Wednesday, April 04, 2007


Ok. Back in Blog. Not sure I wanted to continue, but I will. I am also widening (or narrowing, depends on perspective) to include digital evidence, eDiscovery, and information technology law issues generally. Enjoy.

April 4, 2007: There is an upcoming ABA book on Digital Evidence, for which I have written a chapter or two. Stay tuned.

April 4, 2007: Order Granting Motion to Compel eDiscovery (from a February 2007 decision): For those who thought Zubulake provides a shield rather than a sword, here's my cross-post from the American Bar Association Information Security Committee List-Serve:

The following decision by Magistrate Judge Facciola in the U.S. District Court for the District of Columbia shouldn't be seen as the tsunami; but you might notice the tide going out... The decision does provide some support for applying the new eDiscovery rules to pending matters (at least where the discovery period is still open) ---something about which I was unsure. It is also interesting that most of the initial discovery rulings will fall on the shoulders of the magistrate judges (at least in Federal Courts).

The short holding: Defendant was ordered by the judge to perform "another and more complete search"

Some interesting observations:

"Under the rule pertaining to discovery of electronically stored information, accessible data must be produced at the cost of the producing party; cost-shifting does not even become a possibility unless there is first a showing of inaccessibility."

The Court then refers to suggestions it made as to where missing years of emails (sandwiched in between years in which emails had been produced) might be found:

"As I explained in my prior opinion, the sought emails, if they exist, could be located in one or more
of several places: (1) Peskoff' s NextPoint Management email account; (2) the email accounts of other employees, agents, officers, and representatives of the NextPoint entities; (3) the hard drive of Peskoff's computer or any other depository for NextPoint emails, searchable with key words; (4) other places within Peskoff' s computer, such as its "slack space," FN1 searchable with the help of a computer forensic technologist; and (5) backup tapes of Mintz Levin's servers."
"According to the Davis affidavit, Mintz Levin created back-up tapes that were overwritten every 14 days. Davis Aff. ¶ 30. After the two-week storage period, tapes are overwritten with new back-up files. Davis Aff. ¶ 20. Therefore, Davis states, anything Peskoff seeks dating back two years is long gone. Davis Aff. ¶ 30. Peskoff points out that the defendant provided no instruction to retain electronic mail at the time the archive file was created. Pls. Resp. at 3-4. In this case, a hard drive, never searched, was produced and the plaintiff's sent and received emails were produced, but (1) there are significant and unexplained gaps in what was produced, and (2) other searches of electronic data that I specifically suggested could be done were not. Furthermore, all of the unopened emails in the Inbox-a total of fourteen-are dated the same day, a date following plaintiff's departure from NextPoint. The 10,436 emails in the "Old Mail" subfolder are all unopened. The emails in the "Old Mail" subfolder are for the period June 25, 2003, to April 14, 2004, but the emails in the 65 other subfolders are all dated for the period June 2000 to June 2001. Thus, there are gaps of several years among the various subfolders with no emails whatsoever during these time periods. While there may be reasons why this is so, on this record all one can say is that this phenomenon is inexplicable."

So, the Court ignores the "long gone" argument provided by a document retention program and asks for other possible outliers.

As for inaccessibility providing a shield, well, the court appears to indicate inaccessible doesn't mean hard to accomplish:

"The obvious negative corollary of this rule [Fed. R. Civ. P 26(b)2(B) is that accessible data must be produced at the cost of the producing party; cost-shifting does not even become a possibility unless there is first a showing of inaccessibility. Thus, it cannot be argued that a party should ever be relieved of its obligation to produce accessible data merely because it may take time and effort to find what is necessary."

The upshot: "The defendant must therefore conduct a search of all depositories of electronic information in which one may reasonably expect to find all emails to Peskoff, from Peskoff, or in which the word "Peskoff" appears. Once the search is completed, defendant must make the results available to plaintiff in the same format as the electronically stored information was previously made available" Peskoff v. Faber --- F.R.D. ----, 2007 WL 530096 (D.D.C.2007).

My favorites: "obvious negative corollary" and the inexplicable "phenomenon" of a multi-year gap in an email records. That's one heckuva document retention policy. Honorable mention: 10,000-plus unopened emails.

[Inexplicable Time-lapse]

Sept 2006: The Florida Professional Ethics committee approved AO-06-2, relating how to handle metadata containing confidential information. Happy to say that Florida takes a centrist position. Recipient must not "mine" (and you miners know who you are) and senders must take appropriate measures to makes sure they don't include MD containing confidential information.

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