At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information.  In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery.

The following Districts have just been added to our collection of United States District Court local rules, standards, guidelines and judge-mandated forms and protocols:

Northern District of Illinois
Judge Virginia Kendall’s Case Management Procedures, Discovery
Magistrate Judge P. Michael Mahoney’s Suggested Case Management Order

District of Massachusetts
Notice of Scheduling Conference (District Judge Richard G. Stearns) (Boston)

District of Nebraska
Report of Parties' Rule 26(f) Planning Conference

The following rules, standards, guidelines and judge-mandated forms and protocols have also been added to our collection:

District of Colorado
Stipulated Scheduling and Discovery Order for Cases Assigned to Judge Kane
Senior District Judge Richard P. Matsch’s Instructions for Scheduling Conference

Southern District of New York
Order to Prepare Civil Case Management Plan (all civil cases assigned to
the WP4 docket)

For a complete listing of local federal rules and guidelines addressing electronic discovery, see our updated post here.
 

Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008)

In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production.  Plaintiff identified and provided the key words to the defendant.

The first key words list contained 120 terms.  After efforts to ensure the search would be productive, including converting certain files to a different format, Abercrombie ran the search. There were many hits.  To reduce the volume, plaintiffs crafted a revised list of 123 terms.  Another search was run and when the results came in, the parties agreed that some data sets from among the results would be reviewed and produced.  Abercrombie produced those documents.  The parties also agreed that further refinements of the search would be necessary to cut down the remaining results.  Accordingly, plaintiff’s counsel sent 6 additional terms to Abercrombie to be run in proximity to other specified terms. 

At “some point” the parties realized that they were operating under different assumptions regarding the searching.  Abercrombie ran the last search using only the 6 new terms provided.  However, plaintiff had intended the 6 new terms to be added to the previously provided 123 terms, not for them to be run separately.  The parties agreed to run another search using both lists which “hit” almost 100,000 documents, or what Abercrombie estimated as equating to approximately 1.3 million pages.  Plaintiff requested all the documents captured by the search hits, and indicated a willingness to return any privileged documents in the event Abercrombie chose to produce them without review to reduce costs.  Abercrombie was unwilling to produce the documents without review, and was unwilling to spend the time or money necessary to review the documents itself, arguing that most were irrelevant to the issues in the case.

Plaintiff argued that if Abercrombie had performed the search properly in the first place, the documents would have been produced and that it would be unfair to allow Abercrombie to withhold documents because of its mistake.  Abercrombie argued, essentially, that the volume was too great and the likelihood of irrelevance too high to justify requiring review and production and that regardless of any misunderstanding, it would have resisted reviewing and producing the documents at any time for those reasons.

The court agreed with Abercrombie stating, “[a]t some point, given the large amount of time and money which has been spent so far on document production, it becomes the plaintiff’s burden to show that the cost to review and produce even more documents is outweighed by their likely relevance to the case.”  The court also noted that Abercrombie had already reviewed and produced a “very large number of documents” and that it would take “a lot more” time and money to review the documents in dispute.  Accordingly, the court declined to compel production without “some showing that the plaintiff is likely to get at least a moderate benefit from that process.”

Reluctant to bar the plaintiff from the requested information altogether, the court outlined the possibility that the search terms could be revised and run against a sampling of documents to determine whether the revisions resulted in “hits” to more relevant information.  If they did, the court opined, it “would be reasonable” for the plaintiff to ask for the search to be run on the documents at issue in the case and for the parties to discuss how they might economically review that subset of documents.  “In the meantime,” the court noted that there were a number of persons who could be deposed based on the existing documents produced and stated that if documents turned up later that might prompt additional questioning of those witnesses, “the parties ought to be able to agree on a way to get that done without incurring significant additional expense.”

A full copy of the decision is available here.
 

State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008)

In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search.  Defendant argued that he, not his employer, owned the computers and that he therefore had a reasonable expectation of privacy as to the personal information stored on them.  Finding that the employer, in fact, owned the computers and therefore had every right to consent to the search, the court denied defendant’s motion to suppress.

Defendant was initially hired by his employer as a part time bookkeeper but was eventually hired full time and given additional computer responsibilities because he was “an expert” and maintained a used computer sales business on the side. Upon being hired, the defendant was made aware that “the computers or anything else in the office is company property.”  Eventually, the defendant sold at least ten computers to his employer.  Among those were the laptop and the desktop at issue in the case.  In addition to his employer’s password protection, the defendant created his own password protected areas on both computers and used them to store personal information, at least some of which indicated theft from his employer.  When the employer discovered that the defendant had fraudulently raised his own salary, the defendant was immediately fired.  His employer subsequently discovered evidence of additional and extensive theft and contacted the police.  The employer provided police with written consent to search the two computers.  On them was found additional evidence of the defendant’s illegal activities.

Defendant argued that he was the true owner of the computers and that he had a reasonable expectation of privacy on them, especially in the password protected areas.  In support of his contention, the defendant argued that he had reimbursed the company for the purchase of the laptop and that he kept it at home three out of five days a week.  As to the desktop, the defendant argued that it had merely been delivered to his employer’s business because no one was available at the defendant’s computer business to sign for it and that he brought it to work when a temporary intern was using the computer in his office.  Rejecting his arguments as “implausible”, the court found ownership properly resided with the employer in light of several facts, including, among other things, the employer’s payment for the computers, the placing of the laptop on the depreciation schedule of the employer’s corporate tax returns and the specific instruction to defendant that all computers were company property.  Accordingly, the court upheld the validity of the warrantless search and denied the defendant’s motion to suppress.

A copy of the full decision is available here.

Allegheny County Bar Association CLE - T-BOLT: The Best of Legal Technology

November 10-11, 2008
David L. Lawrence Convention Center
1000 Fort Duquesne Blvd.
Pittsburgh, PA 15222

K&L Gates partner David Cohen is co-chair of this conference and will be among the presenters along with another K&L Gates partner, Thomas Smith.

David Cohen will be one of the speakers presenting “Using Automation for Litigation Support” on Tuesday, November 10th at 1:30 p.m.  This session will address issues including docket management and scheduling, document management, and case organization and discuss how technology is helping litigators save time and achieve better results.

Thomas Smith will be one of the speakers presenting “Advanced Issues in e-Discovery” on Tuesday, November 11th at 11:00 a.m.  This session will provide some “advanced tips” for how to better handle e-discovery and how to optimize outcomes, control costs, and avoid sanctions.

Click here for more information or to register. 

Strafford Publications Live Telephone Conference - E-Discovery Innovation: Cutting Costs with Relevant Quick Peek Agreements

November 12, 2008
Live Telephone Conference
1 – 2:30 p.m. EST

K&L Gates partner Julie Anne Halter will be among the speakers at this event.  The panel will address issues including what the Federal Rules say about relevancy quick peek agreements, the implications of search terms and technology, security considerations and best practices for drafting, among other things.

Click here for more information or to register.

NBI CLE - Keeping Up With E-Discovery

November 14, 2008
Washington State Convention & Trade Center
800 Convention Place
Seattle, WA

K&L Gates partners Julie Anne Halter and Todd Nunn will speak at two presentations throughout the day.  The first presentation, “The Amendments to the Federal Rules of Civil Procedure and Recent Case Law” will be held at 9:45 a.m. and will address the most recent amendments to the Federal Rules as well as recent decisions and how they affect practitioners.  The second presentation, “Electronic Discovery in the States and Recent Case Law” will be held at 11:00 a.m. and will address how different states are handling a myriad of e-discovery issues and discuss some uniform rules and guidelines that have been proffered by national organizations regarding issues surrounding e-discovery.

Click here for more information or to register.

Georgetown Law CLE - E-Discovery from the Corporate Side: Challenges and Solutions

November 19, 2008
Doubletree Hotel Crystal City – National Airport
300 Army Navy Drive
Arlington, VA 22202

K&L Gates partner David Cohen is a member of the Steering Committee for this program and will be moderating “Tackling the Tough Issues: Collection, Filtering, Review and Production” beginning at 10:15 a.m.  The session will include discussions of cost saving strategies, the use of technology, and navigating the federal rules, among others.

This program is specifically designed for in house lawyers, paralegals, IT professionals, and records managers.  Click here for more information or to register.
 

D’Onofrio v. SFX Sports Group, Inc., 2008 WL 4737202 (D.D.C. Oct. 29, 2008)

In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery.  Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested.  At the hearing, a representative of the defendants explained that plaintiff’s computer was “scrapped after he decided that it could not be used and also searched for items requested by plaintiff.”  A representative also testified regarding additional searches performed to respond to plaintiff’s requests and explained the “Legato system,” a server which held a back up of plaintiff’s mailbox from 2004, made under order of the Justice Department in a separate matter.  Defendants agreed to allow plaintiff’s expert to perform an in-person search of their servers, but the parties were unable to agree upon a protocol to guide that search.

Following the hearing, defendants submitted an 11 point protocol for approval.  The plaintiff objected to the proposed protocol, but did not provide her own.  Defendants’ protocol proposed to re-create the searches previously conducted with any additional searching to be at the discretion of defendants who reserved the right to decline if they felt the search would “jeopardize the functioning of the system, or otherwise impact normal business operations.”  Defendants’ proposal also allowed them to refuse to restore any emails that were located by searching.  Finding defendants’ proposal “highly technical,” “highly restrictive,” and “fundamentally misguided,” the court created the protocol itself.

a. Scope of Search

Turning first to the scope of the search, the court gave plaintiff’s expert the authority to search any depository he believed may contain relevant information and indicated its confidence that “[the expert] will take his quasi-judicial responsibility” to conduct those searches in good faith seriously.  The court also noted that if the expert were wrong about whether a depository contained relevant information, “the worst that can happen is that he will have wasted whatever time it took to search that particular depository” and that it would “surely…take less time and money than more litigation about the scope of search.”

b. Time Limitations

Addressing time limitations, the court ordered the parties to agree upon dates for searching and ordered that the expert be given up to three 12 hour days to complete his searches with the option for counsel to confer with the judge by telephone in the event additional time was needed.

c. Persons Present, Credentials, Commands

Regarding the persons to be present and who would actually carry out the searches, the court ordered that defendants need not provide access credentials directly to the plaintiff but that the representative for the defendant present at the search must have full credentials for access and assist plaintiff “without qualification or obstruction.”  Additionally, the court ordered that defendants’ representative would carry out any system commands with plaintiff’s expert observing and that any disputes would be resolved by the court.

f. Production

Specifically citing “trust” in plaintiff’s expert, the court ordered him to copy the results of his search onto DVD to be provided under seal to the court noting that he functioned as a “quasi-judicial officer” for that purpose.  The expert was ordered to provide a second copy of the results to defendants’ counsel who would have three weeks to review them and create a privilege log for documents to be withheld.  The results were not to be provided to the plaintiff until the court ordered otherwise.

g. System Overview

Defendants proposed protocol suggested that prior to beginning any searches their IT representative perform an “overview of the Legato system” and that “after this initial review of system functionality the process followed for the previous data production in this matter will be discussed.”  The judge noted that plaintiff had not objected to this suggestion but admitted, “I am afraid that I do not know what an ‘initial review of system functionality’ means in this context and what is to be discussed.”  Nonetheless, the court expressed its expectation that defendants would ensure plaintiff’s expert understood how the system worked, what searches it could run, and how the results would be produced, and that defendants would answer any questions the expert might have.

h. Prior Searches, New Searches

The court noted that the parties agreed to re-run any previous searches and to compare the old and new results.  Regarding new searches, the court ordered that defendants could refuse any searches it believed would “jeopardize the system or have a significant negative impact on business functioning” with the knowledge that the court might assess the validity of those claims.  The court further recommended consideration of performing the searches during “off-hours” to reduce any potential interference with daily business.

i. Imaging

Upon defendants objection the court agreed not to order the Legato server to be imaged but agreed that in the event that plaintiff’s expert decided it necessary, the court would resolve the matter by phone.  Other servers and hard drives were to be copied and retained by the expert “pending further order.”

j. Email Restores

Over defendants’ objections, the court ordered that newly discovered information should be restored, if necessary, to a “reasonably usable” state “capable of being read on a computer using commonly available word processing software…and without the necessity of having to buy other software…”  The court assumed that the search would also yield metadata that would be preserved upon restoration for later use.

k. Cost

Defendants offered to pay up to $10,000 but plaintiff argued that defendants should bear the whole cost.  Noting the Federal Rules presumption that the producing party will bear the costs, the court nonetheless indicated an unwillingness to give plaintiffs a “blank check” where they had not provided an estimate of the costs associated with the requested searching and had “refused to be limited by cost.”  Thus, the court ordered plaintiff’s expert to provide an estimate if he anticipated the cost at greater than $10,000, in which case the court would re-visit the issue.

Finally, addressing defendants’ request for leave to designate an additional expert, the court denied the request in light of defendants’ failure to present any doubt as to the professionalism of plaintiff’s expert.

A copy of the full opinion is available here.
 

At the 2008 Vestige Annual E-Discovery Awards Gala in Cleveland, Ohio, on November 1, 2008, David Cohen, a K&L Gates Partner, received a "2008 ESI Technology Champion" award.  David was 1 of 4 award winners, out of over 80 lawyers, judges and consultants nominated for the awards.  He is based in the Pittsburgh office and co-chair of the firm’s e-DAT practice group.

The panel of 5 Judges included several lawyers, a forensic expert and a U.S. District Court Magistrate.  The Awards Gala was a black tie event held at the Renaissance Hotel in Cleveland.  The Honorable Thomas J. Moyer, Chief Judge of the Supreme Court of Ohio, served as the Keynote Speaker.

A graduate of Harvard Law School, David has over 20 years experience managing complex commercial litigation, focusing on document-intensive and technology-related issues. He has been admitted to courts directly or pro hac vice in fifteen jurisdictions. He obtained a landmark opinion in the Delta Funding case ordering 100% cost-shifting. David has authored many articles and two book chapters focusing on litigation strategy and e-discovery issues, has served on and chaired several bar association committees related to litigation technology, serves on the Advisory Committee of the Georgetown Law Center e-Discovery Institute, and is a frequent presenter at CLEs and in-house training programs nationwide. He originated the “Scenes from an E-Discovery Case” vignettes used to train lawyers, paralegals, judges and mediators. David counsels numerous Fortune 500 and other companies on records management and e-Discovery issues, and serves as special e-discovery counsel.
 

Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008)

In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions.  Specifically, plaintiffs alleged egregious spoliation of defendant Klein’s laptop.  Suspicion of spoliation initially arose when Klein resisted the court’s order to allow his laptop and other computers to be copied, and was later exacerbated because when the laptop was finally produced it was “hot to the touch and a screw was missing from its hard drive enclosure.”  In light of these facts, the court appointed a forensic expert to examine the evidence for spoliation and provide a detailed report.

The expert’s report identified several areas for concern, including evidence that:

• someone visited several websites related to the Windows XP operating system, data recovery and data deletion two days prior to the forensic imaging;
• someone downloaded a file deletion program from one of the visited sites (although there were no indications it was utilized);
• someone deleted “hundreds of user documents” in the days prior to the forensic imaging;
• several files that had been identified as “irrelevant,” “privileged,” or “confidential” in Klein’s privilege log had been irretrievably deleted from the laptop;
• there had been “large scale modification” of the laptop’s operating system, including reinstallation of the operating system two days prior to the forensic imaging; and
• someone deleted 313 more files following the reinstallation of the operating system

In addition to the deletion of relevant files and other tampering, the forensic expert identified several other troubling facts including evidence that the system clock had been changed at least seven times on the morning of imaging which lead to “numerous incidents of incorrect file dating” on the laptop.  For example, some of the timestamps found were for dates after the forensic imaging took place.  The expert also identified inconsistencies in the timing related to the creation of several user accounts.  Additionally, evidence on the laptop demonstrated that someone copied “‘thousands’ of files bearing erroneous, backdated time stamps” onto the laptop, likely on the day of the forensic imaging.  The expert concluded that these facts were indicative of an attempt to permanently delete files and then cover up the chronology of the system changes.  The expert further concluded that the facts suggested that a “wide scale data deletion and time stamp alteration may have been conducted with a privilege review in anticipation of the production of so-called non-privileged data.”  He further attested that it was “unlikely” that the changes made occurred accidentally.

Defendants conceded many of the expert’s findings but attempted to provide legitimate reasons for the activity.  For example, defendants admitted to the reinstallation of the operating system but claimed it was in furtherance of larger efforts to recover lost data.  Likewise, defendants claimed that the changed clock and copied files were part of the same efforts.  Rejecting these explanations, the court noted the “greater than average level of computer sophistication” of one of the persons who assisted defendants in their alleged recovery efforts and reasoned that his actions “were not consistent with a computer technician’s search for hidden, old files.”

The court found that “plaintiffs have demonstrated that Klein spoliated the Klein laptop.”  In support of this finding, the court relied on several things.  First, the court found that the Klein was aware of his duty to preserve data at the time he and others “tampered” with the laptop.  Second, the court found that the evidence strongly suggested the tampering was undertaken with a culpable state of mind.  Finally, the court found that the lost evidence was relevant to plaintiffs’ case for three reasons: 1) many of the deleted files had been listed on Klein’s privilege log, 2) defendants had previously indicated that the laptop contained relevant information, and 3) the record indicated that Klein acted in bad faith to destroy the information.  The court also concluded that Klein’s, and his alleged assistant’s, “vague and evasive testimony” left “little doubt that they were not telling the truth.”  This conclusion was further bolstered by contradictions in their testimony.

In addition to the spoliation of the laptop, the court addressed defendant Klein’s contention that a thief had stolen another laptop containing relevant evidence.  Although Klein claimed that the laptop originally requested by plaintiffs had been stolen and that the laptop produced for imaging was its replacement, he failed to disclose that fact at the time the laptop was imaged.  The court expressed doubt about the veracity of the claim in light of Klein’s failure to report the theft to the police, the court or his insurer.  The court also weighed the general untrustworthiness of his other testimony.  Concluding that Klein did not credibly establish the existence of a missing laptop, the court held that regardless of whether he fabricated the tale altogether or simply failed to inform the court and the plaintiff that the copied laptop was not the machine originally requested, sanctions were appropriate.

Because lesser sanctions were “ill-suited” to a case where “the spoliator has, in bad-faith, irretrievably deleted computer files that likely contained important discovery information,” the magistrate judge presiding over the discovery dispute recommended default judgment in favor of the plaintiff.  Justifying his recommendation, the magistrate judge explained that the harshest sanctions were warranted where lesser sanctions would not deter future misconduct, that the “most serious forms of spoliation merit the harshest sanctions,” and that the lesser sanction of adverse inference could not remedy the prejudice to the plaintiffs.

The magistrate judge also recommended that defendants pay plaintiffs the “reasonable expenses” including attorney’s fees associated with the dispute.  He declined, however, to recommend punitive monetary sanctions, reasoning that the recommended sanctions were “sufficiently severe.”

A full copy of the report and recommendation is available here.

Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008)

In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests.  One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement.  Under the agreement, Metavante was to provide Emigrant with an online direct banking product called EmigrantDirect.

Emigrant argued that access to the source code may provide information about the quality of the product and was therefore relevant and properly discoverable.  Metavante argued that its production would be unduly burdensome because it would cost over $300,000 and take over 5,000 hours to produce.  Metavante also argued that the code would provide little relevant information.  Emigrant responded arguing that Metavante’s estimates assumed a need to sort and compile all of the information before disclosing it and suggested it could mitigate the cost to Metavante by providing the code to outside consultants for inspection and a determination regarding relevance.  The court found that the source code was relevant and, citing Emigrant’s offer to use outside consultants, found that “[i]n balancing the value of the source code against the burden of producing it…the potential value outweighs the burden.”  The court also noted that any confidentiality concerns were addressed by its previously issued protective order.

In a separate motion to compel, Emigrant sought court supervision of Metavante’s production of several categories of information, “an explanation” of why documents Emigrant claimed were “known to exist” had not been produced, an order requiring Metavante to produce all electronic documents in their native format, and payment of attorney’s fees and expenses in preparing the motion, among other things.

Regarding the production of electronically stored information, Emigrant sought additional documents related to Metavante’s work with other customers and information related to performance of their product.  Metavante responded noting that it had already produced 70,000 “SupportTrack” tickets that were generated in response to technical support issues from its customers, among other documents.  The court denied the request reasoning that Emigrant had had ample opportunity for follow up with Metavante and had never requested further information.  The court also declined to compel production of documents related to modifications to Metavante’s software.  Here again, Emigrant argued that Metavante’s production was insufficient and attempted to cast doubt on whether all relevant materials had been provided.  The court rejected those arguments, once again pointing to Metavante’s already significant production and Emigrant’s ample opportunity to seek additional documents since that time.  The court also noted that it had agreed to order the production of the requested source code “which may contain more information responsive to these requests.”

The court denied Emigrant’s request for court-supervised discovery, finding that supervised production would “pervert” the discovery goals of minimizing cost and inconvenience and pointing out that “[b]oth parties in this case are sophisticated, and have shown their ability to conduct extensive discovery without constant court supervision.”  Finding that Emigrant provided “no basis” upon which the court could make the order, the court also denied Emigrant’s request that all electronic information be produced in its native format.

Addressing Emigrant’s request for an explanation regarding Metavante’s failure to produce documents “known to exist,” the court denied the motion reasoning that while Metavante’s alleged actions may be appropriate for a motion for sanctions, it found “no reason to compel further production of documents that Metavante claims it no longer has.”  Likewise, the court denied Emigrant’s request for attorney’s fees.

A copy of the full decision is available here. 

Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008)

In this defamation case, plaintiffs sought an order allowing expedited discovery.  Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc., an Internet service provider and non-party to the action, for information related to the claims in the case and the potential identification of Doe Defendants.  Plaintiffs also sought an order allowing them to take images of the hard drives of any computer owned or used by the named defendants for the preservation of electronically stored information related to the claims in the case and the potential identification of Doe Defendants.

Order on Motion for Expedited Third Party Discovery

Recognizing that in cases where the defendants are not identified, postponing production of defendants’ names and contact information until the normal course of discovery may not be an option, the court granted plaintiffs’ motion for permission to serve subpoenas upon Cable One.  The court also noted that expedited discovery was appropriate in this case because Internet service providers typically retain user activity logs for only a limited period of time ranging from a few days to a few months.

However, the court limited the scope of the subpoena to information regarding the individuals who posted the alleged defamatory statements, not to anonymous persons who merely visited the website.  The court required plaintiffs to serve Cable One with the subpoena within five days of its order.  Additionally, the court required Cable One to provide notice of the subpoena to its affected subscribers, and gave those subscribers 14 days within which to file a motion to quash. If no such motions were received, Cable One was ordered to produce the subpoenaed information to plaintiffs.

Order on Motion for Expedited Forensic Images of Defendants’ Hard Drives

The court also granted plaintiffs’ motion allowing expedited forensic imaging of the named defendants’ hard drives.  In support of this motion, plaintiffs argued that copying the drives was necessary to prevent loss of the information before the regular discovery process commenced.  Plaintiffs suggested that the defendants had evaded service in other matters and that they believed defendants had “little respect for the legal process or the requirement to preserve electronic data.”  Additionally, plaintiffs indicated their expectation that they would bear the costs associated with the request.

The court granted plaintiff’s motion, first ordering defendants to preserve any and all electronically stored information relevant to the plaintiffs’ claims.  The court further ordered that any of defendants’ computers or portable or detachable hard drives at work and/or at home must be made available to plaintiffs’ forensic expert for imaging.  The expert was ordered to image the drives without revealing the information to plaintiffs, and to file the information under seal with the court until such time as a stipulation between the parties was reached or until further order of the court.

A copy of the full decision is available here.
 

For the first time, the SEC has released its Enforcement Manual, also known as the "Red Book” to the public.  Although the manual is intended to provide guidance to members of the SEC’s Division of Enforcement, it is a valuable resource for anyone involved in a SEC investigation.

Several sections address the topic of electronic information.  For example, section 3.2.6.2, “Form of Production,” provides a detailed explanation of what is expected of those responding to an SEC subpoena, including a discussion of the SEC’s preference for electronic production.  Section 3.2.6.2.3, “Format for Electronic Production of Documents to the SEC,” provides even greater detail regarding the production of electronic information.  The manual also provides valuable guidance on privilege logs, bates stamping, records certifications and much more.

The full text of the Enforcement Manual is available here.