ADDENDUM G
References
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Partner, Adams and Reese LLP, Mobile, Alabama. Ms. Rogers is Team Leader
for the Casualty and Coverage Team. Ms. Rogers’ practice involves litigation in
both Alabama and Florida State and Federal Courts.
Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429,
434 (W.D. Pa. 2004); see also Clark Constr. Group, Inc. v City of Memphis, 229
F.R.D. 131, 136 (W.D. Tenn. 2005).
Dale M. Cendali, Amy Longo, and Christine Cwiertny, Electronic Discovery, 797
PLI/Pat 323, 401 (2004.
Rambus, 220 F.R. D. at 281. For a discussion of spoliation, see infra page ____.
Zubulake, 220 F.R. D. at 217; see also Clark Constr. Group, Inc., 229 F.R. D. at
136. It is important to determine whether your entity is privately held or publicly
traded and inquire as to the exchange and/or regulatory requirements affecting
your entity when developing a plan.
Zubulake, 220 F.R. D. at 217.
Id.
Id. at 218 (quoting Fed. R. Civ. P. 26(a)(1)(A)) (internal quotation marks omitted.)
Id. at 218 (quoting Fed. R. Civ. P. 26(b)(1)).
Broccoli v. Echostar Comm, Corp., 229 F.R. D. 506, 510 (D. MD 2005) (citing
Arthur Anderson, LLP v U.S., 554 U.S. 696, 704 (2005)).
Broccoli, 229 F.R. D. at 510 (citing Thompson v HUD, 219 F.R. D. 93, 100
(D.Md.2003)).
Zubulake v. UBS Warburg LLC, 229 F.R. D. 422, 432 (S.D.N.Y. 2000)
(hereinafter Zubulake III).
Id. at 431.
Id. at 432.
Id. This involves speaking to the technology personnel and as in Zubulake,
requires employees to print out the relevant emails or create a separate folder for
the relevant information. Id.
Id. at 433.
Id. (citing 1966 Advisory Committee Notes to Fed. R. Civ. P. 26(e)).
Zubulake, 229 F.R. D. at 433.
Id.
Id.
Id. at 433-34.
Id. at 434.
Id.
Zubulake, 229 F.R. D. at 434.
Fed. R. Civ. P. 26(b)(1).
Clark Constr. Group, Inc., 229 F. R. D. at 137 (citing Fed. R. Civ. P. 26(b)(1));
see also Harris v. Bornhorst, 513 F.3d 503, 526 (6th Cir. 2008); Coleman v. Am.
Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994).
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Clark Constr. Group, Inc., 229 F.R. D. at 137. This general rule regarding
disclosure of email is implicit in the holdings of other cases. See, e.g.,
Consolidated Aluminum Corp. v Alcoa, inc., 244 F. R. D. 335, 340-343 (M.D. La.
2006) (recognizing and applying the Zubulake line of cases to a dispute over
deleted electronic data and holding, in part, that the defendant failed to preserve
relevant emails and other electronic data which the plaintiff sought to have
disclosed).
Fed. R. Civ. P. 26(b)(2).
This leads to the court considering a cost-shifting analysis which will be
discussed below. Additionally, where the electronic information is being kept by
a third party, the responding party may be tempted to argue that the requested
information is simply not within their possession, but this is not advisable. See
Tomlinson v. El Paso Corp., 245 F.R. D. 474 (D. Colo. 2007) (in rejecting the
responding party’s argument that because electronic information was in the
possession of a third party administrator it could not produce the electronic
information, the court held that the data was in the responding party’s
possession, custody or control as contemplated by rule 26(a)(B)); Columbia
Pictures, inc. v Bunnell, 245 F. R. D. 443, 453 (C.D. Cal. 2007) (data that was
maintained and processed by a third party is discoverable and must be preserved
and produced); in re ATM Fee Antitrust Litig., 233 F.R. D. 542, 545 (N.D. Cal.
2005) (responding party objected indicating that the requested information was
held by a subsidiary and request should go to the subsidiary but could held
requested data was in the possession, custody and control of the responding
party.
See Hagenbuch v. 3B6 Sistemi Electtronici Industriali, S.R. L., No. 04 C 3109,
2006 WL 665005 (N.D. III. Mar. 8, 2006) (hereinafter Hagenbuch) (holding that
where plaintiff specifically requested identical electronic copies of certain
information, the plaintiff was entitled to receive the electronic information in the
form requested). But see Autotech Technologies Ltd. Partnership v.
Automationdirect.com, Inc., 248 F. R. d. 556, 558 (N.D. III. 2008) (recognizing
Hagenbuch but stating that because requesting party did not specify the format
for production, non-native format was acceptable); and shirly Wiliams, et al., v
Sprint/United Management Co., 230 F. R. D. 640, 651 (d. Kan. 2005) (“Emerging
standards of electronic discovery appear to articulate a general presumption
against the production of metadata[.]”).
Hagenbuch, 2006 WL 665005 at *2 (quoting FED. R. Civ. P. 34(b)). Production
of documents as they are kept in the "usual course of business" plays a role in
many disputes. See, e.g., PSEG Power New York, Inc. v. Alberici Constructors,
Inc., No. 1:05-CV-657 (DNH/RFT), slip op. 2007 WL 2687670 (N.D.N.Y. Sept. 7,
2007) (in ordering party to reproduce over 3,000 e-mails and corresponding
attachments at party's expense of between $40,000 to $200,000, court held the party
had not complied with Rule 34(b) because it failed to produce the e-mails in the
form they were kept in the ordinary course of business); Eastman Kodak Co. v.
Sony Corp., Nos. 04-CV-6095T, 04-CV-6547T, 2006 WL 2039968, at *1 (W.D.
N.Y. Jul. 20, 2006) (where documents were accessible, were produced in the form in
which they were usually maintained, and either party would need substantial time
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to correlate the information, court denied motion to compel more specific
production); Residential Constructors, LLC v. Ace Prop. and Cas. Ins. Co., No.
2:05-CV-01318-BES-GWF, 2006 WL 1582122, at *2 (D. Nev. Jun. 5, 2006) (fact that
documents were produced in form they were kept in the ordinary course of business
did not prevent responding party from having to create table of contents for those
documents).
Id. at *2.
Id. at *3. Conversion of documents into the PDF or TIFF format versus simply
producing the documents in native format has been a significant source of dispute
in the past. Compare Williams v. Sprint/United Management Co., No. 03-2200JWL-DJW, 2006 WL 3691604, at *7 (D. Kan. Dec. 12, 2006) (allowing production in
non-native format), Wyeth v. Impax Lab, Inc., 248 F.R.D. 169, 171 (D. Del. 2006)
(production of electronic information in native format not required), and Palgut v.
City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006) (same) with
Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D. N.Y. 2006) (requiring
production in native format) and Nova Measuring Instruments, Ltd. V.
Nanometrics Inc., 417 F.Supp.2d 1121, 1122 (N.D. Cal. 2006) (same).
Id.
In re NYSE Specialists Sec. Litig., 2006 WL 1704447 (S.D.N.Y. June 14, 2006);
cf. CP Solutions PTE, Ltd. V. General Electric. Co., 2006 WL 1272615 (D. Conn.
Feb. 6, 2006). When producing information in electronic format, it may be wise to bear
in mind the old bromide, "you get what you give." See OK! Am., Inc. v. Advanced
Micro Devices, Inc., No. C 04-3171 CRB (JL), 2006 WL 2547464, at *4 (N.D. Cal.
Aug. 31, 2006) (defendant could not complain about the unsearchable format within
which plaintiff produced electronic documents because defendant produced its
electronic documents in the same unsearchable format).
Charles O. Bradley Trust v Zenith Capital LLC, 2006 WL 798991 (N.d. Cal. Mar.
24, 2006). Importantly, requests may at times be for more than production of
documents. Parties have requested production of information in the form of
entire hard drives or computer systems, and some courts have granted such
requests while others have denied such requests. Compare Ameriwood Ind.,
Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291, at *5 (E.D. Mo. Dec.
27, 2006) (allowing requesting party to obtain mirror images of responding
party’s hard drives subject to guidelines set by the court); and Electrolux Home
Prods., Inc. v Whitesell Corp., No. 3:05-MC-017, 2006 WL 355453, *2 (S.D.
Ohio. Feb. 15, 2006) (upholding order allowing examination of computer system
because the order protected responding party’s interests); with Floeter v. City of
Orlando, No. 6:05-cv-400-Orl-22KRS, 2006 WL 1000306, at *3 (M.D. Fla. Apr.
14, 2006) (denying request to inspect responding party’s computer system
because requesting party could not demonstrate that responding party withheld
any relevant information stores on computer); and Advante Int’l Corp. v Mintel
Learning Tech., No. C 05-01022 JW (RS), 2006 WL 1806151, at *1-2 (N.D. Cal.
Jun. 29, 2006) (denying motion to compel an examination of responding party’s
computer system because motion was based on unsubstantiated accusations of
discovery misconduct but noting that such an examination may be appropriate
upon a showing that the opposing party has deleted electronic evidence).
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Brian Beckham, Production, Preservation, and Disclosure of Metadata, 7
COLUM. SCI. & TECH. L. REV. 1 (2006).
Williams v Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005)
(hereinafter Williams).
Metadata can be created for email too. Beckham, supra note 68.
Id. (citing David Hricik, The Transmission and Receipt of Invisible Confidential
Information. http://www.hricik.com/eethics/2.3.html (2006)).
Id.
PDF (Portable Document Format) or TIFF (Tagged Image File Format) are
electronic files that were "imaged" or converted from their native file format into a
static image. Kenneth J. Withers, Electronically Stored Information: The December
2006 Amendments to the Federal Rules of Civil Procedure, 4 Nw. J. TECH. &
INTELL. PROP. 171, 182 (2006). Note that this once again goes back to the issue of
production of documents in their native format.
Id. at 652. But see Kentucky Speedway, LLC v. National Ass'n. of Stock Car
Auto Racing, NO. CIV.A. 05-138-WOB, slip op., 2006 WL 5097354, at *7-8 (E.D.
Ky. Dec 18, 2006) (declining to follow this statement from Williams). Recent
cases indicate the best way to ensure receiving metadata is to specifically ask for
metadata in the request. Compare D'Onofrio v. SFX Sports Group, Inc., 247
F.R.D. 43, 48 (D. D.C. 2008) (because requesting party failed to specifically request
metadata when requesting business "files," court held that requesting party could not
complain about the absence of accompanying metadata) with Autotech
Technologies Ltd. Partnership v. Automationdirect.com, Inc., 248 F.R.D. 556, 558
(N.D. III. 2008) (court's denial of requesting party's motion to compel for metadata
was based, in part, on the fact that requesting party did not specifically ask for - nor
even mention - metadata in the request).
See e.g., N.Y. Bar Ass'n Comm. On Profl Ethics, Ethics Op. 782 (2004),
available at
http:llwww.nysba.orglContent/NavigationMenu/Attorney_Resources/Ethics
Opinions/Opinion 782.htm; see also Ninth Cir. Advisory Bd., Proposed Model Local
Rule of Electronic Discovery, Rule 3, at 5 (May 2004), available at
http:llwww.kroIlontrack.com/library/9thCirDraft.pdf.
Rule 34 is discussed in further detail above.
Prior to the Zubulake line of cases, a line of decisions arising from Concord Boat
Corp. v. Brunswick Corp. (Concord I), No. LR-C_95-781, 1996 WL 33347247
(E.D. Ark. Dec. 23, 1996), were viewed as the most comprehensive case law
addressing discovery of backup tapes. Grant J. Esposito & Thomas M. Mueller,
Backup Tapes, You Can't Live With Them and You Can't Toss Them: Strategies
For Dealing With Litigation Burdens Associated With Backup Tapes Under the
Amended Federal Rules of Civil Procedure, 13 RICH. J. L. & TECH. 13, *11
(2007) (hereinafter "Backup Tapes"). In Concord Il, No. LR-C95-781, 1997 WL
33352759, at *9 (E.D. Ark. Aug. 29, 1997), the court weighed the potential gain of
restoring all backup tapes versus the cost of such a search in ordering the
responding party to conduct a search of an active email system but not a full
restoration of backup tapes. The Concord line of cases, however, have given way
to the more recent Zibulake decisions. Esposito & Mueller, Backup Tapes, supra
this note at *13.
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Isom, Electronic Discovery Primer for Judges, 2005 FED. CTS. L. REV. 1
(2005).
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(citing No. 98 Civ. 8272, 2002 WL 975713 at*9 (S.D.N.Y. May 9, 2002)
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Isom, Electronic Discovery Primer for Judges, 2005 FED. CTS. L. REV. 1
(2005).
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Id.
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Id.
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Id.
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The new proposed rules would lessen the risk and therefore the cost of
inadvertent disclosure. Id.
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Kenneth J. Withers, Electronically Stored Information: The December 2006
Amendments to the Federal Rules of Civil Procedure, 4 Nw. J. TECH. &
INTELL. PROP. 171, 182 (2006).
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In addition to the options presented in Rowe Entertainment, litigants may be
offered the chance to stipulate at the outset of discovery to a "nonwaiver"
agreement, which they can adopt as a casemanagement order. These
agreements allow the stipulating parties to avoid the harsh results of an
inadvertent waiver. See MANUAL FOR COMPLEX LITIGATION, FOURTH, §
11.446 Discovery of Computerized Data (2004).
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205 F.R.D. 421, 425 (S.D.N.Y. 2002). For additional example of an
accommodating solution to expensive privilege review, see Hake v. Lincoln
County, 246 F.R.D. 577, 579 (W.D. Wis. 2007) (court ordered plaintiff to present
search terms for the defendant to use and to share the cost of the search with
defendant 50/50, but ordered defendant to bear the entire cost of the privilege
review if the defendant chose to conduct such a review).
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Id. (citing 52 Fed. R. Serv. 3d 168 (E.D. La. 2002))
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As two commentators suggest, one preemptive way - although not without
risk - of avoiding such expense is to "reduce the accumulation of old backup tapes
and keep the volume of backup tapes maintained by the company to the absolute
minimum required for disaster recovery purposes." Esposito & Mueller, Backup
Tapes, 13 RICH. J. L. & TECH. at *49.
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Id.
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For a case finding search terms adequate, see In re CV Therapeutics, Inc.
Sec. Litig., No. C-03-3709 SI (EMC), 2006 WL 2458720, at *2 (N.D. Cal. Aug.
22, 2006).
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Rowe, 205 F.R.D. at 433. Where a party simply chooses search criteria that
is excessively broad, courts have the option of directly ordering the
searching party to narrow the search criteria. See Hagemeyer N. Am., Inc. v.
Gateway Data Sciences Corp., 222 F.R.D. 594, 603 (E.D. Wis. 2004). In the
case of a database that is not searchable via search terms, the parties may be
required to agree on a plan for pulling samples from the database to determine
relevancy of the information in the database. See Zurich Am. Ins. Co. v. Ace Am.
Reinsurance Co., No. 05 Civ. 9170 RMB JCF, 2006 WL 3771090, at *2
(S.D.N.Y. Dec. 22, 2006). Also, courts may simply provide search terms for a
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party to utilize. See J.C. Associates v. Fidelity and Guar. Ins. Co., No. 012437 (RJL/JMF), 2006 WL 1445173, at *1 (D.D.C. May 25, 2006).
See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978); FED. R.
Civ. P. 26; Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 283 (S.D.N.Y.
2003).
Zubulake, 216 F.R.D. at 283 (quoting FED. R. CIV. P. 26).
Withers, supra note 106, at 182. Inaccessibility has even been viewed as a
threshold requirement for determining whether cost-shifting will even be
considered. See Peskoff v. Faber, 240 F.R.D. 26, 31 (D.D.C. 2007) ("costshifting does not even become a possibility unless there is first a showing of
inaccessibility"). Where a party, however, converts electronic information that
the party reasonably should have foreseen as discoverable into an
inaccessible format, such party may have to shoulder the costs of producing the
inaccessible information. See Quinby v. West LB AG, 245 F.R.D. 94,104
(6S.D.N.Y.2006).
Id. at 322-323. The court noted that the first two factors (comprising the
"marginal utility test") were the most important, the second three factors were the
next most important, and the final two factors would rarely make any difference,
but could be very important in the few cases to which they would apply. Id. at
323. As far as what costs are shifted once cost-shifting is deemed
appropriate, the court in Zubulake III states that generally only the costs of
restoration and searching should be shifted. Zubulake III, 216 F.R.D. at 290.
For a thorough application of the Zubulake seven factor test, see Quinby, 245
F.R.D. at 106-11.
Several cases have adopted a three-part test to decide whether the third
party must pay the discovery costs: "whether the nonparty actually has an interest
in the outcome of the case, whether the nonparty can more readily bear the costs
than the requesting party and whether the litigation is of public importance." E.g.,
FTC v. US Grant Res., LLC, No. 04-596, 2004 WL 1396315, at *4 (E.D. La.
June 18, 2004) (quoting In re Exxon Valdez, 142 F.R.D. 380, 383 (D.D.C. 1992));
In re Seroquel Products Liability Litigation, No. 6:06-md-1769-Orl-22DAB, 2007
WL 4287676, at *3 (M.D. Fla. December 6, 2007).
E.g., In Re Honeywell Int'l, Inc. Sec. Litig., No. M8-85, 2003 WL 2272296, at
*1 (S.D.N.Y. Nov. 18, 2003). See also Ahner, 2007 WL 2480322, at *6 (ordering
third party to produce the requested electronic discovery at its own expense
pending a ten day period in which the third party could demonstrate undue
burden or expense).
E.g., Linder v. Adolfo Calero-Portocarrero, 251 F.3d 178, 179-80, 182-83 (D.C. Cir.
2001). See also Guy Chem. Co. v. Romaco AG, 243 F.R.D. 310, 313 (N.D. Ind.
2007) (stating it would be "fundamentally unfair" to force nonparties to bear the
costs of production unless the expense of such production was minimal).
See United States v. Premera Blue Cross, No. 1:06MC097, 2007 WL 852080,
at *2 (S.D. Ohio Mar. 16, 2007) (ordering nonparty to produce electronic
discovery at a minimal expense to nonparty but stating nonparty was to bill
plaintiff for cost of production).
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E.g., In re Application of the Law Firms of McCourts & McGrigor Donald, No.
M19-96, 2000 WL 345233, at *3 (S.D.N.Y. Nov. 19, 2001).
E.g., In re Honeywell Int'l, 2003 WL 2272296, at *11 resolving motion to
compel subpoened electronic documents); Theofel v. Farey-Jones, 359 F.3d
1066 (9t Cir. 2004), cert. denied, 125 S. Ct. 48 (2004) (noting that overbroad
subpoena for electronic discovery may violate the Stored Communications Act and
the Computer Fraud and Abuse Act).
Clark Constr. Group, Inc., 229 F.R.D. at 136 (quoting Zubulake, 220 F.R.D. at
216 (S.D.N.Y. 2003). To establish spoliation, "the movant must show (1) that
the adverse party had a duty to preserve evidence and (2) that it nevertheless
intentionally destroyed the evidence." Rambus, Inc. v. Infrneon Tech. AG, 220
F.R.D. 264, 281 (E.D. Vir. 2004) (citing Trigon Ins. Co. v. United States, 204
F.R.D. 277, 284 (E.D.Va. 2001)).
Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4 th Cir. 2001) (quoting
Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)).
Silvestri, 271 F.3d at 590 (citing West v. Goodyear Tire & Rubber Co., 167
F.3d 776, 779 (2d Cir. 1999)).
Silvestri, 271 F.3d at 590. See University of Pittsburgh v. Townsend, No.
3:04-cv-291, 2007 WL 1002317, at *5 (E.D. Tenn. 2007) (lawyer advising
client to destroy certain relevant e-mail was inappropriate but was not done
with any fraudulent intent, thus no sanctions imposed).
McEachron v. Glans, No. 98-CV-17,1999 U.S. LEXIS 21928, at * 3
(N.D.N.Y. Aug. 25, 1999). Similar to this stance, some courts have held
that sanctions can be imposed against a party without a showing of bad faith.
See United Medical Supply Co. Inc. v. United States, 371 B.R. 823
(Fed. Cl. 2007) (bad faith not a prerequisite to court's exercise of inherent
authority to impose sanctions under spoliation doctrine, which was designed
to prevent prejudice to one party by another's loss or negligent destruction of
evidence). Yet, it may be possible to avoid sanctions altogether if the party
facing possible sanctions can show that it made a good faith effort to
correct a potentially sanction-warranting mistake. See Crandall v. City of
Denver, No. 05-cv-00242-MSK-MEH, 2006 WL 2683754, at *2-3 (D. Colo.
Sept. 19, 2006).
Creative Resources Group of N.J., Inc. v. Creative Resources Group,
Inc., 212 F.R.D. 94, 102 (E.D.N.Y. 2002) (quoting Fed. R. Civ. P. 37(b)).
For an example of a court using Rule 37(f) to impose particularly severe
sanctions in response to a party's intentional failure to produce important
electronically stored information, see Z4 Technologies, Inc. V. Microsoft
Corp., No. 6:06-CV-142, 2006 WL 2401099 fE.D. Tex. Aug. 18, 2006).
See Lisa Arent et. al, Ediscovery: Preserving, Requesting & Producing
Electronic Information, 19 SANTA CLARA COMPUTER & HIGH TECH. L.J.
131 (2002). See also In re Hawaiian Airlines, Inc. v. Mesa Air Group, Inc.,
No. 06-90026, slip op. 2007 WL 3172642, *7 (Bankr. D. Hawaii 2007) (issuing
adverse inference based on responding party's conduct); Doe v. Norwalk
Community College, 248 F.R.D. 372, 376 (D. Conn. 2007) (providing
three part test for determining whether an adverse jury instruction will be
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issued); Qantum Communications Corp. v. Star Broadcasting, Inc., 473 F.
Supp. 2d 1249, 1270 (S.D. Fla. 2007) (entry of default judgment); In re
Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1078 (N.D. Cal. 2006)
(monetary penalties).
Creative Resources Group, 212 F.R.D. at 104.
Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988). See also E*Trade
Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588-89 (D. Minn. 2005)
(applying these factors and additionally noting that when "the destruction of
evidence occurs after litigation is imminent or has begun, no bad faith need be
shown ....").
Whiteside v. Watson, 12 S.W.3d 614. 621-22 (Tex. Ct. App. 2000), vacated
w.r.m. without opinion.
For more cases discussing sanctions imposed for spoliation see Thompson Co. v.
General Nutrition Co., 593 F. Supp. 1443 (C.D. Cal. 1984); Thompson v. HUD,
219 F.R.D. 93 (D. Md. 2003).
See Nathan Drew Larsen, Evaluating the Proposed Changes to the Federal Rule
of Civil Procedure 37: Spoliation, Routine Operation and the Rules Enabling Act,
4 Nw. J. TECH. & INTELL. PROP. 212, 219 2006).
Proposed FED. R. Civ. P. 26(b)(2).
Proposed FED. R. Civ. P. 37(0(1) & (2). For an thorough critique of the proposed
Rule 37 "safe harbor" with accompanying alternative options, see Daniel Renwick
Hodgman, A Port in the Storm?: The Problematic and Shallow Safe Harbor for
Electronic Discovery, 101 Nw. U. L. Rev. 259, 281-292 (Winter 2007). See also
Norwalk Community College, 248 F.R.D. at 378 ("a party needs to act
affirmatively to prevent the system from destroying or altering information, even if
such destruction would occur in the regular course of business").