2007-08-27 Peskoff v Faber, Round 2 - Refinements to Accessibility, Duty to Preserve and Litigation Holds

Judge Facciola issued a second decision involving what appears to be a rather ugly dispute between the parties. (See in particular, Footnote 7 to the opinion). The Court provides additional guidance in connection with the duty to preserve and for litigation holds as they relate to a party's discontinuation of "automatic deletion features" in a data generating system.

Anticipation of Litigation: Applicable Standard

The Court first revisits and again endorses its interpretation of the advisory committee comments to Fed. R. Civ. P. Rule 37(f) that any automatic deletion feature should be turned off and a litigation hold imposed once litigation can be reasonably anticipated:

"While the new amendment to Rule 37 of the Federal Rules of Civil Procedure indicates that, absent exceptional circumstances, a court may not impose sanctions on a party for “failing to provide electronically stored information lost as a result of the routine,good-faith operation of an electronic information system,” it is clear that this Rule does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation. . . . [T]he advisory committee note to that Rule states: [the Rule] applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of [the Rule] means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a“litigation hold.”"
Disability Rights Council v. Washington Metro. Transit Auth., 242 F.R.D. 139, 146 (D.D.C. 2007)."

Legitimate Exercise of Discretion to Act, Including Sanction: The Court then affirms the approach set out in Peskoff v Faber I: "Thus, as to the most recent time period at issue, Faber’s not turning the automatic deletion feature off once informed of pending litigation may serve as a premise for additional judicial action, including a sanction, without offending amended Rule 37(f). It is a legitimate exercise of discretion to require Faber to participate in a process to ascertain whether a forensic examination can yield emails that were deleted after February 6, 2004, because at that time Faber could reasonably anticipate that Peskoff would sue him."

Period Prior to Notice of Litigation: Applicable Standard

The Court notes that, for the period prior to a party's having notice of pending litigation, Fed. R. Civ. P. 37(f) imposes no obligation for a party to suspend automatic deletion operations that are conducted in good faith and in a routine fashion.

"[Rule 37(f)] acts as "no impediment whatsoever to Faber and NextPoint continuing to operate the email system and its automatic deletion features as the system had operated before."

The Court then finds support for this approach in the words of the rule themselves: "[T]o the precise contrary, amended Rule 37(f) indicates that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored nformation lost as a result of the routine, good faith operation of an electronic information system.” I find no exceptional circumstances here and the automatic deletion features of the email system cannot be the basis for any sanctions in that period of time. "

Ah, but then, you know, we operate in a world of rules, subject to exception, which are in turn subject to other conditions...and here, "balancing factors"

The Fed. Rule Civ.P. 26(b) Balancing of Factors Test Exception to Rule 37(f)'s "Good Faith" and "Routine Operation" Safe Harbor Provisions: The Court then interprets Fed. R. Civ. P. Rule 26(b)(2)(C) to reads an exception into Rule 37(f)'s "good faith" and "routine activity" safe harbor provision:

"Nonetheless, Rule 37(f) must be read in conjunction with the discovery guidelines of Rule 26(b). In doing so, as discussed above, I find that balancing the factors in Rule 26(b)(2)(C) authorizes me to require Faber to participate in a process designed to ascertain whether a forensic examination is justified because the emails are relevant, the results of the search that was conducted are incomprehensible, and there is no other way to try to find the emails."

It therefore appears that some fairness and/or hardship showing may be used by counsel to overcome Rule 37(f)'s safe harbor provisions for automatic deletion operations even for "pre" notice of litigation periods.

The Court also supports its decision to bypass the safe harbor provisions of Rule 37(f) by noting that the party from whom such information was requested never objected to the document production request. Discovery fans will recognize that the rules provide that the failure to object to a discovery request can be deemed a waiver of objection. The Court points out that:

"First, I can begin with the premise that Faber never made any objection to Peskoff’s document request and, as I have noted, it is common ground that the emails sought are relevant... Courts have found that failure to state any objections to the production of documents in a timely manner constitutes a waiver of any objections, similar to Rule 33, even though Rule 34 does not contain an automatic waiver provision. Myrdal v. District of Columbia, Civ. A. No. 05-2351, 2007 WL 1655875 (D.D.C. June 7, 2007); Fonville v. District of Columbia, 230 F.R.D. 38, 42 (D.D.C. 2005) (finding that failure to object to document production in a timely manner, like the failure to object to an interrogatory, constitutes an automatic waiver of any objections). Thus, any objection Faber has to the document request at this late date on the grounds that the request should have issued separately to NextPoint under Rule 45 is waived. See Fed. R. Civ. P. 34(b)."

Accessibility Standard Redux

Judge Facciola first reflects upon comments upon a New York Law Journal article from June 2007 that describes the approach taken in Peskoff v Faber I: to include "a per se rule that a party must search accessible data, irrespective of whether the cost of the search is justified by the relevance of what may be found, and to have “rejected Faber’s cost-shifting request.” The Court corrects this mis-impression by pointing out that: "...Faber has never made any “cost-shifting request” under Rule 26(b)(2)(B), nor has he ever contested the relevancy of the emails that Peskoff seeks. See Peskoff, 2006 WL 1933483 at *4"

Judge Facciola then drives the point home: "I readily concede that when the argument is made, the search for data, even if accessible, must be justified under the relevancy standard of Rule 26(b)(1).By performing the analysis under Rule 26(b)(2)(C), which assumes the relevancy standard under Rule 26(b)(1) is met, I do not mean to suggest the contrary. The point is that that balancing under Rule 26(b)(2)(C) was not invoked here to oppose the search,and I cannot accept the proposition that Faber may be relieved of searching accessible data when he does not argue that the search is not justified by the potential relevancy of what may be found." [Emphasis Added]

So?

Make the Argument or Waive the Argument

The upshot here is a party must object to the necessity (and relevancy) for a requested electronic systems discovery search in order to have a court invoke the balancing test required by Fed. R. Civ. P. Rule 26(b)(2)(C). If no objection is made, a court will not invoke a utility against cost balancing test sua sponte:

"I persist in my view that a party must search available electronic systems to answer any discovery request not objected to, see McPeek v. Ashcroft, 202 F.R.D. 31, 32 (D.D.C. 2001), and since Faber has never argued that the search is unnecessary or irrelevant but only that Peskoff should pay for it, I am hard pressed to understand why I am required to, sua sponte, balance utility against cost and relieve Faber of searching accessible, relevant data any more than I would have to do the same balancing before I required him to look through the file cabinet outside his office for a paper file."

Words to the wise..

S

2007-08-22 U.S. v Washington Computer Generated Information and Testimonial Hearsay - 4th Circuit Decision Applied to Breath Alcohol Testing Devices

Today's decision by the U.S. Court of Appeals for the 4th Circuit interprets the Supreme Court's Crawford v Washington 6th Amendment Confrontation clause/testimonial hearsay doctrine to computer generated information. In U.S. v. Washington (No. 05-4883p), the Court appears to adopt the 10th Circuit's approach in United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005). The 10th Circuit in Hamilton held that a declarant, for purposes of the Fed. R. Evid. 801(c) hearsay provision, must be human. Accordingly if no "human" makes the statement, the information cannot, according to the 4th Circuit, be considered hearsay and therefore is not subject to the 6th Amendment Confrontation Clause protections in connection with testimonial hearsay asserted against an accused.

Two things are interesting about this decision. First, the argument made by Appellant's counsel misses the mark. Appellant's counsel does not claim that the computer output is testimonial hearsay, but rather that the technician's report interpreting the data converts that data into testimonial hearsay. The court here seems to hold that it was indeed the computer output that accused, but since the output was not made by a "human" the computer's accusations, although testimonial, could not be considered hearsay, and therefore did not fall under the protection of Crawford v Washington.

The dissent holds out some hope for a more realistic and appropriate analysis. Although the dissent holds that the computer output is a "statement" it arrives at the right decision (that the output is testimonial hearsay) for the wrong reasons. The dissent reasons that since the computer output was interpreted by a human administrator, and the computer's "statement was somehow thus imbued with "statement" (from a human) quality sufficient to deem it hearsay and to trigger Crawford v Washington Confrontation Clause protection. The dissent also appears to give deference to the 10th Circuit reasoning in U.S. v Hamilton that information "automatically" generated by a computer "without assistance or input by a person" is not a statement made by a declarant and hearsay.

Second, it is interesting that the Appellant focused on neither the statements made by the code, nor the programmer who created the code contained in the computing device through assertions made in code (incontrovertibly, a language, such as "C"). Instead, Appellant chose to graft the interpretation of a technician with the statement made by the computing device. Once it is better understood that computers only make statements, and then only on behalf of a human who inputs an instruction to make a statement on behalf of that human, then perhaps we will see a shift in approach to treatment of computer generated information for hearsay analysis purposes. That it was not a unanimous decision holds out some hope for future cases, and for disagreement by other jurisdictions.

I think this decision creates more issues than it resolves, and should provide some additional fuel differing decisions, and ultimately, an opinion from the Supreme Court.

Cites: Crawford v Washington 541 U.S. 36 (2004)

2007-08-19 Wiki Data Not Sticky - "Conflict of Interest Editing", and a Tip

When adversary counsel refers a court's attention to a Wiki posting as "the" definitive answer to, or description of, anything, be alert. It will be helpful to point out how easily entries are manipulated to cater to one bias or another. In an article in today's New York Times (subscription required), Jimmy Wales, the founder of the Wikimedia Foundation, "which runs Wikipedia, says the site discourages such “conflict of interest” editing. “We don’t make it an absolute rule,” he said, “but it’s definitely a guideline.”

The article also notes that this non-peer reviewed ability to edit has not gone unnoticed by others: "Internet experts, for the most part, have welcomed WikiScanner. “I’m very glad that this has been exposed,” said Susan P. Crawford, a visiting professor at the University of Michigan Law School. “Wikipedia is a reliable first stop for getting information about a huge variety of things, and it shouldn’t be manipulated as a public relations arm of major companies.”

Sourcing Wikipedia posts: It is helpful to understand that a Wikipedia page cannot be traced to an individual, only to a network "owner."

An concordance about an error in fact does not make that asserted fact "true."

Techlaw Tip o' the Day: Many (if not most) networked copy machines have hard drives that store images of documents, etc. produced by the copier. These images may reside in that hard drive until they are overwritten. If your client uses this technology, include the copier hard drives in your data retention program. If you're on the discovery highway, remember to ask for images of same.