From April 2007: Spoliation and eDiscovery Opinion in Teague v. Target Corp. d/b/a Target Stores, Inc. Slip Copy, 2007 WL 1041191 (W.D.N.C. 2007). Here, a United States District Court Judge (and not a magistrate) found that the plaintiff had spoliated evidence by not preserving her home computernot preserving her computer well after she retained counsel and filed her EEOC charge:
"Plaintiff clearly had an obligation to preserve her computer because it contained electronic evidence relating to her claims against Target and her efforts to mitigate her damages. As noted earlier, she had already hired counsel and filed an EEOC charge. Under the circumstances the court concludes that there is enough evidence that Plaintiff discarded the computer with a “culpable state of mind.” The electronic information contained on the computer was clearly relevant to her claims and to the defenses of the Defendant. Accordingly, the court finds that an adverse inference instruction to the jury is warranted and appropriate." Teague v. Target Corp. d/b/a Target Stores, Inc. Slip Copy, 2007 WL 1041191 at *2.
From January 2007: Spoliation and eDiscovery Opinion and Order by Magistrate Judge Andrew Peck of the Southern District of New York: In re NTL, Inc. Securities Litigation, 2007 WL 241344 (S.D.N.Y. 2007); 1:02-cv-03013-LAK-AJP (SDNY January 30, 2007).
What we are seeing here is that what I consider to be the draw back prior to the tsunami. In the coming months there will be a flood of predominantly magistrate-judge level decisions on eDiscovery matters. The amended (to include) eDiscovery provisions of the Federal Rules of Civil Procedure is nearly four months old. The visibility of magistrate judges will increase with the upcoming torrent of eDiscovery issues and disputes. My wager is that since magistrate judges have generally been delegated with decision-making authority on discovery matters, the largest volume of decisional authority will come from magistrate-level rulings.
The Court here found that defendants engaged in spoliation of evidence (including emails) after what appears to have been a half-hearted effort to impose a litigaiton hold after notice of litigation or impending litigation occurred.
In what I believe will be of increasing importance in eDiscovery, the Court cites well established decisional authority interpreting the meaning of "control" pursuant to the provisions of Fed. R. Civ. P. 34.
"'The test for the production of documents is control, not location.'" In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. at 180 (quoting Marc Rich & Co. v. United States,707 F.2d 663, 667 (2d Cir.), cert denied, 463 U.S. 1215, 103 S. Ct. 3555 (1983)). "Documents may be within the control of a party even if they are located abroad." In re Flag Telecom Holdings, Ltd.Sec. Litig., 236 F.R.D. at 180." In re NTL, Inc. Securities Litigation, 2007 WL 241344 at *17.
If "location" is not part of the "test" for document production, it appears that an accessibility argument based on "location" (as in, "we store the backup tapes at Cobalt Peak secure underground storage facility) won't fly.
Another interesting snippet, embracing within the definition of control the "practical ability" to obtain documents :
"Under Rule 34, "'control' does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action." Bank of New York v. Meridien Biao Bank Tanzania Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y. 1997); see also, e.g., In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. at 180; Exp.-Imp. Bank of the United States v. Asia Pulp & Paper Co., 233 F.R.D. 338, 341 (S.D.N.Y. 2005); Dietrich v. Bauer, 2000 WL 1171132 at *3 ("'Control' has been construed broadly by the courts as the legal right, authority or practical ability to obtain the materials sought upon demand.") (emphasis added); In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 530 (S.D.N.Y. 1996); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y.1992) (The courts have "interpreted Rule 34 to require production if the party has the practical ability to obtain the documents from another, irrespective of his legal entitlement to the documents.")(emphasis added)." In re NTL, Inc. Securities Litigation, at *17.
What we are seeing is what I consider to be the beginning of a flood of magistrate-judge level decisions on eDiscovery matters. The eDiscovery rules are still new, (although arguably applicable to open-discovery matters) but since magistrate judges have generally been delegated with decision-making authority on discovery matters, their visibility will increase with the torrent of eDiscovery issues, disputes and rulings to come.
