United Disaster Response, LLC v. Omni Pinnacle, LLC
United Disaster Response, LLC v. Omni Pinnacle, LLC
2008 WL 11353712 (E.D. La. 2008)
November 24, 2008
Shushan, Sally, United States Magistrate Judge
Summary
The court denied St. Tammany's motion for entry of an order governing discovery of ESI. The court ordered the parties to agree on the terms of a protective order and that all discoverable ESI be produced in native format. The court also ordered that the producing parties bear all costs for the production of accessible documents and that the parties confer and attempt to reach agreement on what information is to be included in a privilege log.
UNITED DISASTER RESPONSE, L.L.C.
v.
OMNI PINNACLE, L.L.C., et al
v.
OMNI PINNACLE, L.L.C., et al
Civil Action No: 06–6075–ILRL–SS
United States District Court, E.D. Louisiana
Signed November 24, 2008
Counsel
David Joseph Krebs, Marc Lee Domres, Richard E. Baudouin, Krebs, Farley & Pelleteri, LLC, Maurice Edward Bostick, W. Christopher Beary, Orrill, Cordell & Beary, LLC, New Orleans, LA, for United Disaster Response, L.L.C.Leigh Ann Tschirn Schell, Michael H. Abraham, Kuchler Polk Schell Weiner & Richeson, Maurice Edward Bostick, W. Christopher Beary, Dorothy L. Tarver, Jeffrey Lee Oakes, John L. Fontenot, Jr., Thomas Christopher Pennebaker, Orrill, Cordell & Beary, LLC, Aaron Z. Ahlquist, Law Offices of Frank J. D'Amico, Jr., Michael William Boleware, Michael W. Boleware, Attorney at Law, New Orleans, LA, Peter Joseph Butler, Peter J. Butler, LLC, Gretna, LA, Tasha W. Hebert, Hebbler & Giordano, LLC, Metairie, LA, for Omni Pinnacle, L.L.C., et al.
Shushan, Sally, United States Magistrate Judge
ORDER
*1 ST. TAMMANY PARISH'S MOTION FOR ENTRY OF ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED INFORMATION (Rec. doc. 186)
DENIED
Before the undersigned is the motion of a defendant, St. Tammany Parish, for entry of an order governing discovery of electronically stored information (“ESI”). For the reasons described below the motion is denied.
BACKGROUND
On September 18, 2006, the plaintiff, United Disaster Response, LLC (“UDR”), filed a complaint against Omni Pinnacle, LLC (“Omni”) and St. Tammany Parish (“St. Tammany”) alleging it is owed in connection with the removal of debris after Hurricane Katrina. It alleges that: (1) Omni contracted with St. Tammany for this purpose; (2) UDR subcontracted with Omni to perform the work; and (3) it is owed more than $3.2 million. Rec. doc. 1. Omni filed an answer, a counterclaim against UDR, cross-claim against St. Tammany and third party demand against Shaw Environmental and Infrastructure, Inc. (“Shaw”) seeking (1) a judgment against Omni and St. Tammany for more than $17 million; and (2) a judgment against Shaw in an amount to be determined. Rec. docs. 11 and 184. Shaw answered and filed a demand against St. Tammany for more than $9 million. Rec. doc. 38.
St. Tammany contends that: (1) it has a $30 million contract with Shaw with $20 million in dispute involving thirty-three substantive issues; (2) it has $130 million contract with Omni with $13 million in dispute involving twenty-one substantive issues; (3) there are at least twenty-two subcontractors, including UDR, with claims and liens; (4) documents were created by more than 500 monitors for Shaw and thousands of employees for Omni's subcontractors. Rec. doc. 203 at 4. Shaw responds that the documents created by its monitors are not electronic documents but rather are paper documents which were prepared in the field. Rec. doc. 208 at 4.
ST. TAMMANY'S PROPOSED ORDER
St. Tammany seeks an order for discovery of ESI with the following elements:
1. Identify computers and devices containing discoverable ESI through the use of a questionnaire developed by an e-discovery liaison, Dr. Johnette Hassell of Electronic Evidence Retrieval.
2. Circulate to all parties an inventory of the computers and devices containing discoverable ESI.
3. Designate computers and devices to be imaged and searched.
4. Turn over the computers and devices to Dr. Hassell for imaging.
5. Provide search terms to Dr. Hassell.
6. Assert objections to the search terms.
7. Image and search designated computers and devices by Dr. Hassell.
8. Provide search results to the producing party for review and possible redaction for privilege.
9. Turn over search results to the requesting party.
10. Allocate the costs of e-discovery.
11. Provide for “claw back” of inadvertently produced privileged ESI.
Rec. doc. 186 at 6 and Exhibits 1, 1A and 1B.
ARGUMENTS OF THE PARTIES
St. Tammany contends that: (1) an order governing ESI is required under Fed. R. Civ. P. 26 and 34; and (2) in the alternative, such an order is necessary for e-discovery to be conducted in an orderly and efficient manner because: (a) there are millions of electronic documents in the parties' possession which are relevant to the claims and defenses of the parties; (b) the parties' deleted e-mails and files are discoverable; (c) an order will provide certainty; and (d) Shaw refused to produce documents which, pursuant to the contract between St. Tammany and Shaw, belonged to St. Tammany. In their oppositions Shaw, Omni and UDR dispute each of St. Tammany's arguments, and they contend that the proposed order violates their rights under Rules 26 and 34.
ANALYSIS
1. Is an order governing ESI required by Rules 26 and 34?
*2 St. Tammany cites the 2006 amendments to the Rules 26 and 34 of the Federal Rules of Civil Procedure. Rule 34(a) was amended to confirm that discovery of ESI stands on equal footing with discovery of paper documents. Fed. Rule Civ. P. 34(a) Advisory Committee Notes, 2006 amendments. Pursuant to Rule 26(f)(3)(C), the parties' discovery plan must state the parties' views and proposals on any issues about disclosure or discovery of ESI, including the form or forms in which it should be produced.[1]
St. Tammany cites Hopson v. Mayor and City Council of Baltimore, et al, 232 F.R.D. 228 (D.C. M.D. 2005), and the Civil Discovery Standards for the American Bar Association Section on Litigation (“ABA Standards”), as requiring the parties to develop an order governing discovery of ESI.[2] In Hopson, the court determined that: (1) counsel had a duty to confer and plan for discovery of ESI at the commencement of any case in which electronic records will be sought; (2) the ABA Standards provided guidance to counsel; and (3) the goal is to reach an agreement that can be proposed to the court. St. Tammany concludes from Hopson that in every case involving discovery of ESI, an order must be entered by the court. If this was true, the requirement for such an order would be provided for in Rules 26 and 34. While it may be a desirable goal to present such an order where there is agreement on the procedures for ESI discovery, it does not follow that such an order is required in every case. Part 31 of the ABA Standards is concerned with the discovery conference and demonstrates that the parties should confer about electronic discovery. It suggests consideration of entry of an order for certain limited purposes, for example to provide for initial production of subsets of potentially responsive data without prejudice to the right of a party to insist on more complete production. ABA Standards Part 31(b)(i). The Sedona Principles for Electronic Document Production do not indicate that an order is required in every case involving discovery of ESI.[3] Clearly, an order governing the discovery of ESI is not required by Rules 26 and 34.
2. Does the volume of documents mandate entry of St. Tammany's proposed order?
The 2006 Advisory Committee Notes for Rule 34 demonstrate that the parties should engage in orderly, efficient and cost-effective discovery of ESI.[4] St. Tammany contends that because of the volume of discoverable ESI, this can only be done through its proposed order. Shaw, UDR and Omni dispute St. Tammany's description of the volume of discoverable ESI. The evidence presented by the parties does not permit resolution of the conflict over the volume of ESI.
Assuming arguendo that the volume of discoverable ESI is as claimed by St. Tammany, does it follow that the particular provisions sought by St. Tammany are required for the orderly, efficient and cost-effective discovery of ESI? The proposed order states that its purpose is to allow for the designation of certain computers or other devices containing ESI to be forensically imaged in order to preserve ESI on the designated devices. Rec. doc. 186—Exhibit 1 at 4. For this discussion the focus is on accessible documents.[5] The issue of inaccessible documents will be addressed in the discussion of deleted items.
*3 The central feature of the process sought by St. Tammany is the appointment of Dr. Hassell as e-discovery liaison to perform forensic imaging of the parties' devices. By means of a questionnaire prepared by Dr. Hassell, the parties are required to identify the devices likely to contain discoverable ESI. Exhibit 1 at 9. Dr. Hassell will prepare an inventory, including the primary user of the device and the nature of ESI stored on it. Id. at 10. A party may designate any device on the inventory for forensic imaging. The producing party may object to the designation of its devices. After resolution of the objections, the producing party will make the device available to Dr. Hassell to make a forensic image.[6] Then:
(Dr. Hassell) will interrogate Images electronically using a variety of electronic software tools. (She) ... will not “browse” the Images, hoping to find relevant data. Instead, (she) ... will use software tools to analyze the Images, including contextual analysis designed to identify and extract relevant data and conceptual analysis designed to interpret artifacts and reach conclusions related to the manner in which the Designated Computers or Other Devices were used.
Rec. doc. 186—Exhibit 1 at 12–13. Dr. Hassell will prepare a report on the results of the interrogation of each device which will contain the ESI identified as responsive. Certain information will be provided for e-mail and electronic files. Id. at 14. The producing party may redact the report and prepare a privilege log. Dr. Hassell will provide the requesting party with: (1) the ESI which was not redacted; (2) a redacted report; and (3) a load file with Metadata.[7] But for the resolution of disputes over the privilege log and the allocation of costs for the whole process, at this point a party's production of discoverable ESI from a particular device will be complete.
Shaw, Omni and UDR contend they can manage discoverable ESI through written discovery. They urge that, unless there is some cause, a party has no right to intrude into a party's computer system. Shaw cites Scotts Co. LLC v. Liberty Mutual Insurance Company, 2007 WL 1723509 (S.D. Ohio 2007), in which the court refused plaintiff's request that an expert be permitted to conduct a forensic search of defendant's computer systems. The court held that: “without a qualifying reason, plaintiff is no more entitled to access to defendant's electronic information storage systems than to defendant's warehouses storing paper documents.” Id. at *2. Shaw urges that the Federal Rules of Civil Procedure anticipate that the producing party is responsible for the collection, assembly, and production of the responsive, non-privileged data in its possession. In the absence of evidence that the producing party has failed to satisfy its responsibility, Shaw contends that the general rule should be applied. UDR reports that it is in agreement with Omni and Shaw that: (1) a protective order be issued concerning all ESI relevant to the case; (2) all electronic information be produced in native format; and (3) that with production of the electronic information, each party provide an affidavit that all electronic information was produced.[8] Rec. doc. 191 at 2.
*4 The ABA Standards contemplate both approaches to the discovery of ESI. No. 29(b) instructs that document requests should clearly state whether electronic data is sought and how the information should be produced. This is similar to the approach urged by UDR, Omni and Shaw. The ABA Standard for the discovery conference demonstrates that the parties should confer about the identity of unaffiliated technology consultants whom the litigants agree are capable of independently extracting, searching or otherwise exploiting responsive data. ABA Standards No. 31(a)(xii); and see also No. 31(b)(iii) and No. 32(a). This is similar to the St. Tammany approach. The only reference to cases involving large volumes of electronic information was found in No. 29(v) which provides that “the court may want to consider using an expert to aid or advise the court on technology issues.” ABA Standards No. 29(v) (emphasis added). Where there is a large volume of ESI, the ABA Standards do not mandate the use of forensic imaging by an independent expert.
The fourth, sixth and seventh Sedona principles provide that:
Discovery requests should make as clear as possible what electronic documents and data are being asked for, while responses and objections to discovery should disclose the scope and limits of what is being produced.
Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronic data and documents.
The requesting party has the burden on a motion to compel to show that the responding party's steps to preserve and produce relevant electronic data and documents were inadequate.
Sedona at 14–15. One of the features in St. Tammany's proposed order relates to the preservation and production of metadata. The twelfth Sedona principle provides that:
Unless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court.
Id. The comment to this principle provides:
[T]here should be a modest legal presumption in most cases that the producing party need not take special efforts to preserve or produce metadata. It likely to remain the exceptional situation in which metadata must be produced.
Sedona at 97. The Sedona Principles do not mandate the use of forensic imaging by an independent expert where there is a large volume of discoverable ESI.
Assuming arguendo that St. Tammany is correct about the volume of ESI, that fact does not compel the appointment of Dr. Hassell as e-discovery liaison to: (1) perform forensic imaging of a party's devices; (2) search those images for discoverable ESI; and (3) produce discoverable ESI with detailed reports, including metadata.
3. Inaccessible documents.[9]
St. Tammany acknowledges that deleted e-mails and files fall under the definition of inaccessible items. Rec. doc. 203 at 5. It contends that Shaw's resistance to the production of deleted items demonstrates the need for its proposed e-discovery order. The ninth Sedona principle provides that:
Absent a showing of special need and relevance a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual data or documents.
Sedona at 14–15. The comment for this principle demonstrates that such files should not be considered “documents” because they are not readily available to a computer user in the ordinary course of business. Sedona at 79. While such data may be discoverable, the evaluation of the need for and relevance of such discovery should be separately analyzed on a case-by-case basis. Id. St. Tammany has not demonstrated a special need or relevance for the discovery of inaccessible documents.
*5 Part of the consideration for the discovery of inaccessible ESI is cost. Fed. R. Civ. P. 26(b)(2)(B). St. Tammany argues that, because its proposed order requires that the requesting party bear the cost of a search for deleted items, all ESI, including deleted items, become accessible. There are two problems with this. First, under the proposed order at least some of the cost of the e-disc liaison is shared equally. Second, if the producing party requests that work be done on site, than the cost is shifted to it. St. Tammany's argument that the requesting party will bear the cost of any search for a deleted e-mail or file is illusory.
4. Certainty.
St. Tammany urges that: (1) the parties need to be certain that all computers and devices are identified and all ESI on these devices is located and/or retrieved; and (2) because of Dr. Hassell's expertise, the parties will be assured that all ESI pertinent to the litigation will be identified and all discoverable ESI will be produced. Rec. doc. 186 at 7. In this regard, Shaw argues that it is reasonable to limit the search to relevant mailboxes and other folders of those employees who have relevant discoverable information and determine whether the documents are relevant and non-privileged. Rec. doc. 193 at 13. The comment to the fourth Sedona principle states:
It is neither reasonable, feasible, nor required under Rule 34 to produce every file or message that might potentially be relevant to every issue in the litigation. It should be reasonable, for example, to limit searches for messages to the e-mail accounts of key witnesses in the litigation, for the same reasons that it has been regarded as reasonable to limit searches for paper documents to the paper files of key individuals. Likewise it should be appropriate, absent unusual circumstances, to limit review for production to those sources most likely to contain unique, relevant data and information (such as active files or removable media used by key employees). The better practice is to specify such limitations in the response so that any disputes can be addressed and resolved early.
Sedona at 40; and see Id. at 67. This is consistent with Shaw's approach.
5. Shaw's production of contract documents.
St. Tammany contends that its contract with Shaw requires that Shaw produce documents that, by the terms of the contract, belong to St. Tammany. It alleges that Shaw refused to produce these documents.[10]Shaw disputes this contention. It alleges that: (a) it routinely provided St. Tammany with documentation; (b) it made its warehouse of project documents available; and (c) it responded with requests for additional documents in February and March of 2008. This dispute over Shaw's compliance with its alleged contractual obligations cannot be resolved in this motion to compel.
6. Conclusion.
The circumstances cited by St. Tammany do not compel entry of its proposed order. The approach agreed upon by Omni, UDR and Shaw is acceptable with modifications.
a. Protective Order.
Within ten (10) working days of the entry of this order, the parties shall agree on the terms of a protective order. It shall include a “claw back” agreement that sets forth procedures for recalling inadvertently produced privileged information without waiver as to the inadvertently produced information or waiver of privilege with respect to related subject matter.
*6 If they are unable to agree, then by the same date they shall submit separate protective orders with brief statements describing the reasons for disagreement. The undersigned will sign the order which most nearly meets the needs of this case.
b. Production in native format.
All discoverable ESI shall be produced in native format.
c. Deadline for objection to request for production.
The deadline for objections to any request for production shall be ten (10) working days from the service of the request.
d. Affidavit of production.
The affidavit of production shall provide a summary of what the producing party did to search for discoverable ESI, including: (i) description of the sources searched; (ii) identification of all employees whose files or mail boxes were searched; (iii) all search terms employed in the searches; and (iv) identification of the persons primarily responsible for responding to the request.
e. Privilege log.
Within ten (10) working days of the entry of this order, the parties shall confer and attempt to reach agreement on what information is to be included in a privilege log for any items withheld from production. If they are not able to reach agreement, then within twelve (12) working days of the entry of this order, Shaw shall file a motion for entry of an order defining what information is to be included on the privilege log. It shall request expedited consideration.
f. Cost of production of accessible electronic documents.
The producing parties shall bear all costs for the production of accessible documents, with the right to seek those costs as taxable costs following trial of this matter.
g. Inaccessible electronic documents.
The parties have not demonstrated a special need and relevance for inaccessible documents. If a party makes such a demonstration, the issue of the cost of production of inaccessible documents will be considered at that time.
IT IS ORDERED that: (1) St. Tammany's motion to compel (Rec. doc. 186) is DENIED; and (2) the parties shall proceed as provided in this order.[11]
Footnotes
The parties have demonstrated compliance with this provision. Unfortunately, they were not able to reach agreement. St. Tammany' motion is an acceptable way to resolve the parties' disagreement.
St. Tammany provided excerpts of the ABA Standards as Exhibit 3 to Rec. doc. 186.
The Sedona Principles, Best Practices Recommendations & Principles for Addressing Electronic Document Production, 2004 Annotated Version (hereafter “Sedona at ____”).
With respect to the form of production: “[s]pecification of the desired form or forms may facilitate orderly, efficient, and cost-effective discovery of electronically stored information.” Fed. Rule Civ. P. 34(a) Advisory Committee's Notes, 2006 amendments.
See Fed. R. Civ. P. 26(b)(2(B); and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), where the court stated:
Information deemed “accessible” is stored in a readily usable format. Although the time it takes to actually access the data ranges from milliseconds to days, the data does not need to be restored or otherwise manipulated to be usable. “Inaccessible” data, on the other hand, is not readily usable. Backup tapes must be restored using a process similar to that previously described, fragmented data must be de-fragmented, and erased data must be reconstructed, all before the data is usable. That makes such data inaccessible.
Id. at 320.
The proposed order defines a “valid forensic image” as an exact, bit-by-bit copy of the original as indicated by matching MD5 hash values. Exhibit 1 at 4. The proposed order includes a protocol for imaging. Rec. doc. 186—Exhibit 1A. It provides for several alternatives for imaging: (1) removal of a hard drive from its computer, making a mirror image of the hard drive on Dr. Hassell's hard drive, and reinstallation of the hard driver; (2) acquisition of a bit-by-bit image of a server; and (3) remote analysis where all forensic work takes place at the offices of a party or its attorneys' offices. Id.
Metadata refers to an electronic document's hidden text, formatting codes, and formulae, which tells the computer how to display the document. Other metadata may include the title of the document, the user identification of the computer that created it, the assigned data owner, and other document profile information. Sedona at 97.
UDR reports that St. Tammany agrees that information will be produced in native format. Rec. doc. 191 at 2.
UDR filed this action on September 8, 2006. The issue of a “litigation hold” was not raised by the parties. The proposed order states that, “[p]arties must use a reasonable approach to preserve existing documents pending the completion of the inventory, designation and forensic imaging process pursuant to this Order.” Rec. doc. 186 (Exhibit 1 at 5). Presumably as of the date suit was filed, or prior, the parties took reasonable steps to preserve relevant documents.
St. Tammany cites Exhibits 7A–L to its reply memorandum (Rec. doc. 203) which are letters exchanged between counsel from December 11, 2006 through January 17, 2008. St. Tammany did not seek these documents by means of a formal request for production pursuant to Fed. R. Civ. P. 34.
In the usual case the undersigned has no objection to the submission of a motion to reconsider a discovery order. Here, however, the parties submitted a total of six memoranda on the issue. The issues raised by the parties were carefully considered. There is a deadline for the completion of discovery. If any party objects to this order, it should seek review with the District Judge.