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).