Small v. Univ. Med. Ctr. of S. Nev.
Small v. Univ. Med. Ctr. of S. Nev.
2014 WL 3710148 (D. Nev. 2014)
March 18, 2014
Garrie, Daniel B., Special Master
Summary
The Special Master held two hearings to address the defendant's compliance with preservation duties, collection and production of ESI, and court-approved ESI protocol. The Special Master ordered the parties to provide a chain-of-custody, data-map, and Paraben software information, and to modify the court order with regards to the ESI protocol. The Special Master estimated 55 additional hours to complete the work.
Additional Decisions
DANIEL SMALL, et al., Plaintiffs,
v.
UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA Defendant
v.
UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA Defendant
No. 2:13-cv-00298-APG-PAL
United States District Court, D. Nevada
Signed
March 17, 2014
Filed March 18, 2014
Counsel
Anthony M. Carter, Jon A. Tostrud, Tostrud Law Group, P.C., Kara M. Wolke, Kevin F. Ruf, Marc L. Godino, Glancy Binkow & Goldberg LLP, Los Angeles, ca, William M. O'Mara, David C. Omara, The O'Mara Law Firm, PC, Reno, NV, for Plaintiffs.Margaret G. Foley, Robert W. Freeman, Jr., Cayla Witty, Lewis Brisbois Bisgaard & Smith, LLP, Joseph M. Ortuno, Patti Sgro Lewis & Roger, Las Vegas, NV, for Defendants.
Daniel Garrie, Seattle, WA, pro se.
Garrie, Daniel B., Special Master
SPECIAL MASTER E-DISCOVERY ORDER
*1 The Special Master attended a conference in chambers with counsel regarding ESI matters commencing at 10:27 a.m on the 10th day of March, 2014. Present on behalf of Plaintiffs were Douglas Forrest and Bruce Pixley. Joe Edmondson, Ernie McKinley and Doug Spring were present on behalf of Defendant.
The court and the Special Master had extensive discussions with counsel, the parties representatives, and consultants regarding UMC's ESI collection and production issues, as well as UMC's efforts to preserve discoverable materials pursuant to the Plaintiffs' litigation hold/preservation letters. The court conveyed serious concerns about UMC's compliance with its preservation duties, the manner in which it collected and produced discoverable ESI and its compliance with the court approved ESI protocol. Following this informal hearing the court issued an order on the 14th day of March, 2014 that further defined the scope and duties of the Special Master. See Order (Dkt # 152) (defining scope and duties of Special Master).
HEARING DATES
The Special Master offers the following dates for the next two hearings: March 28th, March 31st, April 4th, or April 7th. The Special Master requests that the parties select from the above three dates that will work by end of day March 19, 2014, and send this information to the Special Master. If this is not possible, then the Special Master will order the parties to be available for a telephonic hearing on Tuesday, March, 20, 2014 at 10:30am PT for 30 minutes to resolve scheduling issues.
All hearings will be held at the Las Vegas court house with a court reporter present unless the parties agree a court reporter is not necessary. The Special Master will coordinate with the court to confirm space is available.
All hearings will start at 9:00am PT. For the first and second hearing the Special Master expects the hearings to be at least six hours. The Special master orders the parties to be PREPARED and their ESI EXPERTS TO BE AVAILABLE either by phone or in-person.
The Special Master orders the parties to provide all materials to be discussed at the hearing 24–hours prior to the hearing.
FIRST HEARING
In the first hearing, the Special Master intends to cover several issues, including the following:
• Verify that UMC on-going preservation efforts are in compliance with the litigation hold/preservation letters sent by Plaintiffs' counsel.
• Detailed review of the ESI collected by UMC to date that is in Joseph Edmondson's possession.
• Results of UMC efforts to resolve the errors with the initial data collected.
I. VERIFY UMC ON–GOING PRESERVATION EFFORTS ARE IN COMPLIANCE WITH THE LITIGATION HOLD/PRESERVATION LETTERS SENT BY PLAINTIFFS' COUNSEL.
The Special Master seeks to verify that UMC is properly preserving potential ESI relevant to the parties' claims and defense in this matter and is in full compliance with the litigation hold/preservation letter sent by Plaintiffs' counsel on a going forward basis.
*2 The Special Master orders the parties to provide the following information at the date set-forth below where no date and time is specified the parties are to provide the information 24 hours prior to the first hearing.
1. UMC Policies: UMC is to provide data-backup and disaster recovery policies and the details of software and hardware used in this effort currently and for the time period in question. UMC is to also identify the IT individual responsible for these systems and make said individual available for the first hearing. If this individual is not available for the first hearing, the Special Master requires a declaration from this individual that details the software, hardware, policies, and practices for data-back and disaster recovery today and for the time period governing this dispute.
2. Custodian Interviews: UMC is to provide to the Special Master for in-camera review the custodian interviews of the five initial custodians on or before the end-of-business on the 22nd day of March, 2014. If this information was not collected by UMC or Counsel, the Special Master orders UMC to collect this information, using the custodian interview template attached to this order, and provide the results to the Special Master 48 hours prior to the first hearing. See Exh. A (“Custodian Interview Forms).
3. On-going Preservation Efforts: UMC is provide a data-map of the ESI involved in this litigation for in-camera review on or before the 23rd day of March, 2014. If no data-map exists, then the Special Master orders UMC to explain why no ESI data-map exists and how Counsel for UMC educated themselves about UMC's information and record keeping systems. At the first hearing, UMC should be prepared to discuss the steps UMC took to preserve each ESI repository identified in the custodian interviews. In addition, UMC should be prepared to discuss what technical problems it encountered in preserving this data and to the extent that data that should have been acquired, was not.
4. UMC Initial Collection: UMC will bring to the first hearing an IT individual that can access UMC systems and demonstrate to the Special Master that the ESI is being preserved-including mobile devices. See JOINT STATUS REPORT (Dkt # 128) (discussing statements by Defendant as to the initial work performed by UMC's ESI contractor and the oral statements made by the UMC CIO that an internal UMC employee performed the collection at the hearing on the 10th day of March, 2014. If no such individual is available or UMC systems do not allow for remote verification, UMC is to notify the Special Master in writing on or before the 23rd day of March, 2014. The Special Master orders UMC to be able to discuss a viable alternative mechanism that achieves the same result at the first hearing.
The intent of the work set-forth above is to verify for the court that UMC is properly preserving potential ESI relevant to the parties' claims and defense in this matter and is in full compliance with the litigation hold/preservation letter sent by Plaintiffs' counsel on a going forward basis. In addition, the Special Master will use this information in making a determination as to the completeness of UMC initial collection, preservation, and production.
II. DETAILED REVIEW OF THE ESI COLLECTED BY UMC TO DATE THAT IS IN UMC AND JOSEPH EDMONDSON'S POSSESSION.
*3 The Special Master seeks to determine the completeness of UMC initial collection, preservation, and production. The Special Master orders the parties to provide the following information identified below.
1. Chain–of–Custody for Evidence in Joseph Edmonson and UMC Custody: The Special Master orders UMC to provide in-camera to the Special Master completed Chain–of–Custody for all evidence collected 24–hours prior to the first hearing. See Exh. B (Law & Forensics chain-of-custody forms part 1 and part 2).
2. UMC Collection Efforts: The Special Master orders UMC to identify the individual(s) who performed the identification of responsive data and the individual(s) who performed the collection and make those individual(s) available in-person or over the phone for the first hearing to answer questions, including:
• What criteria was used to identify and distinguish between responsive data and non-responsive data?
• What audits were performed to confirm that the identification of responsive data was complete?
• How much total time was spent identifying responsive data?
• Was there any data that was initially identified as responsive that was not accessible for collection?
• What is the possibility that data that was identified as responsive was not collected?
• Where there any unexpected logistical issues that prevented the identification of responsive data from within UMC's technological infrastructure?
• Who they received the request to perform the collection?
• Whom did they collect data from?
• What systems/software they collected data from?
• How did they collect the data (e.g., software and configuration of software)?
• When did they perform the collection?
• When did they receive notice to perform the collection?
• Where there any technical collection failures that occurred.
• Were hash digests generated for the evidence items collected? Has anyone verified that these hash values are capable of attesting to the integrity of the data collected?
If the individual(s) is not available to testify at the first hearing, the Special Master orders UMC to submit a declaration prior to the first hearing that answers the aforesaid questions, as well as, the additional following information:
• Individuals experience in performing collections.
• Any written records relating to the date the individual received notice to perform collection.
• The software and version used to perform collection.
• The protocol used to perform the collection.
• The steps taken to preserve the evidence collected including Blackberry personal device(s) and Blackberry server(s).
• Discussion of any issues that may have arose in performing the collection and the steps taken to correct these issues.
The Special Master will use this information to verify that UMC did properly collect, preserve, and search the ESI relevant to the parties' claims and defense in this matter and that UMC prior efforts were in full compliance with the litigation hold/preservation letter sent by Plaintiffs' counsel. The Special Master will also use the information to determine the completeness of UMC initial collection, preservation, and production.
III. Results of UMC efforts to resolve the errors with the initial data collected.
*4 The Special Master orders the parties to provide the following information in writing to 24–hours prior to the first hearing.
1. Paraben Software: UMC is to clarify whether the Paraben version used is compatible with the e-mail boxes that were provided based on published release notes or user manuals. No more than a single page.
2. Mailboxes Collected: Provide a file list of the e-mail archives collected and provided for each custodian to the Special Master for in-camera review. The information should be provided to the Special Master as an Excel file. If UMC not available to possible the information in Excel format, the Special Master orders UMC to provide it in whatever format and a written explanation why they were not able to provide as Excel spreadsheet. No more than a single page. The list is to include technical details that address the size and quantity of each archive, its respective IT owner, the name of the e-mail administrator responsible for this archive, and the details of where the back-ups for each respective archive currently reside.
3. Scan/Repair: The ESI Expert for UMC is to provide a written statement to the Special Master that details the process and results of the scan/repair effort discussed in the initial hearing on the mailboxes identified by Plaintiffs' in the declarations discussed at the initial hearing. See Pixley Declaration (Dkt # 145).
4. Alternative Software E-mail Box Processing Recommendations: ESI experts from both sides may submit recommendations as to alternative software to process the UMC e-mail collected. Recommendations are to be limited to two pages and to include where possible pricing and point of contacts for any software recommend. Both sides ESI experts should be prepared to discuss any recommendations they provide at the first hearing.
The intent of the work set-forth above is to resolve the ESI production issues set-forth in the Joint Status Report (Dkt # 148) and to determine the completeness of UMC initial collection, preservation, and production.
The Special Master intends to start a rolling production from UMC to Plaintiffs' if possible with specific dates at the end of the first hearing.
TV. MODIFY THE COURT ORDER WITH REGARDS TO THE STIPULATED ELECTRONICALLY STORED INFORMATION PROTOCOL TO REFLECT THE NEW META–DATA FIELDS.
The Special Master orders the parties to confer and amend the stipulated Electronically Stored Information Protocol on March 18, 2013 (Stipulation Dkt # 77), so that it reflects the new meta-data fields agreed upon for the third production that were mentioned during the informal hearing held on the 10th of March, 2014 and provided in e-mail to the Special Master by UMC Counsel.
The Special Master orders the parties to complete this 24–hours prior to the first hearing and file it with the court.
SECOND HEARING
Second hearing, will be used to address any issues not covered in the first hearing.
TIME ESTIMATE
*5 The Special Master at this time is unable to provide a precise estimate as to the amount of time required to perform the work set-forth above until all materials have been provided. However, based on the initial hearing and the materials provided to date the Special Master offers a best-guess that he will require a minimum of 55 additional hours to complete the work set-forth above with respect to the two hearings plus any administrative costs.
SO ORDERED:
