In addition, the duty to preserve information may affect a vast network of persons. According to Federal Rule of Civil Procedure 34(a), a party served with a request must produce documents in the party's possession, custody or control. Thus, documents held by employees, subsidiaries and affiliates, and third parties with legal or practical control of documents may all be discoverable.

The court's opinion referenced the numerous and conflicting opinions that have dealt with this issue in the last several years, including International Airport Centers, L.L.C. v. Citrin, 440 F.3d 418 (7th Cir. 2006) (holding that an employee's breach of loyalty to the employer negates his authorization) and Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962 (D. Ariz. 2008) (holding that the statute targets unauthorized procurement or alteration of information, not its misuse). Black & Decker (US), Inc. v. Smith, 2008 U.S. Dist. LEXIS 63054 (W.D. Tenn. Aug. 15, 2008) Download PDFThe federal Stored Communications Act does not prohibit disclosure of the contents of archived text messages pursuant to a civil document discovery demand under Fed. R. Civ. P. 34 to the subscriber of the text messaging service, a district court held. The court ruled that because the text messages were archived by a service provider that no longer provided text messaging services to the subscriber, the defendant City, the messages fell under the SCA provision that permits the subscriber to a "remote computing service" to consent to disclosure.

Guided by these legal principles an organization implementing a legal hold needs to determine what is relevant to the facts and circumstances that gave rise to the legal duty to preserve evidence. One court recently examined this topic stating:“Relevant documents” includes the following:[A]ny documents or tangible things (as defined by [Fed. R. Civ. P. 34(a))] made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” The duty also includes documents prepared for those individuals, to the extent those documents can be readily identified (e.g., from the “to” field in e-mails).

Id. at *2. This article will review how the court decided that motion in the context of the new e-discovery rules and its implications for discovery under the CFAA.Initially, the court cited to Fed. R. Civ. P. 34(a), which now expressly permits a party to request another party to produce “electronically stored information-including…data compilations stored in any medium from which information can be obtained.” Id. at *2.

e as they could have been in order to put defendant on notice of the format of the information sought, the Advisory Committee Note to Rule 34 is clear.” Id. at *3. According to that Advisory Committee Note, a party may not change the form in which electronically stored information (ESI) is maintained to a format that is more difficult or burdensome for the requesting party to use: “The option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.” Id. at *2 (quoting Advisory Committee Note to Fed. R. Civ. P. 34). The Magistrate Judge rejected Mazda's argument that the PDF files constituted a reasonably usable form of ESI and ordered defendant to produce the database information in native format. Additionally, while denying plaintiffs' motion for sanctions, the Magistrate Judge ordered defendant to “produce the appropriate individual to assist plaintiffs in understanding how to manipulate the ‘native format’ electronically stored information.” Id. at *3. 5. In Clark v. State, 915 N.E.2d 126 (Ind. Oct. 15, 2009), the Indiana Supreme Court held that a murder defendant's statements on the social networking site MySpace were admissible and not governed by the other crimes evidence rule (i.e., Indiana Rule of Evidence 404(b)). A jury found appellant guilty of murdering a two-year-old left in his care and recommended life in prison without parole. Id. at 128. On appeal, the appellant argued that the trial court erred in allowing the State to admit evidence from appellant's MySpace webpage. In parti

Such deletions, alterations, and losses cannot be spoliation unless there is a duty to preserve the information, a culpable breach of that duty, and resulting prejudice.Generally, the duty to preserve arises when a party "'has notice that the evidence is relevant to litigation or . . . should have known that the evidence may be relevant to future litigation.'" Generally, the duty to preserve extends to documents or tangible things (defined by Federal Rule of Civil Procedure 34) by or to individuals "likely to have discoverable information that the disclosing party may use to support its claims or defenses." See, e.g., Zubulake IV, 220 F.R.D. at 217-18 (footnotes omitted).

Id. Analyzing this issue under Federal Rule of Civil Procedure 34(a), the Magistrate Judge evaluated whether the SEC had the practical ability to obtain the documents and whether it had the legal right to obtain the documents by virtue of its agreement with D&T. The Magistrate Judge held that “an agreement with a third-party possessor granting a party access to documents, along with an actual mechanism for getting the documents, gives that party ‘the practical ability to obtain’ the documents.”

It is important for the leadership of public charities to become familiar with these provisions and should analyze each of the following:Records Management Program – Form 990 asks whether the organization has a written document retention and destruction policy. Nonprofit corporations should adopt a document retention and destruction policy, along with a records retention schedule, utilizing the standards under Sarbanes-Oxley, 18 U.S.C. 1512(c), and the new Federal Rules of Civil Procedure regarding e-Discovery, Fed. R. Civ. P. 34. Such a policy should cover the responsibilities of staff, volunteers, board members, and outsiders to maintain, store, or dispose of the organization’s records.Whistleblower Protection Policy – Form 990 asks whether the organization has a whistleblower policy.

The most recent case about production of electronically stored information (ESI) in native format with metadata, Chapmanv. General Bd. of Pension and Health Benefits of United Methodist Church Inc., No. 1:09-cv-03474, 2010 WL 2679961 (N.D. Ill. July 6, 2010), illustrates the importance of following the procedures outlined in Fed. R. Civ. P. 34(b)(2)(E) for specifying production formats in written discovery requests and responses.

The parties are obligated to make a reasonable search and diligent inquiry for information or documents responsive to the request. Fact Sheet Responses to document requests and the production of documents are deemed responses and production under FRCP 34. Additionally, the Toyota Defendants shall be permitted to conduct inspections of the subject vehicles.