By Courtney C. Ray
United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008)
Employee Implicated: Visa Unit Chief at the United States Consulate General
eLesson Learned: Failure to provide a method of production means requesting parties receive the documents in their reasonably used state, regardless of their ability to search and the lack of metadata. Furthermore, inadequate search terms will not be disciplined without proof that a broader basis of terms would have resulted in more hits.
The Magistrate Judge in this case overall did not punish Petrovich’s conduct. However, although her conduct was not punished the Magistrate did leave open the opportunity for the defense to modify its arguments and submit an amended motion to better support their claims. Therefore, the lack of punishment was as a result to the failure by the defendants rather than the appropriate conduct of Petrovich. The first problem with Petrovich’s conduct was in her lack of preservation. While Petrovich received the discovery demand on April 21, 2007 the search for electronic documents did not occur until May of 2007.
The backup tapes for the United States Consulate are only kept for two weeks. Therefore, the only electronically stored information Petrovich was able to recover even with the assistance of the Information Management Staff was two weeks old. While the documents are destroyed in the normal course of business every two weeks, under Rule 34 of the Federal Rules of Civil Procedure, when litigation is reasonably anticipated a litigation hold should be communicated in writing by someone of authority detailing the purpose of the hold. Thus, even if Petrovich was unable to issue this hold someone of authority within the Consulate should have done so.
The next problem with Petrovich’s conduct was breadth of the scope. Although her search did include the searching of shared drives, personal drives, and hard drives for all consular officers and local staff; in total, nineteen current employees and five former employees, resulting in emails, electronic documents prepared on office software applications, Standard Operating Procedures, and Non-Immigrant Visa Schedule Calendar her search could have been more thorough in scope. The search terms used by Petrovich included “early or expedite” or “appointment or early & interview or expedite & interview.”
Obviously, from the search terms above, many, if not most of the relevant documents would be recovered. However, it is very likely that not all of the documents would be recovered from the system. Petrovich should have expanded the search terms to include terms that an employee hoping to hide information may have used. Unfortunately, the defendants failed to support their claim that the search terms used were insufficient, therefore, this claims was not fully analyzed by the court.
Another problem with Petrovich’s conduct was her removal of the documents she felt were unrelated. While this may have been innocent conduct, she should have sent all the documents over to the defendants and allowed them to remove the documents on their own. Especially since it is common for opposing parties to give their adversary more than the requested documents so that they have to search through more things to find the “smoking gun.”
Lastly, by Petrovich placing the documents on the CD-Rom in either PDF or TIFF formats she did not include the metadata in the documents given to the defendants. While under Rule 34, as stated by the Magistrate in this case, as long as the electronically stored information is provided to the requesting party in the form it is ordinarily maintained or in a form that is reasonably useable there is no violation, by not including the metadata Petrovich excluded all the background information on the documents. Therefore, while the defendants failed to request the documents in their native form, Petrovich should have provided the documents in their native form with their metadata.
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