John Isaza, Esq.
Howett Isaza Law Group LLP
GLA Immediate Past President
This column is intended to give our readers highlights of recent legislation and case law that affect RIM professionals in our region. Following are summaries of developments reported from January 2009 to Mid-March 2009.
For more details on the reported opinions, you may search the case cites provided. Note that some of the content for the below excerpts come from various issues of BNA’s Electronic Evidence Updates, as edited by Carol Eoannou, Esq.
Court Allows Discovery of Plaintiff's Facebook Postings, Despite Privacy Settings
In Leduc v. Roman (Ontario Super. Ct., No. 06-CV-3054666PD3, discovery ruling 2/20/09.), the Ontario Superior Court of Justice ordered the plaintiff in a negligence lawsuit to respond to the defendant's discovery questions related to his Facebook page, regardless of the fact that he had used privacy settings to limit public access to the page. The Court found that content posted on Internet-based social networking sites such as Facebook and MySpace is “data and information in electronic form” that represents “documents” under the Rules of Civil Procedure. If a party to a lawsuit posts content on Facebook that relates to any matter at issue in the lawsuit, the party must identify that content in its affidavit listing relevant documents, the court ruled.
Monetary Spoliation Sanctions Issued on Both Sides of Case Involving Source Codes
In Keithley v. Homestore.com Inc. (N.D. Cal., No. 3:03-cv-04447, 12/15/09), the U.S. District Court for the Northern District of California imposed sanctions on both the plaintiff and defendant in two separate rulings for misconduct by the parties during discovery. The litigation between the plaintiff, Kevin Keithley, and the defendant, Homestore.com Inc., involved a dispute over patent infringement concerning source code used in the defendant's website. Discovery had dragged on since the suit was filed in 2003, and by late 2008 both parties were making motions to the court asking for sanctions because of discovery violations.
Web Service Must Preserve Relevant Data Upon Request, Even if Not Routinely Retained
In Arista v. Usenet.com Inc. (S.D.N.Y., No. 07-8822, 1/26/09), the court sanctioned an online newsgroup service for failure to preserve data about subscribers' music file uploads and downloads, even though the company asserted it does not routinely retain such information. Magistrate Judge Theodore H. Katz said that once the service was on notice that recording label plaintiffs found the data relevant to their infringement claims and requested it, the company had an obligation to preserve it. Because it failed to do so, spoliation sanctions were warranted.
Metadata of Police Department Official Notes Not ‘Public Records' in Arizona
In Lake v. Phoenix (Ariz. Ct. App., No. 07–415, 1/13/09), the court found that metadata associated with official records are not "public records" under Arizona's freedom of information law. Judge Michael J. Brown pointed out that courts in the state have distinguished between “public records” and all other records created as a result of government employees' activities. Including metadata within the scope of the definition of “public records” would all but eliminate that distinction, the court said.
Court Denies Request to Image Third Party's Hard Drives
In Mintel International Group Ltd. v. Neergheen (N.D. Ill., Case No. 08 CV 3939, 2/3/09), plaintiff sought to mirror image a third party's computers after supposedly uncovering new evidence in an action alleging violations of the Illinois Trade Secrets Act, the Computer Fraud Abuse Act, and breach of an employment contract. The court found that the request was based on speculation rather than on evidence suggesting that discoverable materials might be found on the third party's computers.
Instant Messages & E-Mail Subject to CFTC Recordkeeping Requirements
The Commodity Futures Trading Commission has found in a guidance released February 11 that its recordkeeping requirements "apply to records that are created or retained in an electronic format, including email, instant messages, and other forms of communication created or transmitted electronically for all trading." Acting CFTC Chairman Michael Dunn said that in the “current regulatory environment it is imperative for the Commission's consumer protection efforts that electronic records are preserved and available for review if needed.”
Court Refuses to Issue Sanctions for Negligent Deletion of Irrelevant Data
In Cumberland Truck Equipment Co. v. Detroit Diesel Corp. (E.D. Mich., No. 2:05-cv-74594, 12/2/08), the court denied a motion to show cause why spoliation sanctions should not be imposed, on the grounds that the moving party had not shown the allegedly destroyed evidence was relevant, or would prejudice its case in any way. The defendant , Detroit Diesel Corp., brought the motion to protest the alleged destruction of certain electronic data that was in the possession of the plaintiff, Cumberland Truck Equipment Co. The defendant claimed that Cumberland's loss of revenue and expense data would unfairly prejudice Detroit Diesel in mounting a defense to the price fixing allegations it has been accused of by Cumberland.
Rambus Sanctioned Again for Spoliation, So Patents Declared Unenforceable
In Micron Technology Inc. v. Rambus Inc. (D. Del., Civ. No. 00-792-SLR, 1/9/09). Rambus, Inc. received sanctions in a patent infringement action filed in 2000 for destruction of “innumerable documents relating to all aspects of Rambus' business” dating back to the late 1990s. The court found that the patents in the lawsuit should not be enforced against the plaintiff, Micron Technology Inc., because of Rambus' spoliation of evidence. This was the third decision from three different jurisdictions (Delaware, Virginia, and California) where Rambus has been charged with spoliation of evidence based in part on their record retention plans. The Virginia court (Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264 (E.D. Va. 2004) like the Delaware court, found that Rambus had spoliated evidence; however, a California court (Hynix Semiconductor Inc. v. Rambus, Inc., N.D. Cal., No. C-00-20905 RMW, 1/5/06) found that Rambus had not engaged in spoliation. Rambus’ record retention program and its "Shred Days" from 10 years ago continue to haunt the company. In particular, the courts keep harping on whether Rambus instituted a document retention program at the same time it knew that it would be filing litigation regarding certain patents. In other words, was the record retention/destruction plan implemented at a time when "litigation was reasonably anticipated" such that it resulted in spoliation of information related to litigation?
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