Gordon v. Virtumundo Inc et al, No. 2:2006cv00204 - Document 71 (W.D. Wash. 2006)
Court Description: MOTION to Compel Segregation of Emails by Defendants Virtumundo Inc, Adknowledge Inc, Scott Lynn. Noting Date 1/5/2007. (Attachments: # 1 Proposed Order Granting Motion to Segregate Emails)(Newman, Derek)
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Gordon v. Virtumundo Inc et al Doc. 71 Case 2:06-cv-00204-JCC Document 71 1 Filed 12/21/2006 Page 1 of 8 The Honorable John C. Coughenour 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 11 12 13 JAMES S. GORDON, Jr., a married individual, d/b/a ‘GORDONWORKS.COM'; OMNI INNOVATIONS, LLC., a Washington limited liability company, 14 15 16 17 18 19 20 21 NO. CV06-0204JCC DEFENDANTS’ MOTION TO COMPEL SEGREGATION OF EMAIL PRODUCTIONS Plaintiffs, NOTE ON MOTION CALENDAR: January 5, 2006 v. VIRTUMUNDO, INC, a Delaware corporation d/b/a ADNOWLEDGEMAIL.COM; ADKNOWLEDGE, INC., a Delaware corporation, d/b/a ADKNOWLEDGEMAIL.COM; SCOTT LYNN, an individual; and JOHN DOES, 1-X, Defendants. 22 23 I. INTRODUCTION 24 Plaintiffs brought this lawsuit contending damages from the alleged receipt of 25 unsolicited emails. In February, July and November 2006, Plaintiffs produced thousands 26 of allegedly offending emails. Each of these productions contained many of the 27 Plaintiffs’ earlier productions, plus additional emails comingled therein. By way of 28 analogy, this is equivalent to a party first producing one hundred (100) bankers boxes of DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 1 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800 Dockets.Justia.com Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 2 of 8 1 documents; second, supplementing that response with one hundred ten (110) additional 2 bankers boxes (consisting of most of the documents in the first hundred bankers boxes, 3 plus ten additional bankers boxes of documents, intermingled with the documents in the 4 first hundred boxes); then third, producing yet another two hundred twenty (220) bankers 5 boxes of documents (consisting of a third copy of most of the documents in the first 6 hundred bankers boxes produced, plus a second copy of the documents in the second 7 production, plus ten additional boxes of documents, intermingled with the documents in 8 the previous two hundred and ten boxes). This hypothetical party has thus produced 9 three hundred thirty (330) bankers boxes of documents containing only one hundred 10 twenty (120) boxes of non-identical documents. The remaining two hundred ten (210) 11 bankers boxes are simply chaff. 12 The hypothetical is precisely the situation here. In connection with the November 13 production in particular, Defendants have repeatedly requested that Plaintiffs provide 14 only emails that were not included in previous productions. Plaintiffs have refused, and 15 continue to refuse, to do so. Plaintiffs’ repeated production of the same emails (contained 16 in files intermingled with emails that had not previously been provided) is an egregious 17 abuse of the discovery process and is plainly improper. 18 Defendants respectfully request that this Court order Plaintiffs to provide 19 electronic files consisting of only emails that have not already been produced. If 20 Defendants’ motion is denied, Defendants will be forced to do a manual comparison of 21 the files produced on three different dates (and including tens of thousands of emails) at 22 great expense and effort. Plaintiff’s conduct is particularly egregious in that Plaintiff is in 23 a position to produce the information requested by Defendants with almost no effort 24 whatsoever. 25 26 II. FACTS A. Plaintiffs’ Production of Emails 27 On or about February 24, 2006, Defendants received Plaintiffs' First Production 28 (“First Production”) with a cover letter dated February 16th, 2006. Linke Decl. at ¶ 2. DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 2 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800 Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 3 of 8 1 Plaintiffs' First Production consists of a CD-ROM disc containing two (2) mailbox 2 archives in the Eudora electronic data format containing email messages allegedly giving 3 rise to Plaintiffs' causes of action. Id. ¶ 4. On or about July 25, 2006, Defendants 4 received Plaintiffs' Second Production ("Second Production") with no accompanying 5 cover letter. Id. ¶ 5. Plaintiffs' Second Production consisted of a CD-ROM disc 6 containing an additional two (2) Eudora mailbox archives containing email allegedly 7 giving rise to Plaintiffs' causes of action. Id. ¶ 6. The mailbox archives contained in the 8 Second Production were "Virtumundo.mbx," containing 5,047 emails, and "Virtumundo - 9 Omni.mbx," containing 7,016 emails. Linke Decl. at ¶ 7. 10 Beginning on or about November 16, 2006, Defendants' counsel engaged a team of 11 seven contract attorneys to create a comprehensive log of all of the emails contained in 12 the First Production and the Second Production and their compliance with 15 U.S.C. 13 7701 ("CAN-SPAM") and the Washington Commercial Email Act, RCW 19.190. Id. ¶ 8. 14 Defendants' counsel trained the contract attorneys about the review process and the 15 relevant law. The lawyers then spent weeks reviewing all of the emails in the First 16 Production and the Second Production for a total of about 500 hours, at a cost of tens of 17 thousands of dollars to Defendants. Id. ¶ 9-10. Upon completion of the project on or 18 about December 3, 2006, the contract attorneys terminated their involvement with 19 Defendant's counsel. Id. ¶ 11. 20 On or about November 29, 2006, Defendants received Plaintiffs' Third Production 21 ("Third Production"). Although the Third Production was accompanied by a cover letter 22 dated November 14, 2006, Plaintiffs included an additional note about the production 23 dated September 27, 2006, and digital files with modification dates of September 9, 2006 24 and September 13, 2006. Id. ¶ 12. The dates on the additional note included in the Third 25 Production and on the produced archives indicate that Plaintiffs could have produced the 26 evidence contained in the Third Production months earlier than they actually did. Id. ¶ 13. 27 28 Plaintiffs' Third Production consisted of a CD-ROM disc containing an additional two (2) Eudora mailbox archives containing email allegedly giving rise to Plaintiffs' DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 3 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800 Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 4 of 8 1 causes of action. Id. ¶ 16. The archives produced in Plaintiffs' Third Production had the 2 same file names as archives produced in the First Production and the Second Production 3 but contained many additional emails. The archives were "Virtumundo.mbx," containing 4 8,124 emails, and "Virtumundo - Omni.mbx," containing 11,201 emails. Id. ¶ 17. 5 Defendants estimate that around 9,000 messages in the Third Production were 6 previously produced in the First Production and the Second Production. Now, these 7 emails must also be individually analyzed to establish the defense in this case. Id. ¶ 18. 8 As of this date, Defendants have been unable to segregate any new emails contained in 9 the Third Production from emails previously provided. Linke Decl. at ¶ 20. The emails 10 in Plaintiffs' Third Production are hopelessly disorganized and unduly burdensome for 11 Defendants to parse and understand. Linke Decl. at ¶ 22. 12 If Defendants' counsel had received Plaintiffs' Third Production prior to November 13 16, by the beginning of their comprehensive review, the new messages could have been 14 included the review process. Id. ¶ 23. Plaintiffs' counsel claimed that Eudora provided a 15 software utility relating to sorting mail by date that would automatically segregate the 16 emails which had been previously produced. Id. ¶ 24. However, Defendants performed a 17 diligent inquiry and concluded that Eudora does not contain any utility to compare 18 mailboxes, nor any utility to remove duplicate emails or otherwise segregate the 19 previously produced emails. Id. ¶ 25. 20 Additionally, the process of sorting by date would not permit Defendants to 21 identify all additional emails. While a date sort might identify any new emails, which 22 would appear at the end of the date range, it would not identify any new emails within the 23 date range of the emails from the First Production or the Second Production. Id. ¶ 26. 24 Plaintiffs' counsel on December 20, 2006 refused to commit to producing only the new 25 emails. Id. As of this date, Plaintiffs have not produced the new emails segregated from 26 the first two productions. Id. ¶ 27. 27 28 There remains no obvious means of segregating any new emails that may be contained in the Third Production from the thousands of duplicative messages that had DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 4 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800 Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 5 of 8 1 previously been produced in the First Production and the Second Production. The only 2 means of comparing messages appears to be by undertaking a manual, one-by-one review 3 of all of the thousands of emails included in the Third Production. Id. ¶ 30. Furthermore, 4 Plaintiffs' inexplicable delay in producing the emails contained in the Third Production 5 until the end of Defendants’ comprehensive review means Defendants were unable to 6 have the contract team review them prior to ending disbanding the team. Id. ¶ 31. In 7 order to review those additional messages now, Defendants would have to compare all of 8 the new messages contained in Plaintiffs' Third Production with the completed log, or 9 begin a new extensive document review. Either option would cost Defendants tens of 10 thousands of dollars in additional fees. Id. ¶ 32. 11 Also, it is unknown whether the contract attorneys that have already been trained 12 to review the emails in this case would be available again. More likely, Defendants 13 would have to locate and train a new group of attorneys, at considerable expense. Id. ¶ 14 33. 15 B. The Parties Fed. R. Civ. P. 37 Efforts to Meet and Confer 16 On the same date that Defendants received the belatedly produced emails, 17 November 29, 2006, Defendants sent a letter to Plaintiffs’ counsel outlining their 18 objections to the belatedly produced emails. See Exhibit E to Linke Decl. Plaintiffs’ 19 counsel refused to segregate the emails. Linke Decl. at ¶ 21. 20 On or about December 4, 2006, counsel again met and conferred regarding the 21 belatedly produced emails. Newman Decl. at ¶ 2. Again on December 14, 2006, during 22 Defendants’ deposition, the parties met and conferred regarding the subject. See 23 Newman Decl. at ¶ 5; see also Exhibit E to Linke Decl. In that meeting, Plaintiffs’ 24 counsel advised that he would consult with his client and would use good faith efforts to 25 produce the information as requested. Id. ¶ 6. However, Plaintiffs’ counsel refused to 26 commit to producing only the new emails, however, and has not in fact produced them. 27 Newman Decl. at ¶ 6; Linke Decl. at ¶ 27, Ex. F. In a final attempt to eliminate the 28 Court’s involvement in this dispute, Defendants’ counsel sent a letter to Plaintiffs’ DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 5 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800 Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 6 of 8 1 counsel on December 21, 2006 again requesting segregated production of emails. Once 2 again, Plaintiff’s counsel stated that he would consult with his client, but refused to 3 commit to producing only the new emails. Linke Decl., Ex. H. 4 5 III. ARGUMENT & AUTHORITY This discovery dispute is unusual in that it concerns only the manner of 6 production, not the substance. At issue is whether Plaintiffs’ two supplemental 7 productions, each of which contained the entirety of the previous productions, is proper. 8 It plainly is not. Identifying which emails among the thousands produced are unique, 9 non-identical communications would require a manual, email-by-email comparison 10 between the Third Production and the First Production and Second Production. This 11 would be a massive undertaking for Defendants, who do not know the sort criteria that 12 would result in the set of emails required, but a trivial one for Plaintiffs, who do. 13 Federal Rules of Civil Procedure Rule 34(b) places the obligation on the 14 responding party to "organize and label" the documents which are produced for 15 inspection. The reason it does so is that “[m]any discovery requests, and responses 16 thereto, can be used to harass opposing parties or to increase the cost of litigation.” Stiller 17 v. Arnold, 167 F.R.D. 68, 71 (D. Ind. 1996) (emphasis added). By way of example, in 18 Stiller the court found that “producing 7,000 pages of documents in no apparent order 19 does not comply with a party's obligation under Rule 34(b).” 20 Although there is little authority directly on point, it seems clear that production 21 consisting of successive sets of files commingling documents already produced and new 22 documents does not comply with the obligation to “organize and label” documents under 23 Rule 34(b). Indeed, courts that have considered electronic discovery issues tend to simply 24 assume without discussion that removal of duplicates is a required part of production, to 25 be completed by the responding party. Thus, in Medtronic Sofamor Danek, Inc. v. 26 Sofamor Danek Holding, Inc., 2003 U.S. Dist. LEXIS 8587 (D. Tenn. 2003), the court 27 reasoned: 28 Producing electronic data requires, at minimum, several steps: (1) designing and applying a search program to identify potentially relevant electronic files, DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 6 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800 Case 2:06-cv-00204-JCC 1 Document 71 Filed 12/21/2006 Page 7 of 8 6 (2) reviewing the resulting documents for relevance, (3) reviewing the resulting documents for privilege; (4) deciding whether the documents should be produced in electronic or printed form, and (5) actual production. If, however, the allegedly discoverable information is contained on backup tapes, a preliminary step must be performed. All data on each backup tape must be restored from the backup tape format to a format that the standard computer can read. In the case of a large data volume on multiple tapes like this case presents, the restored files from each tape must be compared to the restored files from every other tape and duplicate files eliminated. The restored data files that are not duplicates must be converted to a common format so that a search program may seek information within them. 7 Medtronic Sofamor Danek, Inc. v. Sofamor Danek Holding, Inc., 2003 U.S. Dist. LEXIS 8 8587 (D. Tenn. 2003). Similarly, in Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, the 9 court discussion of electronic discovery assumed without analysis that duplicate removal 2 3 4 5 10 11 must is a necessary part of production. Certainly, if Plaintiffs conduct involved paper rather than electronic documents, it 12 would be obvious that it was unreasonable, dilatory, and imposed an undue burden on 13 Defendants. The analysis is not altered because emails are involved. The data, as 14 provided by Plaintiffs, is functionally unavailable to Defendants. "[W]hether production 15 of documents is unduly burdensome or expensive turns primarily on whether it is kept in 16 an accessible or inaccessible format." Data is "accessible" if it is stored in a “readily 17 usable format” that "does need to be restored or otherwise manipulated to be usable." 18 Conversely, data is "inaccessible" if it is not readily useable. Quinby v. WestLB AG, 19 2006 U.S. Dist. LEXIS 64531, 20-21 (D.N.Y. 2006), citing Zubulake v. UBS Warburg, 20 LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003) (internal citations omitted). 21 The rules provide that the court may make any order which justice requires to 22 protect a party from "annoyance, embarrassment, oppression, or undue burden or 23 expense. . . ." Fed. R. Civ. P. 26(c) (emphasis added). There is no dispute that the emails 24 are relevant and discoverable. Indeed, they have already been produced. At issue in the 25 instant motion is the form of the production and whether the Court should require that 26 Plaintiffs be required to make available the belatedly produced emails in a form that is 27 not commingled with thousands of previously produced emails and cannot be segregated 28 without substantial expense. The form of the production by Plaintiffs subjects to DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 7 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800 Case 2:06-cv-00204-JCC Document 71 Filed 12/21/2006 Page 8 of 8 1 defendants to undue burden and expense. Moreover, the timing of the production reflects 2 litigation gamesmanship and has caused Defendants substantial prejudice. Had Plaintiffs 3 merely produced the emails when the files were created or even when the cover letter was 4 drafted, then the prejudice to Defendants could have been avoided. 5 IV. CONCLUSION 6 Defendants respectfully request that the Court order Plaintiffs to produce 7 electronic files containing only unique, non-identical emails that were included in the 8 November 29 production, and excluding any emails that were produced in any previous 9 production. 10 DATED this 21st day of December, 2006. 11 12 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 13 14 By: 15 Derek A. Newman, WSBA No. 26967 Roger M. Townsend, WSBA No. 25525 16 Attorneys for Defendants 17 18 19 20 21 22 23 24 25 26 27 28 DEFS.’ MOT. TO COMPEL SEGREGATION OF EMAILS CASE NO. CV06-0204C - Page 8 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP 505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 (206) 274-2800
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