Sigler Article 12 2005

e-Discovery L AW J O U R N A L NEWSLETTERS

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Volume 2, Number 8 • December 2005

New Rules For Electronic Evidence: The Case For The Defense By Sonya L. Sigler

Part Two of Two Editor’s note: Last month, we featured the first half of “New Rules For Electronic Evidence — The Case For The Defense.” The first part covered the topics of early discussion of electronic evidence, before the case begins, and meet and confer. For a brief discussion on managing a case, dealing with evolving case strategy, some ramifications of the sophisticated technology involved in electronic discovery, and more, we offer Part Two of the article.

MANAGING THE CASE Attorneys will be required to make early and potentially farreaching decisions about how electronic discovery will be conducted. To most effectively safeguard client interests, attorneys need to be informed about the issues. Some of the questions to be faced early include: • Which custodians’ data should be produced? • For what date ranges? • What de-duplication methods, if any, should be used? • What culling technology or methodology will be used to reduce the volume of irrelevant data? • What search methodologies, if any, should be used? continued on page 4

GC’s New Discovery Role Reduce Cost With More Document Review Efficiency By Steven Harber and Mike Kinnaman

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iscovery today involves significantly more digital content to sift than ever before, resulting in a costly and time-consuming start to litigation or regulatory investigation. In fact, one of the most common complaints from corporations today is that the cost of discovery is simply too high, making compliance with regulatory rules and litigation requests extraordinarily challenging — and at times even crippling. But corporations can control these skyrocketing costs by taking a more active role in managing and preparing for discovery. The impact of e-mail is staggering. According to a recent study published by The National Law Journal, corporations are projected this year to spend more than $1 billion for electronic discovery services, and nearly $5 billion to manage e-mail. Although these numbers seem large, they pale compared to the additional billions of dollars that corporations pay law firms to conduct discovery. An industry consultant tells us that one of his clients is spending $36 per document to review, from start to finish. This seems high, yet most corporations have no idea what they are paying per document. The fact is that most corporations never ask their law firm how much they charge per document, nor have they conducted any type of analysis to identify the true, total cost of discovery. The problem with this is that without a figure to use as a baseline, corporations will never truly know whether they are paying too much, and so will never be able to demand cost-savings. Imagine the dollars you could save your business if you knew what discovery should cost. To ease the discovery burden for clients, law firms should develop consistent and repeatable procedures that can be deployed firm-wide for conducting large-scale document reviews. Many thought-leading law firms include an internal practice group in their litigation department that offers clients document review, production, litigation-support and counsel directly related to discovery. Such firms benefit continued on page 2

In This Issue GC’s New Discovery Role . . . .1 New Rules For Electronic Evidence: The Case For The Defense, Part Two . .1 Staying Up To Speed In A Fast-Changing e-World . . . . . . . . .5 e-Discovery Docket Sheet . . . . .7 Computer Forensics Docket Sheet . . . . .8

GC’s Role continued from page 1 clients by combining innovative technology and a trained staff to deliver a much lower total cost of discovery than traditional methods allow.

UNDERSTANDING THE TOTAL COST OF DISCOVERY The sheer expense of the discovery process is prompting a new dialogue between corporations and their law firms. In highly regulated or litigious companies, the general counsel is gaining more visibility into a firm’s document-review costs and efficiency. This can start with a few simple questions: • “How will your firm handle my company’s document review and how much will it cost?”; • “Is there a tested plan that includes the use of leading-edge technology and an emphasis on project management and process?”; • “Are there documented quality-control measures?”; and • “Is there an ability to scale review resources, and a budget for the total cost of review?” By asking law firms how they plan to respond to a discovery request, the GC gains a better understanding of the process, and ultimately will be better equipped to assess and prepare the company for discovery requests. Steven R. Harber is a co-founder of DiscoverReady LLC (www.discoverready.com), which focuses exclusively on reducing total document-review cost. Harber has worked in automated litigation support as a paralegal, attorney, application developer, services vendor and consultant since 1991. He holds a B.A. from Bucknell University and a JD from New York Law School. You can reach him at steve.harber@ discoverready.com. Mike Kinnaman is vice president of marketing at e-discovery firm Attenex (www.attenex. com). He has more than 10 years of technology-product and channel-marketing experience. Kinnaman is a member of the Sedona Conference Vendor Council, and of the Electronic Discovery Reference Model Project. He holds a B.S. in journalism from the University of Kansas. Reach him at [email protected]. 2

Unfortunately, many companies still don’t learn the process until after a lawsuit has hit. This reactive way of handling discovery leads to inefficient and painful experiences that can be avoided with proper preparation. The five strategic steps outlined below can help to educate counsel — and to prompt questions internally about discovery planning. Using this map, corporations can begin to develop an effective documentreview strategy — whether the process is conducted in-house or by an outside law firm. The result can produce not only dramatic time- and cost-savings, but also bring increased control of the process, and help counsel fashion the strongest case your company can present.

e-Discovery LAW

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PUBLISHER . . . . . . . . . . .Sofia Pables EDITOR-IN-CHIEF . . . . . .Michael Lear-Olimpi MANAGING EDITOR . . . . .Steven Salkin, Esq. MARKETING DIRECTOR . .Stephanie Bowland MARKETING PROMOTIONS COORDINATOR . . . . . . . .Rob Formica MARKETING ANALYSIS COORDINATOR . . . . . . . .Traci Footes GRAPHIC DESIGNER . . . .Crystal R. Hanna BOARD OF EDITORS WHITNEY ADAMS . . . . .Cricket Technologies Reston, VA MICHAEL A. CLARK . . .EDDix L.L.C. Milford, CT

AN ACTION PLAN FOR DISCOVERY MANAGEMENT Develop a strategic plan. Engage in careful planning up front to minimize expense and complications. Develop a project plan, workflow overview, organization chart, and review criteria before your company receives its next discovery request. The right plan can help communicate expectations and ensure that the right people are doing the right things at the right time, for the right price, which will provide a smooth process and a reduced total discovery cost. Who are the right people? Consider employing at least a project leader, manager and technologist to develop the step-by-step plan for responding to discovery requests. Many corporations now have a dedicated discovery team to better control the discovery process, including collection of data, data-processing, document review and production. If focused, this plan can be created in a few weeks with support from your law firm, vendors and other consultants that fit into the plan. The right plan will provide a repeatable process that encompasses the discovery lifecycle, including the combination of vendors and technology required for each step. Once in place, develop an estimate of your annual budget for discovery, parsing out the individual factors that have an impact on your continued on page 3

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PRASHANT DUBEY . . . .Fios Portland, OR MICHELE C.S. LANGE, ESQ. . . . . . . . .Kroll Ontrack Eden Prairie, MN ALEXANDER H. LUBARSKY, LLM, ESQ. . .Zantaz San Francisco ANTHONY MERLINO . .DolphinSearch Philadelphia KEVIN O’CONNOR . . . .TechLaw Chantilly, VA DAVID H. SCHULTZ, ESQ. . . . . . .Kroll Ontrack Eden Prairie, MN e- Discovery Law & Strategy ™ is published by Law Journal Newsletters, a division of ALM. © 2005 ALM Properties, Inc. All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Telephone: (800) 999-1916 Editorial e-mail: [email protected] Circulation e-mail: [email protected]

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The publisher of this newsletter is not engaged in rendering legal, accounting, financial, investment advisory or other professional services, and this publication is not meant to constitute legal, accounting, financial, investment advisory or other professional advice. If legal, financial, investment advisory or other professional assistance is required, the services of a competent professional person should be sought. e- Discovery Law & Strategy POSTMASTER: Send address changes to: ALM 1617 JFK Blvd., Suite 1750, Philadelphia, PA 19103 Annual Subscription: $399 Published Monthly by: Law Journal Newsletters 1617 JFK Boulevard, Suite 1750, Philadelphia, Pa 19103 www.ljnonline.com December 2005

GC’s Role continued from page 2 costs. This baseline provides documentation for the true expected cost of discovery, reflecting the savings achieved through pre-project planning. Create a review methodology. Once you’ve developed a plan, it will be critical to create a systematic and defensible methodology that can be tailored to meet the needs of each and every discovery request. If you are having difficulty, consider bringing in a vendor to help identify review guidelines and develop a documented process that includes processing, review and quality control. Although discovery and its many phases are often depicted as a single, linear process, the fact is that a solid review methodology must be flexible. Key information found during review often affects the review strategy. Consider focusing the early phases of review on key custodians to confirm review criteria, learn additional facts, adjust assumptions, estimate review rates, and prepare an initial budget. One of the real headaches for corporations is the amount of wasted expense during document review. Despite the many programmatic culling techniques available today, typically more than 80% of the content that is delivered for review is irrelevant to the matter at hand. Much of the potential savings in this process can be found by identifying relevant material and eliminating irrelevant material as quickly as possible. Many corporations are employing a multi-pass review strategy that includes a firstpass triage. During triage, each document is reviewed for relevancy. Irrelevant documents are suppressed from further review and relevant documents are passed downstream as defined by the review strategy. A more efficient and higher-quality review process can be constructed by putting more experienced resources on only relevant or potentially relevant material. First-pass reviewers will then have an easier job of declaring documents Not Relevant, Potentially Relevant or Potentially Privileged, leaving the more substantive privilege and December 2005

issue-based determinations for the more experienced second-pass reviewers. This simple step shrinks the haystack of information, and creates a much smaller and focused document set, opening the door to faster review and reduced review fees. Be active in selecting the right technologies. Corporations are rapidly adopting leading-edge software to better combat the volume of information requiring review. One example commonly employed in a multi-pass review is software enabling a visual and concept-based organization of electronic documents rather than a more traditional “page-by-page” linear approach. This software is proven across multiple examples to effectively and accurately identify relevant documents without having to develop complex search terms. Imagine you are searching for all documents related to someone named Madame X. Using sophisticated technology, the search result shows not only direct matches, but also visually illustrates how Madame X is related to other documents, concepts and individuals in the review pile. Reviewers can then isolate relevant documents, and irrelevant documents can be quickly removed. The result is improved accuracy, reduced review hours and a quick assessment of key information. Consider these other important functions of a technology: • Enables reviewers to get up and running quickly, with minimal training; • Makes documents quickly available for review; • Keeps documents in native format, eliminating expensive pre-production steps; • Offers de-duplication and near deduplication functionality to safely reduce the volume of reviewed information; • Presents a visual interface that enables reviewers to easily view document concepts, interrelationships and communication networks against a timeline; and • Arms project managers with robust reporting to assess review speed and facilitate quality control. And, most important, when selecting technology, make sure that you understand the big picture of your purchase.

Often, the technology price may be more costly than expected, but consider its impact on the total cost of discovery. One of the biggest mistakes corporations make when selecting technology is to make a decision on cost of technology in a vacuum. What if your new technology could save you four or five times the cost of review? Challenge the technology vendor to justify expense by demonstrating the technology’s reasonable expected return on investment. Invest in project management. It’s a fact: Most lawyers do not have extensive project-management training. Due to the sheer volume of most requests and that volume’s impact on the review process, project management is a critical component of managing discovery and review. With ongoing tracking of progress and adjusting the review process, you can ensure that your plan is on target and that any deviations from the original plan are quickly brought to the attention of the rest of the team so that adjustments can be made. You may find it hard to identify a project manager on your legal team. Outsourcing this function can often be a faster way to get started; then, instead of dealing with multiple vendors, officers and parties, your legal team can focus on the legal issues with the added assurance that a consistent process is being managed and enforced. Implement quality control and metrics. By establishing a quality-control plan and document-review metrics, GCs will have more confidence in the process, and in the results. A qualitycontrol plan ensures that your review strategy is being executed in the manner intended and will answer questions such as, “If I have someone reviewing 1000 documents and she says that 500 are responsive, who’s going to check to see if she made the right decisions?” Some methods for achieving quality control include applicable technology, statistical sampling and comparing result sets with those of other reviewers. With quality control in place, a GC can be confident that the review was done correctly. Valuable details related to electronic-document processing and review continued on page 4

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Discovery Role continued from page 3 can be tracked and measured. As a result, corporations can monitor important metrics to better manage their process. A few key metrics that can help corporations and their law firms better understand the impact of their review strategy are outlined in the accompanying chart.

CONCLUSION With the proliferation of e-mail, the document-review phase of discovery will continue to cost corporations billions of dollars for years to come. But a proactive approach to assessing how

New Rules continued from page 1 • In which form or forms is the data to be produced? and • How will vendors be chosen to assist in the collection, review and production of data? If the plaintiff is more knowledgeable about various technology options, he or she may be in a position to argue successfully for broader discovery. It is important for the defense to be fully armed to rebut these arguments. Lawyers will have to become aware, at least on a general level, about current trends in e-discovery technology and how it can help them with discovery responses. The most important factor in determining discovery strategy is knowing which facts the data support. If you have reason to believe that your position is very strong, it could help to investigate potentially relevant data from non-obvious custodians that support the defense. On the other hand, if the position is less clearly tenable, it may be wise to discourage casting too wide a net for Sonya L. Sigler is vice president of business development and general counsel at Cataphora Inc (www.cataphora.com). She is a member of the California State Bar and is a frequent speaker on various topics, including electronic discovery. She is a member of the Sedona Conference Working Group 1 on Electronic Document Retention and Production. Reach her at [email protected]. 4

reviews and investigations are currently conducted by internal staff or outside law firms will begin to shed light on why many current processes are so expensive. It will also present opportunities for organizations to prepare in advance and to be ready with a well designed plan, which will save time and money, instead of personnel finding themselves scram-

bling to react to the next documentreview crisis.

non-obvious custodians. At the same time, there is little advantage to the defense in aggressively culling nondamaging, non-responsive documents. You may prefer to put that burden on the plaintiff’s side as far as reasonably possible.

MORE SOPHISTICATED TOOLS

EVOLVING CASE STRATEGY What you find in the data may change case strategy dramatically, and the earlier you can get insight into the data, the better you can manage your case. The insight that you gain can strengthen your hand as you negotiate with the other side. A stronger position may allow you to take a harder line in negotiations, while discovery of damaging data or facts may make an early settlement look a lot more appealing. The new rules provide for giving the plaintiff earlier and fuller insight into potential evidence. This will tend to give the plaintiff more time to review the data than has historically been the case. The traditional approach of waiting until the last moment, and then dumping as much data as possible on the opposing side will change, because a production schedule will be agreed to earlier in the process. With more time, and with the availability of more sophisticated tools than ever before, the opportunity increases for the plaintiff to discover facts that are harmful to the defense. Thus, defense attorneys may be more motivated to quickly and fully understand exactly what is in the data to optimize their case strategy.

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Corporate clients are starting to realize the importance of a consistent and defensible approach to the management of electronic data that may some day be evidence in a case. Such clients are typically quite savvy about technology and, increasingly, are taking an active part not only in managing their data policies, but in determining what e-discovery vendor should be used on their cases. Willing or otherwise, these clients’ attorneys will have to consider more sophisticated e-discovery solutions. A simple keyword search of a database of imaged documents will no longer be an adequate solution. Neither will so-called “concept” searches and such techniques that categorize documents on the basis of statistical similarities. Such approaches fail to detect large numbers of documents that can in some way damage the responding party. Keyword searches can miss important documents unless they contain a chosen keyword. Categorization is a broad-brush approach that can miss significant content that is overshadowed by the bulk of otherwise innocuous or irrelevant text in the same document. Either approach can allow the inadvertent and unnecessary production, for example, of documents that contain inappropriate sexual comments or derogatory remarks about customers that could prove very damaging. More of increasingly sophisticated solutions are available that combine

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Staying Up To Speed In A Fast-Changing e-World A Primer For Counsel Entering e-Discovery By Robert D. Owen It has long been the law that an obligation to preserve potentially relevant evidence attaches when an action or investigation is commenced against a person or company, but until quite recently few companies had formal policies addressing that duty. The last few years have seen a seismic change in this area, driven largely by concerns about electronic records. Recent independent surveys of corporate general counsel confirm that companies have been taking steps to formalize their preservation practices when litigation or enforcement activity becomes reasonably likely. A 2003 survey conducted by the econsulting firm Cohasset Associates found that 46% of the companies surveyed had not established any formal system for preserving records, and the litigation-hold policies of 65% did not address electronic documents. (For more information on generalcounsel e-discovery process, see, “GC’s New Discovery Role: Reduce Cost With More Document Review Efficiency,” on page 1.) Contrast those figures with ones from the 2005 Litigation Trends Survey commissioned by the international law firm of Fulbright & Jaworski, and conducted by an independent research firm early this summer. With 354 senior in-house counsel participating, including 50 legal directors in the United Kingdom, this Robert D. Owen is a litigation partner in the New York office of Fulbright & Jaworski LLP, and co-head of the firm’s e-discovery and informationmanagement practice group. He recently advised a global pharmaceutical company and a global energy company on revising their preservation-notice policies. Owen is a member of the Sedona Conference Special Team for Litigation-Hold Policies. December 2005

was likely the largest survey of corporate counsel ever conducted. It found that in just 2 years, the percentage of companies without written litigation-hold policies had fallen to 25%. (Companies in energy, real estate, health care and retail/wholesale were most likely to have litigationhold policies in place.) Perhaps even more interesting, among the companies that had litigation-hold policies, 43% had revised their policies in just the last 12 months. These figures reveal a high level of awareness within the business world of the potential liabilities created by the massive volume of electronic data that enterprises generate. The data also confirm that companies realize this is a rapidly evolving area of the law in which it is essential to keep policies up-to-date and integrated into normal business operations. What has brought about this recent surge in activity? A principal driver, of course, has been the evolution of electronic technology; from Altair 8800s and Radio Shack TRS-80s — stalwarts of the early days of PCs 30 years ago — to the supercomputeron-a-desktop power that users wield today, and the accompanying explosion in the volume of electronic information created and stored. But the main impetus has been, very simply and very rationally, fear — the fear created by highly adverse, highly public consequences visited upon corporations in several recent highprofile cases. Corporate management now clearly understands that having an inadequate policy — or none at all — for preserving records can have highly negative consequences. They have seen what can happen when companies get tripped up. In one recent case, the consequence of a financial-services firm’s e-discovery lapse was a judgment in excess of a billion dollars. The effect of these cases in the financial industry, as well as the post-Sarbanes-Oxley regulatory environment, are reflected in the Fulbright survey. The industry with the highest percentage of companies that had revised their litigation-hold policies in the last year was finance (60%), followed closely by the

insurance and retail/wholesale industries. Ironically, it was the financialservices industry that saw the two most notorious, and costly, examples of e-discovery missteps.

HEADLINE MAKERS A female stock trader working for UBS Warburg named Laura Zubulake commenced a Title VII sex-discrimination case in 2002. Her name is now attached to some of the most widely read decisions in the area of e-discovery: Zubulake v. UBS Warburg LLC. In the course of the pre-trial discovery, her lawyers were able to demonstrate that UBS employees had deleted a handful of possibly relevant e-mails after she had begun her Equal Employment Opportunity Commission (EEOC) proceeding. Even though UBS hadn’t authorized those deletions, the company was held responsible and the matter went to trial earlier this year. The trial judge told the jury that it could assume the worst about the deleted e-mails, and it evidently did, because it returned a $28 million award against UBS last April. The case demonstrated the dangers of not being able to locate in a timely manner all the records relevant to litigation, as well as the worst-case consequences of being charged with spoliation (intentional destruction of or failure to preserve evidence for pending or reasonably foreseeable litigation). Spoliation can have a major impact on the outcome of a trial because one of the possible sanctions is an adverse-inference instruction — exactly what was deployed in Ms. Zubulake’s case. The case was settled for an undisclosed amount on September 28. One month later, in Coleman v. Morgan Stanley, a Florida state judge decided that there had been a failure to respond in a forthcoming way to requests for electronic records during the discovery process and instructed the jury to infer that the documents in question confirmed the plaintiff’s allegations of fraud. The outcome of this trial was an award of $1.4 billion in damages. A ruling of spoliation may be avoided if it can be demonstrated that

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New Rules continued from page 4 statistical, linguistic and other techniques to provide unprecedented insight into evidentiary data. To supplement these, analytical techniques can look beyond the detail of individual documents to reveal broader patterns that can highlight such factors as gaps in communications indicating incomplete production, or to help limit the scope of production to relevant custodians.

e-World continued from page 5 “reasonable” actions were taken to comply with discovery requests. Obviously, reasonableness is a subjective standard that gives defendants scant comfort in a hostile forum. One thing is certain, though: the sea of electronic data that companies are creating greatly increases the risk of spoliation far beyond what it was when the only records that existed were paper ones.

TECHNOLOGY AND PRE-TRIAL DISCLOSURE The Federal Rules of Civil Procedure instituted the philosophy of full pre-trial disclosure more than 70 years ago. This principle was not terribly difficult to live up to in the old paper world, where it was generally more trouble to keep a document than it was to discard it. When litigation arose, a significant case might involve two file drawers full of papers, and the largest cases might require a single roomful of file cabinets. Anyone who has litigated lately can only smile at those archaic figures. In today’s e-world, the combination of human nature and technology has caused an explosion in the volume of records produced in cases. Discovery in the average case now may involve hundreds of thousands of pages of documents, comprising e-mails and attachments, and e-documents stored in numerous locations, inside and outside of company facilities. It is often a staggering amount of data, and it makes discovery a daunting and potentially costly process. Discovery costs alone can force far larger nuisance-value settlements than before. 6

It will be ever-more important for the producing party to fully understand the nature of the data that is being handed over, or risk being the victim of a plaintiff with more insight into the data, more sophisticated tools and more time to use them.

A PERFECT STORM? A confluence of factors is throwing an ever-brightening spotlight on electronic discovery. More cases feature — and hinge on — larger volumes of electronic evidence that are impossible to fully review using currently The answer to this problem is to be as prepared as possible for litigation at all times by incorporating best practices for records-management into normal business operations. This makes recordsretention policies, and preservationnotice policies critical business practices. Although most companies have come to this realization, it’s surprising that a significant number have not. The 2005 Fulbright survey also showed that 19% of the companies with $1 billion or more in revenues still did not have a litigation-hold policy, and 15% had no written records-retention policy. Perhaps not so surprising, the percentages of smaller companies (less than $100 million in revenues) with no litigation-hold or recordsretention procedures were even higher (36% and 25%, respectively). The larger companies, of course, are at greater risk. The lack of policies in place may reveal yet another trait of human nature: procrastination — but in today’s electronic environment, it is one that few companies can afford.

KEY CONCERNS IN LITIGATION-HOLD POLICIES A comprehensive e-discovery and information-management program must address myriad issues, and should start with an audit and evaluation of current policies and procedures. In establishing new policies for preservation notices, three areas in particular should receive special attention — ones that have proved most costly and damaging when not addressed properly prior to litigation. They are: • Ensuring that recipients of litigation-hold orders have received and complied with them;

accepted techniques. With the proposed rules changes all but certain to go into effect next year, both sides must encourage their clients to be prepared to address all e-discovery issues early and often. With more sophisticated technology continually available, both parties will have more time with their own data and, for plaintiffs, with the produced data set. Case strategy is bound to change with this increased insight into the data. Start preparing your clients now. —❖— • Proper management of backup tapes; and • Company records held by third parties (eg, research laboratories or outside vendors).

PREVENTIVE STEPS The bright side of Zubulake is that it went a long way toward establishing guidelines for policies to preserve records and best practices to carry out those policies. The judge’s five significant decisions, known as Zubulake I, II, III, IV and V, defined the scope of the duty to preserve and outlined specific steps that in-house and outside counsel should take to demonstrate that they have made their best efforts to preserve documents and to ensure compliance with the policies in place. Guidelines, such as who should receive preservation notices, and what to do if errors occur in the process, have made this case practically a howto manual for protecting an organization against a charge of spoliation. In addition, Congressional action is expected in December 2006 on proposed amendments to the Federal Rules of Civil Procedure concerning electronic discovery. This is the culmination of a 2-year process to take into account the revolution in electronic information. If these proposals go into effect, they will help to clarify the situation as companies try to establish best practices for preservation notices and other aspects of e-discovery. Instituting those practices before litigation arises is the wise path for organizations of all sizes. This once “niche area” of the law should be on everyone’s front burner, or everyone will run the risk of getting burned by it. —❖—

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December 2005

e-Discovery

DOCKET SHEET

APPELLATE COURT FINDS PLAINTIFF’S E-DISCOVERY ALLEGATIONS LACK MERIT In an employment discrimination lawsuit, the plaintiff appealed a district court’s grant of summary judgment in favor of the defendant. The plaintiff argued that the District Court erred in involving the court’s own computer personnel in discovery, and in finding that the defendant had fully produced all discoverable electronic data. During the discovery process, the plaintiff filed a motion to compel discovery on the grounds that the defendant deleted e-mails and destroyed documents. In response, the court ordered both parties to submit their copies of data to the court’s information technology (IT) personnel to see whether the material could be retrieved. The court’s personnel successfully retrieved the information, and the court closed discovery without requiring the defendant to take further action. The court also granted summary judgment, declaring that it had no reason to believe the defendant was concealing data or harassing the plaintiff during discovery. In affirming the district court’s decision, the appellate court noted that the district court did not abuse its discretion in having the IT personnel evaluate the data, because the e-Discovery Docket Sheet and Computer Forensics Docket Sheet were written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Charity Delich, a Kroll Ontrack law clerk. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics, and technology’s role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at www.krollontrack.com. Lange is a member of e-Discovery Law & Strategy’s Board of Editors, and may be reached at [email protected]. December 2005

IT personnel acted as a neutral party on behalf of the court. Finding no reason existed to believe that the defendant was hiding information, the court also rejected the plaintiff’s contention that all electronic documents found in discovery were not fully produced. Harbuck v. Teets, 2005 WL 2510229 (11th Cir. Oct. 12, 2005).

COURT DENIES RENEWED MOTION TO COMPEL ACCESS TO CORP. INTRANET In a patent infringement suit, the plaintiffs renewed a motion to compel the defendants to provide them with access to a corporate intranet portal. The court had previously denied the motion, relying on the defendant’s representation that it would produce the requested data in a searchable electronic format. In their renewed motion, the plaintiffs declared that the defendants did not follow through with this representation because they produced some of the documents in hard-copy format, requiring document-by-document review of over 1 million pages without the benefit of electronic searching. Additionally, the plaintiffs claimed that the defendants produced other large batches of documents in a nonsearchable electronic format. The plaintiffs also alleged that certain documents had not been produced, constituting new evidence in support of the plaintiffs’ motion. In response, the defendants declared that they had fulfilled their obligations under the Federal Rules of Civil Procedure by producing older documents, available only on microfilm, in the format in which they were maintained. The defendants also stated that they would produce the specific documents previously identified by the plaintiffs as non-searchable in “searchable form.” In denying the plaintiff’s motion, the court found that the plaintiff had failed to demonstrate “an intervening change in controlling law, the availability of new evidence that was not available when the Court issued its first Order, or the need to

correct a clear error of law or fact to prevent a manifest injustice.” Fenster Family Patent Holdings, Inc. v. Siemens Med. Solutions USA, Inc., 2005 WL 2304190 (D.Del. Sept. 20, 2005).

COURT ORDERS DEFENDANT TO PRODUCE BACKUP TAPE The plaintiff sought a computer backup tape containing data from two desktop computers and one laptop computer located in defendant Abernethy’s home office. Abernethy was an employee of another named defendant, Sterling. The plaintiff alleged that the tape was necessary because relevant electronic evidence may have been altered or destroyed, and the tape “may contain the only remaining copy of that evidence.” The plaintiff stated that it needed the tape to compare the files on the backup tape to the original files on the computers. Objecting to the production, defendant Sterling argued that the tape was a backup of a Sterling computer, making it Sterling’s property and not Abernethy’s property. Sterling also argued that the plaintiff already had the documents on the tape, that the tape was not subject to a previously issued consent order, and that the files on the tape contained proprietary information that could not be produced. Rejecting these arguments, the court ordered production of the tape, concluding that the tape was Abernethy’s property and not Sterling’s property. The court also refused to accept Sterling’s argument that the plaintiff had already obtained copies of the files through a forensics request and could request any deleted files it wished to have that existed on the tape. Commodity Futures Trading Com’n. v. Equity Fin. Group, LLC., 2005 WL 2205789 (D.N.J. Sept. 9, 2005).

SCHOOL BOARD DENIED UNFETTERED ACCESS TO TEACHER’S HOME COMPUTERS Alleging that a teacher exchanged sexually explicit e-mails with students and made derogatory comments about school staff, a school board sought to compel production of all computers in the teacher’s household.

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Computer Forensics

DOCKET SHEET

APPELLATE COURT AFFIRMS ‘TIME BOMB’ COMPUTER CONVICTION The defendant appealed from a conviction under a federal computerfraud statute, arguing, inter alia, that the prosecution had tampered with the evidence leading to his conviction. An investigation of the defendant’s former employer’s network revealed that a string of computer commands, designated as a “Time Bomb,” had been programmed to automatically delete massive amounts of the company’s data at a predetermined time. Kroll Ontrack, an e-discovery services provider with headquarters in Eden Prairie, MN,

e-Discovery Docket continued from page 7 Additionally, the board sought to have its own computer expert search the computers in the expert’s laboratory for the alleged messages between the teacher and students. Objecting to the order, the teacher declared that the production would violate his right against self-incrimination and his right of privacy, and would disclose privileged communications. An administrative law judge ordered production of the computers and sought to protect the teacher’s right by allowing the teacher to have his own expert present at the inspection, and by requiring the school board’s expert “not to retain, provide, or discuss with counsel for the Board the existence of any communications which might be deemed privileged.” In quashing the order, the court declared it was overbroad and would allow “an agent of the Board carte blanche authorization to examine the hard drives it will

investigated hard drives damaged by the Time Bomb program. On appeal, the defendant argued that the government tampered with copies of the hard drives it received back from Kroll Ontrack because the drives were not the same as those provided by the Secret Service. Specifically, the defendant claimed that different amounts of “zeroes” were inserted onto the drives. The defendant also alleged that his expert fully recovered the lost data once the zeroes were removed. The defendant further argued that four files were added onto copies of the drives from Kroll Ontrack, one of which was deleted and no longer contained data, and duplicate from the computers [the teacher] has been ordered to produce, combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for ‘any data’ that may evidence communication between [the teacher] and his accusers.” Menke v. Broward County Sch. Bd., 2005 WL 2373923 (Fla. Ct. App. Sept. 28, 2005).

DISCOVERY EXTENSION DENIED WHERE PLAINTIFF FAILS TO SHOW NON-PRODUCTION OF CRITICAL E-DATA The plaintiff filed an employmentdiscrimination lawsuit alleging violations of the Americans with Disabilities Act and other state human rights laws. After the defendant filed a motion for summary judgment, the plaintiff requested a continuance to permit time for further electronic discovery before the

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three that consisted of resumes and correspondence documents. Rejecting the defendant’s arguments, the court upheld the defendant’s conviction and found that the defendant’s failing to show the discrepancy among the copied drives was sufficient evidence to overcome the trial court’s determination. Lloyd v. United States, 2005 WL 2009890 (D.N.J. Aug. 16, 2005). See also, United States v. Lloyd, 269 F.3d 228 (3rd Cir. 2001). —❖— LAW JOURNAL NEWSLETTERS REPRINT SERVICE Promotional article reprints of this article or any other published by LAW JOURNAL NEWSLETTERS are available.

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court ruled on the summary judgment motion. The plaintiff claimed that the defendant failed to produce certain electronic entries made by the defendant’s employees. The court granted the defendant’s motion for summary judgment and declared that the plaintiff had failed to show that the defendant did not produce critical electronic entries. The defendant had also produced an email — which the plaintiff characterized as a “smoking gun” — from one of its employees, and indicating that the company wanted to replace the plaintiff. Although recognizing the existence of the e-mail, the court declared, “Even if other emails exist in [the defendant’s] computer archives, as [the plaintiff] alleges, he has not made the showing necessary to warrant their retrieval at this late date at [the defendant’s] expense, nor has he volunteered to foot the bill for doing so.” Cook v. Deloitte & Touche, LLP, 2005 WL 2429422 (S.D.N.Y. Sept. 30, 2005). —❖— On the Web at: www.ljnonline.com

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December 2005