Wednesday, April 30, 2008

2008-04-30 Spoliation Motion: Denied, but Attorneys Fees and Costs Awarded for Negligence

First, a disclosure. I am plaintiff's counsel in the case discussed below. Now, for the decision:

The Court in Whitney v JetBlue 07-cv-1397 (EDNY 2008) today denied a motion for spoliation, but nonetheless awarded attorneys fees and costs in connection with that motion. In this case, an original, paper-and-ink contemporaneous report drafted by an airline attendant was admittedly destroyed, and the information from that report was alleged to have been entered into defendant's database.

The Court found that although defendant had a "clear obligation" to put a litigation hold on the paper record, it permitted that record to be destroyed as a result of a "bulk destruction" of documents. The Court found no evidence of bad faith, but did find that the evidence was obviously relevant, under the complete control of the defendant, and that it could be argued that "under all the circumstances of the case, JetBlue was grossly negligent in its responsibility to supervise and ensure retention of the document."

Interestingly enough, the Court notes that the digital versions of the destroyed report did vary, but deemed the variation insufficient to show that the destroyed report might have contained other information tending to corroborate plaintiff's allegations.

All that said, the Court did impose sanctions of attorneys fees and costs for negligence (arguably, "gross negligence") in connection with the motion for spoliation. The Court did point out that "defendant failed, on several instances-in its initial disclosures and in connection with depositions-to provide accurate information to plaintiff." The Court nonetheless did impose sanctions of attorneys fees and costs for negligence in connection with the motion for spoliation. The Court also pointed out that "defendant failed, on several instances-in its initial disclosures and in connection with depositions-to provide accurate information to plaintiff."

What is interesting here is that the Court tacitly acknowledges that the three proffered versions of the computer-generated report, which differed in time, title and content, did not save defendant from a finding of negligence for destruction of the paper based original. It might have, if defendant had taken even the simple step of scanning the original into an image for retention.

The decision is instructive, but it does highlight the need going forward to focus on technology-centric digital evidence issues and the need for (at this point) expert testimony to explain the heightened difficulty of proving a negative in the digital evidence universe on the one hand, and the ease with which undetectable manipulation may occur, and perhaps lead to a finding that the spoliated evidence (with now unknown content) could be presumed to corroborate the non-spoliating party's allegations

First steps in the right direction.


Thursday, April 24, 2008

2008-04-24 eDiscovery Abuse (including all the usual suspects) Leads to Dismissal of Complaint

In a March 31, 2008 decision the Court in Fharmacy Records v. Nassar --- F.R.D. ----, 2008 WL 900974 (E.D.Mich. 2008) dismissed plaintiff's complaint because of some rather flagrant discovery abuse involving ESI. Notably, the defense's forensic expert found that the computer in question did not exist at the time the alleged files were created, found evidence of backdating, found hard drives manufactured years after the alleged creation of the files in question (with some bearing 1970 Unix "Year One" or January 1, 1904 Mac default creation dates. No mention of other metadata analysis that might have been helpful. Oh, wait, there was more. Assignment documents referenced entities not yet created, and the computer used to create the original documents was "thrown away." Some amusing background: It appears that plaintiff's "forensic" expert had to look up the term "forensic" during his deposition.

Excerpt follows:

"Potrafka's analysis of the Fharmacy computer, once it was finally made available, is equally troubling. As noted above, Allen testified that Rivers downloaded “ESS Beats” from his MPC 2000 to Fharmacy's studio computer (a Macintosh G4) sometime in late 2000 or early 2001. Defs.' Mot. for Sanctions, Ex. 7, Allen Dep. at 36. Allen stated that Fharmacy still had that computer, but he was not certain whether “ESS Beats” was still on it. Id. at 37-39. Based on Potrafka's rather extensive review, this testimony cannot be accurate because the Fharmacy Macintosh did not even exist until 2003. Potrafka acquired the Macintosh from Reed's office and analyzed its two internal hard drives. See Potrakfa Report at 1. Before turning to the hard drives, he attempted to determine the manufacture date of the computer by speaking with Apple technical support. The computer bore serial number XB304ZXHN1W, and tech support informed Potrafka that the third character of the serial number represents the year of manufacture and the fourth and fifth characters represent the week of manufacture. Id. at 3. Hence, the Fharmacy computer was made in the fourth week of 2003. With respect to the first hard drive, made by Western Digital, Potrafka observed a “[m]anufacture date of '18 Feb 2005' stamped on the label.” Ibid. Potrafka found no manufacture date on the second hard drive and was unable to obtain any records from Seagate, its manufacturer. Analyzing the files on the hard drives that were supposedly related to “ESS Beats,” Potrafka found that although those files bore creation dates consistent with the plaintiffs' theory, they had been intentionally backdated, evidently by the plaintiffs' computer “expert,” Bernard Terry. Accordingly, Potrafka concluded:
1. It is the opinion of this computer expert that the Fharmacy computer could not have been in operation any earlier than 2003. This conclusion is based on the following facts:
*13 • The computer was manufactured 4th week of January 2003
• The hard drive (Item # 1a) containing the “new cuts” and “shelton_ rotweiler” files was manufactured on “18 Feb 2005”
• “bernard terry” user file was created May 31, 2005
• A review of all .AIF music files for all three volumes shows the majority of creation dates after March 21, 2003. Of the files with creation dates before March 21, 2003, 10 have creation dates in 2001 (“new cuts”). In addition, 1771 files have either 1970 dates or the Macintosh default date of January 1, 1904 as creation dates.
2. It is the opinion of this computer forensic examiner that the “new cuts” and “shelton_rotweiler” files were written to the Fharmacy computer, Item # 1 a, volume OSX START UP 2, between September 19, 2006 and September 28, 2006 based on the following facts:
• The folder containing the “shetlon_rotweiler” file was created on September 28, 2006
• The folder containing the “.aif” sound files was created on September 19, 2006."

Fharmacy Records v. Nassar --- F.R.D. ----, 2008 WL 900974 at *12 (E.D. Mich. 2008).
2008-04-24 SDNY - Ordinary Negligence Satisfies Culpability Prong in Spoliation Analysis

In an April 2, 2008 decision the Court reaffirms what some continue to doubt is clear from the 2nd Circuit's opinion in Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 106-07 (2d Cir .2002). At least in the Second Circuit, the culpability prong of a spoliation analysis (the others are are control, duty to preserve and relevance) is satisfied by a finding of "mere" or ordinary negligence.

"In this circuit, a 'culpable state of mind' for purposes of a spoliation inference includes ordinary negligence. Residential Funding, 306 F.3d at 108.Thus, because Biovail was at least negligent, Mr. Treppel has satisfied his burden with respect to the second prong of the spoliation test." Treppel v. Biovail Corp. --- F.Supp.2d ----, 2008 WL 866594 (S.D.N.Y. 2008).

Thursday, April 03, 2008

2008-04-03 White House eMail Decision - No eDiscovery Misconduct

In today's decision in Alexander, et al. v Federal Bureau of Investigation, et al., Civil Action Nos.96-2123/97-1288 (RCL) Judge Royce C. Lamberth ruled that plaintiff's had produced simply no evidence, either clear and convincing to support a finding of contempt, and "simply no evidence of any deliberate attempt to conceal the truth." [Emphasis added].

What is especially notable is the not-too-subtle undercurrent that there may indeed be a divide that separate attorneys who know what they don't know about electronic discovery, and know how to conduct inquiries and make discovery requests in aid of obtaining that information, and those who will remain in the dark:

"The Court has concluded that the essential errors made by the White House Counsel’s Office were caused by a lack of familiarity with computer terminology and language and workings by the lawyers involved. Mr. Barry, the computer expert, simply talked a different language, and the lawyers he dealt with did not fully appreciate the significance of some of theinformation that he gave them, and the information he didn’t give them. All of this occurred long before development of current sophisticated ways that lawyers have had to learn to deal with computer experts. "

"You have to learn to ask the question in a number of ways, and probe and examine and get into the nitty-gritty to understand what the truth is. None of the White House lawyers involved in this matter did that. But plaintiffs produced no evidence whatsoever that any of those lawyers deliberately obstructed justice, or deliberately provided what turned out to be false information to the Court."

Perhaps most succinctly put by Judge Lamberth:

"It calls to the Court’s mind its own experience in dealing with intelligence officials, i.e., if you don’t use the right words in your question, you won’t get the right answer."

Link to the decision: