e-Discovery Docket Sheet

Based on the defendants' prior discovery conduct, the plaintiffs filed a motion to modify a case-management order, establish discovery deadlines, and appoint a special master or neutral consultant. A month after the discovery deadline, the defendants completed their electronic document production with the exception of documents withheld as potentially privileged, 13 additional boxes and corrupted electronic data that was being restored. At that time, the plaintiffs sent a letter to the defendants stating the “completed” document production was incomplete because several major technical defects existed, including hard-drive errors, and files containing questionable or missing data. The defendants denied knowledge of the defective document production. The court found that the “[d]efendants have been dilatory in their disclosure of these defective files, costing [the plaintiffs] unnecessary time and expense. Consequently, the Court admonishes [the defendants] for its discovery practices, and reminds [the defendants] of its obligation to this Court to contact it when discovery issues arise.” The court determined the defendants' conduct had prejudiced the plaintiffs and granted the motion to amend the order, noting that further violations may result in sanctions. Declining to appoint a special master, the court stated that the current magistrate was capable of resolving any technical discovery disputes but declared that the parties could hire a neutral technical consultant at their own expense. United States v. Merck-Medco Managed Care, L.L.C., 2005 WL 273030 (E.D. Pa. Feb. 2, 2005).

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Court Refuses To Appoint Neutral Computer Forensics
Expert Based On Speculative Cause For Inspection

In a case arising from employment-discrimination allegations, the plaintiff filed a motion to appoint a neutral computer-forensics expert. The plaintiff indicated that he needed the expert to inspect the defendants' computer hard drives and search for an allegedly incriminating e-mail, which the plaintiff had once possessed but could no longer find. In the event that the expert recovered the e-mail, the plaintiff asked the court to order a more detailed investigation of the defendants' computers. The plaintiff also requested an order compelling the defendants to preserve all electronic and paper documents, and to suspend backup-tape recycling, automated e-mail deletions, and hard-drive reformatting. In response, the defendants argued that the e-mail was “most likely” in a memorandum that had already been produced. The defendants also claimed that they had already conducted a forensics investigation, which failed to identify the e-mail. The court declined to appoint the forensics expert, finding the plaintiff's request “at best [a] highly speculative conjecture.” The court further reasoned, “[b]efore permitting such an intrusion into an opposing party's information system ' particularly where, as here, that party has undertaken its own search and forensics analysis and has sworn to its accuracy ' the inquiring party must present at least some reliable information that the opposing party's representations are misleading or substantively inaccurate.” Although declining to appoint the expert, the court ordered the defendants to preserve documents, hard drives and e-mail boxes that their forensics expert had previously searched. Williams v. Mass. Mut. Life Ins. Co., 2005 WL 273132 (D.Mass. Feb. 2, 2005).

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Court Refuses To Issue Sanctions For
Failure To Preserve Voicemails

In a case involving a domestic-abuse investigation, the plaintiff claimed that employees of the district attorney's office, police department and the county had violated his civil rights. The plaintiff filed a motion for spoliation sanctions, declaring that several of the defendants had failed to preserve voicemails left by the plaintiff. The plaintiff argued the defendants should have known the voicemails would be helpful in proving his case. In response, the defendants filed a motion for summary judgment. The court declared the plaintiff's argument “merit[ed] little discussion” and rejected the plaintiff's contention that “any of the defendants had a duty to keep recordings of his voicemail messages in order to preserve evidence favorable to [the plaintiff] in this civil litigation.” The court denied the motion for sanctions and granted summary judgment in favor of the defendants, finding no genuine dispute of material fact. Burrell v. Anderson, 2005 WL 78898 (D.Me. Jan. 13, 2005).

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Magistrate Broadly Defines Search And
Production Scope

The defendant had sought an order compelling the plaintiff to adequately search for and produce all nonprivileged documents. Upon reviewing information submitted by the parties, the magistrate judge ordered the plaintiff to search “all computerized files, emails, voice mails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there.” The magistrate also ordered the plaintiff to produce all nonprivileged documents, along with a written list setting forth each specific source and location searched, as well as the individuals conducting the search and their areas of search responsibility. In addition, the plaintiff was to provide a list describing the specific source for each produced item and a list of items withheld on the basis of privilege. The magistrate further required the plaintiff to confirm it had searched all locations potentially containing this material and produced all nonprivileged documents. Icu Med., Inc. v. B. Braun Med., Inc., 2005 WL 151927 (N.D.Cal. Jan. 4, 2005).

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Late Privilege Log Production Does Not Result In Waiver

The defendant moved to compel the production of e-mails, previously withheld by the plaintiff on the grounds of attorney-client privilege. Prior to this motion, the defendant had filed a motion for sanctions, claiming that key plaintiff witnesses had systematically deleted relevant e-mails. In response, the court had directed the plaintiffs to consent and allow Yahoo! and Microsoft to release the e-mails, deliver them to the plaintiff's counsel for privilege review and produce the remaining e-mails to the defendant. See, Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004). In the current motion, the defendant argued that the plaintiff waived privilege by failing to produce its privilege log within the timeframe specified in the scheduling order. The court determined a waiver was not justified because the plaintiff was not prejudiced by the production of the log five days late, especially in light of the “expedited nature of the process.” The court also specifically addressed some of the disputed e-mails. It ordered the plaintiff to reproduce a nonredacted copy of an e-mail – that had previously been produced in redacted form – and find an explanation for why the redacted copy did not exist. The court also instructed the plaintiff to produce e-mails to or from a nonemployee, finding insufficient evidence to support the plaintiff's argument that the party was acting as its agent. Finally, the court declined to order production of a legal assistant's e-mails but required the plaintiff to supply an affidavit confirming the legal assistant's role. Streamline Capital, L.L.C. v. Hartford Cas. Ins. Co., 2005 WL 66898 (S.D.N.Y. Jan. 11, 2005).

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Michele C.S. Lange Charity Delich www.krollontrack.com [email protected]

Court Reprimands Defendants For
'Dilatory' Electronic Discovery Practices

Based on the defendants' prior discovery conduct, the plaintiffs filed a motion to modify a case-management order, establish discovery deadlines, and appoint a special master or neutral consultant. A month after the discovery deadline, the defendants completed their electronic document production with the exception of documents withheld as potentially privileged, 13 additional boxes and corrupted electronic data that was being restored. At that time, the plaintiffs sent a letter to the defendants stating the “completed” document production was incomplete because several major technical defects existed, including hard-drive errors, and files containing questionable or missing data. The defendants denied knowledge of the defective document production. The court found that the “[d]efendants have been dilatory in their disclosure of these defective files, costing [the plaintiffs] unnecessary time and expense. Consequently, the Court admonishes [the defendants] for its discovery practices, and reminds [the defendants] of its obligation to this Court to contact it when discovery issues arise.” The court determined the defendants' conduct had prejudiced the plaintiffs and granted the motion to amend the order, noting that further violations may result in sanctions. Declining to appoint a special master, the court stated that the current magistrate was capable of resolving any technical discovery disputes but declared that the parties could hire a neutral technical consultant at their own expense. United States v. Merck-Medco Managed Care, L.L.C., 2005 WL 273030 (E.D. Pa. Feb. 2, 2005).

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Court Refuses To Appoint Neutral Computer Forensics
Expert Based On Speculative Cause For Inspection

In a case arising from employment-discrimination allegations, the plaintiff filed a motion to appoint a neutral computer-forensics expert. The plaintiff indicated that he needed the expert to inspect the defendants' computer hard drives and search for an allegedly incriminating e-mail, which the plaintiff had once possessed but could no longer find. In the event that the expert recovered the e-mail, the plaintiff asked the court to order a more detailed investigation of the defendants' computers. The plaintiff also requested an order compelling the defendants to preserve all electronic and paper documents, and to suspend backup-tape recycling, automated e-mail deletions, and hard-drive reformatting. In response, the defendants argued that the e-mail was “most likely” in a memorandum that had already been produced. The defendants also claimed that they had already conducted a forensics investigation, which failed to identify the e-mail. The court declined to appoint the forensics expert, finding the plaintiff's request “at best [a] highly speculative conjecture.” The court further reasoned, “[b]efore permitting such an intrusion into an opposing party's information system ' particularly where, as here, that party has undertaken its own search and forensics analysis and has sworn to its accuracy ' the inquiring party must present at least some reliable information that the opposing party's representations are misleading or substantively inaccurate.” Although declining to appoint the expert, the court ordered the defendants to preserve documents, hard drives and e-mail boxes that their forensics expert had previously searched. Williams v. Mass. Mut. Life Ins. Co., 2005 WL 273132 (D.Mass. Feb. 2, 2005).

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Court Refuses To Issue Sanctions For
Failure To Preserve Voicemails

In a case involving a domestic-abuse investigation, the plaintiff claimed that employees of the district attorney's office, police department and the county had violated his civil rights. The plaintiff filed a motion for spoliation sanctions, declaring that several of the defendants had failed to preserve voicemails left by the plaintiff. The plaintiff argued the defendants should have known the voicemails would be helpful in proving his case. In response, the defendants filed a motion for summary judgment. The court declared the plaintiff's argument “merit[ed] little discussion” and rejected the plaintiff's contention that “any of the defendants had a duty to keep recordings of his voicemail messages in order to preserve evidence favorable to [the plaintiff] in this civil litigation.” The court denied the motion for sanctions and granted summary judgment in favor of the defendants, finding no genuine dispute of material fact. Burrell v. Anderson, 2005 WL 78898 (D.Me. Jan. 13, 2005).

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Magistrate Broadly Defines Search And
Production Scope

The defendant had sought an order compelling the plaintiff to adequately search for and produce all nonprivileged documents. Upon reviewing information submitted by the parties, the magistrate judge ordered the plaintiff to search “all computerized files, emails, voice mails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there.” The magistrate also ordered the plaintiff to produce all nonprivileged documents, along with a written list setting forth each specific source and location searched, as well as the individuals conducting the search and their areas of search responsibility. In addition, the plaintiff was to provide a list describing the specific source for each produced item and a list of items withheld on the basis of privilege. The magistrate further required the plaintiff to confirm it had searched all locations potentially containing this material and produced all nonprivileged documents. Icu Med., Inc. v. B. Braun Med., Inc., 2005 WL 151927 (N.D.Cal. Jan. 4, 2005).

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Late Privilege Log Production Does Not Result In Waiver

The defendant moved to compel the production of e-mails, previously withheld by the plaintiff on the grounds of attorney-client privilege. Prior to this motion, the defendant had filed a motion for sanctions, claiming that key plaintiff witnesses had systematically deleted relevant e-mails. In response, the court had directed the plaintiffs to consent and allow Yahoo! and Microsoft to release the e-mails, deliver them to the plaintiff's counsel for privilege review and produce the remaining e-mails to the defendant. See, Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004). In the current motion, the defendant argued that the plaintiff waived privilege by failing to produce its privilege log within the timeframe specified in the scheduling order. The court determined a waiver was not justified because the plaintiff was not prejudiced by the production of the log five days late, especially in light of the “expedited nature of the process.” The court also specifically addressed some of the disputed e-mails. It ordered the plaintiff to reproduce a nonredacted copy of an e-mail – that had previously been produced in redacted form – and find an explanation for why the redacted copy did not exist. The court also instructed the plaintiff to produce e-mails to or from a nonemployee, finding insufficient evidence to support the plaintiff's argument that the party was acting as its agent. Finally, the court declined to order production of a legal assistant's e-mails but required the plaintiff to supply an affidavit confirming the legal assistant's role. Streamline Capital, L.L.C. v. Hartford Cas. Ins. Co., 2005 WL 66898 (S.D.N.Y. Jan. 11, 2005).

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Michele C.S. Lange Charity Delich www.krollontrack.com [email protected]