2008-05-30 Spoliation: "Flagrant Reformatting," Tampering, and Backdating - Oh My!

In a May 16 opinion in the case of Johnson v Wells Fargo Home Mtg., Inc. 2008 WL 2142219 (D. Nev 2008), the Court found the plaintiff (who had asserted a Fair Credit Reporting Act violation against defendant) had spoliated digital evidence on his two laptops containing undisputedly relevant evidence, and sanctioned plaintiff by directing that an adverse inference instruction to a jury be made at trial in connection with the computer information contained on those computers. In an interesting twist of the "safe harbor" provisions of Fed. R. Civ. P. 37, the Plaintiff claimed that the reformatting/reinstallation was routine and necessitated (coincidentally, just after demand for them was made and noticed) because the laptops were infected with viruses spy-ware.

Defendant claimed severe prejudice and sought dismissal. Specifically, Defendant asserted (and had expert testimony corroborate) that it "has been prejudiced by Plaintiff's willful acts because relevant information that it could have used in defending against this lawsuit [was] forever lost.

The actions admitted to by plaintiff, or testified to by defendant's expert, pretty much cover the "what not to do" punch list in order to avoid a finding of discovery abuse. Note that some points are direct quotes from the decision:

1. Defendant contends Plaintiff supports his FCRA claim with various letters he drafted on his two laptops, which rest at the very foundation of Plaintiff's claim. Defendant further contends computer evidence reveals Plaintiff may have manufactured these documents to support his claim and then flagrantly reformatted the hard drives on these laptops shortly after Defendant informed him that they had been formally requested and were relevant to the case.

2. "Plaintiff claim[ed] that before this procedure is performed, data on the hard drive is backed up and saved and then downloaded back onto the hard drive after the operating system is reinstalled." Plaintiff failed to produce the backs ups themselves.

2. Plaintiff objected to the request for the laptops and instead offered to produce documents

specifically identified by defendant.

3. Plaintiff repeatedly refused to come to agreement concerning the hard drives, resulting in Defendant's filing of a motion to compel production of hard drives, which was granted.

4. After "eventually" receiving the hard drives, defendant's forensic expert determined that both had been re-formatted or "reinstall[ed]" prior to production.

5. Plaintiff claimed that his "original" files had been backed up, but did not provide the saved backups (created prior to the reformatting-reinstallation) themselves.


Defendant's Expert Testimony

1. Defendant's expert testified that the reformatted drives were not "searchable."

2. Plaintiff altered numbers on correspondence and checks, fabricated evidence to bolster his position.

3. Plaintiff both deleted files and then reformatted them. One laptop was reformatted by Plaintiff's wife, using telephonic instructions given to her by a computer technician.

4. "Within five (5) days of being notified that Defendant intended to file a motion to compel, Plaintiff reformatted his first hard drive ( Id., Exh. 1). Then within ten (10) days of reformatting his first hard drive, Plaintiff reformatted his second hard drive ( Id.). During this entire period of time, Defendant sent numerous e-mails to Plaintiff attempting to settle the dispute over production of the hard drives."


Spoliation: Motion to Dismiss Pursuant to Fed. R. Civ. P. Rule 37, and the Court's Inherent Power

Defendant requested dismissal for discovery violations pursuant to Fed. R. Civ. P. 37 and the Court's "inherent powers." The Court's analysis is instructive. The Court first explains that there are two ways in which a spoliation claim may be decided:

A Court may "...levy sanctions" in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who ‘fails to obey an order to provide or permit discovery.’ ” Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir.2006) (citing Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337-1338 (9th Cir.1985); Fed R. Civ. P. 37(b)(2)(C)). "

In this case, there was no outstanding discovery order, and accordingly, the Court conducted its spoliation analysis based on it's "inherent powers."


The Court's Analysis:

The Court found that Plaintiff's actions were willful, that it had notice of the relevancy of the information contained in the hard drives that were reformatted,

Willfulness and Notice of Relevancy: The Court noted that,

"[T]he totality of the circumstances indicates Plaintiff's conduct was, in fact, willful. Plaintiff was clearly on notice that Defendant was seeking relevant information on his hard drives. “A party's destruction of evidence qualifies as willful spoliation if the party has ‘some notice that the documents were potentially relevant to the litigation before they were destroyed.’ ”Leon, 464 F.3d at 959 (citing United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.2002) (emphasis added) (internal quotation marks and citation omitted))."

The Timing of Plaintiff's Acts was Suspect

"The timing of Plaintiff's reformatting of his hard drives is also very suspect. Plaintiff reformatted both hard drives within a few days of each other, not only during the period of time he knew Defendant sought production of the hard drives, but also after Defendant informed Plaintiff, on September 20, 2007, that it intended to file a motion to compel production of the hard drives."

The "Virus and Spy-Ware" Claims "Not Helpful" to Show Absence of Willfulness/Bad Faith

"Plaintiff's explanation that he reformatted his hard drives because they were infected with viruses and spy-ware and then he downloaded all the files back onto the hard drives is of little help to the court in finding an absence of willfulness or bad faith."

The Court also pointed out that at not time during demand for production or discussions held in connection therewith was this issue raised by Plaintiff. Another reason to find bad faith or willfulness.

Relationship Between Misconduct and Matters in Controversy

The Court found a clear relationship between Plaintiff's reformatting of the hard drives and the controversy.


Prejudice to Non-Spoliating Party:

The Court first sets out the elements for a finding of prejudice in the 9th Circuit:

“A defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.” Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987), cert. denied sub nom, Malone v. Frank, 488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988). “Whether prejudice is sufficient to support an order of dismissal is in part judged with reference to the plaintiff's excuse for the [conduct].” Id. (citing Nealey v. Transportac ion Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir.1980)). Delay alone has been held to be insufficient prejudice; however, failure to produce documents as ordered is considered sufficient prejudice. Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir.1990), cert. denied, Lewis & Co. v. Thoeren, 498 U.S. 1109, 111 S.Ct. 1019, 112 L.Ed.2d 1100 (1991)."

The Court first points out that the issue being decided one of destruction of evidence rather than of a failure to produce:

"Here, we are not dealing with a failure to produce documents as ordered because Plaintiff reformatted his hard drives prior to the court ordering production of said hard drives."

The Court finds prejudice in part relying on the testimony of Defendant's expert:

"Defendant has shown some prejudice, nonetheless, based on expert testimony suggesting Plaintiff may have altered or manufactured relevant documents and that some documents may be missing."

The Court found that Plaintiff had spoliated computer generated evidence, and arguably the hard drive containing that evidence. The Court finds, however, that the spoliation by Plaintiff did not warrant the extreme sanction of dismissal, and conducted a "less drastic sanctions" analysis under 9th Circuit standards:

"In considering less drastic sanctions for spoliation of evidence, “[a] federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence. Such power includes the power where appropriate to order the exclusion of certain evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993). “Short of excluding the disputed evidence, a trial court also has the broad discretionary power to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior.” Id. (citing Akiona v. United States, 938 F.2d 158 (9th Cir.1991)). A finding of “bad faith” is not a prerequisite to this corrective measure; a finding of “willfulness or fault by the offending party” will suffice. Unigard v. Lakewood, 982 F.2d 363, 368-370 & n. 2 (9th Cir.1992)."

The Court found first described the rationale for imposition of an adverse jury instruction sanction on a spoliating party:

"The adverse inference is based on two rationales, one evidentiary and one not. The evidentiary rationale is nothin [sic] more than the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document.... The other rationale for the inference has to do with its prophylactic and punitive effects. Allowing the trier of fact to draw the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial. [Citation omitted]"

The Court then imposed an adverse inference instruction finding as the appropriate sanction in this matter:

"Here, an adverse jury instruction creating a presumption in favor of Defendant that the spoliated evidence was unfavorable to Plaintiff is an appropriate, less drastic sanction for several reasons set forth below."

The reasons?

"First, Defendant's forensic computer expert found evidence that Plaintiff tampered with the hard drives (Doc. # 129 at 6). Plaintiff does not dispute reformatting his hard drives during the period Defendant was requesting production of the hard drives. Although Plaintiff suggests he saved and backed up the data on his hard drives, he has failed to produce any saved, back-up files proving he did so. Plaintiff's credibility is solely within the province of the jury and the jurors will be able to draw they're own inferences based on the timing of Plaintiff's conduct and the failure to produce any saved back-up files."

"Second, Defendant's expert did retrieve two (2) letters from Plaintiff's hard drives, which, according to Defendant, “rest at the very foundation of Plaintiff's FCRA claim.” ( Id. at 3). Defendant's expert will apparently testify that Plaintiff created these documents more than one (1) year after Plaintiff claims he created them ( Id. at 8). Defendant's expert's analysis suggests Plaintiff created both of these documents just five (5) days before Plaintiff's counsel sent a letter to Defendant threatening suit and just one (1) month prior to Plaintiff filing this action (Doc. # 129 at 8). Plaintiff argues the allegation that the documents were created after the dates indicated on them is pure speculation and “completely meaningless unless it is known whether the date and time set on the computer were correct when the documents were created.” (Doc. # 133 at 5). However, as previously stated, Plaintiff's credibility is solely within the province of the jury and Defendant will have the opportunity to present evidence from its computer expert indicating Plaintiff backdated the letters. The jury can then weigh the evidence and determine whether Plaintiff's argument is credible, given the totality of the circumstances."

"Third, Defendant asserts that its computer expert retrieved information that shows Plaintiff may have been creating other documents in anticipation of litigation and backdating them to fit his theory of liability."

At first, I thought this Plaintiff must have been pro se. Incredibly, not so.

2008-05-23 Breath Test Administrator Affidavit is Testimonial Under Crawford v Washington - One Step Closer to the Data

This May 1, 2008 decision in State of Florida v Bruce Belvin, No. SC06-593 (FL 2008) appears to bring the issue of Crawford v Washington's application of 6th Amendment right-of-confrontation closer a holding that the computer information itself is testimonial in nature, and equally deserving of 6th Amendment right-to-confront protections.

In Belvin, the Florida Supreme Court overturned the Florida 4th District Court of Appeals decision holding that a breath test administrator's affidavit as to the procedures and observations was *not* testimonial hearsay. In that case, and over defense objections, the affidavit of the breath test administrator was admitted without requiring the administrator herself to testify. The Florida 4th DCA certified that issue to the Florida Supreme Court after making that ruling.

The Florida Supreme Court first discusses the history of the business records exception to the hearsay rule, and analyzes earlier U.S. Supreme Court precedent from Ohio v Roberts, 448 U.S. 56, 66 (1980):

"In Roberts the Court said that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability."

Strange as it may seem, it appears that the Florida Supreme Court interprets the Crawford decision as doing away with "indicia of trustworthiness" test because...the test itself was unreliable, and more deserving of 6th Amendment right-to-confront protection. The Belvin Court then discusses that Crawford v Washington 541 US 36 (2004) discards the "indicia of reliability" test and replaces it with 6th Amendment right-of-confrontation protection:

"The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified by the Supreme Court in Crawford v. Washington. Before Crawford, the Confrontation Clause issue was controlled by Ohio v. Roberts, 448 U.S. 56, 66 (1980). In Roberts the Court said that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability. "

Moreover, the Court notes:

"This test focused on the reliability of the statement. As explained in Roberts, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore ―particularized guarantees of trustworthiness. Id. However, in Crawford, the Supreme Court dispensed with the Roberts reliability analysis for testimonial hearsay and held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if ―testimonial evidence is at issue, ―the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. ―Only [testimonial statements] cause the declarant to be a ‗witness‘ within the meaning of the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006). ―It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Id.

Thus, we must initially determine whether the breath test affidavit at issue in the instant case contains testimonial statements. While Crawford did not establish a precise definition for the term ―testimonial, the Supreme Court provided some guidance, holding that, at a minimum, statements are testimonial if the declarant made them at a ―preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations. Crawford, 541 U.S. at 68."

The Belvin Court then acknowledges that the affidavit is a "witness" and that the technician who created the affidavit did so to provide a "critical element" in the DUI criminal prosecution.

"Applying the rationales of Davis and Crawford to the instant case, we conclude that the breath test affidavit is testimonial. First, the affidavit was ―acting as a witness‖against the accused. Davis, 547 U.S. at 828; see Crawford, 541 U.S. at 51. The technician who created the breath test affidavit did so to prove a critical element in Belvin's DUI criminal prosecution. In other words, the breath test affidavit was created ―to establish or prove past events potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822; see Thomas v. United States, 914 A.2d 1, 12-13 (D.C. Cir. 2006), cert. denied, 128 S. Ct. 241 (2007). Second, the affidavit was not created during an ongoing emergency or contemporaneously with the crime. Instead, it was created ―well after the criminal events had transpired."

The issue of contemporaneity is also discussed in the above excerpt, and acknowledgment again made that the affidavit in question was not contemporaneously created.

Using the Belvin decision rationale, we are perhaps one step closer to showing that it is the Breath-a-lyzer data itself, acting in concert with the computer environment generating that data, that establishes or proves the element of a DUI. The hint that an argument to that effect might be made:

"More precisely, the sole purpose of a breath test affidavit is to authenticate the results of the test for use at trial. See § 316.1934(5), Fla. Stat. (2007). "

Perhaps, if the argument is sufficiently well crafted, the computer information itself, rather than the affidavit of a technician interpreting that computer information, will itself be held sufficiently testimonial to invoke Crawford's 6th Amendment protection.



Link to the decision: http://www.floridasupremecourt.org/decisions/2008/sc06-593.pdf

2008-05-23 Data Maps and eDiscovery Protocol Deliberations - Discoverable?

The question raised is not only whether internal data maps generated for eDiscovery, but whether discussions about such data map generation, together with decisional processes on selection of eDiscovery protocols, etc., (where not agreed to in advance by both parties) are discoverable.

On the one hand, an argument may be made that these documents fall under the attorney-client privilege, or are attorney work-product, and may therefore be excluded from production. A good way to ensure the availability of these arguments is to make sure that all such deliberations and drafts pass through appropriately placed counsel. The effect, of course, is to "immunize" otherwise discoverable information from disclosure and use by the requesting party.

This approach has recently received some scrutiny and comment by US Magistrate Judge David Baker (Middle District, Florida) and does not bode well for the longevity or vitality of the approach:

A leading treatise author, Paul R. Rice, has recognized the practice of businesses who may try to “immunize internal [business] communications from discovery by placing legal counsel in strategic corporate positions and funneling documents through counsel.” 1 Paul R. Rice, Attorney-Client Privilege in The United States § 7:2. “There is general agreement that the protection of the privilege applies only if the primary or predominate purpose of the attorney-client consultations is to seek legal advice or assistance.” Id. § 7:5. “There are substantial policy reasons for holding that business documents submitted for attorney review are not by that virtue automatically exempt as privileged or work product protected communications.” Visa USA, Inc. v. First Data Corp, 2004 WL 1878209, 8 (N.D.Cal.2004).

The structure of certain business enterprises, when their legal departments have broad powers, and the manner in which they circulate documents is broad, has consequences that those companies must live with relative to their burden of persuasion when privilege is asserted. See, e.g., In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789, 805 (E.D.La.2007). When the business “simultaneously sends communications to both lawyers and non-lawyers, it usually cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.” Id. (citing United States v. Chevron Corp., 1996 WL 444597 (N.D.Cal.1996)); United States v. International Business Machines Corp., 66 F.R.D. 206, 213 (S.D.N.Y.1974) (“If the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice.”). Consequently, the privilege does not protect such communications. In re Vioxx, 501 F.Supp.2d at 805; Attorney-Client Privilege § 7.2.1 (“Because of the ease with which e-mail technology allows in-house counsel to be brought into discussions, counsel are contacted far more frequently, and through those contacts, are likely encouraged to participate in regular business matters far more frequently and broadly than was the case in the past.”). Judge Fallon, incorporating the report from Special Master Rice FN4, explained the reasoning:
FN4. Judge Fallon selected as Special Master for privilege document discovery Professor Paul R. Rice, author of the treatise, Attorney-Client Privilege in the United States.

When these simultaneous conveyances for mixed purposes are through an e-mail message that lists the lawyers' names in the header of the e-mail message, [the defendant] Merck is revealing the contents of the single message that may have been conveyed to its lawyer primarily for legal assistance. In that circumstance, the single message could have been withheld as a privileged communication had Merck sent blind copies to the lawyers, instead of electing this format. Through a blind copy, the content of what was communicated to its attorney would have remained confidential after future discovery of the document from the other recipient's files, its purpose would have been primarily legal, and the privilege would have been applicable. Similarly, if Merck had sent a wholly separate e-mail communication with the same materials to the lawyer, the same claim could be successfully made for that single communication even though it otherwise served mixed purposes. In modern vernacular, Merck, in a variety of instances, “could have had a V-8,” but it chose another format and manner of document circulation and cannot now be heard to complain about the consequences of those choices. Otherwise, Merck would be able to limit the scope of what adversaries can discover by the way in which it chooses to communicate.

*5 Similarly, after a communication with its attachment has been sent to both lawyers and non-lawyers in the same e-mail communication, and its primary purpose is determined not to have been for obtaining legal advice, the lawyer's independent response can only be protected if the derivative nature of the privilege is ignored. Theoretically, the lawyer's response should be protected only if it reveals the content of prior confidential communications from the client. Since those communications are no longer confidential, nothing the lawyer discloses in her edits reveals protected communications of the client. 501 F.Supp.2d at 805-06." In re Seroquel Products Liability Litigation 2008 WL 1995058, 4 -5 (M.D.Fla.,2008)

2008-05-12 Want Native Format Data? Make Sure to Ask for It

In an April 2, 2008 decision in the case of Autotech Technologies Ltd. Partnership v. Automationdirect.com, Inc. --- F.R.D. ----, 2008 WL 902957 (N.D.Ill. 2008), the Court followed Magistrate Judge Facciola's line of reasoning in D'Onofrio v SFX Sports Group Inc. and held that a late "clarification" (quotes mine) is insufficient to save a defective request omitting a specific directive to produce native format data.

"It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format. Ordinarily, courts will not compel the production of metadata when a party did not make that a part of its request." See D'Onofrio, 247 F.R.D. at 48 (D.D.C.2008); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 248 F.R.D. 169, ----, 2006 WL 3091331, at *1-2 (D.Del.2006) (“Since the parties have never agreed that electronic documents would be produced in any particular format, [Plaintiff] complied with its discovery obligation by producing image files”). "

Held: .pdf and paper printouts sufficient. Motion to compel denied.

Bonus: Good definition of metadata in Footnote 1:

"Metadata, commonly described as “data about data,” is defined as “a set of data that describes and gives information about other data” or “information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).” It 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. Some examples of metadata for electronic documents include: a file's name, a file's location ( e.g., directory structure or pathname), file format or file type, file size, file dates ( e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions ( e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509, *3 n. 2 (S.D.Ohio June 12, 2007) (citations omitted)."

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.

Steven

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).

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: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?1997cv1288-359

2008-03-07 Discovery Search Protocol is Subject to Challenge

Bonus: FRE Rule 702 Invoked; Attorney Opinion about Technology Held *not* Gospel (Gasp)

Depending on one's point of view, today's decision in Equity Analytics v Lundin, 2007-cv-2003 (D.D.C. 2008) signals the beginning of the end, or the end of the beginning. It certainly is a watershed decision, and a harbinger of things to come. No longer should it be presumed that a Court will take the representation of counsel as to the efficacy of technology (including technology used in eDiscovery) as gospel. In this opinion, focusing in large part on eDiscovery issues, Judge Facciola repeats his "comment" first made two weeks ago in U.S. v. O'Keefe that

"'...lawyers express as facts what are actually highly debatable propositions as to efficacy of various methods used to search electronically stored information. United States v. O’Keefe, No. 06-CR-249, 2008 WL 44972, at *8 (D.D.C. Feb. 18, 2008). '"

The Court then states that the proper manner for challenge is by use of expert evidence produced in accordance with Federal Rules of Evidence 702. For those without a copy of the F.R.E. handy, Rule 702 provides that:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (2) the witness has applied the principles and methods reliably to the facts of the case."

In other words, the Court once again opens to the door to well-articulated and FRE 702 testimony-supported challenges to search results by way of challenge to search protocol.

2008-02-20 Civil eDiscovery Rules Expressly Applied to Criminal Proceedings

In a decision by Magistrate Judge Facciola of the United States District Court for the District of Columbia, the Court adopts and incorporates many of the 2006 eDiscovery amendments to the Federal Rules of Civil Procedure into criminal discovery proceedings. And granted a motion to compel by the defendant.

Point by point, with excerpts:

1. Application of Fed. R. Civ. P. Rule 34 to Criminal Proceedings and taking the common sense "don't fix if not broken" position:

"In criminal cases, there is unfortunately no rule to which the courts can look for guidance in determining whether the production of documents by the government has been in a form or format that is appropriate...

Be that as it may, Rule 34 of the Federal Rules of Civil Procedure speak specifically to the form of production..

It is foolish to disregard them merely because this is a criminal case, particularly where, as is the case here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raises the same problems. "

2. Rule 34(b) and the Form of Production of Production: Judge Facciola speaks first to the 1980 amendments and accompanying commentary, which were intended to prevent what he terms the "juvenile" practice of burying relevant documents by "rearranging" them so as to prevent a party's efficient review and use.

"Under Rule 34(b) of the Federal Rules of Civil Procedure, a party, on whom a demand for production of documents has been made, must produce them in the form in which they are ordinarily maintained or must organize and label them to correspond with the categories of the request for production. Fed. R. Civ. P. 34(b)(2)(E)(i). "

"In eliminating that practice and requiring the producing party to produce the documents in the same way they were kept, the Advisory Committee intended that there would be equality between the parties in their ability to search the documents. "

3. Producing Party Must Produce Documents in a manner which replicates the manner in which they were originally kept.

"Therefore, to reproduce them in the manner in which they were kept would require the producing party to reproduce those file folders and place the appropriate documents in them so that the production replicates the manner in which they were originally kept. If that is not done, federal courts have required the producing party to index the documents to render them usable by the requesting party. See, e.g., Okla. ex rel Edmonson v. Tysons Food, Inc., No. 05CV329(GKF/SAJ), 2007 U.S. Dist. LEXIS 36308, at *16 (N.D. Okla. May 17, 2007) (requiring producing party to create a "complete and fully accurate index . . . showing the box number which responds to each specific Motion to Produce"); Sparton, 77 Fed. Cl. at 16 (criterion is whether the documents are so disorganized that it would be unreasonable for the requesting party to review the documents; producing party may not provide documents in "mass of undifferentiated, unlabeled documents" but must provide them in some "organized, indexed fashion")" [emphasis added]

3. A document-dump with no organization is not acceptable. This has some very important implications in the eDiscovery arena. A document dump, whether paper or electronic, must comport with the requirement of FRCP Rule 34. This decision provides fuel for claims of non-responsive and evasive answers, motions to compel, and consequent orders granting sanctions.

"...In re: Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005) (producing party may not dump massive amounts of documents in no logical order on their opponents; undifferentiated production of everything in boxes will not do)."

4. Federal Rules of Evidence - Rule 901 Issues

The court then notes that defendants claimed that the government's production was so haphazard and disorganized as to force them to "guess about the evidentiary value of the documents—i.e., who created a document or on whose computer or in whose file a document was kept." Judge Facciola stated that he would recommend to the District Judge that the latter deem all goverment records produced as authentic.

5. Electronic Production: Defendants here argue that the government failed to: comply with its obligations to both search for requested items; to disclose the means (meaning the software used) to conduct such searches, to disclose how it arrived at the search terms to be used in connection with those searches; to disclose its preservation methodology at both the time of the indictment as well at the time of a prior discovery order.

6. Preservation: The Court likens the government's duty to preserve in a criminal case to the Fed. R. Civ. P. Rule 37 "safe harbor" doctrine, which of course brings with all the attendant Zubulake doctrine cautions:

"The government’s destruction of evidence pursuant to a neutral policy and without any evidence of bad faith does not violate the due process clause if the evidence was destroyed before the defendants raised the possibility that it was exculpatory and the government had no objective reason to believe that it was exculpatory. Arizona v. Youngblood, 488 U.S. 51, 57 (1988); In re: Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996). Accord United States v. Beckstead, 500 F.3d 1154, 1158-62 (10th Cir. 2007); Bower v. Quarterman, 497 F.3d 459, 476-77 (5th Cir. 2007) (exculpatory value of destroyed evidence must be apparent before its destruction)."

"This principle finds its analogue in the Federal Rules of Civil Procedure, which indicate that, absent exceptional circumstances, sanctions will not be awarded for a party’s failure "to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." Fed. R. Civ. P. 37(e)."

7. The Importance of Knowing What to Ask For, Asking for It, and Metadata: Judge Facciola wraps with a great analysis, and repeats his admonitions to the parties to be knowledgeable (and presumably competent) in eDiscovery and digital evidence authentication matters. This seems to resonate with Magistrate Judge Grimm's caution (apparently, to the entire legal arena) in the Lorraine v. Market American case to "get it write the first time."

"As established above, a party is obliged to either produce documents as they are kept in the usual course of business or it "must organize and label them to correspond to the categories in the request." Fed. R. Civ. P. 34(b)(E)(i). But if, as occurred here, electronically-stored information is demanded but the request does not specify a form of production, the responding party must produce the electronically-stored information in the form in which it is ordinarily maintained or in a reasonably usable form or forms. Fed. R. Civ. P. 34(b)(E)(ii). Additionally, a party "need not produce the same electronically stored information in more than one form." Fed. R. Civ. P. 34 (b)(E)(iii) "

The Court then goes on to state that where the form of production is not articulated by the requesting party, the producing part retains discretion on form of production of information "as ordinarily maintained" subject to the challenge that what is produced may not be in reasonably usable or form or forms. Here, the government produced documents in .tiff and .pdf format. That the Court allows for a challenge based on the sufficiency of .pdf or .tiff files as compliant with an electronic document discovery request is, imo, a significant step in the right direction.

"If one were to apply these rules to this case, it appears that the government’s production of the electronically stored information in PDF or TIFF format would suffice, unless defendants can show that those formats are not "reasonably usable" and that the native format, with accompanying metadata, meet the criteria of "reasonably usable" whereas the PDF or TIFF formats do not. "

The government in this case appeared willing to produce documents in native, source format, but the Court did caution the defendants to "get it in writing" by way of stipulation. Once that stipulation is to be obtained by defendants, the Court indicated the government would have a duty to preserve, and that, in the event of its failure to produce, the Court would enforce a subsequent motion to compel the production by the government of electronic information in native format --- with accompanying metadata.

8. Search Terms: In one of the first cases to examine the issue, the Court also provided (and permitted) the filing of motions challenging the sufficiency of search terms, with the big proviso that "they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence."

Especially entertaining comment vis a vis challenging the government discovery responses:

"If you strike at a king, kill him."



The case is U.S v. O'Keefe, et al. Cr. No. 06-249 (PLF/JMF), and the link to the decision is here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cr0249-90

2008-02-18 Source Code Dispute Heats Up (Again) - Florida Attorney Files Motion in Limine

Venice, Florida attorney Robert Harrison is leading the charge against the breath alcohol measuring devices known as "Intoxilyzers." There are two models, the Intoxilzyer 5000 and the Intoxilyzer 8000. Harrison is seeking production of the source code for both appliances; the manufacturer has thus far refused to disclose the code.

Harrison filed a motion in limine requesting relief which includes a subpoena duces tecum for the source code (as well as other unspecified relief) on the basis that "without the Defendant having an opportunity to review and inspect the software source code, would violate the Defendant’s right to due process and right to confrontation..."

Harrison (imo correctly) characterizes the challenged devices as "mystical machines" if not opportunity to examine source code is provided. An important point here is that the printout of the results is the only evidence that is used to accuse, try and convict a driver subject to the test.

Here now, the litany of reliability issues:

Volumetrics Software Flaw

The"Intoxilyzer 8000, as distributed for use in the State of Florida, contained a software flaw that on numerous occasions reported a volume of less than 1.1 liters when there was not a warning flag of “volume not met”, thus rending the reliability of the reported volume unknown." Harrison notes, quite properly (imo) that "[I]f the reliability of the reported volume of a breath sample cannot be ensured, then the reliability of any corresponding breath alcohol level cannot be ensured. "

Multiple, Uncalibrated Software Versions

Harrison argues that there are various versions of the firmware code used to run the Intoxilyzer 8000, that these versions have not been recalibrate or certified to the state, and that it therefore is unknown whether these code modifications or alterations affect the analytical portion of the code, and therefore the reliability of the output.

"According to the manufacturer of the Intoxilyzer 8000, following a software update that modifies the analytical portion of the software, the machine must be recalibrated. The software contained in the Intoxilyzer 8000 used in this case was modified without having the machine recalibrated. Without the Source Code, the Defendant cannot determine whether or not the software update modified the analytical portion of the software, thus requiring the machine to be recalibrated.

Which Code, Which Version, Which Intoxilyzer?

Harrison raises another good point by implication. Even if the source code is provided, how can it be established that the now-modified source code (or any other code, for that matter) is *the* code that was intended to be used by the device? Without some integrity mechanism applied, we are left at best with corroborative (and inherently unreliable) witness testimony or, at worst, a guess.

"The Source Code is material to the Defendant’s case, for with this information the Defendant can determine whether the Intoxilyzer actually used in this case was using a software program approved by 11D-8.003 or a modified version of this program, if a modified version was used, what extent the modification would have on the reliability and operation of the Intoxilyzer, and how the software effects the reliability and operation of the Intoxilyzer.31. Without the production of the Source Code, the reliability of the Intoxilyzer 8000 is unknown."

Link to the pleading here: http://www.harrisonlawoffice.com/sourcecode/pleadings/fabian/Motion%20in%20Limine.pdf

2008-02-10 Ex-Societe Generale Trade Alleged to Have Forged Emails

Not just any emails.

Mssr. Kerviel, the trader who seems to have overstepped his trading position limit authority by some orders of magnitude, is alleged to have forged email confirmations of some significantly sized trades to appear to have come from Deutsche Bank.

I'm shocked, shocked. Well, I am somewhat surprised that for a bank with (heretofore) much vaunted security, something as simple as forged emails involving significant asset impairment risk (such as, say, US 75 billion in impairment) was not subject to some immediate or contemporaneous due diligence.

For a country that is well known for its persnickety attitude in connection with the provenance of its wines and champagne (not sparkling wine, pardner) this may want the bank examiners to reach out for a glass --- of a California Cabernet.

Excerpts from the Business Section of the NY Times 2008-02-10

"Later that afternoon, Mr. Kerviel presented compliance officers with the Deutsche Bank e-mail message. But when Société Générale double-checked, Deutsche Bank would not acknowledge the trade...'[W]e think this is the forged document from Deutsche Bank,' the person said of the confirmation referred to in Mr. Bakir’s message to Mr. Kerviel."

2008-01-24 Be Careful What, and How, You Ask For eDiscovery - And Make Sure That You Do Ask

In an opinion issued by U.S. Magistrate Judge John Facciola in Audrey (Shebby) D’Onofrio,v. SFX Sports Group, Inc. et. al., (CA 06-687 DCDC) the Court makes perfectly clear that a party requesting electronic discovery must not only know how to make such a request, it must translate that knowledge into a request containing words and phrases that indicate a request for electronic discovery of original information in native, searchable format. In this case, the requesting Plaintiff did not ask for original information in native (and searchable) format, nor did she ask for metadata.

To paraphrase the excerpt that follows, you get what you ask for, and won't what you don't. (Euphony intended) :

"Ultimately, then, it does not matter whether the Instruction referred to paper or electronic files – a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata. See Vanston Bondholders Prot. Comm. v. Green, 329 U.S. 156, 170 (1946) (“Putting the wrong question is not likely to beget right answers even in law.”). A motion to compel is appropriate only where an appropriate request is made of the responding party. See Fed. R. Civ. P. 37(a)(1)(B); Raghavan v. Bayer USA, Inc., No. 3:05-cv-682, 2007 WL 2099637, at *4 (D. Conn. July 17, 2007) (“The court will not compel discovery that has not been sought.”). Because no such request has been made concerning the Business Plan, the Court will not compel the defendant to produce it in its original form with accompanying metadata.9 See, e.g., Ponca Tribe of Indians v. Continental Carbon Co., No. CIV-05-445-C, 2006 WL 2927878, at *6 (W.D. Okla. Oct. 11, 2006) (“The original document requests issued by Plaintiffs failed to specify the manner in which electronic or computer information should be produced. [Defendant] elected to use a commonly accepted means of complying with the request. Nothing in the materials provided by Plaintiffs supports requiring [Defendant] to reproduce the information in a different format. Accordingly, Plaintiffs' request for reproduction of documents in their native electronic format will be denied.”); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 2006 WL 3091331, at *1-2 (D. Del. Oct. 26, 2006) (“Since the parties have never agreed that electronic documents would be produced in any particular format, [Plaintiff] complied with its discovery obligation by producing image files”)."

Spoliation: Claims of spoliation were asserted by the plaintiff (apparently alleging the destruction of the computer on which plaintiff worked while in defendant's employ). Despite defendants' assertion (also by allegation, not testimony) that "plaintiff was not prejudiced by the scrapping of her computer because all e-mails sent and received by her were captured from “defendants’ server and have been produced," Judge Facciola found that the record was "too thin to assess the merits of these serious allegations" and ordered an evidentiary hearing.

2008-01-16 Backdating - The Old Fashioned Way

The recent (June 2007) Federal Court decision in Armament Systems and Procedures, Inc., v. IQ Hong Kong, Limited, et. al., Case No. 1:00-cv--1257 (E.D. Wis 2007) invalidating a patent for inequitable behavior has some interesting backdating language.

First, it appears that a detailed forensic examination of the inventor's drawings (indentations, positioning, pad backing) revealed creation dates years later than claimed.

Second, a metadata and computer forensic analysis of the computers used by the inventor to generate data indicated a creation date years later than the claimed creation date.

The judge was not amused:

"Defendants have expended considerable effort in an attempt to show that this document is a fraud. Computer searches and meta-data analyses have shown that the only discernible creation date on the document is March 21, 2000. There is, in other words, no digital record of the document having been created in 1997."

This 42 page decision focuses in the main on the efforts of defendant's physical evidence forensics examinations and on corroborative witness testimony, but notably allocates little discourse to the issues uniquely inherent to establishing the authenticity of computer generated information. While metadata and other computer forensics played a role in the determination of evidence "creation" date, it was relegated to a reinforcing, rather than a substantiative, role.That said, it is also noteworthy that date and time bearing metadata and "other" computer information indicated a huge discrepancy between first data instantiation and asserted data instantiation.

The last few pages are also entertaining, with this quote, which might bear the title "Reflections on Randomness":

"But when apparent randomness follows a pattern, it ceases to be random. Thus, the scales were tipped not by the ostensible strangeness of Parsons’ theory per se, but because Parsons’ theory requires belief in the perpetuation of multiple inexplicably random relationships between otherwise unrelated documents. It is possible that such coincidental relationships could have been explained away, but Parsons’ testimony did not succeed in that effort. And when the alternative explanation is as simple as believing documents were in a pad of paper, the chain of unlikely events Armament proposed is unsatisfactory."

And this quote, invoking Occam's Razor:

"Ultimately, the principle of Occam’s Razor supports the simpler explanation over the one requiring belief in multiple coincidences and unusual twists and turns, United States v. Navarro-Camacho, 186 F.3d 701, 708 (6th Cir. 1999), and Armament’s explanation is based on changing stories and layer upon layer of coincidences. But it is not only simplicity that favors the defendants’ theory: the simpler explanation is also the one supported by the weight of the other evidence—the testimony and other events pointing toward a later creation date, as well as the absence of credible documentary evidence corroborating the June 1997 date. Based on all of the above, it is not difficult to conclude by clear and convincing evidence that the document known as Q1 was drafted not in June 1997 but at some much later date. The only reasonable conclusion to be drawn, therefore, is that Parsons committed inequitable conduct by knowingly creating and submitting a false material document to the PTO in 2002. The patent in suit is therefore unenforceable. eSpeed, Inc. v. BrokerTec USA, L.L.C., 480 F.3d 1129, 1135 (Fed. Cir. 2007)."

Link to the article by way of the well written and informative "Patently-O" blog:

http://www.patentlyo.com/patent/ASPvIQHK.pdf

2008-01-07 Qualcomm v Broadcom Sanctions Order - 6 Attorneys Referred to California State Bar

In a harshly worded 48 page opinion issued today by United States Magistrate Judge Barbara Major in the Qualcomm v Broadcom patent matter Case 3:05-cv-01958-B-BLM ( (SD CA), 6 Qualcomm attorneys/outside counsel were sanctioned for discovery abuses and referred to to the California State Bar for possible disciplinary action.

The Court summarized the issue as follows:

"In a nutshell, the issue of whether Qualcomm participated in the JVT in 2002 and early 2003 became crucial to the instant litigation."

As I read the opinion (and blog) here are the salient facts:

1. Qualcomm 30(b)6 deponent Viji Raveendran testified that Q had not been involved in the development of the MPEG-4 video standard, even though Broadcom had obtained "reflector email" showing participation in the standards workgroup by one viji@qualcomm.com." That deponent's computer was not searched for discoverable material prior to her deposition.

2. Qualcomm's attorneys filed a motion for summary adjudication on the issue of it's participation in the MPEG-4 standards group, dismissing the presence of the 30(b)6 deponent's Qualcomm email in the reflector list of the ad-hoc working group for the MPEG-4 standard, and stating again that Qualcomm did not participate in the standards development process. The Motion and memorandum in support of that motion was signed by both in-house Qualcomm attorneys and it's outside counsel.

3. [Excerpt from Opinion] " While preparing Qualcomm witness Viji Raveendran to testify at trial, attorney Adam Bier discovered an August 6, 2002 email to viji@qualcomm.com welcoming her to the avc_ce mailing list. Decl. of Adam Bier at 4, Ex. A. Several days later, on January 14, 2007, Bier and Raveendran searched her laptop computer using the search term “avc_ce” and discovered 21 separate emails, none of which Qualcomm had produced in discovery. Id. at 7. The email chains bore several dates in November 2002 and the authors discussed various issues relating to the H.264 standard. (Blognote --- not good).

4. [Order Excerpt] "The Qualcomm trial team decided not to produce these newly discovered emails to Broadcom, claiming they were not responsive to Broadcom’s discovery requests."
(Blognote --- looking worse...)

5. [Order Excerpt] "Four days later, during a sidebar discussion, Stanley Young argued against the admission of the December 2002 avc_ce email reflector list, declaring: “Actually, there are no emails -- there are no emails ... there’s no evidence that any email was actually sent to this list. This is just a list of email ... addresses. There’s no evidence of anything being sent.” Trial Tr. vol. VII at 91-92; Young Decl. at 25-29. None of the Qualcomm attorneys who were present during the sidebar mentioned the 21 avc_ce emails found on Raveendran’s computer a few days earlier."

So, what was the denouement? Well, the Magistrate Judge Major recounts what trial Judge Brewster had to say:

"Judge Brewster further found that Qualcomm’s “counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007.” Id. at 32. Based on “the totality of the evidence produced both before and after the jury verdict,” and in light of these findings, Judge Brewster concluded that “Qualcomm has waived its rights to enforce the ‘104 and ‘767 patents and their continuations, continuations-in-part, divisions, reissues, or any other derivatives of either patent.” Id. at 53." (Blognote --- this is very bad patent juju --- for Qualcomm). Judge Brewster eventually awarded $9,259,985.09 in attorneys fees and related costs as sanctions.

But, we're not done, not by a long shot. Here's a recounting of post-trial misconduct by Qualcomm.


1. [Order Excerpt] By letter dated February 16, 2007, (Qualcomm counsel) Bier told Broadcom “[w]e continue to believe that Qualcomm performed a reasonable search of Qualcomm’s documents in response to Broadcom’s Requests for Production and that the twenty-one unsolicited emails received by Ms. Raveendran from individuals on the avc_ce reflector are not responsive to any valid discovery obligation or commitment...” Despite repeated requests, the Order continues "[T]hroughout the remainder of March 2007, Bier repeatedly declined to update Broadcom on Qualcomm’s document search." (Blognote: Umm. Sounds like a story line stolen from the "Wizard of Oz")

2. The Money Shot: [Order Excerpt] "But, on April 9, 2007, James Batchelder and Louis Lupin, Qualcomm’s General Counsel, submitted correspondence to Judge Brewster in which they admitted Qualcomm had thousands of relevant unproduced documents and that their review of these documents “revealed facts that appear to be inconsistent with certain arguments that [counsel] made on Qualcomm’s behalf at trial and in the equitable hearing following trial.” Saxton Decl., Exs. H & I. Batchelder further apologized “for not having discovered these documents sooner and for asserting positions that [they] would not have taken had [they] known of the existence of these documents.” Id., Ex. H. As of June 29, 2007, Qualcomm had searched the email archives of twenty-one employees and located more than forty-six thousand documents (totaling more than three hundred thousand pages), which had been requested but not produced in discovery. Broadcom’s Reply Supp. Mot. for Sanctions at 1 n.2. Qualcomm continued to produce additional responsive documents throughout the summer. Doc. No. 597 (Qualcomm’s August 7, 2007 submission of three additional avc_ce emails it had not produced to Broadcom).

What Judge Major found:

1. "[C]lear and convincing evidence that Qualcomm intentionally engaged in conduct designed to prevent Broadcom from learning that Qualcomm had participated in the JVT during the time period when the H.264 standard was being developed.

2. "To this end, Qualcomm withheld tens of thousands of emails showing that it actively participated in the JVT in 2002 and 2003 and then utilized Broadcom’s lack of access to the suppressed evidence to repeatedly and falsely aver that there was “no evidence” that it had participated in the JVT prior to September 2003.

3. Qualcomm’s misconduct in hiding the emails and electronic documents prevented Broadcom from correcting the false statements and countering the misleading arguments.

Here's where the first interesting argument comes in. Broadcom never filed a motion to compel against Qualcomm, apparently lulled into non-action by Qualcomm's false interrogatory responses and by what documents it did receive. The Court notes that Broadcom's remedies were restricted because it had not filed a motion to compel:

"If Broadcom had filed a motion to compel, it could have obtained sanctions against Qualcomm and its attorneys. Fed. R. Civ. P. 37(a) & (b). Because Broadcom did not file a motion to compel, it may only seek Rule 37 sanctions against Qualcomm. Fed. R. Civ. P. 37(c). Thus, Qualcomm’s
suppression of documents placed its retained attorneys in a better legal position than they would have been in if Qualcomm had refused to produce the documents and Broadcom had filed a motion to compel."

(Blognote) --- This exposes the nasty underside of eDiscovery. It is extremely easy to "bury" digital evidence. Even if Broadcom *had* filed a motion to compel, the denial by Qualcomm that it had any additional evidence would in all likelihood have been taken as a truthful representation by the Court. The game? Destroy/alter evidence, then aver that either nothing exists, that you haven't altered it, or that you've produced whatever does exist. Most courts will then deny a motion to compel on the basis that one "cannot produce what does not exist."

In a brilliantly insightful piece of wordsmithing, the Court picks up on the idea of "gaming" the system ---

[Court Excerpt] "This dilemma highlights another problem with Qualcomm’s conduct in this case. The Federal Rules of Civil Procedure require parties to respond to discovery in good faith; the rules do not require or anticipate judicial involvement unless or until an actual dispute is discovered. As the Advisory Committee explained, “[i]f primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse.” Fed. R. Civ. P. 26(g) Advisory Committee Notes (1983 Amendment).

The Committee’s concerns are heightened in this age of electronic discovery when attorneys may not physically touch and read every document within the client’s custody and control. For the current “good faith” discovery system to function in the electronic age, attorneys and" clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search. Producing 1.2 million pages of marginally relevant documents while hiding 46,000 critically important ones does not constitute good faith and does not satisfy either the client’s or attorney’s discovery obligations. Similarly, agreeing to produce certain categories of documents and then not producing all of the documents that fit within such a category is unacceptable. Qualcomm’s conduct warrants sanctions. [Emphasis Added] (We had a name for this game when I was growing up. Not bloggable)

Judge Major then reveals the potentials (and imposes consequences for) imposing sanctions in what I may become "the famous" Footnote 4:

"Qualcomm attempts to capitalize on this failure, arguing “Broadcom never raised any concern regarding the scope of documents Qualcomm agreed to produce in response to Request No. 50, and never filed a motion to compel concerning this request. Accordingly, there is no order compelling Qualcomm to respond more fully to it.” Mammen Decl. at 9. Qualcomm made the same argument with regard to its other discovery responses. Id. at 9-11; see also Bier Decl., Ex. C. This argument is indicative of the gamesmanship Qualcomm engaged in throughout this litigation. Why should Broadcom file a motion to compel when Qualcomm agreed to produce the documents? What would the court have compelled: Qualcomm to do what it already said it would do? Should all parties file motions to compel to preserve their rights in case the other side hides documents?" [Emphasis added].

The Ruling:

[Court Excerpt] "The Court’s review of Qualcomm’s declarations, the attorneys’ declarations, and Judge Brewster’s orders leads this Court to the inevitable conclusion that Qualcomm intentionally withheld tens of thousands of decisive documents from its opponent in an effort to win this case and gain a strategic business advantage over Broadcom. Qualcomm could not have achieved this goal without some type of assistance or deliberate ignorance from its retained attorneys. Accordingly, the Court concludes it must sanction both Qualcomm and some of its retained attorneys."

In Footnote 5 (also noteworthy) the Court depiction of this litigation is nothing short of, well, an unmitigated disaster: "The Court is limited in its review and analysis of the debacle that occurred in this litigation because Judge Brewster only referred the discovery violation to this court." (Blognote --- the failure to produce more than 46,000 emails, and repeatedly averring that none exist, *is* gaming the system)

So. What *didn't Qualcomm do? Here's what the Court says:

"Qualcomm has not established “substantial justification” for its failure to produce the documents. In fact, Qualcomm has not presented any evidence attempting to explain or justify its failure to produce the documents. Despite the fact that it maintains detailed records showing whose computers were searched and which search terms were used (Glathe Decl. at 3 (identifying the individuals whose computers were not searched for specific types of documents)), Qualcomm has not presented any evidence establishing that it searched for pre-September 2003 JVT, avc_ce, or H.264 records or emails on its computer system or email databases. Qualcomm also has not established that it searched the computers or email databases of the individuals who testified on Qualcomm’s behalf at trial or in depositions as Qualcomm’s most knowledgeable corporate witnesses; in fact, it indicates that it did not conduct any such search. Id.; Irvine Decl. at 2; Ludwin Decl. at 3; Decl. of Viji Raveendran at 1, 4. The fact that Qualcomm did notperform these basic searches at any time before the completion of trial indicates that Qualcomm intentionally withheld the documents. " (Emphasis in original -- Blognote: Note the Court's use of bolding *and* italics to make a point).

Thinking about designating a person with less-than-adequate knowledge as a Fed.R.Civ.P. 30(b)6 witness? Think again. Qualcomm tried this and, in retrospect, will no doubt regret it's decision, a point this Court makes abundantly clear:

[Order Excerpt] "If a witness is testifying as an organization’s most knowledgeable person on a specific subject, the organization has an obligation to conduct a reasonable investigation and review to ensure that the witness does possess the organization’s knowledge. 6 Fed. R. Civ. P. 30(b)(6); In re JDS Uniphase Corp. Sec. Litig., 2007 WL 219857, *1 (N.D. Cal. 2007)."

Okay, another notable footnote, for those mindful of ethics obligations on the part of both in-house as well as outside counsel:

[Order Excerpt] " Qualcomm’s self-serving statements that “outside counsel selects ... the custodians whose documents should be searched” and the paralegal does not decide “what witnesses to designate to testify on behalf of the company” (Glathe Decl. at 1) does not relieve Qualcomm of its obligations. Qualcomm has not presented any evidence establishing what actions, if any, it took to ensure it designated the correct employee, performed the correct computer searches, and presented the designated employee with sufficient information to testify as the corporation’s most knowledgeable person. Qualcomm also has not presented any evidence that outside counsel knew enough about Qualcomm’s organization and operation to identify all of the individuals whose computers should be searched and determine the most knowledgeable witness. And, more importantly, Qualcomm is a large corporation with an extensive legal staff; it clearly had the ability to identify the correct witnesses and determine the correct computers to search and search terms to use. Qualcomm just lacked the desire to do so."

The Role of Qualcomm's Outside Counsel -- The Options Game

Judge Major sets out four possible "options" scenarios involving potential attorney misconduct by Qualcomm's retained counsel:

[Order Excerpt] "
The next question is what, if any, role did Qualcomm’s retained lawyers play in withholding the documents? The Court envisions four scenarios.

First, Qualcomm intentionally hid the documents from its retained lawyers and did so so effectively that the lawyers did not know or suspect that the suppressed documents existed.

Second, the retained lawyers failed to discover the intentionally hidden documents or suspect
their existence due to their complete ineptitude and disorganization.

Third, Qualcomm shared the damaging documents with its retained lawyers (or at least some of them) and the knowledgeable lawyers worked with Qualcomm to hide the documents and all evidence of Qualcomm’s early involvement in the JVT."

...[F]ourth, while Qualcomm did not tell the retained lawyers about the damaging documents and evidence, the lawyers suspected there was additional evidence or information but chose to
ignore the evidence and warning signs and accept Qualcomm’s incredible assertions regarding the adequacy of the document search and witness investigation."

On with the analysis:

Was is option Number One or Two? No:

[Court Excerpt] "Given the impressive education and extensive experience of Qualcomm’s retained lawyers (see exhibit A7), the Court rejects the first and second possibilities. It is inconceivable that these talented, well-educated, and experienced lawyers failed to discover
through their interactions with Qualcomm any facts or issues that caused (or should have caused) them to question the sufficiency of Qualcomm’s document search and production. Qualcomm did not fail to produce a document or two; it withheld over 46,000 critical documents that extinguished Qualcomm’s primary argument of non-participation in theJVT. In addition, the suppressed documents did not belong to one employee, or a couple of employees who had since left the company; they belonged to (or were shared with) numerous, current Qualcomm employees, several of whom testified (falsely) at trial and in depositions. Given the volume and importance of the withheld documents, the number of involved Qualcomm employees, and the numerous warning flags, the Court finds it unbelievable that the retained attorneys did not know or suspect that Qualcomm had not conducted an adequate search for documents." (Blognote --- unbelievable is an even better term than the more commonly used "strains credulity")

Was it Option Three? No.

[Court Excerpt] "The Court finds no direct evidence establishing option three. Neither party nor the attorneys have presented evidence that Qualcomm told one or more of its retained attorneys about the damaging emails or that an attorney learned about the emails and that the knowledgeable attorney(s) then helped Qualcomm hide the emails. While knowledge may be inferred from the attorneys’ conduct, evidence on this issue is limited due to Qualcomm’s assertion of the attorney-client privilege."

Option Four --- "Chose Not to Look" --- Intent Rules.

[Court Excerpt] "Thus, the Court finds it likely that some variation of option four occurred; that is, one or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was
sufficient, to ignore the warning signs that the document search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide the information (or lack of information) that Qualcomm needed to assert its non-participation argument and to succeed in this lawsuit. These choices enabled Qualcomm to withhold hundreds of thousands of pages of relevant discovery and to assert numerous false and misleading arguments to the court and jury.

The Court's six word conclusion:

"This conduct warrants the imposition of sanctions."

The Court's reasoning for its ability to sanction 19 attorneys: Inherent Power. And another memorable footnote (5)

[Order Excerpt] "The applicable discovery rules do not adequately address the attorneys’
misconduct in this case. Rule 26(g) only imposes liability upon the attorney who signed the discovery request or response. Fed. R. Civ. P. 26(g). Similarly, Rule 37(a) authorizes sanctions against a party or attorney only if a motion to compel is filed; Rule 37(b) authorizes sanctions against a party or an attorney if the party fails to comply with a discovery order; and, Rule 37(c) only imposes liability upon a party for the party’s failure to comply with various discovery obligations. Fed. R. Civ. P. 37. Under a strict interpretation of these rules, the only attorney who would be responsible for the discovery failure is Kevin Leung because he signed the false discovery responses. Doc. No. 543-3, Exs. W, X & Y; Robertson Decl., Ex. 2. However, the Court believes the federal rules impose a duty of good faith and reasonable inquiry on all attorneys involved in litigation who rely on discovery responses executed by another attorney. See Fed. R. Civ. P. 26 Advisory Committee Notes (1983 Amendment) (Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37); Fed. R. Civ. P. 11 (by signing, filing, submitting or advocating a pleading, an attorney is certifying that the allegations have factual, evidentiary support). Attorneys may not utilize inadequate or misleading discovery responses to present false and unsupported legal arguments and sanctions are warranted for those who do so. Id. The facts of this case also justify the imposition of sanctions against these attorneys pursuant to the Court’s inherent power. See, Fink, 239 F.3d at 993-94 (“an attorney’s reckless misstatements of law and fact, when coupled with an
improper purpose ... are sanctionable under a court’s inherent power”). "

One last notable footnote (13): the failure to have documents reviewed by a senior attorney does not excuse discovery misconduct; it amplifies it.

[Order Excerpt] " Several declarations state or imply that senior lawyers failed to review or comment on pleadings prepared by junior lawyers and sent to them prior to filing. If this is true, it constitutes additional evidence that the senior lawyers turned a blind eye to Qualcomm’s discovery failures."

The Court's conclusion:

"For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART Broadcom’s sanction motion and ORDERS Qualcomm to pay Broadcom $8,568,633.24. Qualcomm will receive credit toward this sanction for any amount it pays to Broadcom to satisfy the Exceptional Case sanction. The Court also REFERS to The State Bar of California for an investigation of possible ethical violations attorneys James R. Batchelder, Adam A. Bier, Kevin K. Leung, Christian E. Mammen, Lee Patch and Stanley Young. The Court ORDERS these six attorneys and Qualcomm in-house attorneys Alex Rogers, Roger Martin, William Sailer, Byron Yafuso, and Michael Hartogs to appear 9:00 a.m. on Tuesday, January 29, 2008, in the chambers of the Honorable Barbara L. Major, United States Magistrate Judge, 940 Front Street, Suite 5140, San Diego, California, 92101 to develop the comprehensive Case Review and Enforcement of DIscovery Obligations protocol in accordance with this Order."

What this case underscores is the electronic discovery/digital evidence gamesmanship (nay, brinksmanship) currently ongoing. The script: hide/alter/delete/ and then claim that evidence does not exist. A Court will in all likelihood look askance at a motion to compel, and hold that it cannot compel what a party says it does not have. The trouble is, what a party does not have can be easily created after the fact, and creates a veil most courts are loathe to pierce. This one did, but only with the help of a single "email reflector" that gave rise to the misconduct.

2008-01-05 Massachusetts Law Does Not Recognize Tort of Conversion of Computer Data

In a December 2007 decision, In re TJX Companies Retail Sec. Breach Litigation --- F.Supp.2d ----, 2007 WL 4404166 (D.Mass. 2007) the Court ruled that a claim for conversion based on intangible computerized credit cardholder and account data was not cognizable in Massachusetts.

The TJX Court did note the contrast with the New York Court of Appeals decision in Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d 283, 832 N.Y.S.2d 873, 864 N.E.2d 1272 (N.Y.2007) (Blogged here on October 6, 2007):

The question certified to the New York Court of Appeals: "Is a claim for the conversion of electronic data cognizable under New York law?" Thyroff, 460 F.3d at 408.

The answer: On March 22, 2007, the New York Court of Appeals answered the certified question in the affirmative. See Thyroff, 8 N.Y.3d at 293, 832 N.Y.S.2d 873, 864 N.E.2d 1272.

Straining credulity (imo) the TJX Court declined to follow Thyroff, holding that Massachussetts law does not recognize the tort of conversion of computer data. TJX, 2007 WL 4404166 at *2. Further amplifying the strain is the Court's stretch in finding that the New York Court of Appeals landmark decision does not apply to "any" digital data, but only where the digital data was "indistinguishable" from printed documents. Id. That was not the precise ruling in Thyroff; it appears that the TJX court incorporated what appears to be at best dicta from Thyroff into the New York Court of Appelas holding.

The Court's use of the word "indistinguishable" is also both intriguing and troubling. First, a contextually complete reading of the Thyroff does not necessarily lead one read in such a limitation to the tort of digital data conversion. Second, does the TJX Court provide a carve-out or not?

One might imagine the evidentiary issues arising in Massachusetts from parties offering arguments either supporting or challenging computer generated evidence as "indistinguishable" from printed documents.

Er, um, well, we may have some problems down the line in Massachussetts. For example, how does the "indistinguishable from printed documents" test apply to metadata associated with the data formatted for printing?

2008-01-04 Paucity Plus Hunch Insufficient Basis to Grant Additional eDiscovery

U.S. Magistrate Judge John Facciola's eDiscovery decisions are typically cutting edge. Today's decision in Hubbard v Potter, Civil Action No. 03-1062 (D.C.D.C. 2007) is true to form, and exposes challenges faced by a party to whom (apparently) the importance of properly staged electronic discovery came too late.

In denying a round of what Judge Facciola describes (imo, aptly) as "meta-discovery" or discovery about discovery, and invoking Zubulake, he reminds the parties that "[I]nstead of chasing the theoretical possibility that additional documents exist, courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed." Moreover, the existence of a mere "paucity" of discovery documents does not warrant the granting of additional discovery, where such "paucity" is accompanied only by a "hunch" that there has been a failure to produce.

The Court paid greater attention to plaintiffs’ argument that additional discovery was warranted "because on several occasions defendant produced responsive documents yet maintained that they were non-responsive," and found that argument "far more compelling."
The defendant in this case first failed to produce documents, then labeled these documents "Non-responsive" with which characterization the Court roundly and emphatically disagreed.

Nevertheless, Judge Facciola denied plaintiffs' request for additional electronic discovery, again basing that denial on the inadequacy of a hunch-based-on-paucity argument.

The Court first notes that a great number of electronic documents had been printed out and disclosed by the defendant in hard copy:

"For example, although plaintiffs complain that many facilities provided very little by way of electronic documentation, plaintiffs concede that '[s]ome of the 25 covered facilities produced a significant volume of hard copies of electronic correspondence.'''


The Court then states that "[P]laintiffs have no evidence that there exist additional responsive electronic documents. Rather, as with plaintiffs’ general argument regarding the paucity of documents, plaintiffs can point to nothing more than their own speculation that other electronic documents exist."

It would have been interesting to sit in on that Fed. R. Civ. P. 16(b)5 meeting. One might wonder just how badly worded was Plaintiffs' document production request(s), whether the plaintiffs reserved the right to conduct adequate electronic discovery, and whether documents were sought after in their origination format, i.e., in native electronic format.

I suspect not, and am reminded of Judge Grimm's Lorraine v Markel American dicta in whcih he urges attorneys involved in eLitigation to "get it right the first time."