Archive for October 2014

Back to Basics: Court Orders Compliance with Rule 34

Venture Corp. Ltd. v. Barrett, No. 5:13-cv-03384-PSG, 2014 WL 5305575 (N.D. Cal. Oct. 16, 2014)

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

- Opening paragraph, Venture Corp. Ltd. v. Barrett

In this case, after the parties failed to reach agreement regarding how responsive information should be produced, Plaintiffs produced approximately 41,000 pages on a flash drive and by email.  “The drive and email contained no custodial index, no table, no information at all—just folders of the files themselves.”  When Defendant followed up the production by requesting identification of what documents responded to what categories, Plaintiffs asserted that he had agreed to accept the documents as produced (a point with which the defendant disagreed) and that the follow up requests were untimely and unwarranted.  Defendant moved to compel.

Beginning its analysis, the Court explained that Rule 34 includes “two specific and separate requirements” aimed at preventing the problems associated with a “document dump”:

First, “[a] party must produce documents as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request.” Second, “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A party need not produce the same electronically stored information in more than one form.”

As established by the Court, because Plaintiffs did not organize and label their production, they were obligated to produce the information as kept in the usual course of business.  Further, it is the burden of the producing party to establish their compliance with this rule.  In the present case, the Court noted that it would have expected to see, “[a]t a minimum,” “the documents and ESI kept by the name of the employee from whom the documents were obtained or at least which [Plaintiff] had produced the documents.”  Instead, “there was nothing in the way of any such source information.”

Rejecting Plaintiffs’ assertion that they offered to “produce the files together with load files and an index” but that Defendant “told them he would accept production in PDF and native form,” (and noting that Plaintiffs did not “dispute that their documents and ESI are kept in some more hierarchical scheme”), the Court further reasoned that “[m] ore fundamentally, even if there was such an agreement, an agreement on form relieves a responding party of any further form obligations under subsection (ii) of Rule 34(b)(2)(E). It does nothing to relieve such a party of its obligation under subsection (i) to produce the documents and ESI as they are kept in the ordinary course of business.”  The Court’s analysis continued:

This distinction matters. Form under subsection (ii) is about whether the production should be native, near-native, imaged as PDF (or more commonly, as TIFFs accompanied by load files containing searchable text and metadata) or in paper (printed out).Providing information about how documents and ESI are kept under subsection (i) “[a]t a minimum … mean[s] that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered.”

Finally, the Court reasoned that absent an agreement on form, Plaintiffs were obligated to show that the production was in an “ordinarily maintained” or “reasonably usable form,” which the “grab-bag of PDF and native files” was not.

Having established Plaintiffs’ failure to meet the requirements of Rule 34, the Court turned to the “question of remedy.”

While Barrett wants the production organized and labeled, as he has all along, the court sees no reason to limit the remedy to only what Barrett wants. After all, during the meet and confer, and even at the hearing on this matter, Barrett kept insisting that organization and labeling is always required–never mind the disjunctive structure of subsection (i)’s language. And so to remedy this situation, the Ventures shall do three things: (1) either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and (2) produce load files for its production containing searchable text and metadata.

As for Barrett’s requested fees and costs, this request is denied. Barrett’s unwillingness to accept the disjunctive nature or subsection (i), insistence on organization and labeling and delay in bringing this motion only contributed to the unfortunate situation at hand.

A full copy of the Court’s opinion and order is available here.

Second Circuit Vacates Conviction for Failure to Authenticate Printed Profile from “Russian equivalent of Facebook”

United States v. Vayner, — F.3d —, 2014 WL 4942227 (2d Cir. Oct. 3, 2014)

In this case, the Second Circuit vacated the defendant’s conviction “on a single charge of transfer of a false identification document” upon concluding that the district court erred in admitting a printout of the defendant’s alleged profile on “the Russian equivalent of Facebook,” (“”) “because the government presented insufficient evidence that the page was what the government claimed it to be—that is, Zhyltsou’s profile page, as opposed to a profile page on the Internet that Zhyltsou did not create or control.”

Defendant was convicted of providing Vladyslav Timku with a forged birth certificate for an “invented infant daughter,” intended to keep Timku from compulsory military service in his native Ukraine.  Timku testified against the defendant and indicated that he had received the completed forgery from the email address  Although other testimony was offered to corroborate “certain aspects” of Timku’s testimony, as the prosecutor’s case neared its conclusion, “only Timku’s testimony directly connected Zhyltsou with the Gmail address that was used to transmit the fake birth certificate”—a vital component of the prosecution’s case.  Before the prosecution rested, however, it called an “unexpected final witness: Robert Cline, a Special Agent with the State Department’s Diplomatic Security Service.”  Through Cline, the prosecution entered into evidence a printout from what Cline called “the Russian equivalent of Facebook” which purported to be a profile of the defendant, including his photograph and other facts about which Timku had testified.  The alleged profile also listed “Azmadeuz” as the profile owner’s address on Skype.  During his testimony, however, Cline admitted that he “had only a ‘cursory familiarity’ with [the website], had never used the site except to view this single page, and did not know whether any identity verification was required in order for a user to create an account on the site.”    Defendant’s objection that the profile had not been properly authenticated was overruled.

In its closing argument, the prosecution argued that “proof of the connection between Zhyltsou and the Gmail address could be found on Zhyltsou’s ‘own Russian Facebook page.’”  Thus, the prosecution argued that the alleged profile page was not only about the defendant, but authored by him.  “But,” as the Court noted, “there was no evidence that Zhyltsou himself had created the page or was responsible for its contents.”  Indeed, the Court continued:

Had the government sought to introduce, for instance, a flyer found on the street that contained Zhyltsou’s Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from Zhyltsou. Otherwise, how could the statements in the flyer be attributed to him? Cf. Dhinsa, 243 F.3d at 658–59 (“[A] mere assertion of identity by a person talking on the telephone is not in itself sufficient to authenticate that person’s identity….”). And contrary to the government’s argument, the mere fact that a page with Zhyltsou’s name and photograph happened to exist on the Internet at the time of Special Agent Cline’s testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.

While the Court acknowledged that “‘the contents or ‘distinctive characteristics’ of a document can sometimes alone provide circumstantial evidence sufficient for authentication,” in this case, the Court reasoned:

[T]he information contained on the VK page allegedly tying the page to Zhyltsou was also known by Timku and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant. Other than the page itself, moreover, no evidence in the record suggested that Zhyltsou even had a VK profile page, much less that the page in question was that page. Nor was there any evidence that identity verification is necessary to create such a page with VK, which might also have helped render more than speculative the conclusion that the page in question belonged to Zhyltsou.

Ultimately, the Court concluded that because the page was intended to corroborate Timku’s testimony regarding the defendant’s alleged use of “azmadeuz,” “Rule 901 required that there be some basis beyond Timku’s own testimony on which a reasonable juror could conclude that the page in question was not just any Internet page, but in fact Zhyltsou’s profile. No such showing was made and the evidence should therefore have been excluded.”

The Court went on to conclude that the printout “played an important role in the government’s case” and that the error of its admission was not harmless.  Thus, the conviction was vacated and the case remanded for a new trial.

A full copy of the Court’s opinion is available here.

Citing Ethical Implications, Court Denies Motion to Appoint Coordinating Discovery Attorney in Criminal Case

United States v. Hernandez, No. 14 Cr. 499(KBF), 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014)

Citing ethical implications, the District Court in this criminal case denied nine defendants’ motion to “appoint a tenth attorney to act as a Coordinating Discovery Attorney (“CDA”) on behalf of all nine defendants.” The Court concluded that “[a] vendor with an arms-length contact is clearly preferable” but also indicated that if a CDA was sought, “a stipulation or legally binding document should be entered” which makes clear the responsibilities of the CDA and of defense counsel.

In February 2012, the Joint Electronic Technology Working Group promulgated its “Recommendations for Electronically Stored Information (ESI) Discovery Production in Criminal Cases,” including that “[i]n cases involving multiple defendants,  the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek the appointment of a Coordinating Discovery Attorney and authorize that person to accept, on behalf of all defense counsel, the ESI discovery produced by the government.”  The Recommendations did not, however, identify a list of tasks that may be delegated to a CDA or “address any legal or ethical issues that may be implicated with the appointment of CDAs.”

As noted by the Court, since 2012, an “increasing number” of courts have appointed CDAs, but none have discussed the potential ethical and legal implications of those appointments, nor has any one set of appropriate responsibilities been identified.  (In the present case, for example, the moving parties proposed that the CDA would “(1) act as a repository (or ‘way-station’) for the receipt of electronic discovery; (2) possibly index or ‘tag’ such discovery (which requires some review); and (3) determine, in collaboration with defense counsel, ‘whether additional support services are necessary or whether they can be address[ed] … within the context of [the CDA's] services.’”)  Thus, the Court undertook to examine the implications of such an appointment and, for the reasons identified below, denied the motion.

Summarizing broadly, the Court first identified several “[f]undamental legal principles critical to adequate defense of a criminal charge,” including that “each defendant is entitled to the undivided loyalty of his attorney.”  The Court next discussed the importance of discovery in revealing the specific details of each defendant’s story and noted that not all defendants in a particular case “necessarily share the same legal interests.”

Turning then to the appointment of a CDA, the Court acknowledged that “central management” of voluminous discovery would “seem” to make sense, but questioned how an attorney’s duty of undivided loyalty could be “squar[ed]” with the duty to manage discovery of multiple defendants.   Having identified the crux of its concern, the Court dedicated the remainder of the opinion to discussing the identified tension. 

The Court reasoned, for example, that if a CDA is an attorney, it is “unclear whether the CDA is ever expected to act as an attorney—and if so, on whose behalf.”  “If, on the other hand,” the Court continued, “a CDA will not act as an attorney, then one wonders why a CD-‘A’—that is, an attorney—should be appointed to this position at all.  Indeed, appointing an attorney to centrally manage discovery only serves to raise serious concerns.”  The Court questioned (extensively), for example, who would bear responsibility for mistakes made in the course of the discovery management.  Accordingly, the Court raised the possibility of instead hiring “technology vendors” whose technical capabilities could be “readily understood and relied upon,” who typically enter into a contract that ensures clarity in the roles of each party, and who, “most importantly,” “cannot be confused with a lawyer.”  As the Court concluded, “[t]he vendor’s failures in the discovery process are clearly the problem of the counsel of record.”

Following the articulation of its concerns surrounding the appointment of an attorney as a CDA, the Court acknowledged that “[t]here may be” a role for such an appointee “with safeguards and an appropriate hearing.”  The Court concluded, however, that:

If a CDA clearly is not acting as an attorney, then—since a CDA is an attorney—the relationship must be clearly defined and explained to each defendant (who might otherwise wonder why an attorney who is performing tasks on his or her behalf is not his or her attorney). The very need to so carefully define the role of the CDA begs the question of why parties need to hire an attorney at all. A vendor with an arms-length contract is clearly preferable. But, assuming that the parties seek a particular person, who happens to hold a juris doctor degree, to assist with coordinating the technical aspects of discovery, a stipulation or other legally binding document should be entered which makes at least the following things clear:

1. Defense counsel are fully responsible for ensuring that all discovery produced by the Government is in fact received.

2. Defense counsel are fully responsible for ensuring that all discovery is loaded onto a server or otherwise made accessible.

3. Defense counsel are fully responsible for ensuring that all discovery is received in a form useful to their clients.

4. Defense counsel are fully responsible for any tagging or indexing.

5. Defense counsel are fully responsible for reviewing and searching all discovery materials.

6. Defense counsel are fully responsible for any failure in their clients’ discovery processes.

7. The CDA will not assume any responsibilities of an attorney in her role as a CDA.

8. The CDA will not negotiate any discovery issue with the Government.

9. None of the CDA’s communications will be covered by the attorney-client privilege.

Also of note was the Court’s reasoning regarding the need for all counsel to remain able to handle electronic discovery:

Finally, the Court notes the important need to ensure that defense counsel not “lose the thread” of how to handle and manage electronic discovery. A clear benefit of managing one’s own discovery, in addition to the benefits set forth above, is that managing large ESI cases will not become an unduly specialized task. Indeed, if CDAs were routinely appointed in large cases, defense counsel would inevitably start to argue that the technology has “gotten away from them.” The interests of criminal defendants require that this not occur.

A full copy of the Court’s opinion is available, here.