Saturday, December 27, 2008

2008-12-27 Affirming Aguilar, Court Calls for Competency and Collaboration

Case: Covad Communications Company, v. Revonet, Inc.
Citation: 06-cv-1892 (D.C.D.C. 2008)
Date: December 24, 2008
Topics: eDiscovery, Counsel Cooperation, Competency, Native Format Data, Reasonably Usable, Requester's Choice of Format; Cost Shifting


First, please note the changed format for case reporting. Where possible, I also include links to free access to decisions on-line. Any comments, critiques or suggestions are welcome.

This decision by Magistrate Judge John Facciola of the United States District Court for the District of Columbian, underscores the need for counsel to be competent in matters electronic. Discovery matters, to be precise. This decision also emphasizes the need for counsel to know what it is they request, and be able to articulate that request in such a manner that the Court can divine not only what is requested, but the form and format of production. Magistrate Judge Facciola first points out that the discovery dispute before the Court were served prior to the effective date of amended Fed. R. Civ. P. R 26, and then remarks that disputes like these were what the rules were amended to address.

The Court first notes that the parties never discussed ESI form and format of production:

"This controversy predates that provision, and underscores its importance.See Aquilar v. Immigration and Customs Enforcement Div. of the U.S. Dep't of Homeland Sec., No. 07-CV-8224, 2008 WL 5062700, at *8-9 (S.D.N.Y. Nov. 21,2008) (emphasizing the need for cooperation between counsel in defining the form of production) (citing The Sedona Conference Cooperation Proclamation (2008), available at

Issues relating to counsel competency (of both parties) never stray far from the Court's analysis:

"It does not appear that Covad and Revonet ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others' behavior: Covad expecting its documents in electronic form because Revonet hired a company to collect electronically stored information, and Revonet assuming that they should produce 35,000 pages of e-mails in hard copy because Covad produced its documents in that format."

Think drafting eDiscovery requests in the post-2006 Fed. R. Civ. P.amendment universe is a cut-and-paste operation? Think again.

"Thus, I am supposed to determine by examining ancient boilerplate - designed for discovery in a paper universe - such nice questions as whether an e-mail, existing in a computer's memory is a "tangible thing" and how e-mails are "maintained in the ordinary course of business." While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P.1.

"How inarticulate might be an eDiscovery request?

"Therefore, though Covad's instruction is hopelessly imprecise and Revonet could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them."

What happened here is that the discovery request asked for "tangible things.[see long list in opinion]."maintained in the ordinary course of business." The problem, as discussed by Magistrate Judge Facciola, is that "tangible"and ESI don't play well in the same sandbox (hence the Court's reference to "ancient boilerplate"). The problem presented here was what to do about production of 35,000 additional emails? The producing party wanted to produce in hard copy (think "tangible") and the requesting party, apparently newly sensitized to the world of eDiscovery, now demanded supplemental production in native data format.

Here, the requesting party's saving grace resulted from a combination of judicial practicality (or perhaps mercy) and reference to the actual wording of the request. The requesting party did not request native data format (but instead used the term "tangible thing" - the "ancient boilerplate").It did, however, request that production be made as kept in the "ordinary course of business." The Court points out that the likelihood that Covad kept its 35,000 email trove in paper format in the "ordinary course of business" was a bit more than highly unlikely:

"More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content.[Footnote omitted] Therefore, though Covad's instruction is hopelessly imprecise and Revonet could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that Revonet, in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that Revonet operates in this manner, and no suggestion that such a practice would be anything but incredible"

In ordering the supplemental production in native format, the Court took a practical and, imo, fair approach in resolving the issue, but not without some additional poignant observation:

"Therefore, even though I can't say I know what Covad has asked for, I can say what they have not asked for, and that is what they got. "

The subtext of this decision appears to be that while the Court might cut a break to requesting (or producing) parties in some instances, we are rapidly approaching a point where (1) WIAIWYG (what is asked is what you get), and WIRIWYP (what is requested is what you produce), and (2) we shouldn't expect the Courts to act as technology experts in interpreting either ESI discovery requests or responses.The Court also provides a short cost-shifting analysis and decides that no undue burden (justifying a cost-shift) are present in this instance:

"Revonet would have had to incur the cost of privilege review had it produced the e-mails in native format in the first place. That natural burden would not have been shifted because it is presumed that reviewing the data to ascertain whether any of it is privileged must be done by the producing party as a matter of course. Peskoff v. Faber, 251 F.R.D. 59, 61 (D.D.C. 2008) (costs of production should be shifted only if burden is undue because, for example, sources are not reasonably accessible)."

The Court ultimately decides that the parties should share in the additional costs incurred, but with another reference to counsel's competency:

"Since both parties went through the same stop sign, it appears to me that they both should pay for the crash. I will require them to share the cost of the paralegal removing the privileged e-mails, as I have described it, to a cost of no greater than $4,000, i.e., $2,000 each. I expect Revonet to keep a careful record of the time spent and to alert me if there is any risk that the cost will exceed $4,000. At that point (which I hope will not be reached) I will ask Revonet to estimate what it will cost to finish the job and seek the views of counsel as how to cover it.

Characterization of counsel meet-and-confer obligations to discuss nature and format of production as "essential":

"This whole controversy could have been eliminated had Covad asked for the data in native format in the first place or had Revonet asked Covad in what format it wanted the data before it presumed that it was not native. Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers' conferring with each other on such a fundamental question as the format of their productions of electronically stored information."

It will be interesting to see how future motions of this type are treated by the Courts.

Tuesday, December 09, 2008

2008-12-10 Metadata - The New Black - Guidelines from the Southern District of New York

In Aguilar v Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Security, 2008 WL 5062700 (SDNY November 21, 2008), Judge Maas provides an excellent overview of the discovery process as it relates to metadata, including definitions, and cautionary words to counsel in crafting discovery requests and production, and yes, the dying breath of the Sedona Principles first (dismissive) treatment of metadata.

This November 21, 2008 decision highlights the increasing evidentiary significance accorded by Courts to metadata. It bears keeping in mind that many early decisions held, and until recently, the position of the Sedona Conference, was that most metadata had no value or relevance. In this blogger's view (and in the view of many of my more knowledgeable colleagues) this possession was as incorrect in theory as it was untenable in practice. (As a member of WG1, I wrote to express my (then) contrary views approximately two years ago).

What is also notable is that the Court now eschews Sedona's prior position concerning metadata, and adopts the revised position of the Sedona Principles Comment 12, in substance recognizing that metadata is relevant where it may contain context information and follows the District of Maryland's position that metadata is generally discoverable. What the Court appears to accept is that that metadata provides the context for content, and that context that is necessary for the authentication of digital evidence. (We'll leave discussion of challenges to metadata authenticity for another post).

On a procedural note, the Court finds that although no formal motion to compel was filed (the Southern District of New York's local rules require that a letter be written prior to the filing of a discovery related motion), the Court treated the letter as a motion to compel. In that letter Plaintiff requested that the court compel production of "responsive emails and electronic documents" in TIFF format with corresponding metadata and with "meaningful information" about the metadata fields...

Citing Williams v Sprint, 230 F.R.D. 640 (D. Kan. 2005), the Court first notes that “'As a general rule of thumb, the more interactive the application, the more important the metadata is to understanding the application's output.'”

The Court then describes a spreadsheet application as one whose "interactivity" lies somewhere between a database and a word processing application:

"Thus, while metadata may add little to one's comprehension of a word processing document, it is often critical to understanding a database application. Id.“A spreadsheet application lies somewhere in the middle” and the need for its metadata depends upon the complexity and purpose of the spreadsheet. Id"

After defining metadata generally as "data about data," the Court fleshes out the definition, and then provides a good interpretation of the different categories of metadata. This next section is lengthy but thorough, and borrowing liberally from the Sedona Principles:

"Types of Metadata"

"Metadata, frequently referred to as “data about data,” is electronically-stored evidence that describes the “history, tracking, or management of an electronic document.” Id. at 646. It includes the “hidden text, formatting codes, formulae, and other information associated” with an electronic document. The Sedona Principles-Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production Cmt. 12a (Sedona Conference Working Group Series 2007), ( “Sedona Principles 2d” ); see also Autotech Techs. Ltd. P'Ship v., Inc., 248 F.R.D. 556, 557 n. 1 (N.D.Ill.2008) (Metadata includes “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records”). Although metadata often is lumped into one generic category, there are at least several distinct types, including substantive (or application) metadata, system metadata, and embedded metadata. Sedona Principles 2d Cmt. 12a; see United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information 25-28, ( “Md.Protocol” )."

"a. Substantive Metadata"

"Substantive metadata, also known as application metadata, is “created as a function of the application software used to create the document or file” and reflects substantive changes made by the user. Sedona Principles 2d Cmt. 12a; Md. Protocol 26. This category of metadata reflects modifications to a document, such as prior edits or editorial comments, and includes data that instructs the computer how to display the fonts and spacing in a document. Sedona Principles 2d Cmt. 12a. Substantive metadata is embedded in the document it describes and remains with the document when it is moved or copied. Id. A working group in the District of Maryland has concluded that substantive metadata “need not be routinely produced” unless the requesting party shows good cause. Md. Protocol 26. "

"b. System Metadata"

" System metadata “reflects information created by the user or by the organization's information management system.” Sedona Principles 2d Cmt. 12a. This data may not be embedded within the file it describes, but can usually be easily retrieved from whatever operating system is in use. See id. Examples of system metadata include data concerning “the author, date and time of creation, and the date a document was modified.” Md. Protocol 26. Courts have commented that most system (and substantive) metadata lacks evidentiary value because it is not relevant. See Mich. First Credit Union v. Cumis Ins. Soc'y, Inc., No. Civ. 05-74423, 2007 WL 4098213, at *2 (E.D.Mich. Nov. 16, 2007); Ky. Speedway, LLC v. Nat'l Assoc. of Stock Car Auto Racing, No. Civ. 05-138, 2006 WL 5097354, at *8 (E.D.Ky. Dec. 18, 2006); Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170 (D.Del.2006). System metadata is relevant, however, if the authenticity of a document is questioned or if establishing “who received what information and when” is important to the claims or defenses of a party. See Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 Civ. 3109, 2006 WL 665005, at *3 (N.D.Ill. Mar. 8, 2006). This type of metadata also makes electronic documents more functional because it significantly improves a party's ability to access, search, and sort large numbers of documents efficiently. Sedona Principles 2d Cmt. 12a."

"c. Embedded Metadata"

"Embedded metadata consists of “text, numbers, content, data, or other information that is directly or indirectly inputted into a [n]ative [f]ile by a user and which is not typically visible to the user viewing the output display” of the native file. Md. Protocol 27. Examples include spreadsheet formulas, hidden columns, externally or internally linked files (such as sound files), hyperlinks, references and fields, and database information. Id. This type of metadata is often crucial to understanding an electronic document. For instance, a complicated spreadsheet may be difficult to comprehend without the ability to view the formulas underlying the output in each cell. For this reason, the District of Maryland working group concluded that embedded metadata is “generally discoverable” and “should be produced as a matter of course.” Id. at 27-28."

The Court then offers an analysis of the discoverability of metadata in the Federal Courts:

"Federal Rules"

"Metadata is not addressed directly in the Federal Rules of Civil Procedure but is subject to the general rules of discovery. Metadata thus is discoverable if it is relevant to the claim or defense of any party and is not privileged. Fed.R.Civ.P. 26(b) (1). Additionally, “[f]or good cause, the court may order discovery of any matter [including metadata] relevant to the subject matter involved in the action.” Id. The “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The discovery of metadata is also subject to the balancing test of Rule 26(b)(2)(C), which requires a court to weigh the probative value of proposed discovery against its potential burden."

Know It, Use It (the Request) or Lose It

OK, so most, if not all, metadata is discoverable. The Court then makes a point, or warning, to parties to make sure to know what to request, and how to request it. This decision points out how a party may actually waive its right to obtain otherwise perfectly discoverable metadata by not availing itself of its right to request form and format of production. Fail to do this in the first instance, and you cede to the producing party the right to produce in any "reasonably usable" format, which may or may not include metadata, or the type of metadata sought. See the last line of this excerpt:

"Although metadata is not specifically referenced, Rule 34 of the Federal Rules of Civil Procedure addresses the production of ESI. Fed.R.Civ.P. 34(a)(1)(A), (b)(2)(E). Under the Rule, a requesting party may specify a form of production and request metadata. Fed.R.Civ.P. 34(b)(1)(C). (A typical request might be to produce Word documents in TIFF format with a load file containing the relevant system metadata.) The responding party then must either produce ESI in the form specified or object. If the responding party objects, or the requesting party has not specified a form of production, the responding party must “state the form or forms it intends to use” for its production of ESI. Fed.R.Civ.P. 34(b)(2)(D). Thereafter, if the requesting party objects and suggests an alternative form, the parties “must meet and confer under Rule [37(a)(1) ] in an effort to resolve the matter before the requesting party can file a motion to compel.” Fed.R.Civ.P. 34(b), advisory committee's note, 2006 amendment. "

"If the requesting party does not specify a form for producing ESI, the responding “party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed.R.Civ.P. 34(b)(2)(E)(ii). Although a party may produce its ESI in another “reasonably usable form,” this does not mean “that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” Fed.R.Civ.P. 34(b), advisory committee's note, 2006 amendment. In particular, if the ESI is kept in an electronically-searchable form, it “should not be produced in a form that removes or significantly degrades this feature.” Id.; see also Payment Card, 2007 WL 121426, at *4 (documents stripped of metadata allowing searches do not comply with Rule 34(b)). The Federal Rules also specify that a “party need not produce the same [ESI] in more than one form.” Fed.R.Civ.P. 34(b)(2) (E)(iii)."

The Court takes pains to discuss Sedona's concession as to the importance of metadata, although it is odd that metadata's importance in digital evidence authentication is not directly address (although that is perhaps what Sedona means by "accessibility and functionality"):

"Sedona Principles"

"The Sedona Conference (“Conference”), a nonprofit legal policy research and education organization, has a working group comprised of judges, attorneys, and electronic discovery experts dedicated to resolving electronic document production issues. Since 2003, the Conference has published a number of documents concerning ESI, including the Sedona Principles. Courts have found the Sedona Principles instructive with respect to electronic discovery issues. See, e.g., Autotech Techs. Ltd. P'Ship, 248 F.R.D. at 560; Williams, 230 F.R.D. at 652."

"In the first edition of the Sedona Principles, the Conference stated that “unless it is material to the resolution of a dispute, there is no obligation to ... produce metadata absent agreement of the parties or order of the court.” The Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production Principle 12 (Sedona Conference Working Group Series 2005) ( “Sedona Principles 1st” ). The Conference further noted that because most “metadata has no evidentiary value” and the time and money spent reviewing it would be a waste of resources, there should be a “modest legal presumption” against the production of metadata. Id. Cmt. 12a. The Conference nevertheless observed that if metadata is relevant, it should be produced. Id."

"The foreword to the second edition of the Sedona Principles notes that in revising the principles, “[p]articular attention [was] given to updating the language and commentary on Principle 12 (metadata).” Sedona Principles 2d Foreword. Significantly, Principle 12 and the commentaries accompanying it were revised to remove any presumption against the production of metadata. Principle 12 now reads:

'Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.' Sedona Principles 2d Principle 12 (emphasis added). Thus, in the first edition of the Sedona Principles the Conference seemed to focus solely on the relevancy of metadata; in the second edition the Conference placed greater weight on the enhanced accessibility and functionality that metadata provides to the recipients of ESI.The commentary to Principle 12 also was expanded to provide criteria for deciding whether metadata should be produced in a given case. The commentary advises parties to consider: (i) “what metadata is ordinarily maintained”; (ii) the relevance of the metadata; and (iii) the “importance of reasonably accessible metadata to facilitating the parties' review, production, and use of the information.” Id. Cmt. 12a. In selecting a form of production, the two “primary considerations” should be the need for and probative value of the metadata, and the extent to which the metadata will “enhance the functional utility of the electronic information.” Id. Cmt. 12b."

The Court then notes that other court decisions have generally ordered the production of metadata sought in an initial document production request where the party has not yet produced documents in any form:

"There is a clear pattern in the case law concerning motions to compel the production of metadata. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. SeePayment Card. 2007 WL 121426, at *4 (directing production of metadata for any documents not yet produced); Hagenbuch, 2006 WL 665005, at *4 (granting motion to compel production in native form); In re, 233 F.R.D. at 91 (production ordered in TIFF format with corresponding searchable metadata databases). But see Mich. First Credit Union, 2007 WL 4098213, at *2 (court denied production despite timely request for metadata because it was not relevant and production would be unduly burdensome). On the other hand, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests, often concluding that the metadata is not relevant. See Autotech Techs., 248 F.R.D. at 559-60 (court refused to compel production of metadata not sought in initial request); D'Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 48 (D.D.C.2008) (same); Payment Card, 2007 WL 121426, at *4 (denying motion to compel metadata for documents already produced in TIFF format because another production would be unduly burdensome); Ky. Speedway, 2006 WL 5097354, at *8 (motion to compel production of metadata denied when request first came seven months after production); Wyeth, 248 F.R.D. at 171 (documents produced in TIFF format were sufficient since parties never agreed on form of production);. But see Williams, 230 F.R.D. at 654 (ordering production of Excel spreadsheets with metadata even though no request had been made initially because producing party should reasonably have known that metadata was relevant)."

The Court sums it up quite nicely: When it comes to requesting metadata, no ask, no get:

In sum, as a recent article has noted, if a party wants metadata, it should “Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.” Adam J. Levitt & Scott J. Farrell, Taming the Metadata Beast, N.Y.L.J., May 16, 2008, at 4. Hagenbach illustrates the wisdom of this advice. In that patent infringement suit, the plaintiff demanded electronic document production in native form in his first document request. 2006 WL 665005, at *1 (request for “identical, electronic copies” of the documents). The defendants rejected this request and produced the documents in TIFF format without metadata. Id. The court noted that the TIFF documents did not contain such relevant information as the creation and modification dates of documents, email attachments and recipients, and other metadata. Id. at *3. The court also observed that the metadata was relevant to the plaintiff's infringement claim because it “will allow him to piece together the chronology of events and figure out, among other things, who received what information and when.” Id. The court therefore ordered production in native form despite the fact that the defendants could not Bates stamp the documents and had already made a production. Id. at *4.

"By comparison, in Autotech Technologies, the court denied a motion to compel the production of metadata for Word documents after the plaintiff had already produced the documents in both PDF and paper format. 248 F.R.D. at 557. In that case, the initial production request did not specify a form for production. As the court noted, the plaintiff therefore could have produced its documents in the form in which they were ordinarily maintained or in a reasonably usable form. Id. at 558. In concluding that production in PDF form constituted a reasonably usable form, the court relied heavily upon the defendant's failure to ask for metadata at the outset. Id. at 559-60. The court stated that it “seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.” Id. at 559. The court also noted that, “[o]rdinarily, courts will not compel the production of metadata when a party did not make that a part of its request.” Id. It concluded that the defendant “was the master of its production requests; it must be satisfied with what it asked for.” FN5 Id . at 560."

Footnote 5

Footnote 5 of this decision is notable, because it explains that prior decisional authority (here, Autotech Techs placed reliance on the first Sedona Principles addressing the importance of metadata:

"To bolster its conclusion, the court in Autotech Technologies relied on the “modest” presumption against the production of metadata stated in the Sedona Principles 1st. Autotech Techs., 248 F.R.D. at 560. As noted above, that presumption has been abandoned in the Sedona Principles 2d."

eDiscovery: A Party Driven Process -The Call for Cooperation:

The Court then examines the emerging approach to the eDiscovery process and dispute resolution, placing the burden of resolving issues relating to metadata production squarely upon the parties' shoulders:

"The Federal Rules of Civil Procedure, case law, and the Sedona Principles all further emphasize that electronic discovery should be a party-driven process. Indeed, Rule 26(f) requires that the parties meet and confer to develop a discovery plan. That discovery plan must discuss “any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced.” Fed.R.Civ.P. 26(f)(3)(C) (emphasis added). In fact, the commentary to the rule specifically notes that whether metadata “should be produced may be among the topics discussed in the Rule 26(f) conference.” Fed.R.Civ.P. 26(f) advisory committee's note, 2006 amendment. As the commentary further observes, early “identification of disputes over the forms of production may help avoid the expense and delay of searches or productions using inappropriate forms.” Id. Thus, at the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention."

"Likewise, courts have emphasized the need for the parties to confer and reach agreements regarding the form of electronic document production before seeking to involve the court. See, e.g ., Scotts Co. LLC v. Liberty Mut. Ins. Co., No. 2:06-CV-899, 2007 WL 1723509, at *4 (S.D. Ohio June 12, 2007) (refusing to decide whether metadata need be produced because it was unclear “whether the parties have fully exhausted extra-judicial efforts to resolve” the dispute); Ky. Speedway, 2006 WL 5097354, at *8 (“metadata ... should be addressed by the parties in a Rule 26(f) conference”); Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228, 245 (D.Md.2005) (“counsel have a duty to take the initiative in meeting and conferring to plan for appropriate discovery of [ESI including metadata] at the commencement” of thec ase).
The Sedona Principles also stress the need for the parties to resolve issues concerning metadata. As the Conference explains, the purpose of the amended Federal Rules is “to require parties, not courts, to make the tough choices that fit the particular discovery needs of a case.” Sedona Principles 2d Cmt. 12c. This is appropriate because it is not the court but the parti
es who have the greatest knowledge of the documents in a case and whether the metadata accompanying those documents is relevant. Indeed, the Conference recently has issued a “Cooperation Proclamation,” in which it stresses that the Federal Rules are a mandate that counsel act cooperatively in resolving discovery issues. See Sedona Conference Cooperation Proclamation 2 (2008),"

Tuesday, December 02, 2008

2008-12-02 Fed. R. Civ. P. 26(g) Used as Basis for Imposing Discovery Abuse Sanctions on Counsel

Case: Name:In re Simonson v. Global FInancial Solution, LLC
Citation: 2008 WL 4830807 (Bktpcy. W.D. Wash. 2008)
Date: 2008-10-27

In this Bankruptcy court adversary proceeding from the Western District of Washington, the Court finds that the counsel for the Debtors engaged in discovery abuse by withholding relevant documents from the Trustee. There was no motion to compel filed. The Court imposed sanctions against Debtors' counsel (but not the Debtor), but did not use either Fed. R. Civ. P. Rule 37 (remember, no MTC was filed) or its inherent powers as a basis for sanctions imposition. Eschewing both Rule 37 and inherent powers, the Court found that Debtors' counsel had violated the attorney certification requirement imposed by Fed. R. Civ. P. 26(g)m and cited that violation as ample substantiation for the imposition of sanctions (payment of Trustee's attorneys fees and costs).

In an interesting exercise of recursivity, the Bankruptcy Court draws from a Washington State precedent, which in turn draws its reasoning from the Federal Rules of Civil Procedure.

Relevant Excerpts:

"Although federal law and the Federal Rules of Civil Procedure apply to this case, a Washington Supreme Court decision, Washington State Physicians Insurance Exchange & Association v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054 (1993), provides additional guidance as to how the above described rules should be applied. In addressing whether the lower court should have awarded sanctions against a drug company for discovery abuse, the court held that the inherent power of the court to sanction should not be used where other court rules more properly apply. The court further held that the sanction provision of Washington Civil Rule 37 should not be applied where the more specific provisions of Rule 26 better fit the situation. The court went on to construe Washington Civil Rule 26(g), which is virtually identical to Rule 26(g), Fed.R.Civ.P., looking to federal law for guidance. The court concluded after reviewing federal authorities that “[s]ubjective belief or good faith alone no longer shields an attorney from sanctions under the rules,” that intent need not be shown before sanctions are mandated, and a motion to compel compliance with the rules is not a prerequisite to a sanctions motion. Id. at 1078.The court held that in determining whether an attorney has complied with the rule, the trial court should consider all of the surrounding circumstances, the importance of the evidence to its proponent, and the ability of the opposing party to formulate a response or comply with the request.

"The Trustee's Right to Compensation Under Rule 26(g).

Rule 26(g), Fed.R.Civ.P., applies to the circumstances at issue in this case. Thus, there is no need for the Court to utilize Rule 37 or its inherent powers to issue sanctions. Having found that Herman Recor was not substantially justified in failing to provide discovery to the Trustee, Rule 26(g) requires the Court to award sanctions to the Trustee, including reasonable attorneys' fees caused by the violation.

It should be noted that the Trustee has not sought any sanctions against the Levenhagens. Mr. Levenhagen produced documents promptly and completely. If anything, the Levenhagens were cast in an uncooperative and negative light by their counsel's failure to turn over documents to the Trustee."