Welcome to Module 3-F.

Rules 37(e) and 26(b)(2)(B).

This module contains three essays on Rule 37(e) and Rule 26(b)(2)(B). These are two key rules that you must learn backwards and forwards. This is the module where you will find Losey’s dumb and dumber article on 26(b)(2)(B).

Rule 37 (2006 version) and the Supreme Court on Document Destruction.

The Supreme Court articulated its policy on corporate document destruction in Arthur Andersen v. United States, 544 U.S. 696 (2005).  This case considered the appeal of the criminal conviction of Enron’s auditor, Arthur Andersen, once the biggest accounting firm in the world.  Arthur Andersen was convicted of obstruction of justice because it destroyed records pertaining to Enron, and did so knowing that a government investigation was imminent.  The “substantial destruction of paper and electronic documents” by Arthur Andersen was supposedly done in compliance with its records retention policy. Id. at 710.   It argued that had its policies been followed, these documents would already have been destroyed.  But, as the Supreme Court points out, in so doing, Arthur Andersen ignored other sections of its records retention policy prohibiting the destruction of relevant records when litigation is threatened.  Id. at pg. 700, fn. 4.

There is little doubt that the accounting giant suddenly began to enforce its previously ignored record retention policies in order to prevent the government from getting information on its “creative” accounting services for Enron.  The Supreme Court even notes one incident where a document was destroyed by the firm’s senior accountant for Enron, David Duncan. This document had already been labeled, believe it or not, ”smoking gun,” and Duncan destroyed it with the comment ”we don’t need this.” Id.pg. 702 Fn. 6.

Arthur Andersen was convicted of obstruction of justice, and the conviction was affirmed by the Fifth Circuit Court of Appeals. How did the Supreme Court react?   It reversed in a unanimous opinion holding that the jury instruction was too stringent.  The Court had this to say on document destruction:

“Document retention policies,” which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. (citations omitted)  It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.   . . . .

A ”knowingly … corrupt persuader” cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.

Id. pgs.704, 708.

This same Court the next year (2006) approved all of the 2006 revisions to the Federal Rules of Civil Procedure, including Rule 37(f) (later renumbered to be 37(e)) which then stated:

Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions
* * * * *
(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

Considering the new rule on ESI destruction, and the Arthur Andersen opinion, you might wonder why some companies are so skittish about following their usual document retention policies.  I have heard some well known e-discovery experts go so far as to state that the entire pharmaceutical industry now never recycles their back-up tapes, instead they save them all forever, for fear of a later spoliation charge.  When I asked Kevin Esposito, an attorney who was at the time in charge of Pfizer’s internal e-discovery team about this, he told me that was untrue.  He said it was a matter of public record that Pfizer sticks  by its usual six week back-up tape recycling policies.  He said he is having success rebutting attacks by plaintiffs on this, noting that the courts have now caught on to this plaintiff’s lawyer trick to try to run up expenses and force settlements by frivolous demands for backup tape ESI that would be very expensive to try to restore, search and retrieve.

Most of the attorneys I have heard speak on this issue consider Rule 37(e) a very unsafe harbor, and many counsel unlimited backup tape retention, just to be safe.  They do so in spite of the many burdens, exposure and expenses that they acknowledge a “forever” retention policy will create.   As justification, they point out how difficult district courts have been on spoliation in general, even though there are no cases yet on the new Rule 37(e).  Many seem to forget the  Supreme Court’s strong endorsement of document destruction in Arthur Andersen. Of course, the destruction must be done in accordance with prior policies, and performed before notice of actual or reasonably anticipated litigation.  (Also see the Rules Committee Commentary on Rule 37(e))

But, even after notice, does a company have to go so far as to stop its usual recycling of backup tapes on the possibility that only these tapes might contain relevant information, that the relevant ESI is otherwise not available on the “live systems”? Pfizer apparently routinely argues that this is not necessary, and presses the courts for relief on this issue.  But what do the district courts say that causes many pundits to attack Pfizer’s position as too risky?  You have only to look to the opinions of Judge Scheindlin, whom all agree is one of the strictest and most knowledgeable judges in the Country on these issues. Zubulake IV, an often overlooked opinion in the Zubulake saga, provides the answer. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003):

The scope of a party’s preservation obligation can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes, for example, typically maintained solely for the purpose of disaster recovery, which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible, that is, they are actively used for information retrieval, then such tapes would likely be subject to the litigation hold. However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of key players to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes. (emphasis added)

So, according to Judge Scheindlin, some backup tapes should be preserved, and some need not, even after litigation.  If it is an “enterprise disaster recovery” type of backup tape, one that is very hard to access, then it does not have to be included in a litigation hold.  In other words, it can be destroyed by recycling if the normal procedures call for that.  The only exception is when the backup tapes allow for identification of particular records custodians, such as a particular Outlook user’s PST file, then the particular tape with the particular identified custodian must be included in the hold,  but even then, only “if the information contained on those tapes is not otherwise available.”

On the other hand, if it is a more accessible type of backup tape, one for instance that is fully indexed and much more easy to search and retrieve, which is  really more like an archive than disaster recovery system, then these type of backup tapes should be included in a hold, even if you do not have evidence that “the information contained on those tapes is not otherwise available.”

Bottom line, you really have to know and understand what type of backup tapes you are dealing with. Frequently an organization will have more than one kind of backup tapes.  Some may be the later type that are “actively used for information retrieval”, and others may not, they may be “disaster recovery type” that are seldom if ever so used. This later type is usually very expensive to restore and search for relevant evidence.  These inaccessible backup tapes need not be subject to a litigation hold on authority of Judge Scheindlin in Zubulake IV, the Supreme Court in Arthur Andersen and new Rule 37(f).  Nevertheless, until we get a little more guidance on this issue, you should probably still take them out of the normal recycle routine, at least until your opposing counsel agrees, or failing that, you obtain relief from the court on this issue.

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Opinion Where Production is Denied Under Rule 26(b)(2)(B) and Sanctions for Spoliation are Denied Under Unspoken Rule 37

A sexual harassment case in Atlanta  used the two-tiered analysis of Rule 26(b)(2)(B) to reject plaintiffs’ over broad discovery request. Petcou v. C.H. Robinson Worldwide, Inc.2008WL 542684 (N.D. Ga., Feb. 25, 2008). When subsequent discovery about discovery under Rule 26(b)(2)(B) revealed that email was destroyed after the EEOC charge was filed, the plaintiffs moved for sanctions. Sanctions were denied using the routine operations analysis of Rule 37(e), although the rule itself was never mentioned.

In this case four female plaintiffs alleged harassment “based on offensive comments and images on coworkers’ computer screens, as opposed to e-mails the Plaintiffs themselves received.” Id. at *3. Plaintiffs’ counsel served a request for production on the defendant, C.H. Robinson Worldwide, Inc., a transportation company with over 5,300 employees, for “any documents relating to or evidencing the presence of pornography . . . , including but not limited to email. . . .” The request initially had no date range, but was later clarified to include an eight year time span from 1998 to 2006.

Vague Request

This was, in my view, a vague and poorly worded request to produce. As such, it not only violated a legion of case law, but also the fourth principle of the Sedona Principles:

4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.

The request here literally required the responding party to search through all of its electronic files (and paper records), not only to look for pornographic materials, but also for records that might somehow “relate to or evidence the presence of pornography.” First of all, even the Supreme Court cannot define pornography, nor tell what pornography is unless and until they actually see it (one person’s porn may be another’s art photo). Thus the request literally requires a search of all records in the company, including all email, to try and determine if any of these records meet this elusive criterion.

Magistrate Judge Gerrilyn G. Brill, who is very experienced in discovery issues, understood this flaw well, and held:

As an initial matter, the Court finds that Plaintiffs’ discovery requests were extremely broad. The original requests were not limited by time, sender, or recipient. Even as later revised by Plaintiffs, the requests would require a search of all e-mails of all employees in the Atlanta North and Atlanta South branches for a six-year period. Moreover, it is unclear how Defendant would determine whether e-mails were “relating to or evidencing the presence of pornography” or were “of a sexual or gender derogatory nature” without examining the content of each and every e-mail and without making judgments about what constitutes pornography.

Petcou v. C.H. Robinson Worldwide, Inc.supra at *2.

Plaintiffs’ counsel should have known that defendant would object to such a vague and over broad request. In my experience, such obviously objectionable requests are either made out of naive error, or in the hope that defense counsel will err and not make a proper, timely objection, or the court will err and not sustain the objection. Should that happen, and believe me it occasionally does, the requesting party (here plaintiffs’ counsel) then has the responding party over a barrel, as it would obviously cost any large company a small fortune to comply with such broad and vague requests.

In this case, defense counsel did their job. Defendant timely objected to the request, including I assume the standard litany that the request was vague, over broad, and designed more to harass with burdensome discovery, than to uncover relevant facts. The defendant also objected on the grounds that much of the ESI requested was not reasonably accessible under Rule 26(b)(2)(B). Still, the plaintiffs moved to compel, hoping they would have better luck with the judge. In fairness, plaintiffs were anyway forced to file a motion on another document category requested, where defendant objected to “computer-generated reports of attempts by its employees to access adult website.” Id.at *1.

Judge Brill granted plaintiffs’ motion on the easily accessible reports, but denied it as to the pornography related request. Id. She did, however, tell plaintiffs they could renew the motion, as to emails only, if later discovery uncovered new grounds to undercut defendant’s claim that such discovery was overly burdensome. Plaintiffs then initiated what is called “discovery about discovery.” They took depositions concerning defendant’s computer system and document retention policy to try and disprove defendant’s Rule 26 claim that the email sought was not reasonably accessible.

What Plaintiffs’ Rule 26(b)(2)(B) Discovery Uncovered

The depositions taken by plaintiffs did not really undercut defendant’s inaccessibility position under Rule 26, but did give plaintiffs grounds to argue spoliation and Rule 37(f)(renumbered as Rule 37(e)).

The depositions established that defendant has an Outlook storage system where email is initially kept on exchange servers. Employees may freely delete any of their own emails they choose, and deleted emails can only be easily recovered for eight days thereafter. (I assume that the deleted files folder is automatically emptied after a file resides there for eight days, or some equivalent system.) Further, after an employee leaves the company, all of their email is deleted from the servers in ten days.

It is, of course, not difficult to access email located live on an exchange server. But for reasons not fully explained in the opinion (presumptively most of the key players to this litigation had previously left the company), the court concluded it was unlikely any such emails still existed on the servers:

E-mails of Defendant’s current employees that have not been deleted by those employees may still be on Defendants’ server and may be retrieved without great expense. However, it is very unlikely that e-mails from the period relevant to this lawsuit, sent to or from individuals who were employed during that period, are still on Defendants’ servers.

Id.

The depositions also established the email exchange servers are backed-up onto tapes every three to five days as part of the company’s disaster recovery plan. All of the different servers are included together, and the various emails servers are not segregated onto different backup tapes. The opinion implies that these daily tapes are not recycled on a weekly or monthly basis, but are kept for at least two years. The depositions established that the cost to simply retrieve email from a single backup tape was from between $325 to $365. (This is a low per-tape retrieval cost, and was probably predicted restoring a large number of tapes, here approximately 229 tapes.) The testimony established that it would cost approximately $79,000 just to recover emails for one employee from two years worth of tape. Id. (The opinion’s reference here to two years is why I assume the defendants did not have tapes older than that. At an average of $345 per tape, the defendant thus had approximately 229 tapes to restore.)

Rule 26 Applied to Prohibit Discovery

Judge Brill held that the testimony as to the $79,000 restoration cost met the defendant’s burden of proof under Rule 26(b)(2)(B) that “deleted e-mails from the period relevant to this lawsuit are not reasonably accessible because of undue burden and cost.” The next step in analysis under the rule to see whether there is good cause to have the ESI produced anyway, in spite of the undue burden and cost. Here the burden of proof shifts to the requesting party to establish good cause under the dictates of Rule 26(b)(2)(C). As Judge Brill explains:

Rule 26(b)(2)(C) directs the Court to consider, inter alia, whether “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Id.

Magistrate Judge Brill then goes on to conclude that good cause has not been established, primarily because the over broad nature of the request would require defendants to examine every email in the system. The volume of email existing over the two-year span of the backup tapes is not stated, but, for a company such as this with 5,300 employees, there would typically be millions of emails. The cost to review this much email would be astronomical. Of course, plaintiffs could have tried to avoid all of this with a clear and very focused request to produce.

In addition, plaintiffs could have focused the search somewhat by requesting production of specific pornographic images with known hash valuesSee Krause v. Texas, 243 S.W. 3d 95 (1st DCA, Oct. 31, 2007). This is the way police searches are normally conducted on computers to locate pornography, especially child pornography. This kind of hash search can be automated for known files, and thus might have slightly lessened the burden on defendant to search for pornography, especially if the requests were limited to known pornographic images. But, a hash search technique would still require restoration from backup tapes, and then breakdown of the attached files from the exchange packaging files so that all attachments could then be searched as individual files. You cannot hash search backup tapes, nor all emails packed together in an exchange format. They can only be searched after the individual emails and attachments have been unpacked.

In addition to the disproportionate cost of the over broad search requested, the Judge concluded that the email information sought was indirect and cumulative. The plaintiffs did not claim harassment because they were emailed sexually explicit materials, but because they saw these images on other’s computers. For that reason, proof of pornographic emails was not important enough to the issues in the case to justify the burden. In Judge Brill’s words:

Finally, although the e-mails would corroborate Plaintiffs’ testimony regarding the prevalence of pornography in the workplace, they would provide little, if any, relevant information that Plaintiffs themselves have not already provided.

Id. at *2.

Judge Brill employed the analysis of Rule 26(b)(2)(B) and concluded that “the burden or expense of the proposed discovery as a whole outweighs its likely benefit.” In fact, her analysis relied primarily upon the proportionality factors stated in then 2006 Rule 26(b)(2)(C). As other commentators have noted, the good cause provisions of new Rule 26(b)(2)(B) do not really change discovery analysis. Thomas Y. Allman, The “Two-Tiered” Approach to E-Discovery: Has Rule 26(b)(2)(B) Fullfilled Its Promise? 14 Richmond J.L. & Tech. 7, at pgs. 31-33. But still, the two tiered analysis does focus the parties, and the court, on the unique properties of ESI that impact traditional burden and cost analysis, and the problems of finding and retrieving certain types of ESI. Id.

This case shows how this kind of two-tiered accessibility road map can assist in attaining a just result. Judge Brill considered the relative inaccessibility of the email on the backup tapes and denied the motion to compel as to those emails. But the discovery on accessibility had shown that one witness still had active data on the exchange servers. The email of this one witness was easy to access. For that reason, the motion to compel was granted for that one witness only and defendant was ordered to produce:

… undeleted e-mails (if any), sent prior to 2007, by a current employee who has been specifically named by Plaintiffs as having had sexually explicit material on his computer;

Thus, this case provides an example of how the focused good cause analysis of 26(b)(2)(B) can lead the parties and the court to a just result. Under a general Rule 26(b)(2)(C) proportionality analysis this live data exception for one witness might have been missed, and all email discovery might have been prohibited.

Spoliation Motion

The Rule 26 discovery uncovered the fact that defendant did not initiate a litigation hold at the time the original EEOC complaint was filed in 2001. Instead, defendant waited to place a hold on its normal document destruction policies until after suit was filed in 2007. Thus between 2001 and 2007 defendant continued to allow current employees to delete any emails they wished, even emails that could have been relevant to the EEOC claims. The defendants also continued its usual policy of deleting all emails from employees who left the company during that time.

Plaintiffs now argue that defendant should have suspended its usual practice when the EEOC complaint was filed, and the destruction of emails thereafter constitutes spoliation for which sanctions should be entered. This is in accord with the holding of Judge Scheindlin in Zubulake IV that the duty to preserve was triggered when an EEOC charge was filed, and perhaps even before that when Zubulake’s supervisors were convinced she would sue. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003).

The problem with plaintiffs’ argument is that they never asked defendant to save emails, and almost six years passed before they filed suit. Instead, they were silent for years before filing the motion for sanctions in 2007. This fact, coupled with the undisputed evidence that all of the email destruction was made in accordance with normal and usual procedures, caused Judge Brill to deny their motion:

In this case, Defendant deleted its employee’s emails in accordance with its normal retention and destruction schedule even after an EEOC complaint alleging company-wide sexual harassment had been filed in June of 2001. However, the plaintiffs in that case did not request company-wide preservation of e-mails, nor did they provide Defendant with the names of individuals in Atlanta whose e-mails should be preserved. It does not appear that Defendant acted in bad faith in following its established policy for retention and destruction of emails.

Although the opinion does not cite 2006 version of Rule 37(e), it follows the analysis of the rule, and provides a good example of its operation. Here is the language of the new rule:

Old 2005 Rule 37: Failure to Make Disclosures or Cooperate in Discovery; Sanctions.

(f)* Electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

*Note, after the 2008 rules renumbering, 37(f) became 37(e).

The court found that the emails were destroyed according to the company’s normal retention and destruction policies. In other words, the information was lost through the routine operation of an electronic information system. Judge Brill found the destruction was in good faith because there was no evidence to the contrary, and because plaintiffs never sent a preservation demand letter.

Concluding Thoughts on Old 2006 Rule 37 Safe Harbor

This case would have presented a closer question if the plaintiffs had sent a demand letter upon filing the EEOC complaint. Then there might be a question as to whether the failure to depart from routine operations was in good faith. For instance, is it good faith to refuse to stop destroying emails of departing employees after receiving a demand notice? If you do place a hold on a routine procedure, how long should you continue the hold? Is it reasonable to expect an employer to incur additional expenses for six years to keep old emails on the off chance a law suit might someday be filed?

These are difficult questions, the answer to which depends on a host of facts and circumstances. Certainly the mere sending of a demand letter in and of itself should not trigger a hold obligation. In most circumstances the letter should, however, trigger a careful legal evaluation of duties. Is the threat credible enough to warrant a hold notice, and if so, what computer files should be preserved, and what routines should be stayed? A threat might be just credible enough to barely trigger a hold. In those circumstances it might be reasonable to limit the extent of the hold and construe it narrowly.

It is difficult enough to know what information may be discoverable based on the wording of a complaint. It is nearly impossible to get it right before a suit has even been filed. You might expect one kind of law suit, and end up getting hit by another. This is by no means an exact science. Unless there is a very specific and targeted preservation demand letter, the whole exercise of predicting which ESI might become discoverable is inherently error prone.

We all need as much help in this difficult guessing game as possible. Fortunately, the Sedona Conference provides us with guidance in its publication The Sedona Conference Commentary on Legal Holds: The Trigger & The Process. It lists multiple factors to consider in order to make a reasoned credible threat analysis. If a company considers these factors in good faith, and makes a reasoned credible threat assessment, then it should receive the protection of Rule 37 from sanctions when its projections later prove incorrect.

It is important to remember that a 2006 version Rule 37 safe harbor analysis is only needed in circumstances where the threat evaluation was wrong, or the guesstimate on scope of hold was wrong. The company did not think they would sue, but in fact they did. Or they thought they would sue, but guessed wrong as to what computer evidence would be discoverable. As long as the guess was reasonable and made in good faith, the protection of the rule should remain.

Predicting the future is always hazardous and no one is right all of the time. This is especially true in the emotional world of litigation, where it is common for tempers to flare and demand letters to fly, only to subside later with time. No one ever knows for sure whether another will later file suit or not. Further, the law is extremely complex and legal theories change constantly. Even after a complaint is filed, it is very common for amended complaints to be filed, and new and different theories to arise.

This means that in order for old Rule 37 to work, there would have to have to have been plenty of room for error, so long as a reasoned, credible process was followed. That is one reason Rule 37(e) was revised again in 2015.

Where a threat of litigation is accompanied with a specific and focused preservation demand, and you decide not to preserve anyway, you had better have a strong rationale for evaluation the threat as incredible. Further, if there is a specific preservation demand, and the decision is made to implement a hold, but to preserve less that is demanded, extraordinary care is again advised. In all close questions such as this you should communicate with opposing counsel and attempt to reach a compromise. If they do not respond, or respond but are unwilling to reach a reasonable compromise, then at least document your efforts and the parties’ rationales. That will go a long way in providing protection. If all else fails, and the potential dollar exposure justifies the expense, a preemptive suit for a declaratory judgment may even be appropriate. You will be breaking new ground to be sure, but as the landscape of litigation changes, new strategies such as this should be considered to cope with the new challenges these changes present.

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Court Rejects Attorney’s Computer Illiteracy As Excuse For Non-Production

Plaintiff’s counsel in a district court case in Colorado lacked the technical ability to open and read most of his client’s emails. He figured that since he could not read them, he did not have to produce them. Instead of producing the thousands of emails on a DVD containing his client’s college email, he just produced the ten he could read, and ignored the rest. Garcia v. Berkshire Life Ins. Co. of America, 2007 U.S. Dist. LEXIS 86639 (D. Colo. Nov. 13, 2007).

Although plaintiff did not argue Rule 26(b)(2)(B), and the court did not use the rule’s framework for analysis, plaintiff’s position was basically that since the email was not reasonably accessible to plaintiff’s counsel, it did not have to be produced. After all, he argued, there could be privileged materials in there. Apparently it never occurred to him to hire someone with technical competence to open and read the emails for him. Here are plaintiff’s counsel’s own words (describing himself) trying to justify his actions to the court:

Plaintiff’s counsel immediately tried to access the information on the DVD, but encountered software issues. Counsel eventually found what it believed to be the proper software and accessed the contents of the DVD. Plaintiff was not, apparently, able to access some 5,000 emails, and had no way of knowing the content of the disc except for what was displayed. Of what was displayed, Plaintiff printed and reviewed those emails and created a detailed privilege log. . . .

Plaintiff was unable to access all of the data allegedly contained on the DVD with the software employed to provide all responsive emails. . . . Unfortunately, Plaintiff’s counsel does not employ a full time computer technician, [sic] occasionally a technology issues [sic] arises which exceeds Plaintiff’s computer expertise. When those events arise, counsel works to obtain an understanding and familiarity with the software and medium. Plaintiff, in good faith, believed that all the unprivileged, relevant emails had been submitted. If there are in fact additional emails on the DVD, plaintiff was unaware of this. However, there was certainly no attempt to hide any of the content.

Not surprisingly, Magistrate Judge Boyd N. Boland was not buying this excuse:

Plaintiff’s claim that she acted in good faith with respect to the contents of the DVD goes only so far. Perhaps plaintiff’s counsel can be heard to plead technical ignorance or mistake in his initial dealings with the DVD, but by September 21, 2007, upon the receipt of Ms. Yates’ letter [defense counsel], he was on notice of the potential problem and was obligated to seek competent professional assistance to ascertain the truth about the contents of the DVD. He did not do so, and apparently still has not done so, in view of his expressed doubt, unsupported by any evidence, that the DVD contains substantial additional material.

The plaintiff herself, who was also an attorney (or at least had graduated from law school), was not much help. In fact, a comment by Judge Boland suggests his serious concerns about her actions:

Berkshire has attached to the Second Motion to Compel an e-mail string indicating that the plaintiff communicated with an IT employee of the University of Denver, who may have attempted to mislead Berkshire about the scope of e-mails available to be retrieved from the University’s system. (record cite omitted) This e-mail string raises serious concerns.

The plaintiff sued the defendant disability insurance company claiming that she was totally disabled from a sleep disorder, post traumatic stress, and adult attention deficit disorder. She claimed the original cause of her disabling traumatic stress was an aggressive investigation by the Department of Housing and Urban Development into her real estate business. She went out on disability shortly after the HUD investigation in 1999, and claimed inability to return to work since that time. Plaintiff claims her traumatic stress was later aggravated when the psychiatrist treating her disorder allegedly molested her during a one-year sexual relationship.

The defendant insurance company, Berkshire, learned that plaintiff began attending the University of Denver after she stopped work in 1999. Her studies there were prodigious. She attended the Womens College from 1999-2001, law school from 2001-2006, and the Graduate School of International Studies in 2002. In 2006, she received an LLM in Natural Resources and Environment. Obviously plaintiff was no dummy, and so Berkshire wondered whether she was truly disabled as she claimed.

Berkshire wrote and asked the University for all of plaintiff’s email, rather than subpoena the school. Not sure why they took that approach, and with hindsight, they would have been better off with a subpoena. Berkshire asked that the production be made in native format with all metadata preserved. The University responded to the request by producing the requested emails to plaintiff’s counsel. They were produced on a DVD, not a CD, because, as the school explained, they would not all fit on a CD.

Plaintiff’s counsel was then to review the DVD, remove and log all emails to which a privilege was claimed, and produce the rest to defense counsel. A little over a week later, plaintiff produced printouts of ten email strings, with two attachments. Plaintiff’s counsel also produced a privilege log listing 135 additional emails. Obviously this production did not square with the University’s explanation that they needed a DVD to hold all of the plaintiff’s emails. Defense counsel called them on this discrepancy, in an attempt to voluntarily obtain a full production without having to file another motion to compel.

After two letters, plaintiff’s counsel finally responded by producing the DVD to defense counsel, but only for her to determine if there were additional files on the DVD as she contended, and only after she promised that no one would look at the contents of any files on the DVD. The IT technician for defense counsel inspected the DVD and found more than 4,000 emails with 1,500 attachments of various types. Defense counsel returned the DVD, reported the findings, and told plaintiff’s counsel that:

Your production of 10 emails, and a privilege log with 135 other emails — and your representation that this was all that was on the DVD — is extremely troubling and points again toward deception.

Even after this disclosure, plaintiff’s counsel refused to budge, and defense counsel had to move to compel discovery. In response, plaintiff’s counsel continued to doubt there were in fact additional emails on the DVD, and claimed a good faith mistake based on his computer incompetence, as quoted above. Plaintiff at this point also added a new argument, that the emails would be irrelevant and their disclosure would invade her privacy rights. Here is Judge Boland’s response to that argument:

In addition, I am not persuaded by the plaintiff’s relevancy argument. During the time the plaintiff claimed to be totally disabled, for emotional and cognitive reasons, from working as an executive in a real estate company or in a comparable position, she earned an undergraduate degree, a law degree, and began work on a masters degree. (record cite omitted) It is counterintuitive, at least, to think that anything she wrote in an e-mail on her university account during that time period is not relevant to the issue of her disability. In particular, I agree with Berkshire that the e-mails are relevant because they may show “to what extent Ms. Garcia was working or developing her businesses during the period of claimed disability” and that “her ability to communicate effectively by email and to develop PowerPoint presentations and spreadsheets [may] rebut her claimed inability to think clearly and to interact socially.” (record cite omitted) The plaintiff has made no showing to the contrary.

To address plaintiff’s privacy concerns, the court indicated a willingness to enter a confidentiality order, but the motion to compel was granted.

Plaintiff also raised privilege issues to try to prevent or at least delay the production, arguing that since they were not able to open the emails and attachments, they did not know if any were privileged. The Court rejected this argument, stating plaintiff had sufficient protection by new Rule 26(b)(5)(B) with its built-in clawback provisions.

Berkshire also sought production of some of the 135 emails originally withheld as privileged. The challenged emails were to and from plaintiff’s brother and other family members. Plaintiff claimed they were privileged under the “common interest” doctrine, even though no attorney was involved with these emails. The court explained that this doctrine applies: “when parties with separate lawyers consult together under the guise of a common interest or defense.” This was a diversity removal case, and so the district court looked to the state law of Colorado governing privilege. Plaintiff claimed the privilege doctrine applied to her brother and other family members because she had already assigned the contingent proceeds of this legal action to them. The court disagreed, holding:

Colorado recognizes the common interest doctrine only in “communications made between co-defendants and the attorney who represents them both, for the sake of discussing their common interests in a joint defense in civil or criminal litigation.” Gordon v. Boyles, 9 P.3d 1106, 1124 (Colo. 2000). Here, neither Mike Garcia nor Leyla Del Rosario are parties to this action and there is no evidence that they share an attorney with the plaintiff. Nor does it appear that any lawyer was involved as either an author or recipient of any of the common interest e-mails. Consequently, the plaintiff has failed to prove the applicability of the common interest privilege. The plaintiff must produce those e-mails exchanged between Mike Garcia, Leyla Del Rosario, and/or Tina Garcia for which the common interest privilege was asserted.

I call this a sequeldumb and dumber” case, because it is remarkably similar to another case I frequently mention in my e-discovery presentations. Martin v. Northwestern Mutual Life Insurance Company, 2006 WL 148991 (M.D Fla. Jan. 19, 2006). The plaintiff in Martin was a trial lawyer who had sued Northwestern for disability benefits. Martin produced only paper records, and claimed that was complete. Defendant then discovered that plaintiff’s office computers contained voluminous additional electronic records. Defendant moved for sanctions. Plaintiff and his counsel defended on the basis of “computer illiteracy.” Magistrate Judge Pizzo responded as follows:

Plaintiff’s reasons for non-production are unsatisfactory and warrant sanctions. … His claim that he is so computer illiterate that he could not comply with production is frankly ludicrous.

I could not agree more. Still, it is fairly certain that we will continue to see variations of the “dumb and dumber” defense for years to come.

_____________________________

SUPPLEMENTAL READING AND EXERCISE: Review the cases discussed here, also, speaking of dumb and dumber, find the opinion on the criminal tax case against the actor Wesley Snipes that concerns e-discovery. What is the nickname for what the government did to Wesley Snipes in its production of ESI? Hint – its a two word nickname and was common by government agencies everywhere as a response to a request for production of ESI (and paper before that). By the way, what ever happened to Snipes in his tax evasion prosecution?

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

Copyright Ralph Losey 2015

Ralph Losey is a practicing attorney who specializes in electronic discovery law. He is a principal in a U.S. law firm with over 50 offices & 800 lawyers where he supervises electronic discovery work and litigation support. Ralph has written over two million words on law and technology, including six books on electronic discovery. His latest books are "E-Discovery for Everyone" (ABA 2017) and "Perspectives on Predictive Coding" (ABA 2017) (ed. & contributor). His blog is widely read in the industry: "e-DiscoveryTeam.com." Ralph is the founder and principal author of "Electronic Discovery Best Practices" and "e-Discovery Team Training," a free online course covering all aspects of e-discovery. Ralph's sub-speciality is the search and review of electronic evidence using multimodal methods, including artificial intelligence. He also has a free online training program to teach these advanced methods - the "TAR Course." Ralph has devoted a month of his time each year since 2013 to research and test various AI-enhanced document review methods. In 2015 and 2016 Ralph and his Team participated in the TREC Total Recall Track experiments sponsored by the National Institute of Standards and Technology. Ralph has been involved with computers and the law since 1978. His full biography is found at RalphLosey.com. Ralph is the proud father of two children, Eva M. Losey and Adam Colby Losey, a high-tech lawyer married to another e-discovery lawyer, Cat Jackson Losey, and, best of all, Ralph has been married since 1973 to Molly Friedman Losey, a mental health counselor and life-long friend.

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