CNet News has a report on the decision here.  Download the court’s order here.

Columbia Pictures v. Bunnell, No. 06-1093, (C.D. Cal., December 13, 2007).

Bakhtiari v. Lutz, — F.3d —-, 2007 WL 3377215 (8th Cir. November 15, 2007)

Not too many e-discovery (or any type of discovery) disputes get to the federal courts of appeal. But we have a recent decision from the Eighth Circuit that addressed the topic of “spoliation” when emails had been deleted.

A party in litigation is guilty of spoliation when the court finds that he or she “intentionally destroyed evidence with a desire to suppress the truth.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). Plaintiff Bakhtiari filed suit against the University of Missouri-Rolla and a number of administrators there, alleging Title VII and civil rights violations. He had been terminated from his position as a teaching assistant in the chemistry department.

Soon after Bakhtiari was terminated, but before he filed suit, the university’s IT staff backed up the contents of his email account onto two CDs. The university then allowed the messages to be deleted as part of “automated systems maintenance.” It turned over a copy of the CDs to Bakhtiari, but he claimed that large portions of data were missing.

At the trial court level, Bakhtiari claimed that the university should be sanctioned for spoliation for deleting the email messages from the server. The court denied this motion, however, and Bakhtiari sought review with the Eighth Circuit. On appeal, the court affirmed the denial of the motion.

The appellate court held that the lower court did not abuse its discretion in finding that the IT staff had taken appropriate steps to backup the data, and that Bakhtiari may himself have been responsible for the missing portions. Moreover, there was credible evidence that third parties had access to the account before the backups were made, and that Bakhtiari had asked that portions be deleted. Bakhtiari had failed to demonstrate, the court held, that the university acted with a “desire to suppress the truth.”

Case highlights important privacy interests in electronic discovery dispute.

From Ray Beckerman, we learn of the U.S. District Court for the Eastern District of Texas’s decision on a motion to compel discovery filed by the recording industry against an accused file-sharer. While the defendant will have to submit her hard drive for forensic examination to see whether she had any copyrighted sound recordings stored on it, she will not have to turn it over to the recording industry’s forensic expert.

Instead, seeking to “balance the legitimate interests of both sides,” the court ordered the parties to select a neutral computer forensics expert to conduct the inspection. Such an approach, the court found, would protect the disclosure of the defendant’s personal information, such as personal correspondence, household financial matters, school homework, and perhaps attorney-client privileged information.

Although in theory this sounds like a reasonable approach to protect the confidentiality of the defendant’s information, one could be troubled by a particular part of the court’s decision. The order states that “the Plaintiffs shall have the right to suggest hard drive search methodologies to the neutral expert and the expert shall make every effort to utilize those methodologies.”

But there is nothing in the order giving the defendant the right or opportunity to object to those methodologies. With an obligation to “make every effort” to comply with the suggestions of the plaintiffs, just how neutral is that forensic examiner really going to be?

Sony BMG Music Entertainment et al. v. Arellanes, No. 05-CV-328 (E.D. Tex., October 27, 2006).

In the case of Arista Records v. Tschirhart, the U.S. District Court for the Western District of Texas has shown little mercy on a defendant accused by record companies of illegal file-sharing.

Knowing that a court order was in place requiring her to turn over her hard drive to be copied, the defendant allegedly used “wiping” software in an attempt to destroy all evidence of her illegal P2P file sharing. In response, the plaintiff record companies moved, pursuant to Fed. R. Civ. P. 37(b), for the most severe form of sanctions against the defendant – entry of default against her. The court granted the plaintiffs’ motion, and provided them with 30 days to submit a proposed order spelling out their damages.

Given that the record companies’ expert opined that the defendant had downloaded over 200 sound recordings during 2005, those requested damages will probably be substantial. Statutory damages under the Copyright Act can go as high as $150,000 per work infringed, in the most egregious cases.

In reaching its decision to enter default against the defendant, the court exercised its inherent power to do so, making a note of its obligation to act with “restraint and discretion.” It found that the defendant had acted in bad faith. That bad faith was exacerbated – and the default was further warranted – by the fact that the defendant herself was responsible for the destruction of evidence, that the deletion of the files destroyed the strongest evidence relevant to the plaintiff’s infringement claims, and that less drastic sanctions would not be appropriate.

Not only was the sanction intended to dissuade the plaintiff from destroying evidence in the future, it was intended to make an example out of her. Merely awarding the plaintiffs their attorney’s fees or giving the jury an adverse inference instruction at trial would not have been enough to remedy the situation. Given the defendant’s “blatant contempt” for the court and a “fundamental disregard for the judicial process,” only default would be an adequate punishment and deterrent to others considering similar conduct.

[Hat tip to Techdirt for posting on this case.]

Arista Records, LLC, v. Tschirhart, No. 05-372 (W.D. Tex., August 23, 2006).

Administrative law judge’s discovery order permitting “access to literally everything” on petitioner’s computer did not adequately protect against disclosure of confidential and privileged information.

After being suspended from his job as a school teacher, petitioner Menke was placed under investigation for alleged misconduct. In a formal proceeding against Menke before Florida’s Division of Administrative Hearings, the school board sought discovery of all of the computers in Menke’s household. The board requested that its retained computer expert be allowed to inspect Menke’s computers in a laboratory, so that it could search for improper instant messages.

Menke objected to the discovery request on the grounds that such a wholesale inspection of his computers would violate his Fifth Amendment right and his right of privacy, and would reveal privileged communications with his wife, attorneys, accountants, clergy, or doctors.

Over Menke’s objections, the administrative law judge granted the motion to compel production of the computers for inspection. Menke sought review with the Florida appellate court, which quashed the discovery order.

The appellate court looked to the only other Florida appellate court decision relating to electronic discovery, Strasser v. Yalamanchi, 669 So.2d 1142 (Fla.App.1996), noting that the relevant rules of procedure were broad enough to encompass requests to examine computer hard drives, but only in limited and strictly controlled circumstances. The court concluded that permitting unlimited access to everything on a computer would constitute irreparable harm, because it would expose confidential and privileged information to the opposing party.

The court continued by noting that in cases where there is a need for access to electronically stored information, searching for such data should first be done by the party responding to the discovery request, unless there is evidence of data destruction designed to prevent the discovery of relevant evidence.

In this case, there was no evidence of any destruction of evidence or thwarting of discovery. The court sent the matter back to the administrative body, allowing the school board to request that Menke produce relevant, non-privileged, information. In the court’s words, Menke was not required to provide unfettered access to the entire “electronic filing cabinet” that was his computers.

Menke v. Broward County School Bd., — So.2d —-, 2005 WL 2373923 (Fla.App., Sep 28, 2005).