The Sometimes Impossible Task of Meeting Document Preservation Obligations

Sometimes the duty to preserve electronic data can extend to data that a party doesn't even know exists.

That was the holding in Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008) (click here).  In that case, the plaintiff (who was a lawyer) sued a company and some of its officers, alleging violations of an Ohio law that restricts unsolicited emails.  During discovery, the  defendants sought access to the plaintiff’s personal computer and a mirror image of plaintiff’s hard drives, in order to determine whether there was any electronic evidence suggesting that the plaintiff had solicited the emails by accessing various websites.

The plaintiff argued that he had “saved and preserved all of his commercial email since January 1, 2006,” which already had been produced, and that “no Defendant in this case has ever requested that he place a litigation hold on any other type of electronically stored information resident on his computers” until February 2008.  In spite of that, the court concluded, with little analysis, that the plaintiff’s preservation obligations extended well beyond both what he had done and what the defendants previously had requested.

The court found that the plaintiff’s document preservation efforts “do not sufficiently fulfill his duty to preserve evidence.”  Although the decision does not explain what exactly it was that the plaintiff failed to do, it appears that the court was concerned with the fact that the plaintiff had not taken steps to stop his computers from automatically overwriting data files that record details about Internet surfing.  Probably few non-IT computer users even know where such data files exist on their hard drives, how to preserve or image those files, or the effects of tampering with arcane aspects of their home computers’ operations.  So it's surprising that the court ruled that the plaintiff had breached his duty to preserve data, and that the defendants were them permitted to examine the plaintiff’s computers as a remedy for that apparent breach.

To lessen the likelihood of revealing confidential or privileged information to the defendants (remember, the plaintiff is a lawyer who used his computer for both personal and client-related business), the court set up a protocol in which the plaintiff’s forensic expert would first image the hard drives, then plaintiff would remove certain documents he believed included personal confidential information (like his bank account data), then the defendant’s forensic expert would access the hard drives and work with the plaintiff to identify and cull out data that the plaintiff contends is privileged.  According to the court, despite the fact that the defendant’s expert would be in a position to view that privileged data, he would be precluded from disclosing anything about it to the defendant – who is paying for the forensic work. 

In an attempt to minimize waiver of privilege concerns, the court sua sponte designated both sides’ experts as “officers of the court.”  The court did not explain exactly what that means, or how that designation would impact each sides’ experts going forward.  Although having the experts work together as officers of the court could be helpful in assuring that none of the data was improperly handled, it certainly would be more costly than having a neutral examiner appointed by the court (whose fees could be shared by the parties, rather than each side paying its own expert’s fees entirely for potentially duplicative work). 

Moreover, the court’s solution places at least the defendants’ expert in the awkward position of having knowledge of information that he can neither share with the party that retained him or use in any manner in forming his opinions in the case going forward, to the extent there is additional work in the case.  The court's resolution of the dispute probably raised more concerns than it answered.