Record Keeping Requirements for State Departments of Transportation (2009)

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12 of litigation, even after that litigation has terminated. In Soter v. Cowles Pub. Co.,48 documents that were cre- ated by or gathered by members of a school district’s legal team in anticipation of a potential wrongful death claim against the district by the parents of a student with a peanut allergy to whom the district served a peanut butter cookie were found to be “work product” for purposes of the exemption under the Public Records Act. The court determined those documents were mate- rials that would not be discoverable in the context of a controversy under the civil rules of pretrial discovery. The court also found that an attorney or legal team’s notes regarding witness interviews were “highly pro- tected” opinion work product, for the purposes of the civil rule that codified the work product doctrine. Practical Considerations In Missouri, staff are instructed to write their inci- dent narratives to the attention of their counsel, rather than their supervisor, so that there will be no doubt later on that the statement was taken in anticipation of litigation. A form has been developed that assists em- ployees in writing their statement. The form organizes the statement in a “who, what, when, where, why and how” format so that all the basic information will be gathered (attached as Appendix H). III. RELEASE OF ELECTRONICALLY STORED INFORMATION—LITIGATION AND DISCOVERY This section discusses the federal rules of civil pro- cedure relating to ESI in the discovery and litigation contexts and provides an outline for best practices in discovery.49 Digital documents are very different from their pa- per counterparts. Electronic data can change when moved, copied, or opened. When data change, they be- come different, discoverable data that look almost ex- actly like the other data. For that reason, it is impor- tant to understand the complexity of an electronic records request and the dangers in failing to respond appropriately when undertaking a response to the re- quest. Federal Rules 26, 33, 34, 37(f), and 45 were modified in 2006 to include references to ESI. The updates had several purposes. The new rules amended existing rules to include provisions that acknowledged that ESI is widely used and discoverable, required parties to dis- cuss ESI discovery issues early in the litigation, and theoretically reduced the cost of ESI discovery by creat- ing a presumption that ESI that is not reasonably ac- cessible because of excess cost or burden is not discov- erable. 48 162 Wash. 2d 716, 174 P.3d 60 (Wash. 2007). 49 See also The Sedona Principles: Best Practices, Recom- mendations and Principles for Addressing Electronic Document Production, http://www.thesedonaconference.org/content/miscFiles/TSC_PR INCP_2nd_ed_607.pdf. The federal courts must both enforce the parties’ du- ties to find and preserve ESI and attempt to minimize discovery costs. “The tension between these competing interests has been exacerbated by the information tech- nology revolution. Courts are now facing the challenge of overseeing discovery at a time when potential access to electronically stored information is virtually limit- less, and when the costs and burdens associated with full discovery could be more outcome-determinative, as a practical matter, than the facts and substantive law.”50 Federal Rule of Civil Procedure 26(b)(2)(B) gives the courts the tools to balance these competing inter- ests. A. Federal Rule 26 Federal Rule 26(b)2(B) limits the release of ESI. “A party need not provide…if not reasonably accessible because of undue burden or costs.” The notes from the rules define “reasonably accessible” data as data that are used in the ordinary course of business or available with little time or expense. “Unreasonably accessible” data are defined as data on systems that are no longer used, deleted data, and data from disaster recovery tapes that are not searchable. When answering discovery requests, parties must identify information by category or type if it contains potentially responsive materials that are not being searched or produced. The responding party is required to preserve the information even if it is not searching or producing the materials, so that it is available if a court later orders it to be produced. 1. Reasonable Accessibility The court in Zubulake v. UBS Warburg51 broke elec- tronic data down into the following five categories, listed in order of most accessible to least accessible: 1) active online data, such as hard drives; 2) near-line data such as robotic storage devices like optical disks; 3) offline storage/archives, which are removable optical disks or magnetic tape media that can be labeled and stored in a shelf or rack; 4) backup tapes such as tape recorders that read data from and write it onto a tape; and 5) erased, fragmented, or damaged data that can only be accessed after significant processing. While the court considered the first three categories of data noted in Zubulake “accessible” and the last two categories “inaccessible,” it is certainly possible that changes in technology could make previously inaccessi- ble data less expensive and easier to access. In reviewing a discovery request to determine whether information requested is accessible or inacces- sible, the court may also consider the specificity of the request; the quantity of information available from other and more easily accessed sources; the failure to produce relevant information that seems likely to have existed but is no longer available on more easily ac- 50 Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007). 51 217 F.R.D. 309, 311 (S.D.N.Y. 2003).

13 cessed sources; the likelihood of finding relevant, re- sponsive information that cannot be obtained from other, more easily accessed sources; predictions as to the importance and usefulness of the further informa- tion; the importance of the issues at stake in the litiga- tion; and the parties’ resources. 52 The courts may set out specific e-discovery guide- lines. In O’Bar v. Lowe’s Home Centers,53 the district court sua sponte ordered discovery guidelines, requiring the parties to identify ESI that was or was not reasona- bly accessible without undue burden or cost, the iden- tity of the sources of information and the reason for the party’s contention that the ESI was or was not reasona- bly accessible without undue burden or cost, the meth- ods of storing and retrieving that ESI, and the antici- pated costs and efforts involved in retrieving that ESI. The court set out lengthy guidelines for the parties and directed them to follow the “Suggested Protocol for Dis- covery of Electronically Stored Information” as set forth by the United States District Court for the District of Maryland. The Maryland protocol can be found as Ap- pendix G. 2. Undue Burden In Equal Employment Opportunity Commission v. Boeing Company,54 the court addressed an e-discovery dispute, analyzing plaintiff’s request to discover “[a]ll bases for Boeing’s position that retrieval of e-mails” responsive to its requests for production of documents would cost at least $55,000. Plaintiff argued that the information requested was relevant to its claims and therefore discoverable pursuant to Rule 26(b)(1), Fed- eral Rules of Civil Procedure, because “it will allow the EEOC to determine whether Boeing has any basis for its cost assertions and whether any asserted basis are legitimate.” The court concluded that defendant made the showing, pursuant to Rule 26[(b)(2)(B)], that “the information sought is not reasonably accessible because of undue burden or costs,” and that plaintiff did not show good cause to justify the expense of the proposed discovery for purposes of Rule 26(b)(2)(B). 3. Payment to Retrieve Inaccessible Data In Semsroth v. City of Wichita,55 female officers of the city police department filed suit alleging sexual har- assment, hostile work environment, gender discrimina- tion, and violations of their equal protection and due process rights. Plaintiffs requested e-mails that had been deleted in compliance with the records retention policy. Plaintiffs argued that a search of current active 52 George B. Murr, Federal Rule of Civil Procedure 26(b)(2)(B) and “Reasonable Accessibility”: The Federal Courts' Experience in the Rule's First Year, RECORDS RETENTION REPORT, Dec. 2007, available at http://www.bmpllp.com/publications/articles.php?action=displa y_publication&publication_id=106. 53 2007 U.S. Dist. LEXIS 39205 (W.D.N.C. May 2, 2007). 54 2007 U.S. Dist. LEXIS 29107 (D. Ariz. Apr. 18, 2007). 55 239 F.R.D. 630 (D. Kan. 2006). files would be inadequate because there was no way to obtain information regarding the past deleted e-mails. The backup tapes that were requested were the only source of information regarding the e-mails that were in existence on July 23, 2004. The parties disagreed on who should pay to retrieve the documents. The city kept backup tapes for disaster recovery purposes only, and not to retrieve information. To conduct a word search of the e-mails contained on a given backup tape, the city would have to restore the backup tape to an e-mail server. Despite the hardware’s availability, the labor costs to retrieve the information were substantial. The court noted that where the storage media is reasonably related to the purposes for which the information is retained, it will not automatically require that party to bear the costs of retrieving the information. The court decided that the scope of the search of the e-mails should be limited in two respects: the court limited the search by allowing plaintiffs’ access to only one backup tape for the date in question and further pared down the search by ordering fewer terms to be searched. Another case of interest is AAB Joint Venture v. United States.56 This construction litigation was based upon plaintiff’s claim that site conditions were different than contemplated by the original design plans. Gaps in available government e-mails prompted the court to order defendant United States to restore 25 percent of the e-mail backup tapes in the time period requested by the plaintiff. Plaintiff then had the opportunity to re- view the responsive material to determine if it con- tained relevant evidence and if additional restoration of backup tapes was warranted. This approach allowed the court to do a benefit-burden analysis before making the determination of whether to require costshifting or costsharing. In Disability Rights Council of Greater Washington v. Washington Metro Area Transit Authority (WMATA),57 plaintiffs claimed WMATA failed to provide adequate paratransit services through the MetroAccess program. They further claimed that the service pro- vided was materially inferior to the Metrorail and Metrobus services available to people without disabili- ties. Plaintiffs requested that the court order WMATA to produce backup tapes of electronic documents that were written and received since the filing of the law- suit. WMATA had a policy of deleting all e-mails after 60 days. Even though the lawsuit was filed on March 25, 2004, WMATA did not stop its e-mail system from obliterating the older e-mails until, at the earliest, June 2006. As a result, with the exception of three individu- als, all possibly relevant and discoverable emails had been purged every 60 days for a period of 3 years. The court ordered the transit authority to produce the docu- ments and shoulder the cost. 56 75 Fed. Cl. 432 (Fed. Cl. Ct. 2007). 57 2007 WL 1585452 (D.D.C. June 1, 2007).

14 4. Mistakenly Producing Privileged Information Rule 26(B)(5) protects information that was not found during the review prior to production that is later determined to be privileged. The producing party may designate material as “privileged” after it is produced. Courts require counsel to be quite technologically so- phisticated in responding to discovery requests. In Vic- tor Stanley v. Creative Pipe,58 plaintiff requested a rul- ing that 165 electronic documents inadvertently produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status. The parties had agreed to a joint protocol to search and retrieve relevant ESI responsive to plaintiff’s requests. The pro- tocol contained detailed search and information re- trieval instructions, including nearly five pages of key- word/phrase search terms aimed at locating responsive ESI. During the review process, potentially privileged documents were overlooked and produced to plaintiff. The court noted that: [I]t is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, [however] all keyword searches are not created equal; and there is a growing body of literature that highlights the risks asso- ciated with conducting an unreliable or inadequate key- word search or relying exclusively on such searches for privilege review…common sense suggests that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive, resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. 59 In Corvello v. New England Gas Co.,60 the Rhode Is- land Department of Environmental Management (RIDEM) sought a protective order and the return of allegedly privileged documents that it claimed to have inadvertently produced in response to a subpoena duces tecum issued by New England Gas Company, Inc. (NE Gas). NE Gas contended that the documents were not privileged and that, even if they were, any privilege was waived by RIDEM’s failure to properly assert the privi- lege and by RIDEM’s failure to take timely corrective action after learning of the disclosure. The motion for a protective order was denied and information that may have otherwise been protected was ordered to be dis- closed. Federal Rule of Evidence 502 was recently enacted to address the challenges associated with electronic dis- covery. The rule enables litigants to exchange materials without waiving privilege or work product protection. It is intended to reduce the burdens associated with e- discovery (and the often massive exchange of materials in electronic format), provide clear guidance to courts and parties on waiver of attorney-client privilege and work product protection, avoid the broad waiver of privilege and work product protection by the disclosure of materials in discovery, and protect parties that enter 58 250 F.R.D. 251 (D. Md. 2008). 59 Id. at 257. 60 243 F.R.D. 28 (D.R.I. 2007). into nonwaiver agreements. However, exactly how Rule 502 will operate is open to debate, as the courts at the time of this writing have not had an opportunity to in- terpret or apply it. B. Federal Rule 33 Federal Rule 33(d) states that if the answer to an in- terrogatory can be determined by providing business records rather than answering the interrogatory, the answering party may produce the records. The answer- ing party may produce records either electronically (stored on disk or CD) or hard copy. The responding party may only substitute access to the records for the actual records if the burden of deriving the answer will be the same for both parties. The recipient must be able to locate and identify information as readily as the an- swering party. In Jackson v. City of San Antonio,61 the court consid- ered a dispute over the Fair Labor Standards Act62 re- cords. Plaintiffs objected to defendants’ production of computerized pay and time records in response to sev- eral of their interrogatories and production requests as being an unauthorized “data dump.” Plaintiffs com- plained that counsel failed to include necessary field descriptors on their response. Plaintiffs argued that without the field descriptors, the records were unhelp- ful, unusable, and nonresponsive. Defendants re- sponded that because the business records contained the information plaintiffs requested and because the burden of culling out the requested information was no greater for plaintiffs than it would be for defendants, the rules allowed defendants to respond by producing their business records. Defendants also explained that because plaintiffs had not identified the particular work weeks for which each claimed entitlement to Fair Labor Standards Act overtime wages, they were unable to identify the particular records for particular weeks for which they sought an offset or credit. The court found that the computerized records were an adequate re- sponse to these discovery requests. C. Federal Rule 34 Federal Rule 34 states that production of ESI en- compasses more than simply documents. Any party may serve another party with a request to produce any des- ignated documents or ESI, including writings, draw- ings, graphs, charts, photographs, sound records, or images. The response must be reasonably usable. Production of Metadata In Aguilar v. Immigration and Customs Enforcement Division of U.S. Department of Homeland Security,63 the plaintiffs in a civil rights class action claimed that 61 2006 WL 487862 (W.D. Tex. Jan. 2006). 62 The Fair Labor Standards Act of 1938, Pub. L. No. 75- 718, 52 Stat. 1060 (June 25, 1938 (codified at 29 U.S.C., ch. 8)). 63 2008 WL 5062700 (S.D.N.Y. Nov. 2008).

15 armed immigration officers had entered and searched homes of Latinos without obtaining a search warrant or consent. Production of documents with metadata in- cluded was not a subject at the parties’ Federal Rule of Civil Procedure 26(f) discovery conference or in plain- tiffs’ first request for production of documents. Later, plaintiffs requested e-mail and electronic documents in Tagged Image File Format (TIFF) with corresponding metadata fields and production of spreadsheets and databases in native format. The court granted plaintiffs’ motion to compel the production of metadata for any Word™ or PowerPoint™ documents only as long as plaintiffs were willing to bear the cost of a second pro- duction. Similarly, in Autotech Techs Ltd. Partnership v. AutomationDirect.com, Inc.,64 defendant sought the pro- duction of a document with metadata. However, plain- tiff had already produced the document in both portable document format (PDF) on a CD and paper format, and had provided a “Document Modification History” show- ing a chronological list of all changes made since the document was created. Defendant wanted the electronic version of the document and wanted to know when the document was created, when it was modified, and when it was designated “confidential.” Defendant argued that the document had to be produced with metadata since the metadata existed in its “native format” on a com- puter at Autotech’s offices in Iowa. The court considered whether either the PDF file or the hard copy was a rea- sonably usable form under Federal Rule of Civil Proce- dure 34(b)(2)(E). Defendant argued that the production was not usable because it did not contain things that metadata would contain, like the history of the docu- ment. However, the court noted that the paper copy of the document included a nine-page history of the changes made to the document from its creation on February 9, 2000, to March 2, 2007. Further, the court pointed out that defendant had not specified that it wanted metadata to be produced, and that there was no mention of metadata in earlier motions to compel. It commented “it seems a little late to ask for metadata after documents responsive to a request have been pro- duced in both paper and electronic format. ” The court cited The Sedona Principles: Best Practices, Recommen- dations & Principles for Addressing Electronic Docu- ment Discovery65 with approval. D. Federal Rule 37 Federal Rule 37 deals with the parties’ failure to provide information. The courts recognize that some information will be lost during the regular operation of a computer system. Sanctions will not be imposed for the loss of ESI during routine and good faith operations of the computer system. However, a litigant cannot ex- ploit a routine operation by allowing a system to con- 64 248 F.R.D. 556 (N.D. Ill. 2008). 65 The Sedona Conference Working Group Series, July 2005 version. tinue destroying information that it is required to pre- serve. 1. Sanctions The courts are harsh when dealing with parties who have intentionally destroyed electronic evidence. In Kucala Enterprises Ltd. v. Auto Wax Co., Inc.,66 the court addressed plaintiff’s use of a computer program titled “Evidence Eliminator” before a deposition. Defen- dant Auto Wax argued that Kucala’s use of the Evi- dence Eliminator program on two computers, throwing away an older computer, and otherwise destroying dis- coverable information and documents severely preju- diced Auto Wax in that it could not discover evidence to successfully defend itself in the underlying action. The court ruled that Kucala flagrantly disregarded a court order requiring him to allow inspection of his computer and further commented on his “utter lack of respect” for the litigation process. The court found that Kucala’s actions were unreasonable, and that he was at fault for not preserving evidence in his control, which he had a duty to maintain. The court recommended Kucala’s suit be dismissed and some of defendant’s attorneys fees reimbursed. In Munshani v. Signal Lake Venture Fund II,67 the court appointed a computer forensics expert to deter- mine whether a certain e-mail purportedly sent by de- fendant Hemant Trivedi to plaintiff Suni Munshani was authentic. The expert concluded that the message was not authentic. The expert established that Munshani took the header from another e-mail sent to him by Trivedi, altered the substance of that e-mail, and then provided the altered e-mail in response to discovery and swore that it was authentic in affidavits to the court. Plaintiff’s lawsuit was dismissed, and the plaintiff was ordered to reimburse the defendants for their costs. Spoliation of Evidence.—“Spoliation” has been de- fined as “the destruction or significant alteration of evi- dence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”68 In Zubalake v. UBS Warburg LLC,69 the court held that plaintiff must establish three things to obtain spoliation sanctions: the party having control over the evidence had the obligation to preserve it at the time it was destroyed, the records were destroyed with a “culpable” state of mind, and the destroyed evi- dence was relevant to the parties’ claim such that a reasonable trier of fact could find it supported the claim. Stevenson v. Union Pacific Railroad70 involved a wrongful death and personal injury claim due to a rail- road crossing accident. The plaintiffs filed a motion for sanctions because Union Pacific destroyed both a voice 66 56 Fed. R. Serv. 3d 487 (N.D. Ill. 2003). 67 2001 WL 1526954 (Mass. Super. Ct. Oct. 9, 2001). 68 See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). 69 229 F.R.D. 422 (S.D.N.Y. 2004). 70 354 F.3d 739 C.A. 8 (8th Cir. 2004).

16 tape of conversations between the train crew and dis- patch at the time of the accident and track maintenance records from before the accident. Union Pacific argued that sanctions were not justified because it destroyed the documents in good faith pursuant to its routine document retention policies. The district court applied the following test in ana- lyzing the case: 1) whether the record retention policy was reasonable considering the facts and circumstances surrounding those documents, 2) whether lawsuits or complaints had been filed frequently concerning the type of records at issue, and 3) whether the document retention policy was instituted in bad faith. The appellate court found that the district court’s bad faith determination was supported by Union Pa- cific’s destruction of the voice tape pursuant to its rou- tine policy when Union Pacific knew that the tapes would be important to any litigation over an accident that resulted in serious injury or death and knew that litigation is frequent when there has been an accident involving a death or serious injury. The court noted that the tape was the only recording of the conversa- tions at the time of the accident, and a tape such as that would always be highly relevant to potential litigation over the accident. The court also considered evidence that Union Pacific was careful to preserve a voice tape in other cases where the tape proved to be beneficial to Union Pacific. The court found that the pre-litigation destruction of the voice tape in this combination of cir- cumstances, even though done pursuant to a routine retention policy, created a sufficiently strong inference of an intention to destroy it for the purpose of suppress- ing evidence of the facts surrounding the operation of the train at the time of the accident and imposed sanc- tions against the railroad. In United Medical Supply Co. v. United States of America,71 the federal government was sanctioned when it failed to follow its own document retention policy and destroyed relevant documents in a suit against it for recovery of lost profits and payments. The court prohib- ited the government from cross-examining contractor’s expert regarding gaps in the record created by govern- ment’s spoliation and from adducing its own expert tes- timony construing the same gaps. The government was further sanctioned by the court’s requirement for it to reimburse the contractor for any additional discovery- related costs, including attorney’s fees that were in- curred after discovery began. The court pointed out that it was “[M]ost disturbing [that] some of these docu- ments were destroyed even after the court conducted its first spoliation hearing.” Even though defendant apolo- gized for what it claimed was the “negligence” of some of its employees and for making repeated misstate- ments to the court as to the steps that were being taken to prevent spoliation, the government also told the court that it should not—or could not—impose spolia- tion sanctions because the defendant did not proceed in bad faith. The court commented that “[w]hile defendant 71 77 Fed. Cl. 257 (2007). may be wrong in asserting that it acted in good faith, it most certainly is wrong in thinking that it can reck- lessly disregard its obligations to preserve evidence without legal consequence.” 2. Litigation Hold The duty to preserve documents begins when the “litigant knows or should know the evidence is relevant to imminent or ongoing litigation.”72 The court in Tous- sie v. County of Suffolk73 considered the county’s failure to initially perform a diligent search for e-mails respon- sive to plaintiff’s request. The county advised the court that to perform the search requested by plaintiffs, it would be necessary to restore 470 backup tapes, which required a new system to be purchased at a cost of ap- proximately $934,000. The county estimated that the search would then take 960 man-hours to complete. The court found that once the duty to preserve attaches, a litigant is expected, at a minimum, to “suspend its rou- tine document and record destruction policy and to place a litigation hold” and ruled against the county.74 Practical Considerations—Implementing Litigation Hold.—When it is apparent that a lawsuit is going to ensue, the obligation to preserve any and all related information should be communicated throughout the agency. Every employee that may be affected by the lawsuit should be made aware of the situation and edu- cated on the type of information that would logically apply to a litigation preservation order. Counsel should create a procedure by which staff can adhere to the ob- ligation without interfering too much with day-to-day work. If it is too early to set up a procedure, counsel can specify temporary actions that people can take and simply identify a time period when a more formal plan will be put in place. Practical Considerations—Responding to an E- Records Request.—Counsel is ethically obligated to be familiar enough with his or her client’s computer sys- tems and their inner workings to engage in electronic discovery. Counsel has to have a basic understanding of the computer system’s capabilities and the way the agency’s system retains, stores, and destroys informa- tion. It is important to know the agency’s policy regard- ing e-mail and other document retention methods. Be- fore attempting to respond to an e-records request, counsel must consult with the information systems de- partment to learn the important areas of the computer systems operations and how those systems interact with each other. Locations to become familiar with are centralized e-mail systems, database tracking systems, accounting and financial systems, and backup and dis- 72 United States ex rel. Koch v. Koch Indust., 197 F.R.D. 463 (N.D. Okla. 1998). 73 2007 WL 4565160 (E.D.N.Y. Dec. 2007). 74 See also Doe v. Norwalk Cmty. Coll., 2007 WL 2066496 (D. Conn. July 16, 2007), where the court held that a party needs to act affirmatively to prevent its computer system from destroying information even if such destruction would occur in the regular course of business.