By Brett Van Benthysen
Employee/Employer Implicated: Owner, experts
eLessons Learned: Request for data must be narrowly tailored. Court can devise a plan to have third party collect data and have Court review data before it is turned over to adversary. Court can use equitable principles to start discovery process even before mandatory conference as prescribed by the Federal Rules of Civil Procedure 26(f).
In an action for copyright infringement and unfair competition, under both Federal and State law, Antioch claimed that Scrapbook was selling copyrighted products. Antioch claimed that without permission, Scrapbook sold decorative sticker designs owned by a division of Antioch called Creative Marketing.
Antioch asked the Court to start discovery early because it believed that Scrapbook was destroying incriminating documents. Before the Court reached the Plaintiff’s motions, it denied the Defendant’s motion to stop the litigation because of the Soldiers’ and Sailors’ Civil Relief Act of 1940. The Court found that although one of the defendant’s was in active service, he was deployed in the United States, and served only 2 out of every 4 weeks.
The Court then addressed the electronic discovery demands. Antioch first asked the Court to order Scrapbook to preserve all documents relevant to the action. Antioch was concerned that Scrapbook might go out of business and lose or destroy relevant information in the process. Also, on an occasion where the Antioch lawyer visited Scrapbook, she was concerned that the file for one of Scrapbook’s largest customers was only 2 or 3 pages thick, while other files were much larger.
Interestingly, the owners of the Defendant Scrapbook Inc. appeared pro se, which the Court noted wasn’t entirely acceptable since a corporation must be represented by council. Antioch claimed that because of this decision, the Court should grant the order because the Defendants may not “appreciate the nature of the discovery process.” In other words, Antioch believed the Defendant’s were going to try and destroy every ounce of evidence. The Court granted the motion.
Next, Antioch asked the Court to allow discovery to begin, even though the parties did not previously confer as the Federal Rules of Civil Procedure suggest. The Court stated that although the Defendant’s did not even have time to respond to Antioch’s allegation, discovery was proper because there was a risk that evidence would be lost.
Finally, Antioch proposed a formal discovery schedule and asked that a neutral expert be used for electronic discovery data recovery. The Court agreed that an expert should be used, especially since Antioch proved that Scrapbook used e-mail as a form of business communication.
Then the Court outlined a fabulous proposal to recover and discover the information from the Defendant’s. The Court concluded that Scrapbook may have information on its computers that through normal use could be lost or deleted. Since Rule 34 of the Federal Rules of Civil Procedure applies to electronic data, the documents are included in discovery so long as they are obtainable. Since deleted emails can be recovered, this information was discoverable.
Finally, the Court outlined the discovery schedule. Antioch was to select an expert in the field of computer forensics, and Scrapbook had to allow the expert to examine the computer equipment. The Court made it clear that only the expert and his employees could handle Scrapbook’s computer equipment during the process.
The expert had 10 days to copy the information and provide a report to both parties and the Court as to what was discovered. The report had to be very detailed and organized so that each party knew exactly where each piece of information was produced from. Scrapbook was allowed to view the information first, and remove any documents it believed were privileged. A “privilege log” would then be given to the Court for review.
The detailed process set up by the Court was an exemplary way to deal with the electronic discovery issues.
Brett is a third year student at Seton Hall University School of Law.
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February 8th, 2009 at 10:10 pm
Interesting. I wonder if the Court would have been so quick to allow the use of a third party expert if Scrapbook had been represented by an attorney. Here, it seems clear that there existed a real possibility that files could be destroyed simply due to the fact that Scrapbook may not have known any better.
February 18th, 2009 at 8:08 am
I wonder whether the court offered Scrapbook a meaningful opportunity to obtain counsel before it entered its e-discovery order. Obviously, the court did its best to draft an impartial plan, but the plan may have looked much better to Scrapbook if they had had an attorney present to preserve their interests in the process.