23 April 2009

Cyberspace May 2009

Discovery

I've recently been trawling discovery-related cases in the USA and there is now a great deal of case law on the subject. The law in Australia and the USA frequently converges, but the issue of preservation of documents after litigation is anticipated is not one of those areas. Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. Apr. 14, 2009) discussed the issue of backup tapes that are used purely for disaster recovery (rather than archiving) and are regularly overwritten. In Australia one would normally immediately advise your client to stop rotation of tapes if relevant may be on them. However, in Forest the court discussed Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) which stated
"that litigation hold does not apply to inaccessible backup tapes (e.g.,
those 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".
While there are nuances to this position, such as acting in bad faith, it seems likely that valuable evidence could be easily destroyed.

I recently discussed document retention and destruction, and the importance of established business rules. When establishing business practices, whether your own or your clients, you might bear in mind the following from Phillip M. Adams & Assoc., LLC v. Dell, Inc., 2009 WL 910801 (D. Utah Mar. 30, 2009)
"The culpability in this case appears at this time to be founded in ASUS' questionable information management practices. A court--and more importantly, a litigant--is not required to simply accept whatever information management practices a party may have. A practice may be unreasonable, given responsibilities to third parties. While a party may design its information management practices to suit its business purposes, one of those business purposes must be accountability to third parties... [U]tilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, [renders] the production of the documents an excessively burdensome and costly expedition. To allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules."
Another case highlights the problems arising from the practice of not providing electronic discovery in its native form. Some firms seem to think that they can produce PDF versions of, say, emails rather than the email itself - a position I have successfully opposed on several occasions. In White v. Graceland Coll. Ctr. 2009 WL 722056 (D. Kan. Mar. 18, 2009) the defendant produced PDF versions of emails, which inherently obscured some information. The plaintiff applied for an order for production of native emails and was successful.

Producing only relevant email from a mailbox that may contain tens of thousands of emails can be difficult and extremely costly. The only practical answer may be to use search tools to find relevant information. However, the search terms themselves need to be agreed between the parties. In William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009) the court said
"While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-know limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge... Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented."