The National Attorneys General Training & Research Institute
Electronic Discovery Bulletin November 2016
The following is a compendium of articles and case law that may be of interest to our AG offices that are dealing with electronic discovery issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view neither as to the accuracy of the articles nor as to the position expounded by the authors of the hyperlinked articles.
Do Email Messages Have to Be Produced With Attachments in Litigation?
A document family consists of two or more related documents that are grouped together, such as an email (the parent) with an attachment (the child). Although there is no hard and fast rule, preserving document families may be a good idea, according to eDiscovery provider Percipient. If an attachment is relevant in a case, its transmittal email should probably also be considered responsive. Further, most document review platforms allow users to tag document families in mass, rather than marking each one individually, thus reducing review time. Maintaining parent-child relationships is often specifically included in a document request, and even if not requested, you may be asked to supplement the production with document families at a later time.
According to Percipient, the most apparent legal authority for the production of document families is FRCP 34 and its state counterparts, which require production of documents “as they are kept in the ordinary course of business,” and in such case, emails and attachments are general maintained together on the server. In addition, FRE 106 states that if part of a document is used as evidence, the party offering it may have to produce the entire document if it “ought in fairness” to be considered as a whole. However, be aware of the distinction with privileged documents in a document family. Although the transmittal email may not be privileged, the attachment may be and should be withheld from the production.
Although there is little case law addressing the production of document families, Percipient cites Abu Dhabi Commercial bank v. Morgan Stanley Co. Inc., no. 08-Civ. 7508 (S.D.N.Y. 2011), which examines the pros and cons of producing document families intact and concludes that the best practice is for both parties to discuss and agree on the treatment of emails and attachments prior to production.
Free Webinar on Managing E-Discovery Expense
E-discovery provider Kroll Ontrack has made available an on-demand webinar, Cost-Effective eDiscovery: How to Manage Expense and Reduce Waste, which focuses on utilizing new technology and managing the process. Panelists are Richard Coel, trial attorney; Sarah Maguire, Assistant General Counsel at BAE Systems; and Sheldon Noel, Senior Manager of Business Development at Kroll. The webinar is free but contact information must be submitted. Register at http://www.ediscovery.com/events/registration/27391.
Is Bit-By-Bit Imaging Required for a Forensically Sound Collection?
Data should be collected with an eye toward preventing spoliation, while still preserving metadata and ensuring defensibility, according to Nick Pietig of Kroll. For the majority of cases, he finds that a full forensic image is unnecessary, and an active data capture will suffice for civil litigation. However, he points out that in some cases, such as an employment case where a key player is suspected of intentional spoliation, bit-by-bit imaging may be the “safest” collection method to undergo strict scrutiny. Whatever data collection is required, the collection must be forensically sound, with all files preserved, along with the necessary metadata to prove the information is authentic.
EDiscovery in the Cloud: 3 Ways It’s Safer
David Greetham, VP of eDiscovery Operations at Ricoh-Americas, posits that cloud security providers often have stronger security options than those in most attorneys’ offices. He particularly cites the following: 1) more sophisticated encryption for data in storage, in transit and intra-application; 2) security experts on staff; and 3) first access to emerging technologies.
Case Law: Review of Entire Social Media Account
In Westmoreland v. Wells Fargo Bank Northwest, N.A., no. 15-312 (D. Idaho Oct. 31, 2016), Deborah Westmoreland sued her former employer Wells Fargo Bank Northwest (“Wells Fargo”) for sex discrimination, age discrimination and retaliation under both federal and state law. Westmoreland alleged that her supervisor harassed and retaliated against her and forced her to take a constructive demotion in another state; Wells Fargo countered that the move was justified due to Westmoreland’s inadequate job performance. During discovery, Wells Fargo sought review of Westmoreland’s entire Facebook account, production of emails sent by Westmoreland’s attorney to an account Westmoreland shared with her husband and the return of a company-issued laptop in order to obtain its contents. Westmoreland failed to produce these, and Wells Fargo moved for sanctions, which the court granted in part and denied in part. As to the Facebook account, the court noted that Westmoreland had already produced her Facebook messages and eight pages of postings, and had submitted a declaration that the account contained no additional relevant information; the court denied the request for review of her entire account. It also denied the request for access to the emails from Westmoreland’s counsel, ruling Wells Fargo had not made a sufficient showing that Westmoreland waived her attorney-client privilege by sharing the computer with her husband. Finally, the court ordered Westmoreland to return the laptop to a mutually agreeable technician for imaging and retrieving data for both parties.
Case Law: Failure to Preserve Text Messages
In First Financial Security, Inc. v. Freedom Equity Group, LLC, no. 15-1893 (N.D. Cal. Oct. 7, 2016), plaintiff sued the defendant for intentional interference with contract and unfair competition law, alleging defendant lured 1400 sales contractors away. The parties filed a Discovery Dispute Joint Report after defendant had failed to produce discovery materials, which included 1) text messages possessed by its principals; 2) employment applications submitted by former plaintiff contractors; 3) documents related to the circumstances in which defendant hired former plaintiff contractors, in native format; and 4) phone records. The court ordered the defendant to produce the discovery, but when it failed to do so, plaintiff moved for sanctions. The defendant in its opposition brief stated that the texts were “innocently” deleted by people who did not understand their discovery obligations. The defendant also stated that 1) the phone records were deleted by the phone company which only kept them for one year; 2) there was no native format data to produce because it is a “data base” that can be reviewed by a “query;” and 3) defendant never possessed any employment applications because they were digitally submitted to a “data base” and no application document was separately retained. After oral argument where defendant conceded it produced a physical spreadsheet instead of native format copies of the data, the court ordered defendant to instead produce the native format data, to which defendant issued a declaration stating it did not have possession of the data because it relied upon third party providers to store it; that it had changed providers; and that the original provider had no obligation to turn over the data without a court order. The court found that defendant had an obligation to preserve text messages in anticipation of litigation; that it took no reasonable steps to preserve them; that those messages could not be restored or replaced through additional discovery; and that defendant acted with the intent to deprive the plaintiff of the use of the deleted text messages. The court also noted that after twice ordering defendant to produce native format data, it determined that defendant misled and prejudiced plaintiff as it raised the claim that it lacked possession of the data far too late. The court issued a permissive adverse inference instruction against defendant, but declined to issue sanctions with respect to the phone and employment applications, failing to find intent to deprive.
Hedda Litwin is the Editor of E-Discovery Bulletin and may be reached at 202-326-6022. The E-Discovery Bulletin is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail firstname.lastname@example.org.