ELECTRONIC DISCOVERY LAW:   e-discovery
DISCOVERY OF
ELECTRONIC DATA
© Richard E. Best 1998-2003 All Rights Reserved

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HOME: Civil Discovery Law
GENERAL DISCOVERY

OF ELECTRONIC DATA

 

EARLY  IDENTIFICATION OF ELECTRONIC DISCOVERY ISSUES

Meet & Confer Obligations
Court Rules

DISCOVERY OF BACKGROUND INFORMATION FOR ELECTRONIC DATA DISCOVERY

Importance / Integration into Discovery Plan
Alternative e-discovery devices to obtain background information
Background information to be obtained to conduct e-discovery

DOCUMENT RETENTION POLICIES
OTHER SUBJECTS

SEARCH OBLIGATIONS

 PRESERVATION DUTIES

PRESENTATION OF E-DISCOVERY DISPUTES TO COURT

Expert Evidence
Relevant Factors
Strategies

DENIAL OF E-DISCOVERY FOR OVERBREDTH

FORM OF PRODUCTION  OF ELECTRONIC DATA :

Considerations & Concerns
Legal Authorities:
Meet & Confer Obligations
“AS THEY ARE KEPT IN THE USUAL COURSE OF BUSINESS"
Production in TIFF and  PDF and on CD or DVD
Metadata and Native Format
Electronic Form

COST SHIFTING  & RECOVERY

LEGAL AUTHORITIES
FACTORS TO CONSIDER
REQUESTING PARTY
NON-PARTIES
PRESERVATION DUTY
PRESERVATION ORDERS
RECOVERY OF COSTS

RECOVERY OF DELETED ELECTRONIC DATA
CREATION OF DOCUMENTS FROM ELECTRONIC DATA
HARD DRIVE PRODUCTION
ON-SITE DISCOVERY OF OPPONENT'S ELECTRONIC DATA
DATABASE
COMPUTER LOGS
IP ADDRESS AS TRACKING DEVICE

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EARLY IDENTIFICATION OF E-DISCOVERY ISSUES
Lawyers often make the mistake of avoiding or not addressing e-discovery issues as early as possible when expenses and adverse consequences can be prevented.  Discovery issues seldom improve with the passage of time and often get much worse and much more expensive.  See Toshiba America Electronics Components, Inc. v. Superior Court (Lexar Media, Inc.), 124 Cal.App.4th 762 (2004) where early discussion could have avoided expensive appellate litigation as well as potential million dollar discovery issues. Lawyers who are resisting discovery and believe avoidance of discussions will avoid the issue are missing an opportunity to protect their clients  from charges of spoliation and are increasingly subjected to claims of malpractice. 

Courts are awarding spoliation and discovery sanctions against those who fail to preserve and produce electronic records: judgments, evidence, money, adverse inference instructions. Coleman (Parent) Holdings Inc. v. Morgan Stanley, Inc. 2005 WL 674885 (Fla.Cir.Ct.) United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21 (D.D.C.2004) In the 5th decision of the well known Wall Street employment law case, Zubulake v. UBS Warburg LLC, 2004 WL 1620866 (S.D.N.Y.). Adverse inference instructions to juries are considered major factors in the multi-million and billion dollar awards against corporate defendants that neglect or avoid e-discovery responsibilities and issues.

Many courts have adopted early case management programs and FRCP 26  requires parties to dislcose information and confer on e-discovery issues early in the  litigation. In other courts, parties seeking to address issues before they get out of control can seek a protective order.  Proposed amendments to the FRCP expresly require discussion of potential e-discovery issues at the Rule 26 conference though such discussions should occur under current rules.

MEET AND CONFER OBLIGATIONS

DISCOVERY OF BACKGROUND INFORMATION

IMPORTANCE

Discovery: Understand opponents system and personnel to formulate discovery plan and argue feasibility of obtaining and producing information;
Identify legacy system problems: old electronic data created and stored on systems or media no longer in use; discovery may requires special hardware only available via computer museum or special programs to convert data to usable forms
Identify alternative sources of information
Admissibility at trial of information obtained: show the design and reliability of the system, the authenticity and lack of alteration of documents and data

United States ex rel Tyson v. Amerigroup Ill., Inc., 2005 U.S. Dist. LEXIS 24929 (N.D.Ill.2005)  The trial court granted the motion of a non-party state agency to quash a subpoena duces tecum served on it by the defendants calling for production of emails of three named employees. The uncontested affidavit of the moving party's expert, who knew and explained the computer system, costs and effect on daily operations, prevailed.

"Significantly, the defendants do not challenge any of Mr. Perry's assertions. This omission, they claimed at oral argument, was the inevitable result of having no familiarity with the internal systems used at HFS. The argument is unpersuasive. The defendants could have sought leave to depose Mr. Perry, and, of course, they could have retained an expert of their own to opine on the validity of Mr. Perry's statements -- at least in a general sense."

Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [Organization depositions permitted to discover information re systems; Expert declaration on another issue disregarded by court in part because expert was unaware of details of the specific system; opposing experts familiar with the system prevailed due to their knowledge and detailed declarations.]

INTEGRATE INTO ALL DISCOVERY
Every depositions should include inquiry that may lead to sources of discoverable information. Opposing parties and cousel may not know all sources of their own information. Is work taken home? How do people communicate, memorialize meetings, store information, transmit information?  How

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ALTERNATIVE DISCOVERY DEVICES

See also Discovery Case Outlines on specific discovery devices and Discovery Act & Outline for specific statutory provisions in California
For Federal Rules of Civil Procedure see Cornell Law

DEPOSITIONS See also Deposition Case Outline
Corporate deposition: C.C.P.§2025.230;  F.R.C.P. Rule 30(b)(6)

Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111,118 [organization depositions re system permitted and essential for opinions of experts re what should be discoverable; discovery permitted re filing systems of documents, recording and email, systems of video and audio recordings, recording systems used by individuals, email systems and databases, electronic devices used by individuals]

Describe subject and corp picks deponent

Specificity re system configuration and layout,devices available to write data, media, format, back up and archives, policies & procedures, programs & applications

Most qualified to testify on its behalf to extent known to corp
Not necessarily "most knowledgeable" or most helpful
Issue re whether person presented is adequately informed

See Linnen v. A.H. Robins Company, Inc.(Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 where the PMK was "not particularly familiar with the back-up procedures or the record retention practices of the electronic mail system."

Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989), 125 F.R.D.121 [When expense raised as objection to providing information re prior similar claims, plaintiff sought a corporate deposition re claims processing, recording, storage and retrieval. The claims director could not answers questions on the subject and plaintiff requested a person who could respond. Defendant refused despite the fact plaintiff had traveled to the corporate offices. Under FRCP 30(b)(6) the corporation had a duty to produce and prepare the witness to give"complete, knowledgeable and binding answers". The corporation had a duty to substitute a proper witness. The failure to designate was a failure or refusal to answer deposition questions justifying appropriate sanctions.]

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Individual deposition of corporate employees: C.C.P.§2025.280(a), 2025.220(a)(3),  2025.260 (a)

"general description sufficient to identify" employee

Every deponent should be questioned re computer usage as well as other e-data devices

Possible lead to sources of information
Indicates level of sophistication

INTERROGATORIES See also Interrogatory Case Outline
Written interrogatories: C.C.P.§2030;

Background info: how is data written, to what media, in what format;   burden & cost of retrieval
Document retention policies and compliance therewith
Destruction of data

DOCUMENTS See also Document Case Outline
Document production: C.C.P.§2031.010 discovery of "documents" , "tangible things", "other property, or any designated object or operation on it" See above See also Document Production Case Outline

C.C.P. 2016.020(c) document is a writing as defined in Evid.Code 250
Evid. Code 250 "... every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols or combinations thereof."
Evid. Code 255 " 'Original' means...if data are stored in a computer or similar device, any printout or other output readable by sight...."
Evid.Code 260 " 'duplicate' is...electronic rerecording...."
C.C.P. 2031.281(b) re translation of "data compilations"  See Toshiba America Electronics Components, Inc. v. Superior Court (Lexar Media, Inc.), 124 Cal.App.4th 762 (2004) [automatic cost shifting of reasonable costs if within section]

Specificity re data in request; not just e-data
Specify production form, format, media
Opponents' format may not be usable

Experts meet and confer to determine realistic discovery

See §33.53 Federal Manual For Complex Litigation(3d)

Use of court appointed or neutral experts

Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054
Simon Properties Group LLP v. mySimon Inc. (S.D.Ind. 2000), 194 F.R.D. 639 [selected and paid by opponent]
Antioch Co. v. Scrapbook Borders, Inc. 210 F.R.D. 645 (D.Minn.,2002) [selected and paid by opponent]

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BACKGROUND INFORMATION TO BE OBTAINED
What data exists ? How is it processed ? How is it organized ? How can you formulate a request so the responding party can comply ? Will production be made in a usable format or media ? What does your expert need to know in order to plan your electronic discovery and to formulate meaningful requests for information? What do you need to know about your opponents system to satisfy yourself that it has conducted a reasonable search for data ?

DOCUMENT RETENTION POLICIES

Bills v. Kennecott, 108 F.R.D. 459, 461

WRITTEN AND UNWRITTEN POLICIES, PROCEDURES etc.

Operation of system

Access control lists that limit and control accessing, viewing and editing documents & data; may assist authentication of particular data or document
Audit trails & computer logs to show who actually accessed, when, for how long etc.

Document retention policies, enforcement, and deviations;
Security policies, hacking experience, intrusion software used

Physical security, locks, key logs, biometric ID,
Access codes, tokens, passwords
Access limits of personnel to different databases, or functions, or documents
Firewalls, antivirus, intrussion detection
Mauals and policies; any records of enforcement or discipline
Schedule and history of outside or internal security audits

Encryption programs & passwords: may assist access and authentication
Policies on termination of employees

Revocation of passwords and access codes
Change of access codes if used by others
Wiping or reformatting of hard drives; back up or copy of old data

Disposal policies for replaced hardware
Policies re employee use, privacy, retention, copies of files

Failure to follow policies may give rise to nefarious inferences

Can you trust the documents that survived
Are the destroyed documents damaging
May not be justified i.e. didn't read or follow policy

COMPUTER PERSONNEL: Who to depose ?

Head of department or CIO may not be most knowledgeable
Database or Intranet administrator / person most  knowledgeable about database inquiries
Tech support staff & former employees
Persons with access to computers or files
Persons handling operations, maintenance, backup
Independent contractors
Different persons may need to be deposed regarding different technologies etc [PC, mainframe, security etc.] or content.

SOFTWARE [current & prior programs and versions]

Brand & version of each operating system, network management and file management program
Operating systems on network, PC etc.
Programs: word processing, email, utilities, data base management, project management, calendars
Specialized software for particular function or industry e.g. financial, HR, construction, design, scheduling
Automatic file management programs that delete inactive files
Programs used to monitor employee activities
Encryption software & methods used to perform the encoding.
Utilities, "wipe" programs, de-fragmenting,
Obtain copies of current manuals

ENCRYPTION & PASSWORD INFORMATION

All persons who had or have access to the encryption passwords

Only source of some information
Multiple keys to open data

Who can provide access codes
Tunneling software for VPN

BACKUP AND STORAGE [past and current] see above

Wide variety of backup media and operating systems; may need original program to restore and read data
Written and unwritten policies and practices
Hardware, backup drives, tapes, optical disk
Locations of storage; any redundancy of storage within organization or  with contractors
Name & version of software
Schedules of tape rotation, retention, reuse, index, storage,
Type of backup: full, differential, or incremental
Timing: monthly, weekly, permanently, incrementally
Disaster recovery plans
Archives: files, backup
Individual practices in addition to system wide backup
Data compression for increased storage may alter data

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HARDWARE original & current

Types of computers and other hardware used
Personal use or availability of equipment by key personnel
Servers: current & out of service; access
Hard disk: location of removed disks and destruction policies

COMPUTER SYSTEMS

Schematic diagram of computer system
Computers[numbers & types, locations, users], operating systems, software
How data is written, stored, formats, storage media
Configuration, layout, devices to write data, media, format
Systems used by key individuals including home computers, laptops, palms

NETWORK

Type: NT, Novel, proprietary [ ID & limit to relevant network]
Topology & maintenance
Persons responsible for maintenance, operation
Security:

history of security breaches [internal & external hacking]
protection and loss of data
risk assessment program
firewalls, intrusion detection, scanning & probing
virus protection and history
Encryption, passwords, access codes
Precautions for change of personnel, software or hardware

Data bases and persons with access: program, compilation, reliability
Interconnectivity and data sharing among parties or with 3rd parties
File servers identification; current & out of service servers
Access to servers [past & current]

persons; key persons
terminals accessing [home PC& laptops]

Access: passwords, logons

All applications and documents [email, voicemail]
Network administrator password
All persons with passwords

Databases:

How programmed; determine whether or not its output is reliable in an evidentiary sense.
How compiled: business record ?
Document management databases maintained for archival purposes.

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E-MAIL

Programs
Users

How stored: back-up, archive, on-line

Servers & backup schedules
Third party providers or ISP

Locate & retrieve data sets [To/From, users sent/received; then sort & search data [by date, subject, sender, recipient]

VOICE MAIL

Storage limits of time, number of messages
Optional
Purging schedules

OTHER ELECTRONIC DEVICES & STORAGE

Fax machines
Printers
Palm, PDA, cell phones, pagers, laptops
Cell phone records
GPS records re employee or equipment locations
Fast track or other toll records
Surveillance cameras
I-pods, flash memory

MISCELLANEOUS DATA TO BE DISCOVERED

Database production:

basis for expert witness opinion;
litigation generated with attorney input; work product issues

Williams v. E.I. duPont deNemours & Co. 119 F.R.D. 648,651 (W.D.Ky. 1987)[expert's data base probably discoverable]

National Union Elec.Corp. v. Matusushita Elec. Indus.Co 494 F. Supp. 1257-1269 (E.D.Pa. 1980)

In  Re: Lowe's Companies, Inc. (5/18/04),134 S.W.3d 876,  2004 Tex. App. LEXIS 4432  In a PI case resulting from falling merchandise in a store, the corporate representative was questioned regarding a database containing information regarding accident trends. Tr.Ct was reversed for ordering production or access to entire database on grounds the order was overbroad. The Texas Court of Appeals rejected the trade secret claim for an accident database suggesting that, otherwise, all internal records would be trade secrets.

“In this case, the order requires [corp] to bring to [corp representative] deposition either: (1) the database and application necessary to search, sort, and print data from it; or (2) computer access to the database that would enable searching, sorting, and printing data from it as requested by the Morenos' counsel at the deposition. Data that may be so requested for printing is limited to accidents prior to the one made the basis of this suit and those involving reports of customers injured due to falling merchandise. Based on the foregoing authorities, we conclude that the order is overbroad to the extent it allows the Morenos to: (1) access (even if not print) data without any limitation as to time, place, or subject matter; and (2) print data concerning falling merchandise accidents for an unlimited period preceding the accident in this case and for an unlimited geographic area."

Jinks-Umstead v. England 227 F.R.D. 143, 148 (D.D.C.2005), [Defendant ordered to provide access to database by plaintiff and its experts to determine "whether more information bearing on the [specific subject matter] can be retrieved from the ... database." After determining more information could be retrieved defendant was ordered to do so.]

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Lawyers must make a major effort to educate themselves and the courts on the technical and practical aspects of electronic discovery. Absent the input of current  knowledge, mistakes and bad decisions are inevitable as some reported cases illustrate. Well intentioned lawyers and experts can make erroneous assertions and representations on which a court might rely. The result can be extremely expensive and unnecessary or it may result in the denial of discovery that should be provided. It can also result in a loss of credibility of the lawyer or sanctions against parties and lawyers. Counsel and the courts should recognize an inherent problem in the adversary system: with two adversaries, extreme positions may be advocated in support of their ultimate positions on the motion  and the court may be forced to pick one or the other with unfortunate and unfair consequences. Properly done, the adversary system will produce the best result but that requires all players to be educated on the technology at issue. It also requires knowledge, understanding,  creativity and flexibility in application of the various discovery concepts, devices, and rules.

EXPERT EVIDENCE
Provide detailed expert declarations: expert qualifications & basis for conclusions

"Significantly, the defendants do not challenge any of Mr. Perry's assertions. This omission, they claimed at oral argument, was the inevitable result of having no familiarity with the internal systems used at HFS. The argument is unpersuasive. The defendants could have sought leave to depose Mr. Perry, and, of course, they could have retained an expert of their own to opine on the validity of Mr. Perry's statements -- at least in a general sense. Moreover, Mr. Perry's assessment is confirmed, in the main, by the cases, which have recognized that the task of restoring emails through the use of backup tapes is a 'unique burden':"

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required an expert declaration confirming the feasibility and probability of discovery ---just as likely as not---and that no damage would occur to the opponent's computer]

Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [no weight given to expert declaration when expert failed to provide educational background and show familiarity with computer system at issue; expert was a consultant with 35 years experience]

Strausser v. Yalamanchi, 669 So.2d 1142, 1144 (Fla App.1996) [CPA vs certified netware engineer]

Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526 [Lack of detail in proposed protocol cast doubt on technical soundness; expert affidavit attacked as conclusionary and lacking foundation]

Gates Rubber Co. v. Bando Chemical Industries (Colo.D.1996), 167 F.R.D. 90 [Expert's "credentials, experience and knowledge were impressive, and I relied upon his opinions. Gates failed to obtain a similar expert in timely fashion.. Gates did offer the testimony of .... His credentials, experience and knowledge were nowhere near those of Dr. Wedig, and I placed much less weight on his testimony...."]

Adobe Systems v. South Sun Products (1999), 187 F.R.D. 636 [Court scrutinized expert declaration in rejecting ex parte application for search & seizure order. Court rejected the claims that evidence could be easily deleted to prevent proof of case of software pirating and analyzed the sophistication necessary to eliminate all evidence of software installation]

Keir v. Unumprovident Corp. (S.D.N.Y. 2003), 2003 WL 21997747 [fact finding memorndum decision illustrates importance of experts]

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RELEVANT FACTORS Factors to address in seeking or opposing discovery of electronic data by forensic examination  expensive process
See also Cost Shifting as an alternative to denial of discovery

Reasonable search in responding to discovery requests

Williams v. Massachusetts Mut. Life Ins. Co. 226 F.R.D. 144 (D.Mass.,2005) [Court denied appointment of neutral or forensic exam by requesting party;  responding party had submitted declaration of conducting its own forensic examination and actually produced an e-mail that appeared to be the one sought in discovery]

Looking in folders or files likely to contain responsive information as if conducting normal search

Alexander v. Federal Bureau of Investigation (D.C.1998), 188 F.R.D. 111 [uncontradicted declaration showing reasonable search was major factor in denying more burdensome effort of searching archived or deleted files ]

Word searches of all data and documents
Embedded information
Hidden comments
Residual data: file remnants, deleted docs or portions not overwritten
Backup tapes and archives
Copies, clones, temp files, swap files
Browser created data: cache, history

Likelihood of discovery of relevant information

Williams v. Massachusetts Mut. Life Ins. Co. 226 F.R.D. 144 (D.Mass.,2005) [Existence of an e-mail appeared speculative and there was no evidence that the responding party acted in an improper manner or failed to search & produce requested documents."As an initial matter, the court is not at all inclined to appoint, under its aegis, a "neutral expert" in computer forensics in order to help Plaintiff confirm what is at best highly speculative conjecture that the October 24, 2002 e-mail message which he claims exists is something other than the October 24, 2002 memorandum which Defendants have produced." " In short, Plaintiff has presented no credible evidence that Defendants are unwilling to produce computer-generated documents, whether now or in the future...or that Defendants have withheld relevant information."

Strasser v. Yalamanchi (Fla.1996), 669 So.2d 1142

Menke v. Broward County School Bd.  --- So.2d ----, 2005 WL 2373923  Fla.App. 4 Dist.,2005.  Sep 28, 2005. Order for production of home computers vacated.

Lawyers Title Ins. Co. v. United States Fidelity & Guaranty, 122 F.R.D. 567 (N.D. Cal.1988),

Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526[No particularized likelihood of success balanced against risks & costs]

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required an expert declaration confirming the feasibility and probability of discovery ---just as likely as not---and that no damage would occur to the opponent's computer]

Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [relative lack of importance of information likely to be discovered was factor when discovering party was required to pay all costs of neutral]

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Reasonable alternative sources of information

Strasser v. Yalamanchi (Fla.1996), 669 So2d 1142

Menke v. Broward County School Bd.  --- So.2d ----, 2005 WL 2373923  Fla.App. 4 Dist.,2005.  Sep 28, 2005. Order for production of home computers vacated.

State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824 S.W.2d 747,750 [Manual search of files for info to answer interrogs would cost $2.7mil; but comparable information could be produced by reprograming computers to obtain it]

Overbroad scope, time etc. and focus discovery

Strasser v. Yalamanchi (Fla.1996), 669 So.2d 1142

Menke v. Broward County School Bd.  --- So.2d ----, 2005 WL 2373923  Fla.App. 4 Dist.,2005.  Sep 28, 2005. Order for production of home computers vacated.The court noted the lack of particularity in the request for wholesale production: “In civil litigation, we have never heard of a discovery request which would simply ask a party litigant to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation.”

Procter & Gamble v. Haugen, 179 F.R.D. 622, (D. Utah April 17, 1998), [Issue re limiting the scope of a keyword search that P&G desired to conduct of Amway's electronic databases.]

Linnen v. A.H. Robins Company, Inc.(Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [by negotiation, parties narrowed scope of discovery of backup tapes by time and subject matter and eliminated those likely to contain privileged material; they agreed on search terms to search 2 restored back-up tapes]

Prevent harm to opponent's system or data by destruction of data or introduction virus

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required an expert declaration confirming that no damage would occur to the opponent's computer]

Strasser v. Yalamanchi (Fla.1996), 669 So.2d 1142

Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526 [risk of data loss , business system downtime, lack of detail in protocol to address perceived risks resulted in denial of discovery]

Protect privileged, confidential, private or trade secret information

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct established protocol: mirror image by neutral expert at requesting party's expense; producing party to print and review all documents and submit privilege log ]
Strasser v. Yalamanchi (Fla.1996), 669 So.2d 1142
Menke v. Broward County School Bd.  --- So.2d ----, 2005 WL 2373923  Fla.App. 4 Dist.,2005.  Sep 28, 2005. Order for production of home computers vacated.
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526
Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054
Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639

Avoid intrusion, interruption and interference in opponent's business

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct required mirror image at time to minimize business disruption]
Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526

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Cost / benefit analysis; consider cost shifting or sharing

Zubulake v. UBS Warburg (SDNY 5/13/03) [Tr Ct. revisted the cost shifting criteria of Rowe Entertainment and formulated its own 7 factor test. More important the court emphasized the need to be fully informed of the technology and cost issues and confirmed that the test employed is a qualitative one in which all relevant factors must be considered in resolving issues on allocating costs and determining whether and how the presumption that the producing party pays should be altered. Presumption is that producer pays. Accessible data normally would not involve cost shifting issues.]SEE ALSO THE FOLLOW-UP DECISION DATED 7/24/03 BASED ON SAMPLING OF FIVE BACKUP TAPES. Based on 5 of 77 tapes, partial cost-shifting was ordered: plaintiff and requesting party to pay 25% of restoration costs only; defendant and producing party to pay 75% of restoration costs and all costs of review. A review of 5 tapes immediately preceding termination produced 6,203 unique e-mails, 1075 of which were within the search terms, and 600 of which were responsive to the request. Total costs $19,00, restoration costs $11,500, review costs $7500. 68 emails were presented to the court by plaintiff and the court assumed these were representative of the emails on the 77 tapes [page 11]. Plaintiff found 6 e-mails to be "particularly 'striking'". The court found none provided direct evidence of discrimination [at p.18 it described the exitence of such evidence as "still speculative"] and the 68 emails provided no evidence of dislike based on gender. [p.14]. Certain relevant e-mails sent after the discrimination complaint were not preserved and were deleted. The court concluded as a general rule that cost shifting would only apply to restoration and not to the cost of the producing party's review [p.25].

See also Rowe Entertainment v. The William Morris Agency (S.D.N.Y. 1/16/02 2002), 205 F.R.D. 421 2002 WL 63190; Murphy Oil USA v. Fluor Daniel Inc. (2/19/02, E.D. La.) 2002 WL 246439

Computer Associates International, Inc. v. Quest Software, Inc., [ND Ill, June 13, 2003].
Motion to shift costs of producing employee hard drives denied. Plaintiff requested production of hard drives of 6 employees for imaging, search and recovery of deleted material in copywrite infringement and trade secret case re software source code. Defendant reviewed hard drives and claimed privileed documents. It hired a consultant to image, search & delete privilege docs for production of hard drives. It then made a motion to recover estimated costs ranging from $28 to $40,000. The court denied the motion. The court held that it could shift the costs if the burden outweighed the benefit. It then considered the factors set forth in Rowe in making the decision and concluded cost shifting was not justified and that this was a normal cost of review for privileged documents that should be paid by the producing party

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [cost of neutral expert preparing mirror image of hard drive required to be paid by requesting party]

Brand Name Prescription Drugs Antitrust Litigation (ND Ill 1995), 1995 US Dist LEXIS 8281 [production of email at defendant's expense but plaintiff to pay copy costs; retrieval cost is ordinary and foreseeable risk of selecting storage system; $50-70,000 retrieval costs due to inadequate search and retrieval software]

Linnen v. A.H. Robins Company, Inc.(Mass. 1999), 10 Mass.L.Rptr. 189, 1999 WL 462015 [While the court certainly recognizes the significant cost associated with restoring and producing responsive communications from these tapes, it agrees with the District Court for the Northern District of Illinois In re: Brand Name Prescription Drugs Antitrust Litigation that this is one of the risks taken on ) by companies which have made the decision to avail themselves of the computer technology now available to the business world. 1995 WL 360526 (N.D.Ill.). To permit a corporation such as Wyeth to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.]

Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [party seeking discovery paid for neutral expert when discovery was relevant but not critical]

Fennell v. First Step Designs Ltd.(1st Cir.1996), 83 F.3d 526

Bills v. Kennicott 108 F.R.D. 459(D.Utah 1985)

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Undue Burden:  consider limitations, cost shifting

United States ex rel Tyson v. Amerigroup Ill., Inc. (N.D.Ill.2005), 2005 U.S. Dist. LEXIS 24929. Burden is not limited to out of pocket expenses.Non-party motion to quash production of e-mails of 3 employees was granted on grounds of relevance and undue burden despite (1) the requesting party's offer to pay the costs, (2) the limit of search efforts to certain terms, and (3) the limitation to one year.  "Here, the 'unique burden' of restoring the email records and the 'special weight' to be accorded HFS's non-party status combine to require that the defendants' subpoena be quashed under Rule 45(c)(3)(A)(iv)."

"It is not a decisive answer to say that the defendants have offered pay the costs that might be incurred in retrieving the emails. Expense is but a part of the burden. As Mr. Petty's uncontested affidavit indicates, the process of retrieving the emails also entails the extensive use of equipment and internal man-power. It will take six weeks to restore and review the data of just one of the three individual's email accounts. The entire project, then, will entail eighteen weeks of effort. To be sure, one can imagine the use of three dedicated servers to perform each of the six weeks of restoration work concurrently, but the end result is still eighteen weeks of man-power and eighteen weeks of use of the necessary equipment. That burden, which is undeniably substantial, exists independently of the monetary costs entailed."

Playboy Enterprises v. Welles (S.D. Cal.1999), 60 F. Supp.2d 1050 [Tr Ct considered needs of the case, amount in controversy, importance of issues, importance of information expected to be discovered and potential of finding information is evaluating burden]

State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824 S.W.2d 747,750 [Ins.Co.demonstrated burden with testimony that responding to one interrogatory would cost $2.7 mil, require a manual exam of 500,000 claims files and require 27 people to devote a year; cross examination revealed the information was generally available by programing the computer to produce it; the Ins Co. objected that certain information was not available but testimony revealed it could be generated by computer; the appellate court modified the order to respond to that information that could be generated by the computer.]

State of Missouri v. Ely (Mo.Ct.App.1994), 875 S.W.2d 579 [Information re prior claims available in computer data base for most of time period sought; def. could retrieve balance from unindexed boxes. "The absence of indexing cannot be laid to the plaintiffs however; it was K-Mart's decision to store the files without a convenient system of retrieval."]

Equal Employment Opportunity Com'n v. Lexus Serramonte (N.D.Cal.2006), Slip Copy, 2006 WL 2329510 Producing party need not create an "An electronic database file, in Quattro Pro readable format" that does not exist in response to a discovery request. "It is unduly burdensome to require Defendant to do Plaintiffs' work for them by creating a computer-readable file." "...if Defendants do not presently maintain their employee contact information in the electronic format requested by Plaintiff, they shall produce it as maintained."

STRATEGIES

Adjust & accommodate opposing counsel to gradually obtain discovery
Accommodate & avoid disrupting business of adversary
Not seizure of computers but preservation of data status quo
Not ghosting of hard drive by party but by neutral 3rd person
Not reading files but just copying
Not reading contents of files, just file names
Produce hard copy list of file names rather than access to computers
Allow counsel time to review data & seek protection before production
Accommodate reasonable needs re inadvertent production of privileged etc. docs

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OVERBREADTH & BURDEN

Cost / benefit analyses
Sampling to evaluate burden and benefit

J.C. Assocs. v. Fid. & Guar. Ins. Co. (D.D.C. 2006), 2006 U.S. Dist. LEXIS 32919 . "...plaintiff seeks...1.4 million active and inactive claim and litigation files...." The court found "...the information plaintiff seeks is clearly relevant" but recovery could not exceed $124,000. "...defendant has conducted an electronic search of the files, using internal codes that identify the category of the claim [and] identified 454 claims, including the 6 claims at issue in this case." The court required the following procedure to "determine whether or not any additional search is necessary." If so, cost shifting could be considered.

1. Plaintiff provide copy of document conversion program
2. Defendant randomly pull, scan and convert 25 of the 454 files into searchable documents using the conversion program
3. Defendant conduct an electronic search of the files using 4 terms
4. Defendant pull any files containing the words, ascertain if responsive and produce subject to privilege claims and using "comprehensible" redaction.
5. Defendant submit affidavit the time and costs for search, redactions and review. "I expect that attorney time will only be expended on work that requires an attorney's skill and judgment."

See also Liturgical Publications, Inc. v. Karides (Wis.App.2006 Slip Copy), 2006 WL 931892 [discovery to date had not been productive and further discovery was denied.

Cost reduction techniques; narrow request or scope of search

Narrow the time frame

Eliminate duplicate files
Search by user or department
Eliminate files by extensions
Create a search term list

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R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [discovery of entire hard drive of personal computer used to create document that was basis of dispute authorized over claims of privacy and overbredth]

Wright v. Amsouth Bancorporation (11th Cir.2003),  2003 WL 245588 [Denial of request for e-copy of all word processing files " created, modified and/or accessed by" 5 individuals over 2 ½ year period as over broad, burdensome and irrelevant is not abuse of discretion.]

Alexander v. Federal Bureau of Investigation (D.D.C.1998), 188 F.R.D. 111 [heroic efforts not required re backed-up and archived email and deleted files etc.; opposing declaration re expense, feasibility and burden plus declarations showing reasonable search of files likely to contain relevant documents

Playboy Enterprises v. Welles (S.D.Cal.1999), 60 F. Supp.2d 1050 [Tr Ct considered needs of the case, amount in controversy, importance of issues, importance of information expected to be discovered and potential of finding information is evaluating burden]

Strausser v. Yalamanchi, 669 So.2d 1142, 1144 (Fla App.1996) [TrCt rev'd for permitting unrestricted access to computer system, all programs and directories, without safeguards and restrictions to protect computer system and without protection of privileged and confidential information]

Fennell v. First Step Design 83 F.3d 526 (1st Cir. 1996)[ denial of discovery of hard drive to find proof of when memo was last modified. affirmed, substantial risks and cost + failed to show a "particularized likelihood of discovering appropriate information."]

Lawyers Title Ins. Co. v. United States Fidelity & Guaranty, 122 F.R.D. 567 (N.D. Cal.1988), [deny wholesale discovery of computer system (computer storage, organization and retrieval systems to evaluate compliance with discovery) without showing it would lead to evidence that had not already been produced; work product issue]

In Re: Lowe's Companies, Inc. (5/18/04), 134 S.W.3d 876,  2004 Tex. App. LEXIS 4432  Unlimited access to data base of accidents rejected as overbroad re time period, locations and subject. Claim of trade secret for database on accidents rejected. Production was also denied because it had not been requested and because there was no express request for "electronic" documents as required by Texas law. In a PI case resulting from falling merchandise in a store, the corporate representative was questioned regarding a database containing information regarding accident trends. Defendant previously produced a list of accidents for the prior 5 yrs in Texas re falling objects and claimed other information in database was irrelevant and privileged. The trial court was reversed for ordering production or access to the entire database on grounds the order was overbroad. The Texas Court of Appeals rejected the trade secret claim for an accident database suggesting that, otherwise, all internal records would be trade secrets.

“In this case, the order requires [corp] to bring to [corp representative] deposition either: (1) the database and application necessary to search, sort, and print data from it; or (2) computer access to the database that would enable searching, sorting, and printing data from it as requested by the Morenos' counsel at the deposition. Data that may be so requested for printing is limited to accidents prior to the one made the basis of this suit and those involving reports of customers injured due to falling merchandise. Based on the foregoing authorities, we conclude that the order is overbroad to the extent it allows the Morenos to: (1) access (even if not print) data without any limitation as to time, place, or subject matter; and (2) print data concerning falling merchandise accidents for an unlimited period preceding the accident in this case and for an unlimited geographic area.

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FORM OF PRODUCTION:

CONSIDERATIONS & CONCERNS

Issues

Cost comparison of production, search, review & manipulation: electronic vs hard copy or alternative forms of electronic production

Bristol-Myers Squibb Sec Litig. 205 F.R.D.437, 442 (D.N.J. 2002)  ["It is beyond dispute that "[d]ocuments in digital format can be copied quickly, less expensively, and with better quality." It is also unquestioned that if "there are a significant number of documents, and their content must be examined in order to conduct the case competently, the cost of doing whatever is going to be done with these documents will be cheaper in digital format than the manual alternatives."]

See Sattar v. Motorola, Inc.(7th Cir.1998)138 F.3rd 1164 re alternatives considered

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LEGAL AUTHORITIES RE FORM OF PRODUCTION

STATUTES  & RULES

California
C.C.P.§2031.280. (a) "Any documents produced in response to an inspection demand shall either be produced

as they are kept in the usual course of business, or
be organized and labeled to correspond with the categories in the demand."

C.C.P.§2031.280(b) "If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form."

Toshiba America Electronic Components, Inc., v. Superior Court (2004), 124 Cal. App. 4th 762. [California adopted language from FRCP Rule 34 and added a cost shifting provision. The statute is mandatory and requires cost shifting if the discovery at issue is within the coverage of the subsection and to the extent it is "reasonable". ]

Federal Rule FRCP Rule 34(a) "translated...into reasonably usable form"
FRCP Rule 34(b) "produce them

"as they are kept in the usual course of business or"
"organize and label them to correspond with the categories in the request"

Note that proposed FRCP amendments, if adopted and effective in 2007, will allow requesting party to specify form of production subject to objections by the responding party

See also Texas Rule 196.4: "If the responding party cannot - through reasonable efforts ... produce [electronic data] in the form requested, the responding party must state an objection."

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MEET AND CONFER OBLIGATIONS

CRC Rule 212 and  FRCP 26 specifically require early discussion of electronic data issues.

In re Bristol-Myers Squibb Securities Litigation (D.N.J.2002), 205 F.R.D. 437, at pages 441 and  444  [at p.441 "Defendants were mandated to advise the Plaintiffs that the NDA was in electronic form at the time 26(a)(1) disclosures were made." at p.444 “[FRCP 26(f)] provides that before a Rule 16 Conference, the parties "confer ... to develop a proposed discovery plan...." In the electronic age, this meet and confer should include a discussion on whether each side possesses information in electronic form, whether they intend to produce such material, whether each other's software is compatible, whether there exists any privilege issue requiring redaction, and how to allocate costs involved."  "...the production of electronic information should be at the forefront of any discussion of issues involving discovery and trial, including the fair and economical allocation of costs. Of course, in some instances, paper, rather than electronic, production may still be the preferable method of discovery."]

PRODUCTION IN ELECTRONIC FORM

CREATION OF "DOCUMENTS" FROM  ELECTRONIC DATA

COSTS AND COST SHIFTING (SEE  COST SHIFTING below)

PARTY REQUIRED TO SEARCH AND PRODUCE

In re Ford Motor Company 345 F.3d 1315 (11th Cir. 2003)  Improper to grant direct and unrestricted access to corporate data bases which contained relevant information without proper factual basis and, probably, a protocol including reasonable limitations and protections. 11th Circuit vacated order of N.D. of Alabama ordering Ford Motor to grant Plaintiff direct and unlimited access to two specific databases to conduct searches for information. Although the court noted that FRCP 34 does not permit a direct search of databases but only a translation of data into usable form, it conceded that there may be times when direct access is proper e.g "...perhaps due to improper conduct...."; The appellate Court noted "But, the district court made no findings--express or implied--that Ford had failed to comply properly with discovery requests."; "Furthermore in its order, the district court granted [plaintiff] unlimited, direct access to Ford's databases. The district court established no protocols for the search. The court did not even designate search terms to restrict the search." A court should provide for objections. Court acknowledged circumstances may permit direct access but not "...without--at the outset--a factual finding of some non-compliance with discovery rules...."

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Williams v. Massachusetts Mut. Life Ins. Co. 226 F.R.D. 144 (D.Mass.,2005). [Appointment of "neutral" or permitting a party to conduct a forensic exam of hard drives  denied absent a showing of good cause when responding party submitted a declaration that it had conducted such an examianation, had produced all documents requested and had not found a document when the existence appeared speculative.]

Floerter v. City of Orlando (M.D.Fla., March 2006 Slip Copy), 2006 WL 1000306 Sexual harassment suit against police department. E-mail issues were addressed in a routine manner on basic discovery issues such as relevancy, privilege and adequacy of factual showing to support legal assertions.
INSPECTION OF HARD DRIVE DENIED "Federal Rule of Civil Procedure 34 permits a party to request documents, but it “does not give the requesting party the right to conduct the actual search.” In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir.2003). Furthermore, Floeter has not made any showing that he has requested information contained on these computer hard drives that the City has failed to produce. Under these circumstances, the motion to compel the City to permit plaintiff's counsel to enter the OPD offices to inspect the computer hard drives of computers used by Lt. Uvalle and Shawn Hayden is DENIED. "

Convolve, Inc. v. Compaq Computer Corp. (S.D.N.Y.2004), 223 F.R.D. 162  "...request for direct access to Compaq's hard drives, servers, and databases and its application for an award of sanctions. Neither form of relief is warranted. Had Convolve demonstrated widespread destruction or withholding of relevant information by Compaq, then sanctions, together with an order circumventing the normal process of discovery and allowing Convolve to access the data directly, might be appropriate. But, as discussed above, Compaq's responses have for the most part conformed to the Special Master's rulings on the scope of discovery. The only significant exception was Compaq's failure to produce RFPs and RFQs and its erroneous representation that such documents did not exist. But that misstep is a far cry from the systematic abuse that served as the basis for sanctions in the cases cited by Convolve."

Powers v. Thomas M. Cooley Law School (W.D.Mich.2006) Slip Copy, 2006 WL 2711512  Computer forensic exams require a strong showing. While denying a "meritless" motion for reconsideration on routine discovery principles and noting that counsel did not understand the opposing sides computer system, the court discussed the propriety of a computer forensic examination absent a strong showing. It concluded that while "litigants have sought access to the opponent's computer or other electronic devices to search for evidence, especially for deleted e-mails...[t]he federal courts have generally resisted such incursions" It followed the Ford and Bethea cases and the Advisory Committee notes to the new Rule 34 "...suggesting that direct inspection of an opponent's computer should be the exception and not the rule and quoted the Committee Note:

'Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.' "

The Court observed: "The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery."
The court also discussed the particular discovery issue involving a change of software  that might have missed a relatively small number of documents in the discovery process.

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COST SHIFTING

Cost shifting is a consideration on discovery or information and with regard to preservation orders. Meaningful factual and expert declarations are required to educate the court. The facts, the technology, the costs of particular aspects of discovery in the context of the case at bar must be considered in evaluating all relevant factors, including those articulated in recent cases of Rowe and Zubulake infra., in order to properly resolve the discovery issue before the court.
See also the Practice Point of Cost Shifting under Documents

LEGAL AUTHORITY

California Code of Civil Procedure §2017.020(a) cost /benefit analysis on motion for protective order to limit discovery

Toshiba America Electronic Components, Inc., v. Superior Court (2004), 124 Cal. App. 4th 762. The requesting party must pay the costs of recovering e-mail and other usable information from computer backup tapes pursuant to the mandatory cost shifting provisions of former CCP 2031(g)(1) now renumbered as .280(b). The Court stated: “The clause is unequivocal. ... its plain language clearly states that if translation is necessary, the responding party must do it at the demanding party’s reasonable expense.” No objection or showing of undue burden is required. Recovery involved conversion tools for obsolete software and some tapes had deteriorated from age. The parties did not dispute the recovery and production at issue was covered by the statute. The court suggested trial court discretion on 2 issues: the applicability of 2031(g)(1) and the reasonableness of expenses.

“The trial court’s order was an abuse of discretion not because section 2031 (g)(1) necessarily requires Lexar to pay all of TAEC’s expenses in recovering data from its backup tapes, but because the trial court was never asked to decide whether and to what extent that subdivision applies to the production in dispute. An order compelling TAEC to produce all responsive documents contained in the tapes without also requiring Lexar to pay any of the expense involved in translating the tapes into usable form, is an abuse of discretion absent a finding that translation is not necessary or that section 2031 (g)(1) does not apply for some other reason.
Having concluded that section 2031 (g)(1) shifts to the discovering party the expense of translating a data compilation into usable form, we should point out that our conclusion does not mean that the demanding party must always pay all the costs associated with retrieving usable data from backup tapes. Section 2031 (g)(1) is clear that the demanding party is expected to pay only its reasonable expense for a necessary translation. Reasonableness and necessity are purely factual issues (undoubtedly there are others), which, when disputed, are properly submitted to the discretion of the trial court.”

Factors to consider. The following factors from federal cases are appropriate to California cases (1) when C.C.P.§2031.280(b) does not apply or (2) in determining what are "reasonable" expenses.

Delta Financial Corp. v. Morrison (8/17/06 Sup.Ct, Nassau County, NY), 2006 WL 2403437

The state trial court followed federal cases in applying sampling of backup tapes and previously restored data to determine later issues as to further discovery and cost shifting. The requesting party alleged "failure to issue a proper litigation hold,...failure... to coordinate and organize a comprehensive search, supervised by outside counsel, of non e-mail electronic documents...[failure of] outside counsel... [to] issue.. or oversee... the dissemination of a written "litigation hold" for potential relevant documents.... [failure to use] search terms, [failure to implement] a quality control process or a set of guidelines ... that would assure the completeness or the consistency of the process. "

J.C. Assocs. v. Fid. & Guar. Ins. Co. (D.D.C. 2006), 2006 U.S. Dist. LEXIS 32919  "...plaintiff seeks...1.4 million active and inactive claim and litigation files...." The court found "...the information plaintiff seeks is clearly relevant" but recovery could not exceed $124,000. "...defendant has conducted an electronic search of the files, using internal codes that identify the category of the claim [and] identified 454 claims, including the 6 claims at issue in this case." The court required the following procedure to "determine whether or not any additional search is necessary." If so, cost shifting could be considered.

1. Plaintiff provide copy of document conversion program
2. Defendant randomly pull, scan and convert 25 of the 454 files into searchable documents using the conversion program
3. Defendant conduct an electronic search of the files using 4 terms
4. Defendant pull any files containing the words, ascertain if responsive and produce subject to privilege claims and using "comprehensible" redaction.
5. Defendant submit affidavit the time and costs for search, redactions and review. "I expect that attorney time will only be expended on work that requires an attorney's skill and judgment."

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See Rowe Entertainment v. The William Morris Agency (S.D.N.Y. 2002), 205 F.R.D. 421 2002 WL 63190; Murphy Oil USA v. Fluor Daniel Inc. (2002, E.D. La.) 2002 WL 246439; Zubulake v. UBS Warburg (S.D.N.Y. 2003), 217 F.R.D. 309

Rowe enumerated 8 and Zubulake enumerated 7 factors but counsel need to evaluate the needs and facts in the particular case to determine what factors are important whether or not included in the lists suggested by this federal district court.

Specificity of request
Likelihood of successful search [possible use of sampling to demonstrate]

Zubulake rephrases and combines the above two: "The extent to which the request is specifically tailored to discover relevant information."

Marginal utility
McPeek v. Ashcroft 202 F.R.D. 31 (D.D.C. 2001) [the more likely to yield info the more the producer should pay; marginal value of search] See also the follow up decision in McPeek 2002 WL 75780 where counsel reached opposite conclusions as to the value of the discovery and the trial court refused further discovery

Alternative sources

In re Honeywell Intern., Inc. Securities Litigation (S.D.N.Y., Nov. 18, 2003), 2003 U.S. Dist. LEXIS 20602 [cost shifting from non-party rejected because producing party did not use less expensive alternative and produce electronic documents as kept in normal business]

Purpose of retention (Zubulake questions this factor and emphasizes accessibility)

If neglect or disaster recovery, not normal cost or obligation to produce
If for business purpose, i.e. for storage, retrieval and use in business or pursuant to law, then producer should pay for production

Benefits to parties [if both or producer benefits, producer should pay]
Magnitude of costs: [if great, shift to party who wants it]

Zubulake questions the use of cost in a vacuum and sugest two factors of cost in comparison
3. The total cost of production, compared to the amount in controversy; FRCP 26(b)(2)(iii)
4. The total cost of production, compared to the resources available to each party; FRCP 26(b)(2)(iii)

Ability to control costs [party in control of process and determining how extensive the search will be can pay for what they want]

Zubulake: 5. The relative ability of each party to control costs and its incentive to do so;

Party resources

The importance of the issues at stake in the litigation; FRCP 26(b)(2)(iii)

Zubulake adds this factor in part because it is part of the federal rule and because certain issues affecting society may not be subject to cost analysis and public interest may trump other considerations

Other factors

Party responsible for costs

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006) Cost shifting limited. Cost shifting is not appropriate when the party seeking recovery is responsible for the creation of those costs as when a party fails to preserve data in accessible media when it has a duty to preserve that data for discovery in litigation.

Analog Devices, Inc. v. Michalski, 2006 NCBC 14    The court applied the traditional cost / benefit analysis.  While it considered the various approaches of courts and rule making authorties,  it did not find any need to go beyond existing and well established discovery principles.  It expressly rejected the idea of establishing a rigid heirarchy of factors noting the need of court to be flexible and fact specific. In a trade secret case, e-mails from back up tapes of key players were sought for a four year period.  It noted the desire of courts to avoid outcome determinative decisions that denied essential discovery or imposed excessive costs on either side. It concluded that the information at issue was important and should be discovered but that it had not been established that it was so essential that the producing party ultimately should pay the full amount. It deferred the final decision on cost shifting until after discovery occurred and the results could be evaluated.

Medtronic v. Michelson, 2003 WL 21212601 (W.D. Tenn. May 13, 2003)
Discovery re 996 backup tapes + 300GB of e-data presents the background for required summer reading on electronic discovery. See decision by Magistrate Judge Vescovo at http://www.tnwd.uscourts.gov/judgevescovo/
The court applied the basic discovery principles of cost benefit analysis. Based on the volume it concluded that the production was burdensome and then analyzed the facts and costs in the context of the case to determine if the burden was "undue" and if so whether all or part of the costs should be shifted to the requesting party. The court reviewed the 8 factors of the Rowe case and determined most supported cost shifting to the requesting party. In a detailed opinion discussing the various costs involved the court concluded that the requesting party should pay for a significant part of those costs. The case should be read for a concrete example of the discovery problems and possible solutions presented by electronic discovery in general and backup tapes in particular.

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Computer Associates International, Inc. v. Quest Software, Inc., (N.D. Ill, 2003) 2003 WL 21277129 .
Motion to shift costs of producing employee hard drives denied. Plaintiff requested production of hard drives of 6 employees for imaging, search and recovery of deleted material in copyright infringement and trade secret case re software source code. Defendant reviewed hard drives and claimed privileged documents. It hired a consultant to image, search & delete privilege documents for production of hard drives. It then made a motion to recover estimated cost ranging from $28 to $40,000. The court denied the motion. The court held that it could shift the costs if the burden outweighed the benefit. It then considered the factors set forth in Rowe in making the decision and concluded cost shifting was not justified and that this was a normal cost of review for privileged documents that should be paid by the producing party. Link to Practice Point on Cost Shifting under DOCUMENT

Bristol-Myers Squibb Sec Litig. 205 F.R.D.437, 442 (D.N.J. 2002)
Although the court referred to the Rowe decision, it employed a common sense apportionment based on the facts in the case including the history of discovery negotiations and agreements; Plaintiff had agreed to pay 10¢/page [the court enforced that agreement but limited recovery to the actual cost of 8¢] for an estimated ½ million pages; defendant dumped 3mil. docs [for which the court required payment since plaintiff had made broad requests and took no action to limit the production] and printed docs it could have produced in electronic form for which the court did not require payment since production of e-docs would have avoided that expense; defendant was scanning docs for its use and wanted to charge plaintiff for ½ the costs of scanning but the court denied that cost shifting;  after noting the importance of electronic discovery over paper the court stated at page 444:

“[FRCP 26(f)] provides that before a Rule 16 Conference, the parties "confer ... to develop a proposed discovery plan...." In the electronic age, this meet and confer should include a discussion on whether each side possesses information in electronic form, whether they intend to produce such material, whether each other's software is compatible, whether there exists any privilege issue requiring redaction, and how to allocate costs involved. ...the production of electronic information should be at the forefront of any discussion of issues involving discovery and trial, including the fair and economical allocation of costs. Of course, in some instances, paper, rather than electronic, production may still be the preferable method of discovery.

Daewoo Electronics Co v. United States (Ct. Intl. Trade 1986), 650 F.Supp. 1003, 1006 ["The normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent in the absence of extraordinary hardship." U.S. ordered to provide data, software, cooperation and assistance necessary to access data]

In re Disaster at Detroit Metropolitan Airport, 130 F.R.D. 634,  (E.D. Mich. 1989) [cost of creation shifted]

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006) Cost shifting limited. Cost shifting is not appropriate when the party seeking recovery is responsible for the creation of those costs as when a party fails to preserve data in accessible media when it has a duty to preserve that data for discovery in litigation. .
Applying the Zubulake factors, the court held "defendant is entitled to recover 30% of the costs of restoring and searching backup tapes associated with producing [one former employee's] e-mails" The motion to shift costs was denied as to recovery of e-mail from backup tapes of 5 other employees because defendant should have reasonably anticipated having to produce them at the time they were made inaccessible.
Pursuant to a company policy of deleting e-mails of former employees from active and accessible servers and only retaining them on backup tapes, e-mails of 6 former employees were "inaccessible". The employer defendant retained e-mails from plaintiff and a key individual on its accessible database. The court determined that as to one of the six former employees at issue, defendant should have known the e-mail was potential evidence and should have retained it in accessible media.
The court phrased the issue: "Although...cost-shifting may be considered concerning the restoration and search of backup tapes because the process is burdensome and costly, the appropriateness of cost-shifting is less clear here because it appears that defendant converted the Former Employees' e-mails into an inaccessible format after it should have anticipated this litigation. Plaintiff argues that cost-shifting is inappropriate because defendant, pursuant to its obligation to preserve evidence, was required to maintain the Former Employees' e-mails in an accessible format .... Defendant argues that it satisfied its duty to preserve the e-mails by maintaining them on backup tapes." Cost shifting motion for restoration and search of backup tapes for e-mail was granted as to 30% of one of former employee; but, denied as to 5 former employees.
Previously, the court reduced to the scope of the requested search by time, by number of individuals, and by key words [by eliminating common words and by tailoring the key word range to be used to the particular individuals ranging from 3 to 15 terms for any given employee.]

REQUESTING PARTY:   Cost shifting to party requesting production when it performs computer search and retrieval that should be performed by the producing party.

Ukiah Automotive Investments v. Mitsubishi Motors of North America  (N.D.Cal.5/17/2006 Slip Copy), 2006 WL 1348562  [ "Accordingly, unless Ukiah is able to produce the relevant documents in electronic form on its own, Ukiah shall produce the computer to an agreed-upon neutral inspector within 30 days from the date of this Order. Any expenses shall be borne by Ukiah."

Warner Bros. Records, Inc. v. Souther (W.D.N.C.,2006.), Slip Copy, 2006 WL 1549689 Plaintiff requested production and provided instruction on how to provide electronic copy of the registry files and that "computer's windows desktop" but defendant was unable to to do so. The court ordered production and examination of the computer by plaintiff's forensic technician to make copies. In considering cost shifting of the requesting party's costs to the responding party, the court required a statement as to relevant information found and the costs of such retrieval. It also required the responding party to file "an affidavit concerning her computer skills so that the court may make an appropriate determination under Rule 37 as to the reasonableness of defendant's efforts prior to court intervention."

NON-PARTY

FTC v. Ameridebt, Inc., (N.D.Ca. 2006),    2006 U.S. Dist. LEXIS 13687 A motion by a non-party to stay an order denying a motion to quash a subpoena based on estimated volume or attorney fee costs of review was denied. The non-party had been permitted to assert privileges by providing a log. "...the Court is skeptical that the volume is as great as his 'estimate,' and notes that the email could likely be screened efficiently through the use of electronic search terms that the parties agreed upon. The costs of compliance with subpoena for e-mail "...are quantifiable and, if appropriate, can be remedied by cost-shifting."

Gonzales v. Google, Inc. (N.D.CA. 2006),  2006 WL 778720,  234 F.R.D. 674   The Court recognized a "third-party's interest in not being compelled by a subpoena to reveal confidential business information and devote resources to a distant litigation" as "vital". It stated "This Court is particularly concerned anytime enforcement of a subpoena imposes an economic burden on a non-party. Under Rule 45(3)(a), a court may modify or quash a subpoena even for relevant information if it finds that there is an undue burden on the non-party."

Bank of America v. SR Intern. Business Ins. Co., Ltd. (N.C.Super.,2006), 2006 WL 3093174 Production from Non-Party requires stronger showing. Defendants in an insurance coverage case sought production from a non-party insurance broker of "e-mails originating from eight persons over a two-year period contained on approximately 350 to 400 backup tapes." Although the request was narrowed subsequently, the broker "estimated, based on Defendants' original request, that the identification, restoration, extraction, conversion, and processing of e-mails on its backup tapes would cost approximately $1,395,960 to $1,400,920. It also estimated that it would incur additional expenses for work performed by its internal Expertise Technology Group (approximately $107,231), oversight by in-house counsel, and responsiveness and privilege review by outside counsel [and] that the requested discovery request would take approximately ten to eleven months to complete."  The Court denied the production on a cost / benefit analysis but considering all relevant factors. When the burden on a non-party is great the likely benefit should be clear and significant before the non-party is forced to produce. Even then, costs may be shifted.
The Court noted the express provision for protecting non-parties from undue burden in its rules. In this case the broker was independent and without financial interest in the outcome. Most of the information had likely been produced as part of the file in hard copy, was likely in the possession of one or both parties, or was not shown to be of any particular value or unique nature. Witnesses were available to testify. There was no showing that the non-party had failed to retain or had destroyed relevant information or would do so. The motion  to compel production was denied.   If it later appeared that the non-party possessed specific critical information that was otherwise not available, the court could reconsider based on such a showing.

Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D. Pa.4/21/04) [The court denied motions by both parties for preservation orders after a mistrial noting there must be some demonstrated need and factual basis. One factor to consider in issuing a preservation order was the burden on the party charged with preservation and the court  suggested that the burden of preservation, including costs, could be shifted.]

Weiller v. New York Life Ins. Co., 6 Misc.3d 1038, 2004 WL 3245345 (N.Y. Sup. Ct.2005) ["Defendants attest that preservation of computer hard drives under the preservation order issued in the MDL resulted in a cost to defendants of more than$1,000,000.00 (Hoehle Aff. ¶ 15). The court is not insensitive to the cost entailed in electronic discovery, and would, at the appropriate juncture, entertain an application by defendants to obligate plaintiff, the requesting party, to absorb all or a part of the cost of the e-discovery it seeks, or will seek, herein"]

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CREATION OF DOCUMENTS FROM E-DATA

Person v. Farmers Insurance Group of Companies (1997), 52 Cal.App.4th 813 [non-party ordered to prepare and produce statement from raw data if not unduly burdensome; witness sanctioned $3014 for failing to comply with subpoena duces tecum; chiropractor had withheld patient records until attorney signed lien]

Equal Employment Opportunity Com'n v. Lexus Serramonte (N.D.Cal.2006), Slip Copy, 2006 WL 2329510 Producing party need not create an "An electronic database file, in Quattro Pro readable format" that does not exist in response to a discovery request. "It is unduly burdensome to require Defendant to do Plaintiffs' work for them by creating a computer-readable file." "...if Defendants do not presently maintain their employee contact information in the electronic format requested by Plaintiff, they shall produce it as maintained."

Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). The trial court denied production of a database "because it is unclear how a party could go about producing "a database," which ordinarily is a dynamic collection of data that changes over time. It denied without prejudice a request for access to the database in order to generate its own information or reports provided there was an "adequate showing of need, and with adequate procedural safeguards in place to minimize business disruption and to restrict disclosure of irrelevant or proprietary material

Jinks-Umstead v. England 227 F.R.D. 143, 148 (D.D.C.2005), [Defendant ordered to provide access to database by plaintiff and its experts to determine "whether more information bearing on the [specific subject matter] can be retrieved from the ... database." After determining more information could be retrieved defendant was ordered to do so.]

Gonzales v. Google, Inc. (N.D.CA. 2006),  2006 WL 778720,  234 F.R.D. 674   "Google argues that it faces an undue burden because it does not maintain search query or URL information in the ordinary course of business in the format requested by the Government.[citation] As a general rule, non-parties are not required to create documents that do not exist, simply for the purposes of discovery. [citation] In this case, however, Google has not represented that it is unable to extract the information requested from its existing systems. Google contends that it must create new code to format and extract query and URL data from many computer banks, in total requiring up to eight full time days of engineering time. Because the Government has agreed to compensate Google for the reasonable costs of production, and given the extremely scaled-down scope of the subpoena as modified, the Court does not find that the technical burden of production excuses Google from complying with the subpoena."

State Farm Mut. Auto Ins. v. Engelke (Tex.Ct.App.1999), 824 S.W.2d 747,750 [Answer interrogatories by producing information available from computer after "reprograming"]

National Union Electric Corp. v. Matsushita ElectricIndus. Co.(E.D.Pa.1980), 494 F. Supp. 1257 [ Opponent required and to perform work to create a computer readable tape and to produce data in electronic form identical to that produced in hard copy so that requesting party could analyze data.]

Crown Life Ins. Co. v. Craig 995 F.2d 1376,1382-83 (7th Cir.1993) [raw data is a "document"]

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HARD DRIVE PRODUCTION

See below. Many of the concepts and issues raised  in hard drive production are applicable to servers, backup tapes, and databases

Production of hard drive

Ameriwood Industries, Inc. v. Liberman, 2006 WL 3825291 (E.D. Mo. Dec.27, 2006). New FRCP rules change the words used but not the result. In essence the court followed procedures established over the past years by the Antioch, mySimon, and Playboy cases for use of a computer forensic neutral recovering documents from hard drives subject to protective and confidentiality orders.
High cost of mirror imaging hard drives made data "inaccessible" because of undue burden and expense but good cause trumped inaccessibility based on fact that one e-mail was obtained from another source that should have been produced, allegations and postulations of what might have happened, and because of the nature of computer generated information. Mirror imaging of hard drives including home hard drives was ordered and the cost of production was shifted due to plaintiff's lack of opposition to cost shifting. Defendants were ordered to produce all hard drives including those from homes for mirror imaging by an expert selected and paid by plaintiff. Files recovered were provided to defendant's for review and production in response to discovery requests.

Powers v. Thomas M. Cooley Law School (W.D.Mich.2006) Slip Copy, 2006 WL 2711512  Computer forensic exams require a strong showing. While denying a "meritless" motion for reconsideration on routine discovery principles and noting that counsel did not understand the opposing sides computer system, the court discussed the propriety of a computer forensic examination absent a strong showing. It concluded that while "litigants have sought access to the opponent's computer or other electronic devices to search for evidence, especially for deleted e-mails...[t]he federal courts have generally resisted such incursions" It followed the Ford and Bethea cases and the Advisory Committee notes to the new Rule 34 "...suggesting that direct inspection of an opponent's computer should be the exception and not the rule and quoted the Committee Note:

'Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.' "

The Court observed: "The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery."
The court also discussed the particular discovery issue involving a change of software  that might have missed a relatively small number of documents in the discovery process.

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Wrongful discharge resulting from termination for misuse of work computer. Tr. Ct. denied discovery of personal matter on home computer owned by employer. Ct.App rev'd. Issue re Right to Privacy of personal matters of employee and family on home computer. Employer provided 2 computers for work and home and obtained signed policy statement re right to monitor, employer ownership, employee agreement to use solely for work and not for personal use and that communications via computer were not private. Employee acknowledged that improper use could result in discharge. Employee claimed privacy in part based on company practice of permitting personal use which claim was disregarded by appellate court in reversing the trial court's denial of discovery. Other than the privacy and relevancy issues, there was no dispute as to the discoverability of the home computer pursuant to request to produce.]  See Menke v. Broward County School Bd.  below where Florida denied hard drive production of home computers.

R.S. Creative Inc. v. Creative Cotton Ltd. (1999), 75 Cal.App.4th 486 [Issues re fabrication or modification of contract created on home computer; overbroad and privacy objections raised; discovery of complete hard drive from home computer upheld in imposing dismissal sanction]

Balboa Threadworks, Inc. v. Ronald A. Stucky 2006 WL 763668 (D.Kan.2006) The court reviewed prior case law regarding the showing required to permit imaging of hard drives. The court found sufficient basis to permit mirror imaging of all computers, including those not normally used in the business, because copyrighted material had been downloaded from a computer and evidence might exist on any of the computers. No search was permitted until counsel agreed on a search protocol that protected confidential and personal information that was not relevant. The Court recognized that some showing must be made to mirror image a computer that there is a likelihood of it containing discoverable evidence. It criticized the vague expert declaration:

Antioch Co. v. Scrapbook Borders, Inc. 210 F.R.D. 645, 651-2 (D.Minn.,2002) [Court granted expedited discovery and a preservation order.  "Antioch has proffered some evidence that the Defendants use e-mail as a form of communication for their business,... and the Defendants have not denied that use. In addition, Antioch has also provided the Affidavit of Lawrence M. Larsen, of the Forensic Service Division of Renew Data Corp., in which he attests that data which is deleted from a computer is retained on the hard drive, but is constantly being overwritten by new data, through the normal use of the computer equipment. Accordingly, we conclude that the Defendants may have relevant information, on their computer equipment, which is being lost through normal use of the computer, and which might be relevant to the Plaintiff's claims, or the Defendants' defenses. This information may be in the form of stored or deleted computer files, programs, or e-mails, on the Defendants' computer equipment.
As a consequence, we conclude that Antioch should be able to attempt to resurrect data which has been deleted from the Defendants' computer equipment, and therefore, we grant its Motion to Compel."
"This procedure will govern the recovery of deleted information from the Defendants' computers." at p. 654]

Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [production granted and protocol for image copies and extraction of files by neutral and opportunity to object to specific files being produced]

Arista Records, Inc. v. Sakfield Holding Co. S.L.(D.D.C.,2004), 2004 WL 881851, --- F.Supp.2d ----,
In the course of jurisdictional discovery the court ordered the production of servers held by non-party on which defendant's website was hosted. The servers contained data of persons accessing the site. Plaintiffs' expert determined that a program designed to erase electronically stored information had been run over 50 times from a remote location in an effort to erase all electronic information on the servers. Defendant's destruction of electronic evidence on servers by running the program 50 times after being advised of copyright claims created an adverse inference of jurisdictional contacts. In addition, plaintiff's expert was able to recover data and extrapolate information to opine as to contacts.

Foust v. McFarland, 698 N.W.2d 24 (Minn.App.,2005)
In a PI case involving issues as to the extent of brain damages, the trial court order production of computers and the forensic examiner found child pornography deletions and use of wipe software.  Child pornography was determined to be of some relevance to prior  depression and brain damages and ability to delete data was argued to be evidence of lack of brain damage after the accident. An issue on appeal was whether an adverse inference instuction for spoliation of potential evidence on the computer was sufficient sanction and the trial court was affirmed.

Leviton Mfg. Co., Inc. v. Nicor, Inc. (D.N.M. 2006 Slip Copy), 2006 WL 1305036, 2006 U.S. Dist. LEXIS 27655.
"Because the Court is concerned that Dongzheng has not accounted for documents that at one time were in its files, the Court will order Dongzheng to produce all responsive documents, require Dongzheng to account for all the documents that Leviton has shown the Court, require Dongzheng to make its computers available for inspection, and require Dongzheng to provide Leviton with an authorization for production of Dongzheng's email communications with its customers."

Sony BMG Music Entm't v. Arellanes, 2006 U.S. Dist. LEXIS 78399 Order granting inspection by neutral computer forensics expert to mirror-image and inspect the Defendant's computer hard drive for evidence of copyright infringement and protective order. The neutral computer forensics expert shall produce a report of his or her findings and the methodologies utilized to the parties and the court.

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Denial of discovery of hard drive
Similar issues arise in the production of hard drives, backup tapes or databases and other indiscriminant or inclusive collections of information: overbreadth, burden, expense, relevancy, privilege, privacy. Although databases are limited in subject matter and may be  the best source of  relevant information, early cases indicate a reluctance on courts to provide unlimited access to opponents.

Advante Intern. Corp. v. Mintel Learning Technology (N.D.Cal.2006) Slip Copy, 2006 WL 1806151 Forensic exam of computer systems on suspicion of evidence concealment denied. "... just as a party would not be entitled to inspect personally an opposing party's offices and filing cabinets simply because it believed that discovery misconduct had occurred, the accusations Mintel makes here do not justify the remedy it seeks. Accordingly the motion will be denied.*** in some cases it may be appropriate to allow a forensic examination of computer hard drives. Even in such circumstances, though, a party would not be given an unfettered right to conduct its own examination of the opposing party's computers. Rather, a protocol would have to be established to protect legitimate privacy, privilege, and safety concerns, and to minimize disruption. *** it has not presented specific, concrete evidence of concealment or destruction of evidence sufficient to conclude that a forensic examination of the vast scope it proposes is warranted at this juncture, even under an examination protocol that would protect the other parties' legitimate privacy and other interests.

Advante International Corp. v. Mintel Learning Technology, "Advante II" (N.D. Cal. 2006), 2006 U.S. Dist. LEXIS 86334.
Inspection and imaging of server hard drive requires (1) showing of reasonable basis to depart from ordinary discovery procedures [shown herein by reason to question reliability& completeness of production due to alterations] (2) protocol to protect legitimate privacy and interests of producing party [including conditions of exam, selection of examiner and inspection by producing party for privilege etc prior to production to requesting party. [court followed Playboy Ent. v. Wells case re protocol]

Deipenhorst v. City of Battle Creek  (W.D.Mich.2006),   Slip Copy, 2006 WL 1851243   Hard drive not subject to routine imaging.  "Defendant has demanded production of plaintiff's computer hard drive, so that defense experts can make a “mirror image” of its contents. By this process, the expert would essentially create a “clone” of the hard drive, duplicating all programs, files, and other information contained therein, whether or not germane to this case. Although defendant urgently presses its need to subject plaintiff's computer to this examination, defendant never explains to the court exactly what the object of the examination is or why defendant believes that it is necessary."

"The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, as noted above, imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery.[citation]This court is therefore loathe to sanction intrusive examination of an opponent's computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct."

Floerter v. City of Orlando (M.D.Fla., March 2006 Slip Copy), 2006 WL 1000306 Sexual harassment suit against police department. E-mail issues were addressed in a routine manner on basic discovery issues such as relevancy, privilege and adequacy of factual showing to support legal assertions.   "Federal Rule of Civil Procedure 34 permits a party to request documents, but it “does not give the requesting party the right to conduct the actual search.” In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir.2003). Furthermore, Floeter has not made any showing that he has requested information contained on these computer hard drives that the City has failed to produce. Under these circumstances, the motion to compel the City to permit plaintiff's counsel to enter the OPD offices to inspect the computer hard drives of computers used by Lt. Uvalle and Shawn Hayden is DENIED. "

Menke v. Broward County School Bd.  --- So.2d ----, 2005 WL 2373923  Fla.App. 4 Dist.,2005.  Sep 28, 2005. Order for production of home computers vacated. Production of home computers for examination by the party’s expert to search for specific relevant evidence without provisions for objections and protection of privileged, confidential and private information violates the rights of the party and his family regarding self-incrimination, privileges, privacy. The order had allowed an agent of the producing party to be present and object as to privileged documents but the court noted that the agent of the requesting party would have seen such documents in the course of the inspection.

The Menke court relied on Strasser v. Yalamanchi, 669 So.2d 1142, 1145 (Fla. 4th DCA 1996):

“If plaintiff can present evidence to demonstrate the likelihood of retrieving purged information, and if the trial court finds that there is no other less intrusive manner to obtain the information, then the computer search might be appropriate. In such an event, the order must define parameters of time and scope, and must place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to defendant's computer and data bases…. Thus, intrusive searching of the entire computer by an opposing party should not be the first means of obtaining the relevant information.
Where a need for electronically stored information is demanded, such searching should first be done by defendant so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case. Id.  In fact, in the few cases we have found across the country permitting access to another party's computer, all have been in situations where evidence of intentional deletion of data was present.”

The Menke court noted the lack of particularity in the request for wholesale production: “In civil litigation, we have never heard of a discovery request which would simply ask a party litigant to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation.”

In  Re: Lowe's Companies, Inc. (5/18/04), 134 S.W.3d 876,   2004 Tex. App. LEXIS 4432  In a PI case resulting from falling merchandise in a store, the corporate representative was questioned regarding a database containing information regarding accident trends. Tr.Ct was reversed for ordering production or access to entire database on grounds the order was overbroad. The Texas Court of Appeals rejected the trade secret claim for an accident database suggesting that, otherwise, all internal records would be trade secrets.

“In this case, the order requires [corp] to bring to [corp representative] deposition either: (1) the database and application necessary to search, sort, and print data from it; or (2) computer access to the database that would enable searching, sorting, and printing data from it as requested by the Morenos' counsel at the deposition. Data that may be so requested for printing is limited to accidents prior to the one made the basis of this suit and those involving reports of customers injured due to falling merchandise. Based on the foregoing authorities, we conclude that the order is overbroad to the extent it allows the Morenos to: (1) access (even if not print) data without any limitation as to time, place, or subject matter; and (2) print data concerning falling merchandise accidents for an unlimited period preceding the accident in this case and for an unlimited geographic area."

Fennell v. First Step Designs Ltd 83 F.3d 526, 534 (1st Cir. 1996).[ In opposition to summary judgment motion, plaintiff sought further discovery. Discovery of hard drive to find proof of when memo was last modified denied.. Affirmed, substantial risks and cost & failed to show a "particularized likelihood of discovering appropriate information."]

Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054 [Hard drive production denied. Documents can be obtained without producing privilege or private material that is irrelevant. Protocol established to avoid intrusion on privileged and confidential material by using neutral expert to find relevant documents and afford producing party opportunity to review for objectionable material.]

Medical Billing v. Intelligent Medical (N.D.Ill. 4/3/03) 01 CV 9148
Physical inspection of opponent's computer system denied. Parties dispute whether adequate search was made and requested email produced. There was no showing or other reason to believe requested discovery had not been produced.

Bethea v. Comcast (D.D.C.2003), 218 F.R.D. 328
Plaintiff motion to enter upon their premises, inspect their computer systems and related programs, and copy any information relevant to her employment discrimination claims denied. Plaintiff sought access to defendants' hard drives to determine whether defendants possess any additional documents that they have not yet produced.Plaintiff's allegations of deletions of e-docs and skepticism regarding the complete lack of documents re plaintiff or reorganization was unsupported.Def claims it searched and produced everything requested; there was no showing by Plt data exists on the hard drive or that anything was destroyed or not produced ;  HR director testified everything produced. At  p. 329-30 the court stated:  “In the context of computer systems and computer records, inspection or seizure is not permitted unless the moving party can "demonstrate that the documents they seek to compel do, in fact, exist and are being unlawfully withheld." As indicated by this court and other courts, a party's suspicion that another party has failed to respond to document requests fully and completely does not justify compelled inspection of its computer systems. [Citing Alexander v. FBI case] The court added at page 330:  “Here, plaintiff seeks to enter defendants' premises and inspect their computer systems merely because they are "believed to contain appropriate discovery information.  Pl. Mot. to Insp. Comp. at 2. With this vague assertion, plaintiff fails to demonstrate what relevance any information still contained on the defendants' hard drives may have to the pending lawsuit. Rather, plaintiff is speculating, and such conjecture does not warrant the compelled inspection of a computer system that contains voluminous information relating to many topics other than plaintiff's employment discrimination claim. In addition, plaintiff has made no showing that the documents she seeks actually exist or that the defendants have unlawfully failed to produce them. Indeed, plaintiff has not alleged that the defendants failed to make a search of adequate scope or duration. Instead, defendants have stated that they have made diligent searches and complied with all discovery requests, and plaintiff has not refuted them. For all of these reasons, I will not compel the inspection of defendants' computer systems and records.

In re Ford Motor Company 345 F.3d 1315  (11th Cir.2003)
Improper to grant direct and unrestricted access to corporate data bases which contained relevant information without proper factual basis and, probably, a protocol including reasonable limitations and protections. 11th Circuit vacated order of N.D. of Alabama ordering Ford Motor to grant Plaintiff direct and unlimited access to two specific databases to conduct searches for information. Although the court noted that FRCP 34 does not permit a direct search of databases but only a translation of data into usable form, it conceded that there may be times when direct access is proper e.g."...perhaps due to improper conduct...."; The appellate Court noted "But, the district court made no findings--express or implied--that Ford had failed to comply properly with discovery requests."; "Furthermore in its order, the district court granted [plaintiff] unlimited, direct access to Ford's databases. The district court established no protocols for the search. The court did not even designate search terms to restrict the search." A court should provide for objections. Court acknowledged circumstances may permit direct access but not "...without--at the outset--a factual finding of some non-compliance with discovery rules...."

Convolve, Inc. v. Compaq Computer Corp. (S.D.N.Y.2004), 223 F.R.D. 162  "...request for direct access to Compaq's hard drives, servers, and databases and its application for an award of sanctions. Neither form of relief is warranted. Had Convolve demonstrated widespread destruction or withholding of relevant information by Compaq, then sanctions, together with an order circumventing the normal process of discovery and allowing Convolve to access the data directly, might be appropriate. But, as discussed above, Compaq's responses have for the most part conformed to the Special Master's rulings on the scope of discovery. The only significant exception was Compaq's failure to produce RFPs and RFQs and its erroneous representation that such documents did not exist. But that misstep is a far cry from the systematic abuse that served as the basis for sanctions in the cases cited by Convolve."

Image copies of hard drive

Balboa Threadworks, Inc. v. Ronald A. Stucky 2006 WL 763668 (D.Kan.2006) The court reviewed prior case law regarding the showing required to permit imaging of hard drives. Citing McCurdy Group it noted:"Courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature."  The court found sufficient basis to permit mirror imaging of all computers, including those not normally used in the business, because copyrighted material had been downloaded from a computer and evidence might exist on any of the computers. No search was permitted until counsel agreed on a search protocol that protected confidential and personal information that was not relevant. The Court recognized that some showing must be made to mirror image a computer that there is a likelihood of it containing discoverable evidence. It criticized the vague expert declaration:

Plaintiffs have produced no affidavits to support their arguments that Defendants have purportedly deleted information from some of their computers. Instead, they submit an affidavit of a computer expert which only outlines, in general terms, why he believes it is important to collect digital and electronic evidence early in a case in order to avoid the possibility that relevant files are deleted or other residual data is overwritten or otherwise destroyed during normal computer use."

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McCurdy Group v. American Biomedical Group, Inc. 9 Fed.Appx. 822, 2001 WL 536974 (10th Cir.2001)

Communications Center, Inc. v. Hewitt, 2005 WL 3277983 at *1 (E.D.Cal., Apr.5, 2005)

Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054

Gates Rubber Co. v. Bando Chemical Indus., LTD 167 F.R.D. 90, 112 (D.Colo. 1996) [site inspection order prohibiting destruction & permitting expedited discovery on computerized files. Expert criticized for not making image copies of drive; party has "a duty to utilize the method which would yield the most complete and accurate results."]

Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [court expert retained image copy through litigation]

Antioch Co. v. Scrapbook Borders, Inc. 210 F.R.D. 645, 651-2 (D.Minn.,2002)
 
See "The History of Image Copying Technology" and other related articles on verification and authentication protocols , and CD-ROM vs.Optical Disks at www.computer-forensics.com/articles/welcome.html

Objection to production of hard drive or 2031(e) protective order

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Right to Privacy rejected re personal material on company computer used at home ; no reasonable expectation of privacy when sign policy confirming employer ownership, right to monitor, right to discharge for abuse of computer policy etc.]

Playboy Enterprises v. Welles (S.D.Cal.1990), 60 F.Supp.2d 1050, 1054 [protocol established to avoid intrusion on privileged and confidential material]
Danger of revealing trade secret/confidential matter
Privilege issues; expense of preproduction review

Counter to objection or protective order motion

Inordinate expense to review hard copy if search of electronic data available
Independent expert; possibly w/ divided costs/ protective order
Show no reasonable less intrusive means to get valuable data

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ON-SITE DISCOVERY OF OPPONENT'S DATA: access to computers, databases

“In this case, the order requires [corp] to bring to [corp representative] deposition either: (1) the database and application necessary to search, sort, and print data from it; or (2) computer access to the database that would enable searching, sorting, and printing data from it as requested by the Morenos' counsel at the deposition. Data that may be so requested for printing is limited to accidents prior to the one made the basis of this suit and those involving reports of customers injured due to falling merchandise. Based on the foregoing authorities, we conclude that the order is overbroad to the extent it allows the Morenos to: (1) access (even if not print) data without any limitation as to time, place, or subject matter; and (2) print data concerning falling merchandise accidents for an unlimited period preceding the accident in this case and for an unlimited geographic area."

In re Ford Motor Company (11th Cir.2003), 345 F.3d 1315
Improper to grant direct and unrestricted access to corporate data bases which contained relevant information without proper factual basis and, probably,
a protocol including reasonable limitations and protections. 11th Circuit vacated order of ND of Alabama ordering Ford Motor to grant Plaintiff direct
and unlimited access to two specific databases to conduct searches for information. Although the court noted that FRCP 34 does not permit a direct search of databases but only a translation of data into usable form, it conceded that there may be times when direct access is proper e.g."...perhaps due to improper conduct...."; The appellate Court noted "But, the district court made no findings--express or implied--that Ford had failed to comply properly with discovery requests."; "Furthermore in its order, the district court granted [plaintiff] unlimited, direct access to Ford's databases. The district court established no protocols for the search. The court did not even designate search terms to restrict the search." A court should provide for objections. Court acknowledged circumstances may permit direct access but not "...without--at the outset--a factual finding of some non-compliance with discovery rules...."

Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). The trial court denied production of a database "because it is unclear how a party could go about producing "a database," which ordinarily is a dynamic collection of data that changes over time. It denied without prejudice a request for access to the database in order to generate its own information or reports provided there was an "adequate showing of need, and with adequate procedural safeguards in place to minimize business disruption and to restrict disclosure of irrelevant or proprietary material

Williams v. Massachusetts Mut. Life Ins. Co. supra  [good cause must be shown for examination]

Bethea v. Comcast (D.D.C.2003), 218 F.R.D. 328
Plaintiff motion to enter upon their premises, inspect their computer systems and related programs, and copy any information relevant to her employment discrimination claims denied. Plaintiff sought access to defendants' hard drives to determine whether defendants possess any additional documents that they have not yet produced. Plaintiff's allegations of deletions of e-docs and skepticism regarding the complete lack of documents re plaintiff or reorganization was unsupported.Def claims it searched and produced everything requested; there was no showing by Plt data exists on the hard drive or that anything was destroyed or not produced ;  HR director testified everything produced. At  p. 329-30 the court stated:  “In the context of computer systems and computer records, inspection or seizure is not permitted unless the moving party can "demonstrate that the documents they seek to compel do, in fact, exist and are being unlawfully withheld." As indicated by this court and other courts, a party's suspicion that another party has failed to respond to document requests fully and completely does not justify compelled inspection of its computer systems. [Citing Alexander v. FBI case] The court added at page 330:  “Here, plaintiff seeks to enter defendants' premises and inspect their computer systems merely because they are "believed to contain appropriate discovery information.  Pl. Mot. to Insp. Comp. at 2. With this vague assertion, plaintiff fails to demonstrate what relevance any information still contained on the defendants' hard drives may have to the pending lawsuit. Rather, plaintiff is speculating, and such conjecture does not warrant the compelled inspection of a computer system that contains voluminous information relating to many topics other than plaintiff's employment discrimination claim. In addition, plaintiff has made no showing that the documents she seeks actually exist or that the defendants have unlawfully failed to produce them. Indeed, plaintiff has not alleged that the defendants failed to make a search of adequate scope or duration. Instead, defendants have stated that they have made diligent searches and complied with all discovery requests, and plaintiff has not refuted them. For all of these reasons, I will not compel the inspection of defendants' computer systems and records.

Convolve, Inc. v. Compaq Computer Corp. (S.D.N.Y.2004), 223 F.R.D. 162  "...request for direct access to Compaq's hard drives, servers, and databases and its application for an award of sanctions. Neither form of relief is warranted. Had Convolve demonstrated widespread destruction or withholding of relevant information by Compaq, then sanctions, together with an order circumventing the normal process of discovery and allowing Convolve to access the data directly, might be appropriate. But, as discussed above, Compaq's responses have for the most part conformed to the Special Master's rulings on the scope of discovery. The only significant exception was Compaq's failure to produce RFPs and RFQs and its erroneous representation that such documents did not exist. But that misstep is a far cry from the systematic abuse that served as the basis for sanctions in the cases cited by Convolve."

GTFM Inc. v. Wal-Mart (S.D.N.Y. 2000), 2000 WL 335558 [Def had inaccurately denied ability to obtain computer records; def ordered to make its computer records and facilities available to plt expert to conduct on-site inspection to determine whether and how to extract specific relevant information; def ordered to produce PMK re computer records to meet with plt expert to explain system and assist in retrieval of data. Def ordered to pay all legal and expert fees in conducting on-site inspection]

Southern Diagnostic Assoc. v. Bencosme (Fla.App.2002), 833 So.2d 801, 2002 WL 31422863 [Ins.Co. sued for bad faith contracted out medical exams to 3d party; frequency of expert testimony and payments for 3 year period re two physicians discoverable; 3rd party couldn't produce documents or information from its computer system; tr CT granted access to the computer system to retrieve the information but writ was granted setting aside order because the trial court set no parameters or limitations and private and privileged medical information of non-parties was involved; the matter was remanded for the trial court to tailor the order to accomplish the purpose of discovery while protecting confidentiality; The court cited Strasser v. Yalamanchi as "holding that an order permitting discovery by computer search might be appropriate, but the 'order must define parameters of time and scope and must place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to the computer and databases".]

Gates Rubber Co. v. Bando Chemical Indus. Ltd.(D.Colo. 1996), 167 F.R.D. 90 [site inspection order prohibiting destruction and permitting expedited discovery of computerized files. Expert criticized for not making image copies of drive; party has " a duty to utilize the method which would yield the most complete and accurate results"

The discovery procedures were supervised by a Special Master who was appointed by Judge Sparr. Under the directions of the Special Master, any identified and copied materials were to be placed in escrow, such as in a vacant room in a warehouse, and were to be released only subject to appropriate motions and orders for discovery. The goal of the Site Inspection Order was to provide a means by which to preserve materials from the alleged destruction, while simultaneously protecting the rights of Bando to object to the production of certain materials under the usual rules of discovery.

Simon Property Group v. mySimon Inc.(S.D.Ind.2000), 194 F.R.D. 639 [motion to produce and make computers available for inspection granted in part]

Tulip Computers International B.V. v. Dell Computer Corporations (D.Del.2002), 2002 WL 818061 [Tulip was given access to Dell databases and with the assistance of Dell expert conducted searches for information that Dell said it could not provide; Tulip had requested info from Dell and Dell represented it could not provide it from databases; Tulip persevered and a year later, after overcoming other Dell obstructions, Tulip's experts consulted with Dell experts and it was determined that Dell's employees could have accessed and provided the information; the trial court did nothing observing that the parties worked it out but the court noted: "The history of Dell's failures to cooperate in the discovery process---and its sweeping but inaccurate positions that Tulip would never find certain documents that Tulip, through persistence and diligence, later uncovered---counsel in favor of awarding Tulip some relief...."]

In re Pharmatrak, Inc. Privacy Litigation (D.Mass.2002), F.Supp.2d , 2002 WL 1880387 [ Plaintiff's computer forensic expert examined Pharmtrak's servers in order to obtain evidence to support the claim that it had extracted personal information though procedure was not at issue]

Jinks-Umstead v. England 227 F.R.D. 143, 148 (D.D.C.2005), [Defendant ordered to provide access to database by plaintiff and its experts to determine "whether more information bearing on the [specific subject matter] can be retrieved from the ... database." After determining more information could be retrieved defendant was ordered to do so.]

TOP

Accessing opponent's computers, servers and network

to search for versions of documents or
to search for deletions, alterations etc.
to obtain information when objections based on cost, impossibility or inability to search
to conduct key word, concept or phrase search
to search or pose queries for database searches and reports

Protection of producing party

Protective order re software, system data etc. learned or obtained

Proprietary information re design & operation or implementation
No appropriation for gain
Non-disclosure

Use of neutral expert to conduct on-site discovery

Nondisclosure agreements
Check for conflict of interest

Timing:

After normal business hours; non-disruptive
Review of records on site during normal operational conditions may be necessary

Preparation for meaningful and nondisruptive examination

Narrow & define search to avoid being overwhelmed and obtain relevant data
Lack of focus may render discovery prohibitively expensive, intrusive or disruptive
Background planning and provisions to facilitate process

Identify discovery target

Persons, including related persons [e.g. support staff, co-workers]
Time frame
Specific data, documents, data bases

Identify relevant hardware, data bases to be examined

Laptops, desktops, pda, peripherals
Archives: how often made & how long retained
Similar media and operating system versions for archive tapes

Identify software required to access and manipulate data

Software versions
Copies of proprietary software
Temporary license from vendor

Determine what software or hardware will be required to access and copy relevant data
Size of files or disk to be copied

Informal conference of experts from both sides to

Tailor procedures to reality
Set ground rules to backup & examine data safely
Learn of idiosyncrasies of system
Reduce ground rules to signed protocol
Assure full access to directories and files

Producing party's role:

Operate system and perform actual keyboard work
Responsible for making backups and taking all necessary precautions to protect data and assure safety and integrity of system and its data;
Duty and power to protect the integrity of the data and system to make timely objections & state reasons therefore, and to stop inspections etc.

Producing party's personnel and expert present to observe and conduct discovery

Available to answer questions
Available to operate system in response to directives
Install hardware & software to make copies of data, inspect, analyze, and manipulate data
Assist in making copies: image, backups
Assist in recovery of deleted or altered files

Discovering party's experts present

Observe
Ask questions of producing party's experts and employees
Direct operation of system
Preserve integrity, chain of custody etc. of data copies
Two identical verified copies
Write protect immediately, seal, identify and have producing party sign off

TOP

Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., 2006 WL 3771090.  (S.D.N.Y. Dec. 22, 2006). The prior handling of reinsurance claims was 
sought to show a pattern and practice. The Court rejected the reinsurer's claim that it could not retrieve the data from its computer system but only 
ordered the parties to agree on a protocol for sampling.

Convolve, Inc. v. Compaq Computer Corp. (S.D.N.Y.2004), 223 F.R.D. 162  "...request for direct access to Compaq's hard drives, servers, and databases and its application for an award of sanctions. Neither form of relief is warranted. Had Convolve demonstrated widespread destruction or withholding of relevant information by Compaq, then sanctions, together with an order circumventing the normal process of discovery and allowing Convolve to access the data directly, might be appropriate. But, as discussed above, Compaq's responses have for the most part conformed to the Special Master's rulings on the scope of discovery. The only significant exception was Compaq's failure to produce RFPs and RFQs and its erroneous representation that such documents did not exist. But that misstep is a far cry from the systematic abuse that served as the basis for sanctions in the cases cited by Convolve."

Orlowski v. Dominiks Finer Foods, 1995 W.L. 516595(N.D.Ill) [Data bases: ID organization structure, purging, backup, retention, storage, how to recover information; PMK, system software]
Market v. Union FidelityLife Ins., 125 FRD 121 (1989) [contra]

Jinks-Umstead v. England 227 F.R.D. 143, 148 (D.D.C.2005), [Defendant ordered to provide access to database by plaintiff and its experts to determine "whether more information bearing on the [specific subject matter] can be retrieved from the ... database." After determining more information could be retrieved defendant was ordered to do so.]

McDowell v. Government of Dist. of Columbia  (D.D.C.2006), 233 F.R.D. 192 [February 9, 2006 initial decision.]Delay and expense incurred due to failure of defendant to make proper queries of its database resulted in an award of monetary sanctions in the amount of $ 72,910.12. The requesting party was ordered to "submit to the court a detailed report identifying the amount of attorneys' fees and costs that have been expended since February 3, 2003 in attempting to secure the PD 163's."

"Since the beginning of discovery in this case, plaintiff has sought to query CJIS for information about those arrests in which the individual named officers, while not the arresting officer, nonetheless participated in some fashion in the arrest. While defendants have repeatedly acknowledged that CJIS contains an "other officer" field, defendants only recently conceded that a query of this field can actually be performed." "...almost three years after plaintiff's first request for production of documents, defendants finally stated conclusively that data could be accessed for arrest events where the named officer was not the arresting officer." "The most obvious problem relating to the PD 163's is the fact that plaintiff will only get the relevant PD 163's if the spreadsheet is the result of a carefully worded and accurately executed query."
In the fee award order [2006 WL 1933809 (D.D.C. 7/11, 2006) , 2006 U.S. Dist. LEXIS 46371], the court noted "...the rationale underlying my decision to award attorney's fees remains the same. But for defendants' failure to comprehend the capabilities of their own record-keeping system, plaintiff would have had the discovery she sought at a much earlier date."

COMPUTER LOGS

IP ADDRESS AS TRACKING DEVICE