e-Discovery Fishing Expeditions and the Mick Jagger Discovery Doctrine



by David Horrigan on November 17, 2016

Law Firm , Legal & Industry Education , Legal Update

Definition of Discovery:

The pre-trial devices that can be used by one party to obtain facts and information about the case from another party in order to assist the party’s preparation for trial.

See also: Deposition; Fishing trip or expedition

—Black’s Law Dictionary (6th Ed.)

Although the editors of Black’s Law Dictionary have been more diplomatic in subsequent versions by deleting the reference to discovery being a fishing expedition, lawyers and their responding party clients have complained for years that many e-discovery requests amount to just that.

As we approach the first anniversary of the effective date of the 2015 e-discovery amendments to the Federal Rules of Civil Procedure, the concept of keeping e-discovery proportional to the case in question has gained greater acceptance, and a decision last week in Coast to Coast Eng'g Servs. v. Roop, No. 2-16-cv-00054-DBH (D. Maine Nov. 8, 2016) illustrates that proportionality applies to computer forensic examinations.

One could call the rule here the Mick Jagger Discovery Doctrine. You can’t always get what you want.

A Bad Breakup

Robert Roop was the chief operating officer and a board member of Coast to Coast Engineering Services. After his tenure at Coast to Coast ended, Roop served as president at Lockatong Engineering Inc., a company he founded in 2001.

Things between Roop and his former company went downhill from there.

Believing Roop had flown the coop with company information, Coast to Coast sued Roop seeking injunctive relief and damages.

Because Coast to Coast didn’t believe Roop when he said he had deleted any Coast to Coast data he had, Coast to Coast sought a court-ordered forensic examination of the computer systems of both Roop and Lockatong. Roop objected.

Forensic Files

Coast to Coast argued that applicable case law gave courts the right to order forensic examination of a litigant’s computers when there are discrepancies in discovery responses or when there is a direct connection between a litigant’s computers and the claims in the litigation.

Coast to Coast noted also that there was already a protective order in place, which the firm believed should negate any confidentiality concerns.

Although the company did argue that there was a direct connection between the computers of Roop and Lockatong to the issues in the case, Coast to Coast based most of its argument for the forensic examination on alleged discrepancies in Roop’s discovery responses. Among these supposedly fishy moments in e-discovery were:

  • Roop said all Coast to Coast data was on an old email system and that when Lockatong installed a new server and email system in January 2015, the files were destroyed when he crushed the old server.
  • In his deposition, Roop said he destroyed the Coast to Coast files in the fall of 2014.
  • Roop testified that when Lockatong data was transferred to Rackspace Hosting, beginning in 2015, no emails were transferred and that no Lockatong employee could access the old email. However, his IT person contradicted him, testifying that emails from the old Microsoft Exchange server were transferred and that employees could access them.
  • The Lockatong IT witness further complicated matters for Roop when he testified that not only that there was a “likelihood” that Coast to Coast data remained on Lockatong’s and Roop’s computers, but also on Roop’s tablet and in his Dropbox account.

Would these alleged discrepancies be enough to get Coast to Coast the forensic examinations it wanted?

You Can’t Always Get What You Want

Roop argued, among other things, that conducting forensic computer examinations was not proportional e-discovery and that such extensive discovery was “wholly inconsistent” with the parties’ earlier agreement to limit discovery activities and expenses.

Coast to Coast rejected Roop’s proportionality argument, countering that the concept of proportionality actually supported the forensic examination because:

  • It had no access to the information it sought.
  • Roop hadn’t provided coherent responses in discovery.
  • The discovery was crucial to its case.
  • Roop had not asserted the forensic examination would create any undue burden.
  • Roop refused to execute an affidavit, stating that he no longer had any Coast to Coast data.

In rejecting Coast to Coast’s request for the forensic examinations, US Magistrate Judge John Rich III cited Williams v. Massachusetts Mut. Life Ins. Co., 226 F.R.D. 144 (D. Mass. 2005) for the proposition that forensic examinations should not be granted for the purpose of confirming “highly speculative conjecture” that responsive materials would be found on the computers in question.

Judge Rich noted also that, although inconsistencies or improprieties in discovery responses may justify forensic examination of related computers, there must be a “history of incomplete and inconsistent responses to discovery requests,” citing Jacobson v. Starbucks Coffee Co., No. 05-1338-JTM (D. Kan. Oct. 31, 2006).

In Roop, the court held a forensic examination of the computers was not warranted. Although Judge Rich conceded that he was concerned about Roop’s refusal to execute the affidavit stating that he no longer possessed Coast to Coast’s data, he noted that Roop was under oath during his deposition.

The judge downplayed the discrepancies in Roop’s testimony, noting that Roop’s amending answers with an errata sheet did not constitute discrepancies serious enough to warrant forensics examinations. After all, they have errata sheets for a reason.

“The plaintiff’s submissions fall short of meeting the legal standards necessary for the intrusive relief it seeks,” the court wrote.

Why Roop Matters

Not unlike with Tom Brady’s mobile phone in Deflategate, we have another case with a litigant crushing computer hardware to death. Unlike the NFL quarterback, Robert Roop has—at least for the moment—come out of it unscathed. The story of Roop is one of proportionality in a new era of e-discovery.

It’s worth noting that the court cited case law only from before the 2015 e-discovery amendments to the Federal Rules of Civil Procedure. That’s probably not much of an issue because—although some have questioned whether the new Fed. R. Civ. P. 26(b)(1) will have much of an effect—we don’t know of anyone arguing the new Rule 26(b)(1) calls for less proportionality.

Interestingly enough, although the court’s decision in Roop never mentioned the 2015 amendments or Rule 26(b)(1), Coast to Coast did employ the new six-pronged test for proportionality in Rule 26(b)(1) to make the argument that its request for forensic examination of the computers was proportional to the needs of the case.

The court didn’t buy it.

Does Roop mean you can’t get a forensic examination of an opposing party’s computer? Certainly not. However, what is does mean is that just because an e-discovery technique is available from your tech team doesn’t mean the law will let you use it.

Whether you call it the Mick Jagger Discovery Doctrine or the Roop Rule, the lesson is the same. You can’t always get what you want.

David Horrigan is kCura’s e-discovery counsel and legal content director. An attorney, law school guest lecturer, e-discovery industry analyst, and award-winning journalist, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research.

 

 

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