expert at requesting party's expense; expert to be mutually agreeable or parties would submit names; expert was to be acting as an "officer of the court", was required to sign a protective order re confidentiality and was to report to the court on retrieval efforts if only portions of documents were recovered ]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [Neutral selected and paid by party seeking discovery but designated to act as officer of the court and to report to the court]
Antioch Co. v. Scrapbook Borders Inc. (D.Minn. 2002), 2002 WL 31387731 [Defendant had not opposed a general preservation order. In addition, to protect "deleted data" from being overwritten during normal computer operations, court ordered mirror image by "neutral" expert selected by plaintiff of hard drives of all computers of defendant small business. The expert reported on hardware examined, maintained records on chain of custody, and was to maintain confidentiality. Copies were provided to the court and defendant. Thereafter, upon request in discovery, defendant would search mirror images of the hard drives for responsive information. Responsive documents and a privilege log would be produced by responding defendant. Note, defendant had requested an order for the "neutral" to mirror image the hard drives, keep the mirror image, and, upon formal discovery request, review the mirror image for responsive data subject to court prescribed parameters.]
PRELIMINARY AND EMERGENCY DISCOVERY / PRESERVATION
PROBLEM: data destruction
in normal course + ease of modification or erasure
Need for prompt actions to preserve data
Risk of destruction, modification, concealment
See above re Antioch Co. v. Scrapbook Borders Inc. (D.Minn. 2002), 2002 WL 31387731 [concern re overwriting of "deleted" data by normal computer operation resulted in court granting order for mirror image or all computer hard drives of small business]
Modifications may not be detected
Delay in preservation may create concern that undetected modifications have occurred and documents are unreliable and possibly unauthenticated and inadmissible even if not modification has occurred
Natural & normal destruction or alteration of electronic data by use
Limited time to recover deleted items before overwritten
Automatic file management programs that routinely delete inactive files
Creation & modification of files on a computer systemAdditional information: file dates of creation, modification, access or deletion
Information as valuable as the text or data included in the file itselfContinued use of a computer system includes the risk that these dates will be changed.
Continued use alters or destroys evidence:Turn on/off
Enter new data
Load new software
Data compression
Disk defragmentation
Disk optimization routines [may be necessary & routine to run]
Migration of data from system to new system may result in lost data
PRESERVATION LETTER asap prior to actual litigation
Creates notice, duty to preserve, and basis for claim for sanctions or spoliation
Specify information & possible location: data files, emails, calendars, telephone logs, access lists, audit trails, computer logs; network file or email servers, mainframes, PC and work stations, offline storage
Specify types of electronic media and other documents to be preserved: data base and related structural information; file remnants, residual and hidden data, replaced computers, hard drives or storage media
Identify key individuals by name or capacity & include secretaries, assistants, and colleagues
Advise re danger of inadvertent destruction and duty to preserve
Request cease activities until mirror image copies are made of relevant data
Request preservation of backup tapes and stop rotation of tapes
Request mirror images and prohibition on defragmentation, compression, or reformating
Request immediate backup and archive of two copies of all relevant data
Send a similar letter to your own client; expect reciprocity and application of same standards
Follow-up with more specific requests as knowledge of issues and adversary's records increases
Recognized by early case law in the United States:
See The FORTUNA---Krause et.al.Claimants (March 17, 1817), 15 U.S. 161, 4 L.Ed. 209, 2 Wheat 16 [ship seizure; concealment of documents may result in adverse inference or adverse determination]
What is its source?
What is it ?
When does it arise ?
What are the consequences for violations?
ALTERNATIVE SOURCES giving rise to duty to preserve potential relevant evidence
Case law duty arising from potential litigation
Statutory or regulatory obligations to preserve
Statutes of limitations
A.B.A. Civil Discovery Std. 10 & 29(a)(i) (1999)
Duty created by preservation letter
Duty created by discovery request
Duty created by court's protective order or injunction
PRESERVATION DUTY [Spoliation and Sanctions]
The FORTUNA---Krause et.al.Claimants (March 17, 1817), 15 U.S. 161, 4 L.Ed. 209, 2 Wheat 16 [ship seizure; concealment of documents may result in adverse inference or adverse determination]
A.B.A. Civil Discovery Std. 10 & 29(a)(i) (1999)10. The Preservation of Documents. When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents and of the possible consequences of failing to do so.
29. Preserving and Producing Electronic Information.
a. Duty to Preserve Electronic Information.
i. A party's duty ... also applies to information contained or stored in an electronic medium or format, including a computer word-processing document, storage medium, spreadsheet, database and electronic mail.
Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 ["A litigant has a duty to preserve evidence." Townsend v. American Insulated Panel Co., Inc., 174 F.R.D. 1, 3 (D.Mass.1997); Corales v. Sea- Land Service, Inc., 172 F.R.D. 10 (D.P.R.1997). Spoliation of evidence occurs when there has been negligent or intentional destruction of physical evidence which results in some unfair prejudice to the opposing party. Kippenham v. Chaulk Services, Inc., 428 Mass. 124, 127, 697 N.E.2d 527 (1998). Potential sanctions for the destruction of evidence may include dismissal of the case, the exclusion of evidence, or a jury instruction on the "spoliation inference." Townsend, 174 F.R.D. at 2."]
See also Trigon Ins. Co. v. United States (E.D.Va. 2001), 204 F.R.D. 277 [Duty from knowledge that documents would have to be produced and from informal and formal requests. The court carefully examined the facts and awarded full monetary sanction for consequences of spoliation including payment for computer forensic expert to recover documents, excluded expert when spoliation prevented adequate cross examination, and allowed adverse inferences against another expert when recovery of spoliated documents permittted cross exam. At page 291, "Considering the degree of culpability, the quantum of prejudice and the least severe but most effective, sanction...."]
United States v. Koch Industries Inc.(N.D. Okl.1998), 197 F.R.D. 463, 482
CaliforniaSee Spoliation in case outline on Sanctions
Smith v. Superior Court (1984), 151 Cal.App.3d 491 [Original Calif. independent tort spoliation case. Car dealer that had altered vehicle and to whom it was towed after the accident agreed to maintain the vehicle pending further investigation.]
Cedars-Sinai Medical Ctr. v. Superior Court (1998), 18 Cal.4th 1, 12 [Independent cause of action for tort rejected in favor of resoving matter in pending litigation. Dictum: "Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request." ]
See Willard v. Caterpillar (1995), 40 Cal.App.4th 892 [In pre Cedars-Sinai case, trial court reversed for allowing claim against defendant for intentional spoliation of design documents to go to jury; After discussing cases, the court notes at page 922 that "these cases demonstrate the 'common understanding of society' regarding the wrongfulness of evidence destruction is tied to the temporal proximity between the destruction and the litigation interference and the foreseeability of the harm to the nonspoliating litigant resulting from the destruction." The court noted at p. 919 that there was no statutory or regulatory duty to preserve documents and that defendant acted in good faith pursuant to a reasonable document destruction policy. Court balances various elements of tort and cites many of the federal sanction cases in discussing theoretical basis for spoliation; Intentional spoliation by party as separate tort no longer viable in California per Cedars-Sinai case infra]
Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 476-7 [In holding that an independent tort of spoliation as to 3d parties does not exist in California, the Supreme Court observed the limited statutory sanctions available against 3rd parties and suggests that any duty of a non-party to preserve must be based on contract or statute:"We observe that to the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for violations of that duty. To the extent third parties may have a contractual obligation to preserve evidence, contract remedies, including agreed-upon liquidated damages, may be available for breach of the contractual duty. Criminal sanctions, of course, also remain available. If existing remedies appear limited, that may well be because third party spoliation has not appeared to be a significant problem in our courts. After all, the nonparty who is not acting on behalf of a party but is independently motivated to destroy evidence with the intent to interfere in the outcome of litigation between other parties must be a rarity, perhaps because such destruction can subject the nonparty to criminal prosecution."]
Evidence Code §412, 413 jury inferences
Penal Code §135 obstruction of justiceSee Smith v. Superior Court (1984), 151 Cal.App.3d 491 at p.497 [Original spoliation case in Calif. discussing principle that criminal statute does not create civil right but that civil and criminal prohibitions may apply to the same acts]
See Agnew v. Parks(1959), 172 Cal.App. 2d 756, 766 re no civil case for perjury after prior trial for med mal.Spoliation exception to litigation privilege. Civil Code §47(b)(2)
ELEMENTS OF PRESERVATION DUTY
Know or should know importance---continuum of notice that gives rise to duty:
Destruction years prior to litigation
Willard v. Caterpillar (1995), 40 Cal.App.4th 892 [tr ct rev'd for allowing claim of intentional spoliation of design documents to go to jury; After discussing cases, the court notes at page 922 that "these cases demonstrate the 'common understanding of society' regarding the wrongfulness of evidence destruction is tied to the temporal proximity between the destruction and the litigation interference and the foreseeability of the harm to the nonspoliating litigant resulting from the destruction. There is a tendency to impose greater responsibility on the defendant when its spoliation will clearly interfere with the plaintiff's prospective lawsuit...."
Prelitigation discussions, demands, and agreements
Smith v. Superior Court (1984), 151 Cal.App.3d 491 [Original Calif. spoliation case. Car dealer that had altered vehicle and to whom it was towed after the accident agreed to maintain the vehicle pending further investigation.]
Preservation letter: notice of duty to preserve and basis for claim for sanctions or spoliation
Claim
ComplaintSkeete v. McKinsey & Company, Inc., 1993 U.S.D. LEXIS 9099, *10 (SDNY 1993)]
Danis v. USN, 2000WL 1694325 (N.D.Ill,2000)
United States v. Koch Industries Inc.(N.D. Okl.1998), 197 F.R.D. 463 [deposition testimony in other cases; Congressional inquiry]
Tulip Computers International B.V. v. Dell Computer Corporations (D.Del.2002), 2002 WL 818061 ["...once Dell had knowledge of this case, it had an affirmative obligation to preserve potentially responsive documents...." In denying an order preventing Dell from destroying any further documents the court noted that "...there is no evidence of bad faith on Dell's part...."]Discovery request
Cedars-Sinai Medical Ctr. v. Superior Court (1998), 18 Cal.4th 1, 12 [Dictum: "Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request." Independent spoliation tort rejected.]
Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [The language of the document request makes it clear that the plaintiffs sought the production of items such as the system back-up tapes and, after receiving this request, the defendants had an obligation to preserve any such documents or materials.]Discovery motion
Discovery orderPrudential Ins. Co. of Am. Sales Practices Lit., 169 F.R.D.598;
Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 4620151997)
Relevance:
Reasonably likely to be subject of discovery request
Degrees of relevance: critical, central issue, discovery relevance
Degree of relevance likely to affect ultimate severity of sanction
Potential litigation
Computer Assoc. Intn'l. v American Fundware Inc.(Colo.DC 1990), 133 F.R.D. 166 [def. common practice was to only retain current source code; continued destruction even after discovery request; default judgment entered for destroying source code in copywrite case]
Wm. T. Thompson v. General Nutrition Corp (CD Cal. 1984) 593 F.Supp.1443, 1455.
Capellupo v. FMC Corp., 126 F.R.D.545, 551 (D. Minn.1989)
SCOPE OF PRESERVATION DUTY
SUBJECT MATTER PROTECTED
Potential evidence re potential issues and potential c/a
Subject matter relevancy
Obvious evidence vs peripheral evidence may affect sanction
DUTY TO NOTIFY EMPLOYEES AND AGENTS
National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987). ["The obligation to retain discoverable materials is an affirmative one; it requires that the agency or the corporate officers having notice of discovery obligations communicate those obligations to employees in possession of discoverable materials." The court imposed the following guidelines, restrictions and sanctions to govern future discovery:
Monetary sanctions & special discovery obligations imposed
Discovery signed by specified attorney & gen'l counsel
Discovery compliance plan
Notice of action to be circulated to all employees
Notice of obligation to preserve evidence and cooperate circulated to all employees
Special Master to oversee discoveryProcter & Gamble v. Haugen, 179 F.R.D. 622 (D. Utah 1998). [Monetary sanctions for failing to preserve e-mail messages of 5 employees known to be likely to have relevant information]
Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598 [effective notice to employees required]
Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [employees notified by email and voice mail]
United States v. Koch Industries Inc.(N.D. Okl.1998), 197 F.R.D. 463 [duty to notify persons in tape library]
DUTY TO INVESTIGATE
DUTY TO SUSPEND NORMAL BUSINESS PROCEDURES THAT ALTER OR DESTROY
Turner v. Hudson Transit Lines(SDNY 1991), 142 FRD 68,72[self inflicted inability to produce]
Wm. T Thompson v. General Nutrition Corp., Inc 593 F.Supp. at 1457
Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598 ["No comprehensive
document retention policy with informative guidelines and lacks a protocol that promptly notifies senior management
of document destruction. These systemic failures impede the litigation process and merit the imposition of sanctions."]
Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 593 F. Supp. 1443,1455 (C.D. Cal. 1984)[details duties
of corp and counsel to comply with discovery obligations generally]
National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557(N.D. Cal. 1987)[details duties of
corp and counsel to comply with discovery obligations generally]
Cedars-Sinai Medical Center (1998), 18 Cal.4th 1 [eliminates intentional spoliation as separate tort; 3d
party destruction or late discovery open ques]
FOLLOW-UP DISCOVERY TO DETERMINE AND ASSURE COMPLIANCE
Incorporate into each appropriate deposition
Basis for further document request
Basis for sanction or spoliation claim
Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 ["Finally, plaintiffs have requested that Wyeth be ordered to bear all fees and costs associated with the electronic mail discovery issue. In light of the uncooperative, be it unintended or willful, conduct by Wyeth in relation to the electronic mail discovery issue, the court rules that the imposition of such a sanction is appropriate. Plaintiffs' initial request for production of documents asked for any documents stored in the form of electronic, magnetic, or computer process in June of 1997. That request was reiterated more specifically in June of 1998. Plaintiffs doggedly pursued the issue despite letters from defendants' counsel in June and July of 1998 denying the existence of any such stored documents. Finally, in December of 1998, counsel for Wyeth announced that there "may" be some tapes in storage with documents from the relevant time period. It was several more months before the tapes were identified with respect to what systems had been used and the time frame they covered. By this time, plaintiffs had already conducted a large number of depositions which, conceivably, may have to be repeated. Moreover, plaintiffs' counsel has devoted a great deal of time and energy to the issue of electronic mail production which would have been unnecessary if the tapes had been produced in a timely fashion. Accordingly, the court orders Wyeth to bear the costs and fees associated with this discovery issue, including the Rule 30(b)(6) deposition of Daniel Cote, the deposition of Maria Woodruff, and the costs and fees associated with pursuing this motion. If the parties are unable to agree on those costs and fees, a motion and opposition may be filed.]
GTFM v. Wal-Mart Stores (2000), 2000 WL 335558 [Def had denied its ability to extract data from computer records; a year later, plt depo of a VP in the MIS department revealed the capability to extract the data but the delay prevented discovery of data previously available; the court ordered on-site inspection by plt expert assisted by def expert and at the expense of def.]Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [discovery to determine adequacy of search when plt. questioned White House history of compliance not permitted when the opponent had provided uncontroverted declaration showing adequate search]
EX PARTE ORDERS: preservation order; seizure or copy and preservation
See CRC Rule 379 re ex parte motions, notice
Alternative of motion on shortened time
Linnen v. A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [plaintiff obtained preservation order on day complaint was filed; although order was set aside shortly thereafter, its short existence formed basis for ultimate spoliation sanctions]R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [although not an issue in the case, parties recognized importance of such protection and stipulated to the non-use of the computer until examined by opponent's expert; violation of the stipulation was one factor of many that supported spoliation sanctions of dismissal]
First Technology Safety Systems, Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993). [ex parte seizure of hard drive]Adobe Systems v. South Sun Products (S.D.Ca.1999), 187 F.R.D. 636 [ Major software companies denied ex parte search & seizure order sought w/o notice against wholesale jeweler with 40 employees and 20-30 PCs accused of pirating software and using it on more than one computer in violation of licensing agreement. First Tech followed. Plt failed to show more than possible destruction of evidence and irreparable injury. Factual showing of likelihood of destruction of evid.(e.g. by history)and disregard of court orders for preservation required]
Religious Technology Center v. F.A.C.T.Net, Inc., 901 F.Supp 1519 and 901 F. Supp. 1528 (D. Colo. 1995).[Ex parte seizure of computer equipment and software from defendant's premises.]
Twentieth Century Fox Film Corp. v. Mow Trading 749 F. Supp. 473
Kleiner v. Burns (2000 D.Kan), 2000 WL 1909470 [parties stipulated to preservation order and court included it in discovery order to preserve relevant evidence including "data compilations, computerized data and other electronically-recorded information". Plaintiff was seeking voice mails, emails, web sites and web pages in compliance with former FR26]Lack of California authority
Show why evidence sought is likely to be destroyed, modified or concealed if notice of the lawsuit is given
Consider appointment of independent computer expert so party will not have improper access
Set forth specific search criteria satisfying the 4th Amendment that items to be seized be identified with particularity.
Make a "backup" copy of the computers and floppy diskettes at premises so there is no unreasonable disruption of business operations.
Provide for discovery of specific files after notice and an opportunity to be heard
PROTECTIVE ORDERS for preservation order on noticed motion
Antioch Co. v. Scrapbook Borders Inc. (D.Minn. 2002), 2002 WL 31387731 [motion for general preservation order re all relevant information not opposed]
Prudential Ins. Co. of Am. Sales Practices Lit., 169 F.R.D.598 (N.J.D.1997) [Preservation order obtained in class action 6 months into litigation. Prudential was sanctioned $1 million + attorneys fees for not acting quickly and efficiently to prevent the destruction of documents]
Procter & Gamble v. Haugen, 179 F.R.D. 622, (D. Utah April 17, 1998), [The court generally denied sanctions because it couldn't infer bad faith from failure to preserve email but sanctioned Procter & Gamble $10,000 for failing to preserve e-mail messages of 5 key persons identified by it. In denying greater sanctions the court observed "...a court order would have delineated the scope of P&G's duties, provided clear evidence that P&G was on notice of the relevance of the e-mail communications, and furnished a standard by which this court could judge the adequacy of P&G's production efforts."]
United States v. Koch Industries Inc.(N.D. Okl.1998), 197 F.R.D. 463 [broad and general preservation orders issued]
PRESERVATION ORDER: What is reasonable
restraint ?
See below re spliation resulting from inadequate document retention policies
See below re spoliation for failure to comply with order
General orders may be difficult to enforce or inevitably lead to inadvertent violationsPrudential Ins. Co. of Am. Sales Practices Lit., 169 F.R.D.598, 600 (N.J.D.1997) [order provided among other things a requirement to "preserve all documents and other records containing information potentially relevant to the subject matter of this litigation." Violation of this resulted in monetary sanctions against Prudential for $1million payable to the court plus attorneys fees.]
Antioch Co. v. Scrapbook Borders Inc. (D.Minn. 2002), 2002 WL 31387731 [motion for general preservation order re all relevant information not opposed]
Cost and disruption of business issuesSystem may provide for automatic deletion of documents and cost of revising software may be prohibitively expensive
System operation alters some data and absolute preservation may require shut down of business
Simon Property Group v. mySimon (S.D.Ind.2000), 194 F.R.D.639, 642 [Discovery motion. Court was concerned but hampered by lack of information provided by the parties on the motion]Refrain from any activity that would alter or damage data on any computer systems [vague and onerous ?]
Linnen v. A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [ex parte order entered on day complaint filed until further order of court: "take all necessary step to assure employees [etc.] refrain from ...destroying...deleting...documents including but not limited to...data compilations, e-mail...back-up....]
Retain storage devices being replaced due to failure or system upgrade
Ghosting disk or hard driveSee Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054 re use of neutral
Simon Property Group v. mySimon (S.D.Ind.2000), 194 F.R.D.639
Use of proper software
Exam by neutral with parties experts observing
Virus infection issue
Destruction, modification & preservation of data
Business disruption to be avoidedPreserve backup tapes
Refrain from the practice of "recycling" tapes used for backup purposes so that old data is not overwritten.
Prohibit destruction of backups in normal courseDeleting, de-fragmenting, compressing data or disposing of any electronic media.
Overwriting current data that needs to be preservedby saving new data to media containing data
by installing new software or files on such media
GENERAL DISCOVERY OF ELECTRONIC DATA
DISCOVERY OF BACKGROUND INFORMATION
Importance
Discovery: Understand opponents system and personnel to formulate discovery plan and argue feasibility of obtaining and producing information;
Identify legacy system problems: old electronic data created and stored on systems or media no longer in use; discovery may requires special hadware only available via computer museum or special programs to convert data to usable forms
Admissibility at trial of information obtained: show the design and reliability of the system, the authenticity and lack of alteration of documents and dataAlexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [Organization depositions permitted to discover information re systems; Expert declaration on another issue disregarded by court in part because expert was unaware of details of the specific system; opposing experts familiar with the system prevailed due to their knowledge and detailed declarations.]
Lawyers Title Ins. Corp. United States Fidelity &Guaranty Co.(NDCal.1988) 122 F.R.D. 567. [Questions propriety of general inquiry for purpose of formulating future discovery without some showing of relevance and necessity (e.g. conventional discovery not working). Note the context of the court previously rejecting other overbroad, marginally relevant inquiries. "The mere possibility that a party might not produce all relevant, unprotected documents, is not a sufficient basis for ordering such a party to disclose its entire computerized system of information management."] See also Strasser caseWilliams v. DuPont, 119 FRD 648 (W.D.Ky.1988) [Data base created by opponent's experts: data, code books, user manual]
Orlowski v. Dominiks Finer Foods, 1995 W.L. 516595(N.D.Ill) [Data bases: ID organization structure, purging, backup, retention, storage, how to recover information; PMK, system software]
Market v. Union FidelityLife Ins., 125 FRD 121 (1989) [contra]
Bills v. Kennecott, 108 FRD 459, 461
See also Discovery Case Outlines on specific discovery devices and Discovery Act & Outline for specific statutory provisions in California
For Federal Rules of Civil Procedure see Cornell Law
DEPOSITIONS See also Deposition Case Outline
Corporate deposition: CCP §2025(d) ¶2Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111,118 [organization depositions re system permitted and essential for opinions of experts re what should be discoverable; discovery permitted re filing systems of documents, rcordings and email, systems of video and audio recordings, recording systems used by individuals, email systems and databases, electronic devices used by individuals]
Describe subject and corp picks deponentSpecificity re system configuration and layout,devices available to write data, media, format, back up and archives, policies & procedures, programs & applications
Most qualified to testify on its behalf to extent known to corp
Not necessarily "most knowledgeable" or most helpful
Issue re whether person presented is adequately informedSee Linnen v. A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 where the PMK was "not particularly familiar with the back-up procedures or the record retention practices of the electronic mail system."
Individual deposition of corporate employees: CCP §2025(h)(1) &(d)(3) &(e)(3)
"general description sufficient to identify" employee
CCP §§ 2025(h)(1), (c), (d)(3)
Every deponent should be questioned re computer usage: possible lead to sourcesINTERROGATORIES See also Interrogatory Case Outline
Written interrogatories: CCP§2030;Background info: how is data written, to what media, burden & cost of retrieval
DOCUMENTS See also Document Case Outline
Document production: CCP §2031(a) discovery of "documents" , "tangible things", "other property, or any designated object or operation on it" See above See also Document Production Case OutlineCCP 2016(a)(3) document is a writing as defined in Evid.Code 250
Evid. Code 250 "... every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols or combinations thereof."
Evid. Code 255 " 'Original' means...if data are stored in a computer or similar device, any printout or other output readable by sight...."
Evid.Code 260 " 'duplicate' is...electronic rerecording...."
CCP 2031(g) re translation of "data compilations"
Specificity re data in request; not just e-data
Specify production form, format, media
Opponents' format may not be usableExperts meet and confer to determine realistic discovery
See §33.53 Federal Manual For Complex Litigation(3d)
Use of court appointed or neutral experts
Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054
Simon Properties Group LLP v. mySimon Inc. (S.D.Ind. 2000), 194 F.R.D. 639
BACKGROUND INFORMATION TO BE OBTAINED
What data exists ? How is it processed ? How is it organized ? How can you formulate a request so the
responding party can comply ? Will production be made in a usable format or media ? What does your expert need
to know in order to plan your electronic discovery and to formulate meaningful requests for information? What do
you need to know about your opponents system to satisfy yourself that it has conducted a reasonable search for
data ?
WRITTEN AND UNWRITTEN POLICIES, PROCEDURES etc.
Operation of system
Access control lists that limit and control accessing, viewing and editing documents & data; may assist authentication of particular data or document
Audit trails & computer logs to show who actually accessed, when, for how long etc.Document retention policies, enforcement, and deviations; see below
Security policies, hacking experience, intrusion software used
Encryption programs & passwords: may assist access and authentication
Policies on termination of employeesRevocation of passwords and access codes
Wiping or reformatting of hard drives; back up or copy of old dataDisposal policies for replaced hardware
Policies re employee use, privacy, retention, copies of files
Failure to follow policies may give rise to nefarious inferencesCan you trust docs that survived
Are the destroyed docs damaging
May not be justified i.e. didn't read or follow policy
COMPUTER PERSONNEL: Who to depose ?
Head of department or CIO may not be most knowledgeable
Tech support staff & former employees
Persons with access to computers or files
Persons handling operations, maintenance, backup
Independent contractors
Different persons may need to be deposed regarding different technologies [PC, mainframe, security etc.] or content.
SOFTWARE [current & prior programs and versions]
Brand & version of each operating system, network management and file management program
Operating systems on network, pc etc
Programs: word processing, email, utilities, data base management, project management, calendars
Specialized software for particular function or industry e.g. financial, HR, construction, design, scheduling
Automatic file management programs that delete inactive files
Programs used to monitor employee activities
Encryption software & methods used to perform the encoding.
Utilities, "wipe" programs, de-fragmenting,
Obtain copies of current manuals
ENCRYPTION & PASSWORD INFORMATION
All persons who had or have access to the encryption passwords
Only source of some information
Multiple keys to open dataWho can provide access codes
Tunneling software for VPN
BACKUP AND STORAGE [past and current] see above
Wide variety of backup media and operating systems; may need original program to restore data
Written and unwritten policies and practices
Hardware, backup drives, tapes, optical disk
Locations of storage
Name & version of software
Schedules of tape rotation, retention, reuse, index, storage,
Type of backup: full, differential, or incremental
Timing: monthly, weekly, permanently, incrementally
Disaster recovery plans
Archives: files, backup
Individual practices in addition to system wide backup
Data compression for increased storage may alter data
HARDWARE original & current
Types of computers and other hardware used
Personal use or availability of equipment by key personnel
Servers: current & out of service; access
Hard disk: location of removed disks and destruction policies
COMPUTER SYSTEMS
Schematic diagram of computer system
Computers[numbers & types, locations, users], operating systems, software
How data is written, stored, formats, storage media
Configuration, layout, devices to write data, media, format
Systems used by key individuals including home computers, laptops, palms
NETWORK
Type: NT, Novel, proprietary [ ID & limit to relevant network]
Topology & maintenance
Persons responsible for maintenance, operation
Security:history of security breaches [internal & external hacking]
protection and loss of data
risk assessment program
firewalls, intrusion detection, scanning & probing
virus protection and history
Encryption, passwords, access codes
Precautions for change of personnel, software or hardwareData bases and persons with access: program, compilation, reliability
Interconnectivity and data sharing among parties or with 3rd parties
File servers identification; current & out of service servers
Access to servers [past & current]persons; key persons
terminals accessing [home pc & laptops]Access: passwords, logons
All applications and documents [email, voicemail]
Network administrator password
All persons with passwordsDatabases:
How programmed; determine whether or not its output is reliable in an evidentiary sense.
How compiled: business record ?
Document management databases maintained for archival purposes.
E-MAIL
Programs
UsersHow stored: back-up, archive, on-line
Servers & backup schedules
Third party providers or ISPLocate & retrieve data sets [To/From, users sent/received; then sort & search data [by date, subject, sender, recipient]
VOICE MAIL
Storage limits of time, number of messages
Optional
Purging schedules
OTHER ELECTRONIC DEVICES & STORAGE
Fax machines
Printers
Palm, PDA, cell phones, pagers
MISCELLANEOUS DATA TO BE DISCOVERED
Database production:
basis for expert witness opinion;
litigation generated with attorney input; work product issues
Williams v. E.I. duPont deNemours & Co. 119 F.R.D. 648,651 (W.D.Ky. 1987)[expert's data base probably discoverable]
National Union Elec.Corp. v. Matusushita Elec. Indus.Co 494 F. Supp. 1257-1269 (E.D.Pa. 1980)
TO COURT RE GENERAL DISCOVERABILITY
OF ELECTRONIC DATA
EXPERT EVIDENCE
Provide detailed expert declarations: expert qualifications & basis for conclusions
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required an expert declaration confirming the feasibility and probability of discovery ---just as likely as not---and that no damage would occur to the opponent's computer]
Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [no weight given to expert declaration when expert failed to provide educational background and show familiarity with cmputer system at issue; expert was a consultant with 35 years experience]
Strausser v. Yalamanchi, 669 So.2d 1142, 1144 (Fla App.1996) [CPA vs certified netware engineer]
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526 [Lack of detail in proposed protocol cast doubt on technical soundness; expert affidavit attacked as conclusionary and lacking foundation]
Gates Rubber Co. v. Bando Chemical Industries (Colo.D.1996), 167 F.R.D. 90 [Expert's "credentials, experience and knowledge were impressive, and I relied upon his opinions. Gates failed to obtain a similar expert in timely fashion.. Gates did offer the testimony of .... His credentials, experience and knowledge were nowhere near those of Dr. Wedig, and I placed much less weight on his testimony...."]Adobe Systems v. South Sun Products (1999), 187 F.R.D. 636 [Court scrutinized expert declaration in rejecting ex parte application for search & seizure order. Court rejected the claims that evidence could be easily deleted to prevent proof of case of software pirating and analyzed the sophistication necessary to eliminate all evidence of software installation]
RELEVANT FACTORS Factors to address in seeking or opposing discovery of electronic data
Reasonable search in responding to discovery requests
Looking in folders or files likely to contain responsive information as if conducting normal search
Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [uncontradicted declaration showing reasonable search was major factor in denying more burdensome effort of searching archived or deleted files ]
Word searches of all data and documents
Embedded information
Hidden comments
Residual data: file remnants, deleted docs or portions not overwritten
Backup tapes and archives
Copies, clones, temp files, swap files
Browser created data: cache, historyLikelihood of discovery of relevant information
Strasser v. Yalamanchi (Fla.1996),669 So.2d 1142
Lawyers Title Ins. Co. v. United States Fidelity & Guaranty, 122 F.R.D. 567 (N.D. Cal.1988),
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526[No particularized likelihood of success balanced against risks & costs]
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required an expert declaration confirming the feasibility and probability of discovery ---just as likely as not---and that no damage would occur to the opponent's computer]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [relative lack of importance of information likely to be discovered was factor when discovering party was required to pay all costs of neutral]
Reasonable alternative sources of informationStrasser v. Yalamanchi (Fla.1996)
State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824 S.W.2d 747,750 [Manual search of files for info to answer interrogs would cost $2.7mil; but comparable information could be produced by reprograming computers to obtain it]Overbroad scope, time etc. and focus discovery
Strasser v. Yalamanchi (Fla.1996)
Procter & Gamble v. Haugen, 179 F.R.D. 622, (D. Utah April 17, 1998), [Issue re limiting the scope of a keyword search that P&G desired to conduct of Amway's electronic databases.]
Linnen v. A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [by negotiation, parties narrowed scope of discovery of backup tapes by time and subject matter and eliminated those likely to contain privileged material; they agreed on search terms to search 2 restored back-up tapes]Prevent harm to opponent's system or data by destruction of data or introduction virus
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required an expert declaration confirming that no damage would occur to the opponent's computer]
Strasser v. Yalamanchi (Fla.1996)
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526 [risk of data loss , business system downtime, lack of detail in protocol to address perceived risks resulted in denial of discovery]Protect privileged, confidential, private or trade secret information
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct established protocol: mirror image by neutral expert at requesting party's expense; producing party to print and review all documents and submit privilege log ]
Strasser v. Yalamanchi (Fla.1996)
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526
Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639Avoid intrusion, interruption and interference in opponent's business
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required mirror image at time to minimize business disruption]
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526Cost / benefit analysis; consider cost shifting or sharing
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [cost of neutral expert preparing mirror image of hard drive required to be paid by requesting party]
Brand Name Prescription Drugs Antitrust Litigation (ND Ill 1995), 1995 US Dist LEXIS 8281 [production of email at defendant's expense but plaintiff to pay copy costs; retrieval cost is ordinary and foreseeable risk of selecting storage system; $50-70,000 retrieval costs due to inadequate search and retrieval software]
Linnen v. A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [While the court certainly recognizes the significant cost associated with restoring and producing responsive communications from these tapes, it agrees with the District Court for the Northern District of Illinois
In re: Brand Name Prescription Drugs Antitrust Litigation that this is one of the risks taken on ) by companies which have made the decision to avail themselves of the computer technology now available to the business world. 1995 WL 360526 (N.D.Ill.). To permit a corporation such as Wyeth to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [party seeking discovery paid for neutral expert when discovery was relevant but not critical]
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526
Bills v. Kennicott 108 F.R.D. 459(D.Utah 1985)Burden
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct considered needs of the case, amount in controversy, importance of issues, importance of information expected to be discovered and potential of finding information is evaluating burden]
State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824 S.W.2d 747,750 [Ins.Co.demonstrated burden with testimony that responding to one interrogatory would cost $2.7 mil, require a manual exam of 500,000 claims files and require 27 people to devote a year; cross examination revealed the information was generally available by programing the computer to produce it; the Ins Co. objected that certain information was not available but testimony revealed it could be generated by computer; the appellate court modified the order to respond to that information that could be generated by the computer.]
State of Missouri v. Ely (Mo.Ct.App.1994), 875 S.W.2d 579 [Information re prior claims available in computer data base for most of time period sought; def. could retrieve balance from unindexed boxes. "The absence of indexing cannot be laid to the plaintiffs however; it was K-Mart's decision to store the files without a convenient system of retrieval."]
Adjust & accommodate opposing counsel to gradually obtain discovery
Accommodate & avoid disrupting business of adversary
Not seizure of computers but preservation of data status quo
Not ghosting of hard drive by party but by neutral 3rd person
Not reading files but just copying
Not reading contents of files, just file names
Produce hard copy list of file names rather than access to computers
Allow counsel time to review data & seek protection before production
Accommodate reasonable needs re inadvertent production of privileged etc. docs
Cost / benefit analyses
Cost reduction techniques; narrow request or scope of searchNarrow the time frame
Eliminate duplicate files
Search by user or department
Eliminate files by extensions
Create a search term list
R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [discovery of entire hard drive of personal computer used to create document that was basis of dispute authorized over claims of privacy and overbredth]
Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [heroic efforts not required re backed-up and archived email and deleted files etc.; opposing declaration re expense, feasibility and burden plus declarations showing reasonable search of files likely to contain relevant documents
Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct considered needs of the case, amount in controversy, importance of issues, importance of information expected to be discovered and potential of finding information is evaluating burden]
Strausser v. Yalamanchi, 669 So.2d 1142, 1144 (Fla App.1996) [TrCt rev'd for permitting unrestricted access to computer system, all programs and directories, without safeguards and restrictions to protect computer system and without protection of privileged and confidential information]
Fennell v. First Step Design 83 F.3d 526 (1st Cir. 1996)[ denial of discovery of hard drive to find proof of when memo was last modified. affirmed, substantial risks and cost + failed to show a "particularized likelihood of discovering appropriate information."]
Lawyers Title Ins. Co. v. United States Fidelity & Guaranty, 122 F.R.D. 567 (N.D. Cal.1988), [deny wholesale discovery of computer system (computer storage, organization and retrieval systems to evaluate compliance with discovery) without showing it would lead to evidence that had not already been produced; work product issue]
CONCERN WHEN YOUR CLIENT: security and integrity
Backup copy, secure and easily authenticated to assure integrity of data produced
Write protected, read only format
CONCERN WHEN YOUR OPPONENT: accessible, searchable, readable, electronic format
CONSIDERATIONS RE FORM OF PRODUCTION
Bits & bytes useless without proper hardware and software to read data
Different ways to store and access data; therefore, data stored on one system may not be usable on another
Most systems can export or write data to standard generic formats
Request for production should specify in technical terms the form of production and provide instructionsNative form ok if similar operating system + access to application programs
Otherwise:
Type of media: 9 track tape, floppy diskette
Character set: ascii, EBCDIC
Format or layout of records: Fixed lengths, delimited fields
Data Mining Software to read, extract data, and organize data maintained in different file formats: ASCII and EBCDIC files, spooled print files, OCR output, HTML, XML, Internet text, online data feeds, CD-ROM text data bases, EDI/X12
See datajunction.com
Issues
Cost comparison of production, search, review & manipulation: electronic vs hard copy or alternative forms of electronic production
On disk to speed review
Usable form: media [copy to tape, hard drive, diskette], formatproduction of doc in computer readable form
"native" form: POSSIBLE problem accessing info
generic form (e.g., ASCII) facilitates processing; lose some file "indicia" available in "native" form
form or media commonly used in industryMeaningful access: on site, raw data, software to access, code
Copy to disk ($$) or to computer tape
Hard copy: expense, lose information
See Sattar v. Motorola, Inc.(7th Cir.1998)138 F.3rd 1164 re alternatives considered
LEGAL AUTHORITIES RE FORM OF PRODUCTION
California CCP §2031(g)(1), 2d ¶
"If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form."
Fed Rule 34(a) "translated...into reasonably usable form"
See also Texas Rule 196.4: "If the responding party cannot - through reasonable efforts ... produce [electronic data] in the form requested, the responding party must state an objection."
Person v. Farmers Insurance Group of Companies (1997), 52 Cal.App.4th 813 [creation of documents from readily available data]
State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824 S.W.2d 747,750 [produce information availaable from computer rather than spend $2.7 to manually gather information from claims files]
Sattar v. Motorola Inc. (7th Cir 1998), 138 F.3rd 1164 [Party produced documents in electronic form ["tapes"] that was inaccessible to opponent who lacked proper equipment and software. No abuse of discretion when tr ct denied request to produce hard copies of 210,000 pages of emails and gave producing party 4 options: download to floppy or hard drive; provide software to opponent; provide on-site access to system; each side bear half cost of hard copy. ]
Anti-Monopoly Inc. v. Hasbro Inc (S.D.N.Y. 1995) 1995 U.S. Dist. LEXIS 16355 [electronic documents discoverable even if hard copy provided; Producing party "can be required to design a computer program to extract the data from its computerized business records; consider cost/benefits, need, shifting of expenses]
Crown Life Ins. Co. v. Craig(7th Cir.1993), 995 F.2d 1376,1383 [computer data is within document and producing party must make available]
Daewoo Electronics Co v. United States (Ct. Intl. Trade 1986), 650 F.Supp. 1003, 1006 ["The normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent in the absence of extraordinary hardship." U.S. ordered to provide data, software, cooperation and assistance necessary to access data]
Pearl Brewing Co. v. Joseph Schlitz Brewing, 415 F.Supp. 1122, 1134, 1139 (S.D.Tex 1976). [Plaintiff programed economic model of market to simulate market conditons based on high volume of data in antitrust case. Plaintiff provided information, "intermediate" computer output, and a "print-out of the computer programs" in the model. Defendant sought access to details of the computer programs and the depositions of non-witnesses who had designed and tested the computer systems. Def seeks mechanical methods, tests, procedures, assumptions and comparisons supporting the expert's testimony. Court ordered production of entire system documentation for the model and required depositions of the non-witness experts who had designed the computer system. ]
American Brass v. United States (C.I.T. 1988) 699 F. Supp. 934, 935 [The court ordered production to opposing party of "a copy of the tapes compatible with the computer system at their in-house computer facility." The court concluded that conversion of printout to computer readable form is prohibitively time consuming and costly(p.936), a protective order adequately protects confidential customer information(p.937), "the printout of the data is unusable by the plaintiffs due to its size and complexity "(p.938), and "data released in an unusable form are...the equivalent of no data at all" (p.936) citing the Timken case. ]
Timken Co. v. United States, 11CIT 267, 659 F. Supp.239, 240n.3 (1987) [Commerce Dept. resisted production of computer tapes because the data had previously been produced in hard copy in the form of 15,000 pages of computer printouts. The court observed "Data released in an unusable form are, after all, the equivalent of no data at all." The party seeking the information agreed to pay copying and redaction costs to an independent agency. Need was shown by expert declaration re the value of analyzing data in electronic form including examples of specific correlations and calculations, the need to check the methodology used by Commerce and the cost and time required to convert the data from hard copy to electronic form versus the cost to copy and redact confidential information. Other issues unique to the anti-dumping proceeding required a balancing of need and confidentiality. ]
National Union Electric Corp. v. Matsushita ElectricIndus. Co.(E.D.Pa.1980), 494 F. Supp. 1257 [ Opponent required to produce data in electronic form identical to that produced in hard copy and to perform work to create a computer readable tape] Cf, Smith v. Texaco (E.D.Tex. 1997), 951 F. Supp. 109, 112 ["...to mitigate the high cost associated with electronic document storage, the court will permit defendants to delete electronic records in the ordinary and usual course of business; provided, however, that hard copy records be made and kept...."]
California Code of Civil Procedure 2031(g)(1)
"If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form."
San Diego Unified Port Dist. v. Douglas Barnhart Inc (2002), 95 Cal.App4th 1400 [In dictim citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery." TrCt. handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the tr ct order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order.]
Federal Rule
Factors to considerSee Rowe Entertainment v. The William Morris Agency (S.D.N.Y. 1/16/02 2002), 205 F.R.D. 421 2002 WL 63190; Murphy Oil USA v. Fluor Daniel Inc. (2/19/02, E.D. La.) 2002 WL 246439
Specificity of request
Likelihood of successful search [possible use of sampling to demonstrate]
Marginal utilityMcPeek v. Ashcroft 202 F.R.D. 31 (D.D.C. 2001) [the more likely to yield info the more the producer should pay; marginal value of search]
Alternative sources
Purpose of retentionIf neglect or disaster recovery, not normal cost or obligation to produce
If for business purpose then producer should pay for productionBenefits to parties [if both or producer benefits, producer should pay]
Magnitude of costs: [if great, shift to party who wants it]
Ability to control costs [party in control of process and determining how extensive the search will be can pay for what they want]
Party resources
CREATION OF DOCUMENTS FROM DATA
Person v. Farmers Insurance Group of Companies (1997), 52 Cal.App.4th 813
State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824 S.W.2d 747,750 [Answer interrogatories by producing information available from computer after reprograming]
National Union Electric Corp. v. Matsushita ElectricIndus. Co.(E.D.Pa.1980), 494 F. Supp. 1257 [ Opponent required and to perform work to create a computer readable tape and to produce data in electronic form identical to that produced in hard copy so that requesting party could analyze data.]
Crown Life Ins. Co. v. Craig 995 F.2d 1376,1382-83 (7th Cir.1993) [raw data is a "document"]
Production of hard drive
TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Wrongful discharge resulting from termination for misuse of work computer. Tr. Ct. denied discovery of personal matter on home computer owned by employer. Ct.App rev'd. Issue re Right to Privacy of personal matters of employee and family on home computer. Employer provided 2 computers for work and home and obtained signed policy statement re right to monitor, employer ownership, employee agreement to use solely for work and not for personal use and that communications via computer were not private. Employee acknowledged that improper use could result in discharge. Employee claimed privacy in part based on company practice of permitting personal use which claim was disregarded by appellate court in reversing the trial court's denial of discovery. Other than the privacy and relevancy issues, there was no dispute as to the discoverability of the home computer pursuant to request to produce.]
R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [Issues re fabrication or modification of contract created on home computer; overbroad and privacy objections raised; discovery of complete hard drive from home computer upheld in imposing dismissal sanction]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [production granted and protocol for image copies and extraction of files by neutral]
Denial of discovery of hard driveFennell v. First Step Designs Ltd 83 F.3d 526, 534 (1st Cir. 1996).[ denial of discovery of hard drive to find proof of when memo was last modified. affirmed, substantial risks and cost & failed to show a "particularized likelihood of discovering appropriate information."]
Image copies of drive
Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054
Gates Rubber Co. v. Bando Chemical Indus., Ltd 167 F.R.D. 90, 112 (D.Colo. 1996) [site inspection order prohibiting destruction & permitting expedited discovery on computerized files. Expert criticized for not making image copies of drive; party has "a duty to utilize the method which would yield the most complete and accurate results."]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [court expert retained image copy through litigation]
See "The History of Image Copying Technology" and other related articles on verification and authentication protocols , and CD-ROM vs.Optical Disks at www.computer-forensics.com/articles/welcome.htmlObjection to production of hard drive or 2031(e) protective order
TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Right to Privacy rejected re personal material on company computer used at home ; no reasonable expectation of privacy when sign policy confirming employer ownership, right to monitor, right to discharge for abuse of computer poicy etc.]
Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054 [protocol established to avoid intrusion on privileged and confidential material]
Danger of revealing trade secret/confidential matter
Privilege issues; expense of preproduction reviewCounter to objection or protective order motion
Inordinate expense to review hard copy if search of electronic data available
Independent expert; possibly w/ divided costs/ protective order
Show no reasonable less intrusive means to get valuable data
ON-SITE DISCOVERY OF OPPONENT'S DATA
GTFM Inc. v. Wal-Mart (S.D.N.Y. 2000), 2000 WL 335558 [Def had inaccurately denied ability to obtain computer
records; def ordered to make its computer records and facilities available to plt expert to conduct on-site inspection
to determine whether and how to extract specific relevant information; def ordered to produce PMK re computer records
to meet with plt expert to explain system and assist in retrieval of data. Def ordered to pay all legal and expert
fees in conducting on-site inspection]
Gates Rubber Co. v. Bando Chemical Indus. Ltd.(D.Colo. 1996), 167 F.R.D. 90 [site inspection order prohibiting
destruction and permitting expedited discovery of computerized files. Expert criticized for not making image copies
of drive; party has " a duty to utilize the method which would yield the most complete and accurate results"]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [motion to produce and make computers
available for inspection granted in part]
Tulip Computers International B.V. v. Dell Computer Corporations (D.Del.2002), 2002 WL 818061 [Tulip was
given access to Dell databases and with the assitance of Dell expert conducted searches for information that Dell
said it could not provide; Tulip had requested info from Dell and Dell represented it could not provide it from
databases; Tulip persevered and a year later, after overcoming other Dell obstructions, Tulip's experts consulted
with Dell experts and it was determined that Dell's employees could have accessed and provided the information;
the trial court did nothing observing that the parties worked it out but the court noted: "The history of
Dell's failures to cooperate in the discovery process---and its sweeping but inaccurate positions that Tulip would
never find certain documents that Tulip, through persistence and diligence, later uncovered---counsel in favor
of awarding Tulip some relief...."]
In re Pharmatrak, Inc. Privacy Litigation (D.Mass.2002), F.Supp.2d , 2002 WL 1880387 [ Plaintiff's computer
forensic expert examined Pharmtrak's servers in order to obtain evidence to support the claim that it had extracted
personal information though procedure was not at issue]
Accessing opponent's computers, servers and network
to search for versions of documents or
to search for deletions, alterations etc.
to obtain information when objections based on cost, impossibility or inability to search
to conduct key word or phrase search
Protection of producing party
Protective order re software, system data etc. learned or obtained
Proprietary information re design & operation or implementation
No appropriation for gain
Non-disclosure
Use of neutral expert to conduct on-site discoveryNondisclosure agreements
Check for conflict of interestTiming:
After normal business hours; non-disruptive
Review of records on site during normal operational conditions may be necessary
Preparation for meaningful and nondisruptive examination
Narrow & define search to avoid being overwhelmed and obtain relevant data
Lack of focus may render discovery prohibitively expensive, intrusive or disruptive
Background planning and provisions to facilitate processIdentify discovery target
Persons, including related persons [e.g. support staff, co-workers]
Time frame
Specific data, documents, data basesIdentify relevant hardware, data bases to be examined
Laptops, desktops, pda, peripherals
Archives: how often made & how long retained
Similar media and operating system versions for archive tapesIdentify software required to access and manipulate data
Software versions
Copies of proprietary software
Temporary license from vendorDetermine what software or hardware will be required to access and copy relevant data
Size of files or disk to be copiedInformal conference of experts from both sides to
Tailor procedures to reality
Set ground rules to backup & examine data safely
Learn of idiosyncrasies of system
Reduce ground rules to signed protocol
Assure full access to directories and filesProducing party's role:
Operate system and perform actual keyboard work
Responsible for making backups and taking all necessary precautions to protect data and assure safety and integrity of system and its data;
Duty and power to protect the integrity of the data and system to make timely objections & state reasons therefore, and to stop inspections etc.Producing party's personnel and expert present to observe and conduct discovery
Available to answer questions
Available to operate system in response to directives
Install hardware & software to make copies of data, inspect, analyze, and manipulate data
Assist in making copies: image, backups
Assist in recovery of deleted or altered filesDiscovering party's experts present
Observe
Ask questions of producing party's experts and employees
Direct operation of system
Preserve integrity, chain of custody etc. of data copies
Two identical verified copies
Write protect immediately, seal, identify and have producing party sign off
PRIVILEGES, TRADE SECRETS, PRIVACY
See Outlines on specific Privileges
Protocols for determination & protection
Attorney-Client communicationsDuty of Confidentiality
Privilege - see e-mail issues below and inadvertent disclosure issues
Waiver by Inadvertent Disclosure :See California Law at Attorney-Client Outline at California Civl Discovery webpage
E-mail issues
Work Product
Privacy
PROTOCOLS TO DETERMINE & PROTECT
Appointment of "neutral" operating under court guidelinesPlayboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct established protocol: mirror image by neutral expert at requesting party's expense; producing party to print and review all documents and submit privilege log ]
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [Court defines parameters of discovery; Discoverable hard drives identified; Moving party selects expert to act as officer of court; mirror image retained by expert; recovered documents provided by expert to producing party for review and objections]
Tulip Computers International B.V. v. Dell Computer Corporations (D.Del.2002), 2002 WL 818061 [mySimon procedure followed: Dell provides emails in electronic form to Tulip's expert for search based on agreed list of search terms; e-mail list provided to Dell for production to Tulip subject to objections for privilege and confidentiality]Requesting party expert conducting examination under suggested protocol where producer has option of
Prior review for privilege or confidentiality at expense of producing party on theory that its failure to segregate such documents was its responsibility or
Allowing exam by requesting "atorney eyes only" and subect to protective order
Review by requesting attorneyy deemed to not be waiver
See Rowe Entertainment v. The William Morris Agency (S.D.N.Y. 2002), 205 F.R.D. 421; Murphy Oil USA v. Fluor Daniel Inc. (2/19/02, E.D. La.) 2002 WL 246439
The courts adopted the following general protocol subject to modificatioon by counsel1. Requester selects expert subject to objection
2. Expert isolates e-mail for review [coop of producers technical personnel]
3. Mirror image hard drive and copy backup tapes
4. Requester may employ sampling to reduce costs
5. Requester formulates search procedure and selects "key words" subject to objections
6. Requester attorney reviews documents on attorney's eyes only basis
7. Requester selects format for review and selects relevant e-mails
8. Relevant documents provided to producer's counsel in hard copy with bates stamps
9. Requester pays for above
10. Producer reviews for privilege and confidentiality
IF PRIOR REVIEW BY PRODUCER
11. Producer's expense to copy, review and delete privileged documents
12. Provide redacted hard drive or backup tape and privilege log
Murphy case required requester's expert to perform initial review without communicating with requester's attorney re content of documents similar to My Simon case
ATTORNEY - CLIENT COMMUNICATIONS
Duty to Client to maintain Confidentiality
Model Rule 1.6(a) "(a) a lawyer shall not reveal information relating to representation of a client unless a client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation."
ABA Opinion re duty to client
"Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client's representation."
"mode of transmission affords a reasonable expectation of privacy" www.abanet.org/cpr/fo99-413.html
Model Rule 1.1 and 1.4(b).
E-MAIL BETWEEN ATTORNEY & CLIENTMere transmittal by e-mail alone is not waiver
California Evid.Code §952, §917(b) [SB2061 enacted 2002]
§952 "A communication between a client and his or her lawyer is not deemed
lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means between the client and his or her lawyer.
eff 2003 EC § 917(b)
(b) A communication between persons in a relationship listed in
subdivision (a) does not lose its privileged character for the sole
reason that it is communicated by electronic means or because persons
involved in the delivery, facilitation, or storage of electronic
communication may have access to the content of the communication
New York C.P.L.R. 4548
4548. Privileged communications; electronic communication thereof.
No communication privileged under this article shall lose its privileged
character for the sole reason that it is communicated by electronic
means or because persons necessary for the delivery or facilitation of
such electronic communication may have access to the content of the
communication.
Clear identification, warning etc.Place in subject line
Warning at beginning
Judicious use of form warningUnencrypted e-mail may be waiver of privilege
Technical basis for concluding unencrypted e-mail is not likely to be disclosed to third parties and, therefore, is safely within the attorney-client privilege
Joshua M. Masur "Safety in Numbers: Revisiting the Risks to Client Confidences and Attorney-Client Privilege Posed by Internet Electronic Mail," (First prize, 1999 Berkeley Technology Law Journal Comment Competition) 14 Berkeley Tech. L.J. 1117 (1999) http://www.law.berkeley.edu/journals/btlj/articles/14_3/Masur/html/reader.html
Computer data base
Created by experts or with input from counselWilliams v. E.I. duPont (W.D.Ky. 1987), 119 F.R.D.648 [30 years of data obtained from employer to create data base that expert used for analysis and basis for opinion; employer sought data base on CD, code book, user manual etc; critical evidence, necessary to validate entries, necessary for effective cross examination, too expensive and wasteful to duplicate; discovery granted on condition employer pay "fair portion" of the expense; employer required to purchase copywrited materials from vendor]
PRIVACY
No privacy when lack reasonable expectation of privacy on company computerTBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Wrongful discharge resulting from termination for misuse of work computer. Tr. Ct. denied discovery of personal matter on home computer owned by employer. Ct.App rev'd. Issue re Right to Privacy of personal matters of employee and family on home computer. Employer provided 2 computers for work and home and obtained signed policy statement re right to monitor, employer ownership, employee agreement to use solely for work and not for personal use and that communications via computer were not private. Employee acknowledged that improper use could result in discharge. Employee claimed privacy in part based on company practice of permitting personal use which claim was disregarded by appellate court in reversing the trial court's denial of discovery. Other than the privacy and relevancy issues, there was no dispute as to the discoverability of the home computer pursuant to request to produce.]
Privacy waived by consent
TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [consent in employer agreement to employer ownership, use and subject matter limitations, monitorying, and discharge for violation of agreement]
Privacy waiver by failure to objectR.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [privacy re materials on hard drive waived when not raised by protective order motion]
Discovery of anonymous web site authors
See Practice Point under Depositions: Anonymous Posters to Web sites
Extraction, accummulation, and use of private information
"Cookies"
Privacy.net explains how cookies work and much more
In re Doubleclick, Inc Privacy Litigation (S.D.N.Y.2001), 154 F.Supp.2d 497 [process of gathering information explained at pages 502-3; page 504 describes that "GET" produces querry string that shows information reqested, "POST" information includes information provided on site when fields completed, and GIF tags or "web bugs" track site activity to show what information sought and viewed; complaint dismissed; gathering info not violation of Electronic Cmmunications Privacy Act]
In re Pharmatrak, Inc Privacy Litigation (D.Mass. 2002), F.Supp.2d , 2002 WL 1880387 [Summary judgment for defendant & jurisdiction not retained on remainder; process of extracting information described; court authorized plaintiff's forensic computer expert to examine defendant's servers; data extracted: ID by name, address, telephone number, birth date, sex, insurance status, medical conditions, education levels, occupations, email communication information including user name, email address, and subject lines; capability of creating detailed personal profiles and matching to other database such as telephone book]Electronic Communication Privacy Act of 1986, 18 USC §2510 [private cause of action]
Stored Wire & Electronic Communications & Transactional Records Act, 18 USC 2701
Computer Fraud and Abuse Act, 18 USC §1030
Electronic Privacy Information Center http://epic.org
Electronic Frontier Foundation http://eff.org
privacy.net: Consumer information
Privacy International London based civil liberties organization
See also Department of Justice Outline at http://www.cybercrime.gov/s&smanual2002.htm
SANCTIONS IN CALIFORNIA
FOR FAILURE TO PRESERVE DATA
See Spoliation outine as part of Sanctions Case Outline
See below re spoliation based on inadequate document retention policiesTo avoid sanctions based on document retention practices
adopt reasonable document retention / destruction policy
enforce policies and procedures
provide for suspension of purging in documents retention / destruction policy
California discovery sanctionsCCP §2023 may provide broader sanction powers than under prior law
CCP §2023(7) disobeying court order to provide discovery might cover violation of preservation order
Sherman v. Kinetic Concepts (1998), 67 Cal.App.4th 1152 [Court did not refer to matter as a "spliation" case but imposed sanctions for concealment of documents discovered a week after trial; tr ct denied new trial and sanctions; ct ap rev'd, granted a new trial and mandated monetary sanctions to at least cover all trial costs and atty fees + consideration of additional sanctions short of default judgment pursuant to CCP§2023]
Cedars-Sinai Medical Ctr. v. Superior Court (1998), 18 Cal.4th 1, 12 [Rejection of separate tort of intentional spoliation, may provide case law basis and expansion of discovery sanctions. "...defendant hospital was unable to locate certain records...." Court decision based on preference for sanctions over separate tort as remedy for destruction or inability to produce potential evidence. Court observes that the plaintiff is free to seek full panoply of discovery sanctions due to defendant's inability to produce medical records. Dictum: "Destroying evidence in response to a discovery request after litigation has commenced would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request." At p.9 "...we have favored remedying litigation-related misconduct by sanctions imposed within the underlying lawsuit rather than by creating new derivative torts." At p.9, rather than a separate c/a, "...preferring instead the increased use of sanctions within the underlying lawsuit...." ]California spoliation
There is a remedy for spoliation in California but the exact nature, findings and procedures await further guidance. Cedars-Sinai established that the remedy must be found within the existing litigation rather than in a separate cause of action. It did not specify whether the tort elements must be established, what if any findings would be rquired, or whether punitive sanctions could be included
R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [Concealment and destruction of evidence on hard drive of PC. Although the court considered this to a be spoliation case, it did not apply traditional tort analysis; appellate court found spoliation of evidence and upheld the dismissal as punishment for conduct as well as sanction for violating court order;. Monetary sanctions and dismissal sanctions imposed for failure to comply with stipulated court orders and "because of the conduct of the witness and the plaintiff..." was not an abuse of discretion where there was a history of egregious conduct, failure to submit to discovery, destruction of evidence, forgery, violation of stipulations to preserve and not use computers and suggestion of perjury; court interprets Cedars-Sinai as authorizing additional sanctions including punishment for spoliation and other misconduct]
See Spoliation outline in Sanctions Case OutlineAttorney professional responsibility
Discipline for suppression of evidence
Bus. & Prof. Code §6106
Rules of Prof. Conduct rule 5-220Adverse inference permissible due to failure to produce
Evidence Code §413
Cedars-Sinai Medical Ctr. v. Superior Court (1998), 18 Cal.4th 1, 12
BAJI No.2.03 (8th Ed. 1994)California "inherent authority" of courts to sanction generally rejected
CCP §§128 et. seq.
Transaction Commercial Vendors v. Firmaterr (1997), 60 Cal.App.4th 352 ["We conclude rule 227 is invalid to the extent it fails to conform with the statutory conditions for an award of attorney's fees as sanctions. The sanctions order before us does not meet the conditions of any statute, and therefore must be reversed.."]
In re Lemon(1981), 113 Cal.App.3d769, 779 [The courts power to impose sanctions in connection with discovery proceedings rests exclusively upon statutory grants of authority.]
Fabricant v. Superior Court(1980), 104 Cal.App.3d 905 [criminal case; generally need statutory authority to impose attorneys's fees on opponent]
Poe v. Diamond(1987) [prior law; award to atty re'vd because no stat authority]
Richards v. Superior Court (1978) 86 Cal.App.3d 265, 270.
Bauguess v. Paine (1978), 22 Cal.3d 626.
Williams v. Travelers Ins. Co .(1975), 49 Cal.App.3d 805, 810
Yarnell & Associates v. Superior Court (1980),106 Cal.App.3d 918 [Sanctions award for frivolous motion vacated as not authorized]
Carly Richards, Inc. v. Superior Court (1961), 188 Cal.App.2d 300.
Sigerseth v. Superior Court (1972), 23 Cal.App.3d 427, 434.(Sanctions may be awarded in connection with motion for further answers over initial objections.)
Cf. Fairfield v. Superior Court (1966) 246 Cal.App.2d 113, 120.
Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 781. [former CCP. § 2034(b) sanctions may be imposed for refusal to obey a court order]
Lund v. Superior Court (1964), 61 Cal.2d 698
Fairfield v. Superior Court (1966), 246 Cal.App.2d 113 [inherent authority]
California Spoliation tort eliminated as separate tortCedars-Sinai Medical Center (1998), 18 Cal.4th 1 [no separate tort for intentional spoliation by party; seek remedy within case by discovery sanctions or evidentiary inferences]
Temple Community Hospital v. Superior Court (1999), 20 Cal.4th 464 [No separate tort aginst 3rd party for intentional spoliation of evidence]
Willard v. Caterpillar (1995), 40 Cal.App.4th 892 [Def. spoliation issue. Case analysis relevant to sanctions in exiting action. Error to submit to jury intentional spoliation of design documents in products liability case when destruction occurred prior to injury and after 25 years with negligible accident history; theoretical analysis ]
Johnson v. United Service Automobile Assoc.(1998), 67 Cal.App.4th 626 [No negligent spoliation against 3d party absent further element of agreement, request & offer to bear costs, or assumption of duty and justifiable reliance. ]
Farmers Ins. Exch. v. (2000), 79 Cal.App.4th 1400 [Negligent spoliation against 3rd part rejected as independent tort]; Cf. Velasco v. Commer.Bldg. Maint (1985),169 Cal.App.3rd 874 [neg. spoliation against 3rd party recognized though not reasonably forseeable in this case]
Smith v. Superior Court (1984), 151 CA3d 491
Reid v. State Farm Auto Ins. Co.(1985), 173 Cal.App.3d 557
Coprich v. Superior Court(2000), 80 Cal.App.4th 1081
Velasco v. Commercial Bldg Maintenance (1985), 169 Cal.App.3d 874
Every lawyer should counsel its clients on the need to establish and enforce an appropriate document retention/destruction
policy. Every organization has a document retention/destruction policy even if it is to ignore the issue. The nature
of that policy and vigilance of its enforcement may have significant implications when documents are not produced
and charges of spoliation are raised.
See Willard v. Caterpillar (1995), 40 Cal.App.4th 892, 923 below re the
suggestion that a reasonable, bone fide document retention policy that is enforced and consistently followed should
not give rise to a spoliation claim. See also Tulip Computers International B.V. v. Dell Computer Corporations
(D.Del.2002), 2002 WL 818061 [destruction in accord with document retention policy was improper once Dell had
notice of case even though no document request had been served; but following retention policy appears to be factor
in court's determination that there was no evidence of bad faith warranting the requested sanctions.] However,
a document retention/destruction policy that results in the systematic destruction of probable evidence will not
provide protection from spoliation charges. Reimgold v. Wet 'N Wild Nevada Inc.(Nev.S.C.1997), 944 P.2d
800 [jury verdict reversed for failure to instruct on adverse inference from failure to produce first aid records
to show notice of prior accidents; policy to destoy records at end of each season prior to running of statute of
limitations; "following the company's normal records retention policy" may be willful suppression.] See
also Carlucci v. Piper Aircraft, 102 F.R.D. 472, 481, 486(S.D.Fla.1984)
FACTORS TO CONSIDER IN DEVELOPMENT OF RETENTION POLICY
Systematic development of policy to meet business and other needs
Policies should not be motivated by litigation or to eliminate adverse evidence
Cost of storage as motivation should be quantified and documented
Cost of attorney review in case of litigation suggests litigation motivation and relevance
Focus should be on business needs such as elimination of unnecessary and duplicative documents, protecting and preserving critical business documents, efficient access to business documentsRetain record of development and implementation to demonstrate business justification and motivation for retention / destruction policies
All inclusive coverage of policy including copies, reproductions, and backups
Strict and consistent adherence and enforcement
Periodic review and audit of precedures
Provide for suspension of destruction upon notice of claim or litigation to avoid spoliation claim
Preserve and provide for accessing data relevant to pending or foreseeable legal disputes
Retain hardware and software necessary to access data as software and systems are changed
Adopt security precautions to protect data from hackers, viruses, disgruntled employees etc.
Adopt procedures to readily identify and segregate privileged documents etc.
Tailor policy to corporation's particular needs and obligations:Official status of documents
Importance to business for contracts or operations
Importance to government, to customers, to potential claimants
Period necessary for normal business operations
Period necessary for response to lawsuits or claims based on statute of limitations
Minimum retention periods set by statute or regulations
Period necessary to substantiate compliance with law
Reduce storage volume and costs
Efficiency in storage and retrievalRationale for storage and retention policies designed to enable identification, location, and production of documents with precision
Know or learn what documents you have so you can properly respond, produce or object to discovery
Evaluate relevance and importance of your own documents
Establish integrity with court and opponent
Avoid inadvertent disclosures of unnecessary or privileged docs
Reduce access costs when ordered to produce
Avoid claims of obstruction or spoliation
Enable your attorney to locate documents cost effectively
SPOLIATION BASED ON INADEQUATE DOCUMENT RETENTION POLICIES
RESPONSIBILITY OF SENIOR MANAGEMENT
Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598,604, 615
[$1 million sanctions for violating general preservation order; lack of direction and implementation from top management; "Prudential top management...recognized that the sales practices lawsuits and regulatory investigations are an extremely important part of Prudential's business. ...More importantly, they all recognized Prudential's obligation to preserve documents in connection with the lawsuits and investigations. Yet, none took an active role in formulating, implementing, communicating, or conducting a document retention policy." p.615 "When the [preservation order] was entered, it became the obligation of senior management to initiate a comprehensive document preservation plan and to distribute it to all employees. Moreover, it was incumbent on senior management to advise its employees of the pending multi-district litigation venued in New Jersey, to provide them with a copy of the Court's Order, and to acquaint its employees with the potential sanctions, both civil and criminal, that the Court could issue for noncompliance with this Court's Order.
4. When senior management fails to establish and distribute a comprehensive document retention policy, it cannot shield itself from responsibility because of field office actions. The obligation to preserve documents that are potentially discoverable materials is an affirmative one that rests squarely on the shoulders of senior corporate officers."]EXISTENCE OF ADEQUATE POLICY
Company wide policy
Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598, 615 [" While there is no proof that Prudential, through its employees, engaged in conduct intended to thwart discovery through the purposeful destruction of documents, its haphazard and uncoordinated approach to document retention indisputably denies its party opponents potential evidence to establish facts in dispute. Because the destroyed records in Cambridge are permanently lost, the Court will draw the inference that the destroyed materials are relevant and if available would lead to the proof of a claim."]
ENFORCEMENT OF POLICIES
Identification of specific documents
Commuicated to and accessible by employees generallyPrudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598, 613 [. Prudential's use of PROFS notes to preserve documents and to prevent their destruction was ineffective and failed to implement this Court's document preservation Order."]
Communication to specific persons capable of preserving documents
United States v. Koch Industries Inc.(N.D. Okl.1998), 197 F.R.D. 463 [reacting to investigations and complaints in a less than exemplary manner found to be at least negligent spoliation]
Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598
Willard v. Caterpillar (1995), 40 Cal.App.4th 892, 923 ["Therefore, if Caterpillar destroyed documents which were routinely requested in ongoing or clearly foreseeavble products liability lawsuits involving the ...tractor and claims similar to [plaintiff's], its conduct might be characterized as unfair to foreseeable future plaintiffs. However, the document destruction at issue began more than 10 years before [plaintiff] was injured and the evidence disclosed only one other accident involving on track starting.... [S]uch remote prelitigation document destruction would not be commonly understood by society as unfair or immoral."]
Tulip Computers International B.V. v. Dell Computer Corporations (D.Del.2002), 2002 WL 818061 [destruction in accord with document retention policy was improper once Dell had notice of case even though no document request had been served; but following retention policy appears to be factor in court's determination that there was no evidence of bad faith warranting the requested sanctions.]
SANCTIONS / ADVERSE JURY INFERENCE
Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598, 617 ["...No comprehensive document retention policy with informative guidelines and lacks a protocol that promptly notifies senior management of document destruction. These systemic failures impede the litigation process and merit the imposition of sanctions." p.613 "these PROFS notes do not constitute uniform guidelines and do not represent the systematic process necessary to preserve documents"]
Linnen v.A.H. Robins Company, Inc (Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [Adverse inference, infer documents destroyed since unfavorable, jury instruction granted based on notice of claim + relevance of documents]
Lewy v. Remington Arms (8th Cir 1988), 836 F2d 1104, 1111 [adverse inference jury instruction given by trial court for routine destruction in accord with corporate policy; propriety not determined but standards suggested]Wm. T. Thompson v. General Nutrition Co (C.D.Cal.1984), 593 F.Supp.1443
Willard v. Caterpillar (1995), 40 Cal.App.4th 892 [Error to submit to jury intentional spoliation of design documents in products liability case when destruction occurred prior to injury and after 25 years with negligible accident history; theoretical analysis ]
Carlucci v. Piper Aircraft, 102 F.R.D. 472, 481, 486(S.D.Fla.1984)
Sanction dependent on degree of culpability and degree of prejudice: Intentional or reckless disregard of preservation duty; Importance and alterntive sources of evidenceDanis v. USN Communications Inc. 2000 WL 1694325 (N.D.Ill.)
United States v. Koch Industries Inc.(N.D. Okl.1998), 197 F.R.D. 463, 483 [citing at p. 486 Aramburu v. Boeing and other cases the court concludes negative evidentiary inferences are improper sanctions when the spoliation is negligent and the opponent is not prevented from proving its case; but, other sanctions may be appropriate]
Willard v. Caterpillar (1995), 40 Cal.App.4th 892
POLICIES AND PRACTICES AS FACTOR IN DISCOVERY COST ALLOCATION
Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054
REASONABLE RECORDS RETENTION POLICY - factors to consider
See Lewy v. Remington Arms Co. Inc. (8th Cir.1987), 836 F.2d 1104, 1112
Particular documentsConsider facts & circumstances surrounding particular documents
Notice of importance
Frequency and magnitude of other complaints or lawsuits
Good faith policy
Not policy designed to limit damaging evidence available to potential plaintiffs
Good faith application of policy
Policy should provide for suspension when claim or lawsuit provides notice of importance
Blind adherence to policy cannot justify destruction if materiality known
Reiteration of policy when it may lead to destruction of relevant discoverable documents may be interpreted as condoning destruction [Wm.T. Thompson, infra at p.1447-48]
Efforts to notify employees must be effective
SeeWm.T.Thompson Co. v. General Nutrition(C.D.Ca.1984), 593 F.Supp.1443,
Prudential Ins.Co. of America Sales Practices Litigation (D.NJ 1997), 169 FRD 598
Willard v. Caterpillar (1995), 40 Cal.App.4th 892 [error to submit issue to jury when reasonable, good faith document retention policy followed]
Crescendo Investments Inc. v. Brice (Tex.App.2001), 2001 WL 576586 [judgment aff'd.; No error in refusing spoliation instruction when fradulent intent was rebutted by testimony re normal policy of deleting emails after reading]
PARTICULAR PROBLEMS & ISSUES
Email:
Identify different types
Those that need to be saved for business, legal etc reasons
Specify time for each
Organize storage
Delete all others after reasonable period [self destruction or regular purging]
See Rowe Entertainment v. The William Morris Agency (S.D.N.Y. 2002), 205 F.R.D. 421, 2002 WL 63190; Murphy Oil USA v. Fluor Daniel Inc. (2/19/02, E.D. La.) 2002 WL 246439 suggesting that a document retention policy that provided for printing important email and inserting it into a paper file might obviate or avoid the need for discovery of email or might shift the cost to the party seeking it on the theory that the marginal value of discovery would not justify the cost; in those cases the argument was rejected because there was no policy and no assurance that all important emial was printed and filed.See the AOL policy on retaining and destroying email of its members: automatic deletion 2 days after read, retention of unread email for 28 days and deletion from system once member deletes it. [5/1/01]
Admissibility of computer data & documents
Aguimatang v. California State Lottery(1991), 234 Cal.App.3d 769, 795
People v. Hawkins (2002), 98 Cal.App.4th 1428 [printouts of computer access times admitted; def convicted of knowingly accessing computer and taking data; time of access was relevant so proper functioning of computer clock relevant
United States v. Catabran, 836 F.2d 453 (9th Cir. 1988). [accounting records admissible after foundational testimony]
Monotype Corp., PLC v. International Typeface Corp., 43 F.3d 443 (9th Cir. 1994).Authentication[Evid.Code §1400 et seq.FRE Rule 901]
Metadata may assist authenticationShow date & person creating or accessing document or data
Show tranmittal information
Show deposit in various reliable placesNew problems created by ability to modify or fabricate documents create issues for authentication
See R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 where plaintiff filed a complaint based on an allegedly altered contract; discovery obtained by stipulation to examine hard drive to detect alteration of contract but complaint amended conceding the version was not valid.
See Fennel v. First Step Designs Ltd. (1st Cir.1966), 83 F.2d 526 where plaintiff was denied examination of a hard drive to determine if critical memo was predated to avoid liability for wrongful discharge.
Need for expert witness;
Alteration & fabrication issues
Unauthorized use of computer to send email
Audit trail: show access to files or lack thereof, who, when, how long, changes made
Storage on backup tapes may show document offered is not authentic
Reliability of systems & programs used
Methods of data entry & storage
US v. Russo 480 F.2d 1228
US v. Weatherspoon 581F.2d 595
Discovered documents: mirror image; lack of alteration; virus checked software & media; write protect, chain of custodyBest Evidence [Evid. Code §1500 et seq.]
Secondary Evidence Rule effective 1999 [Evid.Code §1521 ]
HearsayAdmissions, FRE, Rule 801(d)(2)
Business records, FRE Rule 803(6)nature & purpose of email system
continuous custody
credible anti-tampering security
degradation of digital records after 3 years; need to migrate data
Computer prinout admissible if it satisfies business records exceptionAguimatan v. California State Lottery(1991), 234 Cal.App.3d 769
People v. Luashi (1988), 205 Cal.App.3d 632, 641
People v. Martinez (2000), 22 Cal.App.4th106, 126
People v. Hernandez (1997) 55 Cal.App.4th 225 [multiple layers of unreliable hearsay from computer search inadmissible]Meta Data:
data about data; data generated by the computer
distinguish computer stored information from computer generated informationPeople v. Hawkins (2002), 98 Cal.App.4th 1428, 1449 [Hearsay objection raised to metadata: out of court "statement" by compurter offered for truth of matter stated, e.g. that files were accessed on a specific time and day; printouts of computer access times admitted; def convicted of knowingly accessing computer and taking data; "The Evidence Code does not contemplate that a machine can make a statement"; not issue of hearsay but of proper operation of computer; presume accuracy; if challenged by evidence of inaccuracy, burden of proof on proponent by preponderance of evidence to show computer functioned properly;
Issue of accuracy or reliability of information printed
If objection to data, (1) show accuracy of print out (2) show reliability; Hearsay objection did not raise issue of reliabilty in trial court and objection waived. p.1450.]
Public Records and Reports, FRE Rule 803(8)Advantages of electronic documents: corroboration of oral testimony re authentication
Special problems re documents or data discovered in pretrial processSpecial problems of alteration of documents & forgery
Lumpkin v. Brown (N.D.Ill. 1997), 960 F.Supp.1339, 1348
Verification of sender
Passwords, [may be required by email system]
Special code to id sender
Digital signatures
Verification of transmittalPrivate VAN to provide independent verification of transmittal and receipt
See also Department of Justice Outline at http://www.cybercrime.gov/s&smanual2002.htm
