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.
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."
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