In White v. Graceland College Center for Prof. Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008), U.S. Magistrate Judge David Waxse held that the defendants PDF/paper production was inadequate because defendants failed to produce emails in either the form in which they were ordinarily maintained, or in a “reasonably usable form” as required by Federal Rule of Civil Procedure 34(b)(2)(E)(ii).  Plaintiff had sought re-production of certain documents mainly emails that were converted to a PDF format and produced in paper.  Plaintiff contended that without the electronic and native copies of the documents, she would be unable to confirm or contradict that the documents were prepared at the time defendants allege they were prepared. 

      The court ruled defendants’ conversion of the emails and attachments to PDF documents and production of the PDF documents in paper format did not comply with the option to produce them in a reasonable usable form.  Judge Waxse, citing the advisory notes for the 2006 FRCP amendments, ruled that defendants’ option to produce in a reasonably usable form does not mean that they were free to convert electronically stored information (ESI) from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for Plaintiff to use the information efficiently in litigation. 

      The court noted that the discovery dispute could have been avoided all together had the parties met and conferred at their Rule 26(f) conference regarding the production of ESI.  Accordingly, the court ordered defendants to re-produce approximately 25 documents in their native format.

Viacom Intern. Inc. v. YouTube Inc., Nos. 07 Civ. 2103(LLS), 07 Civ. 3582(LLS), 2008 WL 2627388 (S.D.N.Y. July 2, 2008), is a lawsuit brought by Plaintiff Viacom for alleged copyright infringement by Defendant YouTube.  In responding to Plaintiff Viacom's motion to compel production of information from a database storing information about the viewing habits of users of Defendant YouTube's website, the district court judge concluded that Viacom should be provided with all data from the YouTube's Logging database that stores each time a video has been viewed, what time, and by which user. 

            YouTube allows individuals to upload videos to the YouTube website, where YouTube makes them available for viewing by members of the public free of charge.  YouTube then stores information about users' viewing habits in a Logging database, which contains for each instance a video is watched the "login ID" of the user who watched it, the time when the user started to watch the video, the user's internet protocol address, and the identifier for the video.  The Logging database provides the only existing record of how often each video has been viewed.  In support of its claim that YouTube violated the copyright of videos that have been posted on the YouTube website without authorization for public viewing, Viacom sought production of the data from YouTube's Logging database to compare the attractiveness of allegedly infringing videos with that of non-infringing videos.

            YouTube argued that Viacom's request was "unduly burdensome" because producing the large volume of information contained in the Logging database would be "expensive and time-consuming."  Nevertheless, the district court judge determined that while the Logging database is large, its contents can be copied onto a few hard drives.  Given that ability to produce the information, the district court judge reasoned that Viacom's need for the data outweighed the "unqualified and unsubstantiated" cost of producing the information from the Logging database.  YouTube also argued that the data should not be disclosed because of concerns about the privacy rights of users of the YouTube website, suggesting that the information obtained from the Logging database could be used to determine the viewing and video uploading habits of individual users.  However, the district court stated that YouTube failed to cite authority barring such discovery and that the privacy concerns were "speculative" because in most cases an internet protocol address cannot alone be used to identify specific individuals.  Therefore, the court granted the motion to compel production of all data from YouTube's Logging database concerning each time a video has been viewed on the YouTube website. 

            L.H. v. Schwarzenegger, No. CIV 5-06-2042 LKK GGH, 2008 WL 2073958 (E.D. Cal. 2008), is a class action lawsuit filed by juvenile parolees who allege that the parole revocation process in California violates due process rights under the Fourteenth Amendment of the Constitution.  In several motions to compel discovery, the plaintiff juvenile parolees argued that the defendants delayed production of documents to the detriment of their case.  As a result, the plaintiffs sought sanctions for defendants' failure to produce all the documents previously ordered by the court, such as databases/logs.

            In response to the plaintiffs' request for sanctions resulting from the defendants' failure to produce all of the documents, the defendants argued that they substantially complied with the order by producing over 55,000 documents and that the individual who responds to discovery requests was very busy responding to numerous court orders and that she had family related health issues causing her to miss work.  While the court acknowledged the unique difficulties that can arise from governmental defendants' efforts to respond to voluminous discovery requests, the court nevertheless disapproved of the defendants' handling of the discovery requests in this case.  Specifically, the court pointed to the defendants' failure to resolve problems via discovery conferences or other available means and stated that unilaterally denying or delaying discovery was inappropriate.  Reasoning that the understaffed discovery effort nearly ensured non-compliance with the discovery order, the court found that reliance on one employee for a statewide class action lawsuit was not justified and therefore granted sanctions to the plaintiffs. 

            Additionally, plaintiffs argued that the electronic documents produced by defendants were improperly converted from their original format, which had been searchable and portable, into PDF files without those capabilities.  The court reasoned that Rule 34, which allows a responding party to produce electronically stored information in a "reasonably usable form," does not allow the responding party to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult for the requesting party.  The court then stated that "[i]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades that feature."  Therefore, the court held that the defendant's actions in converting the documents from the original format that was searchable and portable to one that was not searchable or portable violated Rule 34, because it created additional burdens for the requesting party that made it difficult to use the information efficiently in the litigation.    

            In the latest of several Pescoff v. Faber decisions (No. 04-526, 2008 WL 269506 (D.D.C. 2008)), Magistrate Judge John Facciola ordered the responding party to pay the cost of a forensic examination to recover electronically stored information.  Judge Facciola previously addressed the sufficiency of a search done by the responding party for emails and other electronically stored information in response to discovery requests, determining that it was appropriate to ascertain the costs of forensic testing of the computers and server at issue to see if a forensic search was justified.  After the discovery was deemed appropriate, bids were obtained reflecting the costs of the forensic search.  However, the parties could not agree who would absorb the costs, so the Magistrate judge stepped in to resolve which party would be responsible for the costs of the forensic examination of the computer.

            Where the party requesting discovery seeks electronically stored information, the court will consider shifting the cost of production from the responding party to the requesting party when inaccessible data is sought in an effort to protect the responding party from potentially undue burden or expense.  In making a determination in this case, the Magistrate judge began by reasoning that the need for the forensic examination could be directly attributed to the actions of the responding party in failing to preserve the electronically stored information that was relevant to the dispute.  The responding party made inadequate efforts to search for the electronically stored information and failed to deactivate network maintenance tools that automatically deleted electronically stored information, which resulted in the need for the forensic examination to recover the information asked for in discovery.  As a result, Judge Facciola concluded that the responding party should pay the costs of the forensic examination, because it was the responding party's behavior that made the expensive discovery effort necessary. 

On Wednesday, a three-judge panel of the Ninth Circuit Court of Appeals held that a police officer had a reasonable expectation of privacy in the contents of his text messages (See Quon v. Arch Wireless Operating Co., CV-03-00199, 9th Cir. June 18, 2008). Police officer Jeff Quon filed the action against his employer, City of Ontario, and its pager service provider, Arch Wireless, alleging a violation of his right to privacy and the Stored Communications Act.  The allegations arose from the City's request to Arch Wireless for the text-message records related to officers who exceeded the department's monthly text allotment of 25,000 characters per user.  The City's review of Quon's text messages revealed private and sexually-explicit conversations in violation of departmental policy.

While generally an employee cannot reasonably argue that they have an expectation of privacy where the employer has established a reasonable regulation or policy discouraging employees from storing personal data on their work computers, in this case, the officer's supervisor repeatedly assured him that his text messages would not be reviewed so long as he paid for any overages.  Thus, the employer's policy was not the "operational reality" at the police department.

The Court further held that the fact a third-party service provider could access the contents of the messages for its own purpose did not diminish the officer's privacy rights without some type of formal notice.  According to the Court, this was especially true given the fact that a user would not expect a service provider to monitor their text messages or turn them over to the user's employer without the user's consent.  Once the Court determined that the officer had a reasonable expectation of privacy, the Court found that the police department's search (i.e. obtaining and reviewing the officer's text messages) was unreasonable given the availability of less reasonable alternatives.  The Court further found that Arch Wireless violated the Stored Communications Act which prohibits providers of communications services from divulging private communications to certain entities and/or individuals.

In, Carter Bryant v. Mattel Inc, (Case No. 2:04CV9049 C.D. Cal.), the court has decided that the jury will hear testimony that the Defendant Carter Bryant used a software program entitled, "Evidence Eliminator."   Bryant and his former employer, MGA Entertainment, are accused of infringing Mattel's copyright in its highly successful Barbie doll line.  Bryant is the creator of the popular Bratz dolls.  Mattel alleges that the concept for the doll came while Bryant worked for Mattel in 2000.  Bryant settled with Mattel, but MGA is contesting the allegations during an ongoing federal jury trial in Riverside, California.

Earlier this week, the judge ruled that the jury could hear evidence regarding Bryant's use of "Evidence Eliminator." Mattel alleges that Bryant used the software program to destroy potentially relevant computer files. Bryant apparently loaded the program on his computer prior to turning it over to Mattel investigators.

In Victor Stanley Inc. v. Creative Pipe, Inc., MJG-06-2662 (D. Md. May 29, 2008), the court ruled that defendants had waived the attorney-client privilege to 165 electronically stored documents inadvertently produced by defendants.  Defendants took a two tiered approach to reviewing potentially privileged documents. First, defendants used seventy (70) keyword-search terms to conduct a privilege review of electronically stored information.  However, a great majority of the documents (33 of 38 gigabytes) were not in a text-searchable format and, according to defendants, were not searchable by keyword. Second, defendants conducted a limited manual search on the remaining electronic files.

The court, after balancing certain factors to determine whether defendants' inadvertent production waived the privilege, held that the defendants did not take adequate precautions to protect the information from disclosure.  The court held that the defendants have failed to demonstrate that the keyword search they performed on the text-searchable ESI was reasonable.  Defendants neither identified the keywords selected nor the qualifications of the person who selected them to design a proper search; they failed to demonstrate that they conducted quality-assurance testing; and when their production was challenged by the plaintiff, they failed to carry their burden of explaining what they had done and why it was sufficient.

Nor did the court entertain defendants' complaint about the volume of ESI, "defendants were aware of the danger of inadvertent production of privileged/protected information and initially sought the protections of a non-waiver agreement . . . had they not voluntary abandoned their request for a court-approved non-waiver agreement, they would have been protected from waiver."  Defendants had sought a clawback agreement to protect the attorney-client privilege in the event of an inadvertent production, but later abandoned their efforts after the court gave them more time to review the documents.

In U.S. v. Graham, 2008 WL 2098044 (S.D.Ohio May 16, 2008), the Court granted defendants' motion to dismiss a criminal indictment on the grounds that their rights under the Speedy Trial Act were violated due to the prosecutor's delay in producing electronic discovery.  The court noted that the case was particularly complex due to an "unprecedented volume of discovery turned over by the government - approximately 1.5 million documents, 300 videotapes, 500 recorded conversations, 90 hard drives of computers, and 3,000 diskettes."

The Court held that in a matter of this complexity and magnitude, the government could not remain inert in the face of large volumes of unsorted discovery materials.  Nor could the government be permitted to refuse to share databases and search engines with defense counsel.  "The taxpayers should not be required to fund two separate means for managing and searching electronically recordable data - one for the government and one for the defense." The court also noted that the government should have produced electronic information in a virus-free, non-corrupt format.

Ryley Carlock and Applewhite's Document Control Group is the newest member of the Electronic Discovery Reference Model Project.  EDRM was created to develop resources and best practices for e-discovery consumers and providers.  The group, formed in 2005, created an EDRM working model which outlines the essential processes and key steps involved in e-discovery.  EDRM is currently working on a standard platform to help e-discovery consumers and providers reduce the costs associated with electronic discovery.

"It is certainly a pleasure to welcome Ryley Carlock and Applewhite to EDRM,  We will particularly benefit from the participation of RCA's Document Control Group and their expertise in the area of electronic discovery," said George Socha, Director of the EDRM Project. In joining EDRM, the RCA joins 125 other organizations committed to more efficient and cost effective e-discovery. processes.