Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Entire Bill Of Rights

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

NORTHWEST AIRLINES, INC., 
Plaintiff, 

v.                                                              Civil Action No. 00-08DWF/AJB

TEAMSTERS LOCAL 2000, et al.,
Defendants. 

MEMORANDUM IN SUPPORT OF
APPEAL OF DEFENDANTS GRIFFIN AND REEVE
FROM ORDER REQUIRING THEM TO SUBMIT TO A SEARCH
OF THEIR PERSONAL COMPUTER EQUIPMENT

This is an appeal from a decision by Magistrate Judge Arthur Boylan, which required defendants to make available their personal computer equipment for copying and review by an accounting firm selected by plaintiff Northwest Airlines. This search was ordered despite the absence of any evidence that the defendants could not be trusted to review their own computers to produce all relevant evidence, which is the normal discovery procedure. Moreover, although the Magistrate Judge ordered that certain measures be taken to protect defendants' privacy, those protections proved not to be adequate to the task given the schedule on which discovery materials had to be reviewed for objections based on relevance and privilege, and given the fact that, despite the Magistrate Judge's intentions, the accounting firm continued to regard Northwest as its client, rather than acting as a neutral third party reviewing documents under the auspices of the Court. Accordingly, the Court is requested to reverse the order of the Magistrate Judge, to direct the accounting firm to destroy any copies of defendants' computer data that remain in its hands, and to relieve defendants from any further obligation to respond to Northwest's request for discovery based on the product of the improper computer search.

 

FACTS

A. The Underlying Case.

This discovery issue arose in a case in which plaintiff Northwest Airlines had sought and obtained a temporary restraining order ("TRO") by alleging that Teamsters Local 2000, and several of its officers and members, had conspired to foment a "sickout" among Northwest flight attendants that had, allegedly, caused a dramatic increase in the number of flight attendants calling in sick over the millenial New Year's holiday, which, in turn, was alleged to have forced the airline to cancel a large number of flights. When originally filed, Northwest's papers purported to contain evidence that showed that defendants Kevin Griffin and Ted Reeve, two individual flight attendants who held no union office, but did sponsor web sites which attacked the company's (and the union's) bargaining stances, were involved in this conspiracy. However, by the time the discovery motion came on for decision, arguments and evidence submitted by Griffin and Reeve showed not only that neither of them had called in sick during the period that Northwest had alleged the sickout occurred, but also that they had not advocated a sickout, and Northwest had exaggerated or distorted the evidence it had originally claimed to have against them. See generally the affidavits and arguments set forth in defendants' memorandum and reply brief in support of their motion to dissolve the TRO; see also the accompanying affidavits of Kevin Griffin, at ¶¶ 2, 5-8, and Ted Reeve, at ¶¶ 2, 3. Indeed, Northwest had relied on facts ­ such as the advocacy of other persons through Griffin's web site ­ that it later admitted could not be a basis for holding these two defendants liable for the alleged sickout conspiracy. Rather, Northwest's only hope of holding these two defendants responsible for the legal violation on the basis of which it had obtained the TRO was to obtain evidence through discovery ­ i.e., the proverbial fishing expedition.⁽¹⁾

B. The Discovery Orders at Issue.

Immediately after obtaining a TRO, Northwest asked for the right to conduct expedited discovery, and further demanded the right to copy all hard drives and other computer equipment on which any of the defendants had prepared any materials in support, not only of the sickout, but also of the HAVOC, Contract Action, and other union campaigns which, Northwest charged, had spawned the sickout conspiracy. Fresh from a hearing at which the Court had been persuaded by Northwest's counsel that there was evidence of an extensive conspiracy to foment the sickout, Judge Boylan approved a stipulation between Northwest and the handful of defendants that were represented at that point that allowed a modified version of the expedited discovery and computer search schedule that Northwest had demanded. It is apparent that in this period, the represented parties were proceeding on the assumption that Northwest would be allowed at the very least to "inspect" all defendants' computer equipment, and that the only question was the terms on which this inspection would occur. Defendants Griffin and Reeve had not yet appeared in the case during this time period.

Furthermore, in the course of resolving a dispute among the parties about the scope of the expedited discovery that had been authorized, the Court issued rulings about the scope of discovery that were to have a significant impact on the discovery of the hard drives. First, it held that discovery was to be limited to the concerted sickout that had been alleged in the complaint, which formed the basis for the Court's TRO. On the other hand, the Court recognized that discovery about other forms of activity had the potential for providing circumstantial evidence supporting Northwest's claims of a conspiracy to hold a sickout. Thus, the mere fact that plaintiff's requested discovery related to possible concerted activities other than the sickout would not bar such information from being pursued; however, in order to be discoverable, evidence going to these other issues had to have a nexus to the sickout. The Court directed the parties to keep these general principles in mind in the course of any discovery disputes that might arise.

It was against this backdrop that Magistrate Judge Boylan considered the motion of defendants Griffin and Reeve, ultimately joined by Local 2000 and the other individual defendants, for a protective order barring Northwest's demand for inspection and copying of their hard drives. Defendants Griffin and Reeve argued that they had conducted their own search of their hard drives, and that, because the computers had been used mostly for private and not work-related purposes, they contained a vast array of personal material that should not be subject to inspection by strangers. The attached affidavits of Griffin, ¶¶ 3, 13, 14, and Reeve, ¶¶ 4, 8, provide details concerning the nature of these private contents. As a fallback position, Griffin and Reeve suggested that, if the Court accepted Northwest's demand for a global search of their computers, defendants should be allowed to pick their own computer professional to conduct such an examination, instead of being forced to turn over their entire hard drives to an entity selected by and responsible only to Northwest.

Defendants forcefully argued that the normal course of discovery is to allow each party to search their own documents for relevant material, and not to turn all of their papers and electronic records over to a stranger to conduct the review for them. The only exception, defendants argued, is where evidence is presented, and the Court finds, that relevant documents have been deliberately withheld or destroyed, in which case it might be appropriate for a Court to order a third party computer search. However, defendants pointed out that there was no evidence of such destruction of relevant computer documents, and hence, they argued, the precedents required denial of Northwest's demand that its own agents be allowed to copy and search their computer hard drives and other equipment.

In the meantime, the remaining defendants, although joining in Griffin and Reeve's motion, conducted negotiations (from which Griffin and Reeve were excluded) over the terms of a protocol that would allow Northwest's selected agents, Ernst and Young ("EY"), the international accounting firm, to proceed with global searches of their hard drives. After the close of business on the day before the motion for a protective order came on for hearing, Northwest's counsel produced a written protocol which, they declared, had been fully negotiated between Northwest and counsel for all of the defendants other than Griffin and Reeve. Under this protocol, EY personnel were to conduct a search of the computer equipment for documents that might be responsive to certain document categories (relating both to the sickout and to HAVOC, the Contract Action Team, and various other concerted activities that Northwest was charging as part of the sickout conspiracy) that were set forth in "Attachment A" to the protocol, and to provide such documents to Northwest's counsel. The protocol did not spell out the keywords whereby the computer drives would actually be searched for documents responsive to Attachment A; nor did the protocol distinguish between documents that did and did not have an evidentiary nexus to the sickout ­ the key distinction that this Court had ordered the parties to use throughout the discovery. The only exception was for documents relating to negotiation and bargaining strategy, which the protocol instructed EY not to produce to Northwest.

Defendants argued that the protocol did not protect them against discovery of documents that lacked any evidentiary nexus to the sickout. In addition, they argued that Northwest, recognizing the paucity of its evidence to support their involvement in an organized sickout, was relentlessly attempting to expand the scope of discovery in the hope that the broadest of fishing nets would catch some possible wrongdoing that could justify having brought the case against Griffin and Reeve in the first place. Indeed, defendants charged, the discovery effort was, in significant part, an effort at intimidation whose purpose was to discourage members of the union from expressing their dissatisfaction with the company and with the union, backed up by an overt warning that the company felt free to discharge any employee that it was able to identify through discovery as having made any objectionable statements.

However, while granting some protection against discovery abuse by Northwest, Judge Boylan rejected this argument against a global search of the hard drives, to be conducted by EY, the company that Northwest had retained for this task. Without giving any reasons why defendants could not be trusted to search their own electronic records for relevant material, Judge Boylan decided that all defendants would be required to turn over all of their requested computer equipment for inspection and copying by EY. EY, in turn, was required to search the equipment using the methodology negotiated by all parties except Griffin and Reeve, who were offered no opportunity to comment on the protocol before it was furnished to the Court. Judge Boylan did alter the protocol to meet some of the concerns expressed by defendants. Thus, after using "search methodologies" (i.e., key words) to identify documents containing responsive words, phrases, and other data, EY was to develop "an itemized list of individual communications [that it deemed] responsive under the terms of the protocol." This list, along with "paper copies" of each specific communication, were to be provided to counsel for defendants with 24 hours of the time the computer equipment was seized and copied. The list of individual communications, in turn, was to be provided in the form of a document and privilege log that would permit defendants' counsel to identify each particular document that was not to be produced because it was privileged, because it related to negotiation or strike strategy, because it was not relevant (that is, not within the established scope of discovery), or because there was some other reason for non-disclosure.

In effect, rather than incorporating the various limitations on discovery (such as privileges and the "evidentiary nexus to the sickout" principle) into EY's protocol, the limitations on the scope of discovery were to be applied by defense counsel in reviewing the materials printed by EY. Defense counsel were to have only 24 hours to respond to the document log, and all documents authorized for disclosure through this process were to be disclosed by EY to Northwest. EY was also to provide defendants with a complete paper copy of all documents disclosed to Northwest. In addition, Judge Boylan ordered that information obtained through discovery in the case could be used only for the purpose of the litigation ­ that is, without express permission of the Court, it could not be used for ulterior purposes such as company discipline.⁽²⁾

 

C. Events Subsequent to the Discovery Order Under Appeal.

Through EY, its selected agent, Northwest immediately began to copy the hard drives belonging to Local 2000 and the individual defendants. The first hard drives copied were Griffin's and Reeve's. Northwest then copied all of Local 2000's hard drives and a number of the individual defendants' hard drives, while proceeding with numerous witness depositions. Before all the hard drives had been copied, however, Northwest entered into an interim settlement with all defendants other than Griffin and Reeve. (Counsel for Griffin and Reeve were deliberately excluded from the negotiations leading up to the settlement.) The settlement voluntarily continued the TRO (with some modifications) and stayed the proceedings with respect to those defendants, particularly the discovery that had been causing an enormous financial drain on the local union's resources.

Northwest also asked for a continuance of its motion for a preliminary injunction. This court denied that motion by order dated February 7, but it specifically ruled that all existing discovery orders were to remain in effect.

Northwest eventually decided not to press forward with the preliminary injunction hearing, despite the fact that, under extremely adverse conditions, counsel for Griffin and Reeve reviewed several thousand pages of materials printed from Griffin and Reeve's hard drives, and authorized EY to provide thousands of pages to plaintiff's counsel. In the course of his argument to the Court, undersigned counsel Mr. Levy described in detail the problems that he encountered in trying to comply with Judge Boylan's orders without disclosing privileged and irrelevant matter. These difficulties are summarized below.⁽³⁾

(1) Without objecting that the Court's schedule might present logistical problems, or requesting an extension of time or modification of the Court's order, Northwest arrogantly ignored the 24-hour timetable established by Judge Boylan, which was constructed to require production of all evidence a full week before the hearing, allowing ample time for review of the computer data and subsequent preparation for the preliminary injunction hearing. EY delayed even beginning work until several days after the computer equipment had been copied. See Second Griffin Declaration ¶ 17. Even then, the first set of paper copies and their logs were not delivered to undersigned counsel until Friday, February 11 ­ eight calendar days after the hard drives were copied. Id. ¶ 16; Second Reeve Declaration ¶¶ 6, 7. Upon observing that at least 2500 pages had been produced for review that morning, without any logs as required by the order, undersigned counsel immediately informed the Magistrate Judge that they could not, within 24 hours, read and make judgments about the propriety of producing these documents, not to speak of creating a written document log. The Magistrate Judge granted defendants an additional 24 hours, requiring their review and privilege log to be completed and delivered by mid-day Sunday, February 13. Defendants complied with this timetable, but the hasty timetable imposed on them caused them to produce to Northwest many more documents than a more careful review likely would have yielded. Moreover, because the review could not begin until Friday, there was no opportunity for further appeals to Judge Boylan before Griffin and Reeve's depositions were scheduled to begin at 9 AM on Monday morning, February 14.

(2) Northwest unilaterally instructed EY that it was unnecessary to provide paper copies of the "responsive" documents printed from the logs, depsite the express provision in Judge Boylan's order for provision of "paper copies"; instead, a CD-ROM containing the data was delivered to Mr. Levy on Thursday, February 10. EY did not print hard copies until defendants stood on their rights to obtain paper copies and insisted that Northwest direct EY to comply with the order. The part of Judge Boylan's order requiring paper copies was presumably included in response to counsel's expression of concern about whether they could efficiently handle the documents in any other format.

(3) EY did not follow the two-step process required by the protocol, first conducting a search using key words, and then making judgments about which documents were actually responsive to the protocol. Instead, it printed out any document that contained a single key word, even though one of the key words ("flu") consisted of only three letters that could easily have appeared together at random in computer gibberish. Indeed, many of the printed pages, which EY produced with the implicit representation that EY had determined that they were responsive to Attachment A, appeared to consist entirely of gibberish. Only after most of the printing process had been completed did EY begin, according to what its representative told Mr. Levy, to isolate documents that were obviously not responsive to Attachment A. Even then, many pages of gibberish were still printed and forwarded to Mr. Levy for his review.

(4) When undersigned counsel asked for a list of key words to facilitate review of the documents in the time crunch, EY was initially agreeable but later refused to provide the key word list, on the ground that Northwest was its client, and thus its instructions had to be obeyed. See also Second Griffin Declaration ¶ 16.

(5) EY did not comply with the part of Judge Boylan's order, ¶ 3, that required it to provide defense counsel with a log that "itemized [each] individual communication" that it deemed responsive to Attachment A. Instead, its logs identified as a single "document" anything that appeared on defendants' computers as a single file, even though some of these files were hundreds of pages long, consisting of dozens or even hundreds of separate documents. Even when eventually produced beginning on Friday afternoon, EY's logs were therefore inadequate for use as privilege logs, and undersigned counsel were forced to spend some of the few hours allotted to the review of these thousands of documents to identify specific pages that could be produced or were to be withheld. It is notable that the key-word search apparently produced these enormous "documents" if merely one of the communications in any file contained a single responsive key word.

(6) EY also told undersigned counsel that it could not redact portions of a single page; that is, counsel needed to give it instructions to provide or withhold entire pages within a document. As a result, if a single page contained both material within the established scope of discovery and material that was outside that scope, or contained some material that was privileged and some that was not, counsel had to allow disclosure of the entire page, or require that the entire page be withheld.

These wholesale violations of Judge Boylan's discovery order, coupled with the intense time pressure caused by the impending depositions and preliminary injunction hearing, presented defendants with a Hobson's choice. On the one hand, they could stand precisely on their rights under the order, producing only those pages that contained exclusively material covered by the Court's previous rulings on discovery; in that case, they would risk sanctions at the impending preliminary injunction hearing, if the Court rejected their reading of Judge Boylan's order. Or, they could respond to the situation practically, providing all pages of printed matter that contained a key word but did not appear to contain privileged information, at the risk of giving Northwest a huge volume of material that was outside the bounds of legitimate discovery because it had no conceivable relationship to the sickout. Defendants chose the latter course, going out of their way to produce all relevant material even if it was intermixed on the same page with irrelevant matter, so long as no truly privileged materials were also included. As a result, Northwest gained access to hundreds or even thousands of pages that were not within the legitimate portions of its discovery requests. Once this vast quantity of material had been turned over, Northwest deprived defendants of the benefits of this choice when, rather than face the likelihood of an adverse decision at trial, it unilaterally asked the Court to adjourn the preliminary injunction hearing.⁽⁴⁾

This appeal followed.

ARGUMENT

Judge Boylan's order should be reversed because, contrary to the normal means of conducting discovery, where a party reviews its own documents to produce materials that are relevant but not privileged, the order placed defendants Griffin and Reeve at the mercy of a third party, whom they did not select and who was not legally responsible to them, to review not only records that were potentially relevant to this dispute, but also a vast quantity of records that were known in advance to be present and to be irrelevant to this dispute and highly personal, and to exercise judgment in making preliminary decisions about what was discoverable and what was not. No precedent allows Northwest to obtain a search of its adversaries' hard drives by its own chosen agents, absent any evidence that defendants could not be trusted to search their own hard drives. Admittedly, we have found no reported case that expressly forbids this kind of search either ­ this a case is truly one of first impression.

The attached declarations of Griffin and Reeve show that the defendants felt personally violated by the search and examination of their most personal documents by forensic experts hired by their employer. Judge Boylan's modification of Northwest's protocol to allow their attorneys to withhold from Northwest legally objectionable documents was not responsive to defendants' objections to the intrusion into their private matters by Ernst and Young, including EY's freedom (not expressly restricted by the order) to discuss documents directly with their employer's attorneys.

Although Judge Boylan attempted to craft an order that protected defendants' privacy, the protections were flawed by substantial loopholes, identified above, and, perhaps more fundamentally, proved inadequate to the task for a number of reasons ­ most importantly, the extreme time pressures created by Northwest's still-pending request for a preliminary injunction, combined with EY's violations of the Court's orders. At least some of these violations were committed at Northwest's behest, but in all cases they were attributable to Northwest because it, and not defendants, selected EY as the forensics expert. In sum, although the privacy protections crafted by Judge Boylan were undoubtedly intended to protect defendants' interests, the Court should reverse Judge Boylan because his order violated the following governing principles:

(1) Because of the risk to privacy interests that they create, global third party computer searches should not be ordered in the ordinary course of litigation, absent unusual circumstances suggesting the need for expert review of computer equipment.

(2) A party should never be required to accept a computer forensics expert selected by his or her adversary, but should always be permitted to select his or her own agent (subject to judicial review of the expert's credentials ).

(3) In designing the protocol to govern a non-consensual computer search, the keywords by which the initial search will be conducted must be specified and not left to the discovering party's discretion.

(4) Searches should never be allowed on timetables that do not give the searched party adequate time for a careful review of the computer data that is produced by the search process.⁽⁵⁾

A. The Production of Computer Data, Like Other Documents in a Party's Possession, Custody or Control, Should Normally Be Effected by a Party's Own Search of His Storage Facilities, Not by Third-Party Review.

Defendants' argument begins with an explicit recognition that electronically stored data is subject to examination under Rule 34 of the Federal Rules of Civil Procedure. That is not in question here. The issue is the manner in which discovery of such data should proceed ­ whether it should be left to defendants to search their own computers looking for information that is covered by a legitimate document request (as they would with paper records), or whether plaintiff should be allowed to select an agent to look through all of the locations where defendants store such electronic data, looking for any data that plaintiff and its agents believe may be relevant.

Under the standard procedures of discovery, followed ever since the Federal Rules were adopted in 1938, a party is entitled to ask for relevant documents; at least since 1970, that has included electronically stored data. A party is entitled to require its adversaries to conduct a reasonable search for such documents in any location where such things are stored (and to explain how they looked, where they looked, and why); to identify such documents as are covered by the request; and to either produce those documents or object to their production on grounds of relevance or privilege. But a party is not entitled to commandeer possession, custody and control of its opponent's property so that the discovering party, or its agents, may conduct a general search of its opponents' document storage facilities ­ including attorney-client and other privileged evidence ­ in order to turn up anything that it, or its agents, may decide is relevant.

There are very good reasons for this general rule. Most documents that a person has are likely to be completely irrelevant to the subject matter of the case that provides the basis for discovery. The individual party is likely to have a good idea of which parts of his filing system will contain material relevant to the litigation. As a result, it is more efficient, and substantially less burdensome, to allow the person to conduct his own search. But the more important reason for allowing parties to search their own files is not efficiency but privacy ­ the person's other documents are likely to be not only irrelevant to the litigation, but personal and private. Most people do not want other individuals ­ not just their adversaries, but even their own agents and attorneys ­ browsing through their personal materials trying to identify matter that is relevant to litigation. Being required to provide all of one's papers and things to one's lawyer for review should not be, and traditionally has not been, the price of being a party to litigation, especially as a defendant who did not choose to be a party to a case.

That was certainly the rule before the age of computers. If a discovery target keeps documents of a certain kind that are covered by a discovery request, which the requester believes are kept in a particular set of file drawers, the discovering party is entitled to have the discovery target look through those file drawers, pull out the documents covered by the request, and respond or object accordingly. The discovering party is not entitled to visit the target's office and go through the file drawers itself, making its own judgments about which documents are covered, which are relevant, and which are privileged.

Defendants' computer equipment is like the file drawers in this example. Although defendants have indeed used their computers in connection with communications covered by plaintiff's discovery requests, they use those computers primarily for other things. They communicate with their friends and families; they conduct their personal banking, shopping, and business affairs unrelated to plaintiff and to the union; they store pictures; and they engage in various intra-union communications unrelated to the contract or related to the contract, but privileged. Moreover, they use their computers to communicate with their attorneys. When EY inspected defendants' computers, made copies of all data stored on those computers, and printed out thousands of pages of documents containing morsels of text responsive to its keywords, they included copies of a vast quantity of material to which plaintiff obviously had no entitlement. Not only did plaintiff's agent examine all of these materials, it even printed many thousands pages and provided them for the review of undersigned counsel, implicitly representing that EY had made an initial judgment that it was discoverable data. The Magistrate Judge should not have allowed plaintiff or EY to do this. It was clear error to have allowed an agent of a party to review and print attorney-client and other privileged evidence.

 

B. Computer Data Should Not Be Treated Differently Simply Because the Technology Exists to Search for Responsive Documents "Automatically."

Computer technology permits an entire hard drive to be searched by electronic means, and the temptation certainly exists to say that, simply because the technology makes such searches possible, they ought to be permitted as a routine part of litigation. But using such technology can have substantial non-monetary costs. What happened in this case amply demonstrates those costs.

Northwest's argument for demanding to conduct a general search of defendants' computers was two-fold. First, an electronic search had the potential for greatly reducing the inefficiency that would otherwise be entailed by a general search of an opposing party's files. The actual process of visual examination would be confined to specific items that were responsive to the "key words" that would be used as search terms. Moreover, the resulting invasion of privacy could be reduced if only documents responsive to the keywords were inspected visually.

As it turned out in this case, the theoretical benefits did not materialize, and in fact the procedures proved to be far more inefficient than efficient, because of the apparent gross overbreadth of the key-word search procedure. The inefficiency of a general search can never be entirely eliminated because key words will invariably not be perfect, and because somebody must still perform the task of visual review of each individual document. And although inefficiency of a general search is reduced, the invasion of privacy is dramatically increased because someone basically foreign to the discovery target ­ either the lawyer for an adverse party, or the lawyer whom the party has retained to represent him in the litigation ­ is able to review a large number of documents that may not only have nothing to do with the litigation, but may be private and personal. In this case, for example, undersigned counsel Mr. Levy was placed in the awkward and uncomfortable position of reviewing the written remains of various internet searches that his clients had performed (unrelated to this case), and counsel felt that his clients' privacy had been invaded simply by allowing him, their own retained counsel, to see this material. Even more offensive was the intrusion into irrelevant, highly personal, and attorney-client privileged communications by agents of the opposing party.

The second basis for demanding an electronic search of its adversaries' hard drives was the possibility that defendants might have once created documents on the computer, that were relevant to the case, but were no longer stored there in open files because they had been deleted. All such data would remain in the computer even after deletion, unless it had been physically overridden by later data, due to space shortages on the hard drive. There is no way to distinguish between deleted files that were actually communicated to another person and deleted files that were never communicated to anyone, i.e., that were never more than mere thoughts. See generally Affdavit of Jeffrey M. Fischbach.

There are, indeed, cases in which courts have compelled parties to subject their computers to a search by forensic experts. But in every reported case in which courts have ordered such searches ­ including the five cases that Northwest cited in favor of its demanded electronic search ­ the reason was that, in the course of litigation, evidence had been obtained suggesting that the person whose computers were to be searched had destroyed relevant evidence during the course of the litigation. See Playboy Enterprises v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999); Illinois Tool Works Inc. v. Metro Mark Prods., 43 F. Supp. 2d 951 (N.D. Ill. 1999); Alexander v. Federal Bureau of Investigation, 186 F.R.D. 78 (D.D.C. 1998); Gates Rubber Co. v. Bando Chemical Indus., 167 F.R.D. 90 (D. Colo. 1996); R.S. Creative, Inc. v. Creative Cotton, Ltd., 89 Cal. Rptr. 2d 353 (Cal. App. 1999). Thus, only when the opposing party has independent evidence that the party from whom discovery has been sought was engaged in misconduct warranting the withdrawal of the presumption that every party can be trusted to produce its own relevant documents, have courts found it appropriate to take the extraordinary step of ordering an outside examination of the parties' computers.

It is true that a computer may contain documents that the owner of the computer intended to discard, but to the extent that there are differences between paper and computer records, they argue for protection against turning extraordinarily intrusive searches of a party's hard drives into a routine litigation practice. Computers give new meaning to the term "discarded document." With paper documents, a person may draft a document, never send it, and simply throw it away. Or the person may start with one draft, edit it and discard the prior draft, continuing this editorial process until the final document is produced, discarding (and not sending) all drafts along the way. Once the preliminary material is discarded, it is undiscoverable, except perhaps for the brief period of time that the material sits in the person's trash can waiting to be carted away. An extensive jurisprudence has developed under the Fourth Amendment about the circumstances in which it is lawful to search a suspect's trash; but even when such searches are appropriate, the period of time when an individual is exposed to the possibility of a search is very short.

The use of a computer changes this framework entirely. Documents stored on a computer do not show whether they were ever sent or whether they represent mere private musings. And when a document is "deleted" from a computer hard drive or diskette, it is not actually destroyed; rather, its electronic contents are left on the drive or diskette until the computer needs that location for other data. Only at that point may the data may be partially or entirely overwritten. The data of a "discarded" document may thus remain on a hard drive for weeks, months, or even years. Moreover, the refuse from different discarded materials may be strewn about the computer in various locations, making it possible, at best, to make educated guesses about which "deleted" matter was originally created and stored with which other "deleted" matter. For discovery purposes, the important point is that relevant and irrelevant will commonly be mixed together, and the process of translating this "deleted" matter into reviewable and usable form can be quite sensitive. See Fischbach Affidavit.

In these circumstances, a party should not be subjected to the time-consuming burdens, and the invasions of privacy, inherent in a third-party search of his personal computer equipment, unless the party seeking such discovery has been able to offer compelling evidence to suggest that there is a need for such an extraordinarily intrusive and burdensome search. That was not the case here. There was not the slightest bit of evidence that either Griffin or Reeve had responded to the lawsuit against them by destroying evidence. Nor, indeed, was there any probative evidence that they were part of the sickout conspiracy that was alleged in the complaint and in the TRO papers. To the contrary, the very purpose of the computer search, as directed against defendants Griffin and Reeve, was that, once defendants had exposed plaintiff's distortion of the evidence supposedly supporting its sickout allegations against them, it was compelled to seek the computer search as its last, desperate hope of establishing its claim to a preliminary injunction. In the circumstances, there was no basis for ordering a departure from the normal rules of discovery in federal litigation whereby each party is responsible for searching its own records for documents or other things that are covered by an opposing party's discovery requests.

C. The Safeguards That Judge Boylan Added to the Plaintiff's Proposed Search Protocol Did Not Effectively Protect Defendants' Privacy.

The error of ordering a global third-party search of defendants' hard drives was compounded by the failure to ensure that the search would be conducted under circumstances that provided adequate protections against undue burdens and invasions of defendants' privacy. We refer, here, to Judge Boylan unexplained decision to allow the search to be conducted by an entity selected by Northwest Airlines. Normally, a hard-drive search is to be conducted either by a forensics expert on the staff of the discovery target (the Alexander case), or by an expert selected through the agreement of the parties (Welles). Only twice was representatives of a party allowed to inspect ­ both were cases involving business computers owned by discovery targets, not home computers; one case involved a party who sought to excuse the disappearance of certain electronic files from his computer by claiming that the computer had been repeatedly "dropped" (Illinois Tool Works); in the other case, there was extensive evidence of wholesale document destruction and the issue was whether certain computer programs had been stolen by defendant from the plaintiff and placed on defendants' computers(Gates Rubber). In RS Creative, the decision of the California Court of Appeal indicates that the defendants' own forensic expert was allowed to inspect the plaintiff's computer, but this was apparently by agreement of the parties, not by court order.

Given the way that EY was selected, it is not surprising that it consistently treated Northwest, and not defendants or the Court, as its client. During its initial contacts with undersigned counsel, EY insisted that all communications with it be made through Northwest's counsel Mr. Gallagher. See attached cover letter from EY's lead agent, James Holley. Even when Mr. Levy stopped following this request, in light of the severe time constraints involved, EY consistently chose to follow the directions of Northwest when they conflicted with Mr. Levy's requests because, as Mr. Holley told Mr. Levy, EY considered Northwest to be its client.⁽⁶⁾

Many of the burdens that EY's conduct of the search imposed on defendants and their counsel, and the unilateral decisions to disregard portions of the discovery order that it apparently regarded as unwise or disadvantageous, were plainly a result of the fact that EY considered itself obliged to respond primarily to Northwest's demands, rather than simply following the order, where it was clear, and accepting defendants' requests, where the order was not clear. Thus, EY violated the Court's 24-hour deadline for searching the mirror images of the computers and producing copies of documents and a log; it attempted to abandon the requirement that it furnish paper copies of all documents deemed responsive to Attachment A; it violated (by ignoring for much of the process) the requirement that it make judgments about each document, rather than printing and providing every file that contained anything responsive to a keyword; it unilaterally decided to treat as single documents hundreds of pages of separate individual communications; and it refused to disclose the keywords to defendants' counsel. These are the acts of a partisan, not a neutral officer of the Court.

Nor may EY be blamed for conducting itself as an agent of a party. EY had (and continues to have) a professional accountant-client relationship with Northwest, carrying the obligations of a professional representative to its principal. Moreover, the web site of Northwest's lead counsel, the Paul Hastings firm, reveals that the firm regards its representation of EY and its predecessor firm Ernst and Whinney as among the major accomplishments of the lawyers in its "accountant's liability" and "securities and corporate finance litigation" practice groups. See attached web pages. EY thus cannot be seen as a neutral outsider; it is an agent of a party to the litigation.

Defendants were also entitled to have an opportunity to review the list of key words and the search methodology in advance, and thus the opportunity to object that it would provide the basis for an overly broad, intrusive and staggeringly burdensome search. In this case, the key words were unilaterally selected by EY, and not established either by negotiations between the parties or by court order. As a result, EY printed out a vast quantity of documents that bore no conceivable relationship to the legitimate issues in this case, and EY's refusal to make relevancy determinations about specific documents, transferred to defendants' counsel the staggering burden of reviewing for substantive content more than 6,000 documents, and making all required objections to privileged materials, within 48 hours, over a weekend that had been reserved for personal business and preparing for trial.

The Magistrate Judge's decision, following defendants' protest to him that they lacked sufficient time to engage in a careful review of the thousands of documents already produced by Friday morning, February 11, to require defendants to review all of those documents and to serve a privilege log on Northwest within 48 hours, over the weekend preceding the depositions and hearing, failed to afford defendants a reasonable opportunity to review the documents for relevancy and privilege objections. EY had taken eight days, rather than the 24 hours provided by the order, to isolate and print the first of these documents (using, as Northwest has not hesitated to note, a high-speed printer producing some 95 pages a minute). Although substantive review and analysis of documents for relevancy and privilege obviously is a substantially more time-consuming activity than the process of merely printing those documents, the schedule imposed by the Court allowed Northwest eight days to print the documents, while granting defendants only 48 hours to review them and make all decisions on producing them in discovery. Northwest's demand that defendants' counsel continue to review more documents provided on Friday night and Saturday afternoon, February 11 and 12 ­ more than twice again as many as those originally produced on Friday morning ­ further undermined counsel's ability to protect his clients' privacy.⁽⁷⁾

Although the Magistrate Judge's establishment of these timetables was understandable, in light of the exigencies of the impending preliminary injunction hearing, we submit, with due respect, that the Judge lost sight of the extraordinary nature of Northwest's demand to embark upon its own global search of the hard drives of an adversary in litigation. Absent any evidence of document destruction, there was simply no basis for allowing the search on a timetable that did not afford the discovery target's counsel enough time for a careful review of thousands of pages. And it was known that there might be a large number of documents, because that was why EY had been retained to do a global search of the computers. If the consequence of the lack of such time was that the hard drives could not be searched before the preliminary injunction hearing, that should have been the consequence. Instead of compelling Northwest to suffer the adverse consequences of its own overly aggressive discovery campaign, the Magistrate Judge imposed on defendants all of those adverse consequences.

RELIEF SOUGHT

As we acknowledged in our original motion for extension of time to file this appeal from the Magistrate Judge's order, many of the consequences of the overly broad computer discovery have already occurred and cannot be undone. Faithfully executing that order, defendants' counsel have already provided thousands of pages, through EY, to Northwest Airlines. Once disclosed in discovery, of course, this invasion of defendants' privacy cannot be undone. However, further damage can be avoided or reduced.

There remain some materials that have not yet been searched and printed. For example, EY was provided with a CD-ROM on which defendant Griffin stored certain data; we believe that the CD has not yet been searched because materials believed to be on it have not yet been provided to defendants' counsel for their review. There may be other portions of defendants' computer equipment that has not yet been searched. EY's letter dated February 9 indicates that "further searches" of Griffin's hard drives were contemplated; it is not clear whether those were completed before the final few thousand papers were delivered to undersigned counsel on the afternoon of Saturday, February 12. Thus, on March 2, Judge Boylan ordered EY to provide a chain of custody log for the electronic storage equipment in its possession, and to document the sources of particular items of retrieved information. When these disclosures are provided to all parties on March 10, 2000, they will presumably reveal which of Griffin and Reeve's other equipment, if any, remains to be searched. We ask the Court to order that the search and retrieval process as to all such unsearched materials be terminated immediately.⁽⁸⁾

Second, as indicated orally on February 14, there also remain some printed pages ­ a small fraction of the total number of pages originally printed by EY and provided for counsel's review ­ that counsel have not yet reviewed and described on EY's log. From a cursory inspection, it appears that one binder consists of the same documents ­ a collection of web posts by Griffin ­ that were reviewed in hard copy for possible production to Northwest, even before the computer printouts were provided by EY. Most of the remainder appear to be deleted versions or extra copies of the same matter that has already been reviewed as reprinted in other binders previously provided by EY. The Court is asked to reverse Judge Boylan's discovery order to the extent that it required defendants' counsel to complete their review of this material.

Third, but hardly least important, when Northwest asked the Court to cancel the preliminary injunction hearing, it indicated that it intended to file a motion to compel production of some of the hard drive material EY did not send to Northwest, based on objections in defendants' discovery log. The documents on the log were revealed to Northwest by a search process which, if our arguments above are correct, should never have been conducted in the first place. Accordingly, the Court should rule that no such motion to compel may be filed. If that motion is filed, it could require the Magistrate Judge to review, and the parties to continue to litigate, hundreds or even thousands of contested documents.

Fourth, Judge Boylan's order required EY to retain copies of the mirror images of defendants' computers until the completion of the litigation. As the affidavits of Griffin and Reeve explain, their computer drives contain much material that is intensely personal and private, but that has no conceivable relationship to this litigation. At this point, EY has identified, copied electronically, and printed all information stored on the computers that has any conceivable bearing on this case. The maintenance of such copies perpetuates the potent chilling and intimidating effect of the hard drive discovery, and there is no reason for EY to keep the mirror image. Accordingly, and we ask the Court to order the immediate destruction of those mirror images.

CONCLUSION

The order of Judge Boylan authorizing a search of defendants' computer equipment should be reversed, and defendants' motion for a protective order barring such a search should be granted. The Court should also require Northwest and EY to follow the specific steps enumerated above in the "Relief" section of this brief.

Respectfully submitted,

 

Paul Alan Levy

Alan B. Morrison

Public Citizen Litigation Group

1600 - 20^th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

Barbara Harvey

LAPP, LAURIE, LIBRA, THOMSON, & STOEBNER

By-

Gerald T. Laurie (61116)

Andrew Tanick (178573)

Attorneys for Griffin and Reeve

 

March 8, 2000

1. Northwest's lack of evidence was further demonstrated on February 14, 2000 ­ albeit only after the Magistrate Judge had issued the ruling under appeal ­ when Northwest admitted that, despite its having obtained thousands of pages printed from defendants' hard drives, it still did not have enough evidence to go forward with its motion for a preliminary injunction against these defendants. Instead, Northwest announced that it needed still more discovery before it would risk an adversarial hearing on its claims against Griffin and Reeve.

2. This Court, in its order granting defendants an extension of time for filing this brief, posed questions about the timing of this appeal. Defendants decided to comply with the Magistrate Judge's order instead of filing an immediate appeal and motion for a stay so that they could not be accused of attempting to delay the preliminary injunction hearing. Judge Boylan had expressly warned the parties that, in his view, they were too ready to bring discovery motions before him, and that he was planning to award sanctions against the losers of future motions. Moreover, this Court's written order on February 7, after denying Northwest's renewed motion to continue the preliminary injunction hearing after it entered its "interim settlement" with Local 2000 and the other individual defendants, specified that all existing discovery orders by both the Court and Judge Boylan were to remain in effect. More important, the Court formally warned the parties that, "[i]f one of the parties has failed to comply in good faith with all existing discovery orders and that such failure has impeded another party's ability to present their position, the Court will consider the imposition of appropriate sanctions." February 7 Order, ¶ 4. The only issues raised up to that time about alleged non-compliance with discovery orders were Northwest's various motions to compel. Defendants Griffin and Reeve could not afford to risk the imposition of sanctions should they lose an appeal from the computer search order, which might delay the actual search beyond the time of the hearing and therefore might be taken as a failure to cooperate in discovery and subject them to sanctions.

3. A transcript of the February 14 proceeding was ordered immediately following the hearing, but it has not yet been received. Undersigned counsel has reconstructed the relevant parts of the argument from what may be an imperfect memory, and asks the Court's indulgence for any inadvertent inaccuracies.

4. Defendants reserve their right to argue, at a later date, that Northwest never intended to go forward with the preliminary injunction hearing. After all, the first time it asked for a continuance of the preliminary injunction hearing, it explained that its key witnesses were needed for collective bargaining negotiations in Washington, D.C. that had been scheduled ­ by Northwest­ to be held on the date that Northwest already knew to be the scheduled hearing date in this case. And, on February 14, when it explained its decision not to go forward with the hearing, it repeated that its key witnesses were needed at the negotiations.

5. A magistrate judge's decision is normally reviewed for clear error on factual issues and de novo review for legal errors. In this case, Judge Boylan did not make any factual findings, and defendants' appeal contends that the order is infirm because of errors of law. Moreover, "although a discovery order may not be dispositive, it can be extremely important," and therefore a district judge "should not be hamstrung by the clearly erroneous standard." 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil § 3069, at 355 (2d ed. 1997). In addition, the lack of any written rationale for a search procedure that is radically different from the standard methods makes it impossible for this Court to review that order on an abuse of discretion standard by ensuring that Judge Boylan applied the governing law correctly, and did not apply incorrect standards. United States v. Kramer, 827 F.2d 1174, 1179 (8^th Cir. 1987); Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 329 (5^th Cir. 1995). This appeal presents a prime example of a case in which the fundamental decisions about a discovery issue should made by an Article III judge. Accordingly, it is respectfully submitted that the Court's review of this appeal should be largely if not entirely de novo.

6. Judge Boylan indicated, during a recent conference on a protective order sought by Local 2000 after defendants Griffin's and Reeve's hard drives had been copied and searched, that he had considered EY to be the Court's agent, and he revised the protocol in an apparent effort to accomplish that change, without expressly stating that EY was no longer to treat Northwest as its client. The fact remains, however, that the discovery order under which Griffin's and Reeve's hard drives were searched did not recognize EY's personnel as agents of the Court, and EY did not understand that it was not acting as Northwest's agent. Even if EY were the agent of the Court, the objections to a search of defendants' hard drives without any justification would still be remiss under the Fourth Amendment.

7. In this regard, we ask the Court to take note of the vast differences between the resources of the two parties. Plaintiff is represented by two large law firms, which apparently have the ability to assign more than a dozen lawyers to this case. For example, at one point, shortly before Local 2000 agreed to the interim settlement, plaintiff's counsel had threatened to schedule fifteen depositions on the same day, with different lawyers for plaintiff apparently planning to appear at each one. Defendants Griffin and Reeve are represented by a solo practitioner (Ms. Harvey) and an attorney at a public interest law firm that simply cannot assign more than one lawyer to the case. Local counsel for defendants have been very gracious in extending their offices, but have made clear that they cannot devote time to the case. In the circumstances, defendants would have been unable both to apply to the Court for relief, and to continue to review documents provided by EY at the same time. In these circumstances, we chose to continue to spend time reviewing documents so that plaintiff could have as many pages as possible in order to prosecute its preliminary injunction motion, at the hearing the Northwest was then insisting should proceed on February 14.

8. Because the litigation against the remaining defendants has been stayed, those defendants have not had occasion to seek relief from Judge Boylan's order. Obviously, the same principles invoked here should apply to them, and it is possible that those defendants will seek similar relief, especially with respect to the home computers of the individual defendants, once the stay is lifted and their time to appeal from the Magistrate Judge's February 2 order begins to run once more.

Recusal

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