EDITOR’S NOTE: AS MY LAUNCH POINT I AM USING THE FOLLOWING COMMENT POSTED TO THIS BLOG. I’M NOT SURE WHO ACTUALLY ORIGINATED MOST OF THE ORIGINAL LANGUAGE FOUND BELOW BUT WHOEVER IT WAS, THEY KNOW WHAT THEY ARE TALKING ABOUT.
Almost everything done during this mortgage fraud was accomplished through the use of electronic media. MERS is simply an electronic platform that hosts a database that provides access to thousands of users. Transmittal of loan information from a loan originator was not done through sending the loan the documents. In most cases it was accomplished by including a description of loans on a spreadsheet with limited information — just enough to make the loans look good enough to sell, even though they were (a) already sold and (b) had a negative value from the start.
Most transmission of data is accomplished in one of two ways — email and FTP. All email and all documents prepared electronically have “meta data” tagged or attached to them. This meta data will often tell you who the original author was, when it was created, who modified it, and much more information that you’d love to know but never thought you could see. It is all housed on (a) each and every computer that received and sent (or uploaded) it (b) each and every server that received and transmitted it (c) each network server in each of the business locations of the pretender lenders and (d) each back-up device that was used in preserving the information.
I have already received reports that surreptitiously obtained back-up media conflicts wildly with the “original” documentation that was used in court, meaning they changed it and said they didn’t.
Now here is the kicker: from the start of litigation, each party has a legal duty to preserve evidence and you can get some very nice results accusing the other side of “spoliation” of evidence when you actually catch them at it or when the presumption arises that they did it because they refuse to let you see the data and then meta data. Your assumption that the pretender lender has free hands to change evidence is contradicted by the law. And the lawyers who participate in change or spoliation of evidence are subject to more than sanctions — their licenses are on the line.Here is an example of what you will find when you start digging. A loan is closed. before it closed the data was entered on a spreadsheet that was set to a loan aggregator. The loan aggregator changed some of the data and split up the loans into groups including each group into a new spreadsheet. The Collateralized Debt manager then creates the groupings known as tranches, sometimes changing the data or intervening data that loosely describes some of the data in the spreadsheet, all of which is then used to create new spreadsheets that are then used to form the basis of the bonds that don’t exist but nonetheless are submitted for ratings to the rating agencies. Included in each grouping are esoteric or exotic vehicles that appear to be hedge positions but which in actuality reduce the value of the the best looking tranche of loans to less than zero. The transmission data will be devoid of any reference to transmittal of any document that was signed at closing. In fact, the documents signed at closing are neither requested nor reviewed by anyone and are generally destroyed or sent to some central place where they are kept in low-security areas. The data will often show that a scanned copy of a document was used by a program to re-create the original by using color matching and printing.
There have been many seminars given in recent years on electronic discovery mostly ignored by most lawyers because the subject is too intimidating. I am invite those of you who know this subject, to write in and help me develop the topic in language that will be understandable by most lawyers and even most laymen.COMMENT FROM BLOG —-
Sunday 22 August 2010
Some sources for what to demand in discovery:
From “Mass Extinction Of Pools Becomes Clearer” on this site. Do a search under that title and look for the post by…wait. Let me paste the post:
avirani0203, on July 29, 2010 at 11:24 am Said:
So true ANONYMOUS. This is where you have to get down to the nitty gritty. I am seeing too many old-fashioned requests for document production. By old-fashioned, I mean that they are asking for paper documents.
In order to get to the heart of the real fraud, e-discovery is a must. The federal courts and some state courts like Texas have very strong e-discovery rules. What everyone is looking for is in the metadata. Remember, MERS is one huge computer database. The loans were transferred electronically. MERS has an e-note registry. The key information is in those native files. Any tampering or destruction of the metadata is grounds for a spoliation order.
Following is a sample of some definitions that I believe should be included in each and every document production request:
ESI” means electronically stored information including, but not limited to, information electronically, magnetically or optically stored as: (a) digital communications (e.g., e-mail, voice mail, instant messaging); (b) word processed documents (e.g., Word or WordPerfect documents and drafts); (c) spreadsheets and tables (e.g., Excel or Lotus 123 worksheets); (d) accounting application data (e.g., QuickBooks, Money, Peachtree data files); (d) image and facsimile files (e.g., PDF, TIFF, JPG, GIF images); (e) sound recordings (e.g., WAV and MP3 files); (d) video and animation (e.g., AVI and MOV files); (e) databases (e.g., Access, Oracle, SQL Server data, SAP); (f) electronic mail, contact and relationship management data (e.g., Outlook, Maximizer, ACT!), including emails resident on Plaintiff’s and/or Plaintiff’s agent(s)’ servers or computers; (g) calendar and diary application data (e.g., Outlook PST, Yahoo, blog tools); (h) online access data (e.g., temporary internet files, history, cookies); (i) presentations (e.g., PowerPoint, Corel Presentations); (j) network access and server activity logs; (k) project management application data; (l) computer aided design/drawing files; and (l) back up and archival files (e.g., ZIP, GHO)
“Metadata” means system and application metadata. System metadata is information describing the history and characteristics of other ESI. This information is typically associated with tracking or managing an electronic file and often includes data reflecting a file’s name, size, custodian, location, and dates of creation and last modification or access. Application metadata is information automatically included or embedded in electronic files but which may not be apparent to a user, including deleted content, draft language, commentary, collaboration and distribution data and dates of creation and printing. For electronic mail, metadata includes all header routing data and Base 64 encoded attachment data, in addition to the To, From, Subject, Received Date, Sent Date, Time Sent, CC, BCC and Body fields.
“Documents” means the original and each non-identical copy of any written, graphic, electronic, or magnetic matter, however produced, whether sent or received, or neither, including drafts and both sides thereof, in your possession, custody, or control and specifically includes ESI and metadata (as defined). The term shall include handwritten, typewritten, printed, photocopied, or recorded matter. It shall include communications in words, symbols, pictures, sound recordings, films, tapes, drawings, blueprints, charts, maps, graphs, photographs, still or moving picture films, parts or components of equipment, models, information stored in, or accessible through, computer or other information storage or retrieval systems, all other “documents and tangible things,” and any physical object in the possession of, subject to the control of, or within the knowledge of the party responding to these requests for production, including their counsel, experts or investigators. Any and all documents and data existing as electronic or magnetic data shall be produced on disc, either DVD (digital versatile disc) or CD (compact disc) or on external hard drive in the following format: (a) documents in WordPerfect 5.1 or higher shall be produced in the format in which they are maintained (*.wpd); (b) documents in Microsoft Word for Windows 2.x or higher shall be produced in the format in which they are maintained (*.doc); (c) documents in Microsoft Works 4.0 for Windows shall be produced in the format in which they are maintained (*.wps); (d) documents in Microsoft Excel for Windows 4.0 or higher shall be produced in the format in which they are maintained (*.xl*); (e) documents in Lotus 1-2-3 shall be produced in the format in which they are maintained (*.wk?); (f) web pages which cannot be produced as a hard copy shall be produced in *.htm or *.html format; (g) encoded text files shall be produced in the format in which they are maintained (*.txt); (h) Adobe Acrobat .pdf files shall be produced in *.pdf format; (i) electronic mail shall be produced in .pst, .msg or .nsf format; and (j) all other electronic documents and data shall be produced in native format, or in ASCII format, delimited appropriately, with a key, if necessary, identifying the data fields, if production in native format is not feasible. All hard copy (e.g., paper) documents shall be produced as Group IV, black and white, single-page .tiff or color .jpg images with a standard Summation (.dii) load file.
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Max Gardner’s Top Reasons For Wanting A Pooling Servicing Agreement:
http://blog.ncblc.com/?s=pooling+and+servicing+agreement
The Alphabet Problem And The PSA:
http://www.maxbankruptcybootcamp/alphabet-problem-pooling-servicing-agreement
Source for the above two is a neat little site:
http://homeequietytheft.blogspot.com/
Filed under: bubble, CASES, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, investment banking, MODIFICATION, Mortgage, Motions, Pleading, Servicer | Tagged: data, database, electronic discovery, email, evidence, ftp, MERS, metadata, server, spoliation |
Not FTP, it’s VPN Virtual Private Network.
was very encouraged to find this site. I wanted to thank you for this special read. I definitely savored every little bit of it and I have you bookmarked to check out new stuff you post.
Will say no more… 3 level LLP…to all thank’s for the big fish… wishng all the hopefull god speed!
I worked for Citi in Orlando (actually Maitland) for about a week back in 2004 (or maybe 2005) in a mortgage processing/expediting center.. I was working through a temp agency and was released because I had a background that included securities (stockbroker) and I had a decade as a data security / datamanagement / disaster recovery specialist … I WAS DANGEROUS … they wanted people that were reliable robots and wouldn’t understand or question what was actually being done in that office.
While most of the big companies we are talking about , in the timeframe we are talking about , 2000+ , used servers and such for e:mail and for correctly formatting data to be included in a mainframe file.. you will find that paper documents received were usually scanned and saved on mainframe attached optical devices and most data about customers was accessed via mainframe database access methods , namely CICS (and to a lesser extent IMS) systems accessing VSAM and DB2 databases. While the data may have originated on a secretary inputting data on a pc the data would have been saved in a mainframe accessed database. It is entirely possible that critical portions of data on your loan file were updated on a mainframe and that it is nearly impossible to determine who changed a data field in a particular record as SMF data would be kept for the database and not at the record in the database level. That and the SMF data might only show the application used to access the database unless a security breach occurred.
What you need to know about accessing the mainframe data is that it is most likely archived (we’re talking IBM here ,, so that makes it DFHSM data facility heirarchial storage manager) ,,, the data will be automatically backed up and will be migrated from disk to highly compressed disk and later to tape depending on how frequently it is accessed. In addition to that there will be backups taken to tape ,, usually whenever a dataset is marked as updated.. Unfortunately your best info on when a dataset was updated is the DFHSM catalog … it should include all the “metadata” that would be recorded in the SMF records… DFHSM is a cost and space saving tool above all and it can be optioned to save however many or few generations of data as is appropriate for the customer. SMF (System Management Facility) data will be VERY difficult to obtain and may not produce much information.. It is used for billing and for security (RACF) information … if it is a system with no outside customers the data is often discarded after the data security team creates their reports from it. A request for SMF data is very difficult to comply with unless you can provide a time period of 24 hours or less and a datasetname.
I would go after server based data first as it is easier to deal with and the larger mainframe files would be difficult to distinguish when YOUR particular data was accessed… Although asking for certain data knowing it is unavailable may work for you.
CALIFORNIA ATTORNEY GENERAL BROWN NAILS THEM AGAIN!!!!
Brown Wins $1 Million in Restitution for Victims of Attorney-Backed Foreclosure Rescue Scam
LOS ANGELES – Attorney General Edmund G. Brown Jr. today announced a $1.1 million judgment against longtime Los Angeles attorney Mitchell Roth after he conned 2,000 desperate homeowners into paying him thousands of dollars to file “frivolous and phony” lawsuits that didn’t reduce a penny of mortgage debt for a single client.
“Roth promised foreclosure relief through aggressive litigation, but the frivolous and phony lawsuits he filed instead left 2,000 desperate homeowners in even greater debt,” Brown said. “This settlement forces Roth to pay $1.1 million and prohibits him from ever again preying on new victims.”
In 2008, Roth, a seasoned Los Angeles attorney, joined with Nevada-based United First, Inc. and the company’s owner, Paul Noe, to provide foreclosure relief services to homeowners struggling to pay their mortgages. Noe, who was previously convicted of wire fraud and the subject of a 2004 Department of Insurance Cease and Desist Order, operated the company and handled client solicitations, while Roth provided legal services.
Homeowners were told that if they worked with United First and hired Roth to pursue their cases in court, they could lower or eliminate their mortgage debt and save their homes.
United First charged homeowners some $1,800 in up-front fees, plus at least $1,250 each month, and 50 percent of the cash value of any settlement. If a homeowner’s debt was eliminated altogether, the homeowner was required to pay United First 80 percent of the value of the home.
After collecting up-front fees, Roth filed lawsuits on behalf of homeowners, pushing a novel legal argument that a borrower’s loan could be deemed invalid because the mortgages had been sold so many times on Wall Street that the lender could not demonstrate who owned it.
Once the lawsuit was filed, Roth did next to nothing to advance the case and often failed to make required court filings, respond to legal motions, comply with court deadlines or appear at court hearings. Instead, Roth tried to extend the lawsuits as long as possible to collect additional monthly fees from clients.
This approach did not generate a single victory in court and did not lower or eliminate the mortgage debt for a single one of the 2,000 homeowners who hired Roth and United First.
Brown filed suit last July, alleging that Roth, Noe and United First engaged in unfair competition, made untrue and misleading statements and violated California’s credit counseling and foreclosure consultant laws.
The settlement announced today requires Roth to pay $1 million in restitution to defrauded homeowners plus $125,000 in penalties, and prohibits him from ever engaging in similar conduct in the future.
Roth was admitted to the California State Bar in 1977 and resigned in April 2009, after the State Bar ordered his law firm closed.
Brown’s office continues to litigate the case against Noe and United First.
Homeowners who were defrauded by Roth and United First, or victimized by any other foreclosure rescue scam, should contact Brown’s office at 1-800-952-5225 or file a complaint online at: http://www.ag.ca.gov/consumers/general.php
.
Homeowners can also file a complaint against a lawyer, a legal specialist or a company purporting to operate as a law firm with the State Bar by calling 1-800-843-9053 or visiting http://www.calbar.ca.gov
.
United First customers who are eligible for a refund will be contacted by mail.
By law, all individuals and businesses offering mortgage-foreclosure consulting, loan modification and foreclosure-assistance services must register with Brown’s office and post a $100,000 bond. It is also illegal for loan modification consultants and businesses to charge up-front fees for their services.
Non-profit housing counselors certified by the U.S. Department of Housing and Urban Development provide free help to homeowners. To find a counselor in your area, call 1-800-569-4287.
Brown has sought court orders to shut down more than 30 fraudulent foreclosure-relief companies and has brought criminal charges and obtained lengthy prison sentences for dozens of deceptive loan modification consultants.
For more information on Brown’s action against loan modification fraud visit: http://ag.ca.gov/loanmod
.
Copies of Brown’s original complaint, filed in Los Angeles County Superior Court, and the settlement announced today are attached.
# # #
You may view the full account of this posting, including possible attachments, in the News & Alerts section of our website at: http://ag.ca.gov/newsalerts/release.php?id=1979
ANONYMOUS
re: updating records
In IT, in particular in the database world, each time a transaction occurs, whether an update, delete or insert of a records, there is an associated date/timestamp (down to seconds) and more than likely a related id of the person who performed the transaction and even the application id.
Also, these can be produced in a report if specifically requested in discovery.
Thus, everything the servicer did CAN be tracked!!
On the surface it may appear that the system was manipulated by the servicer (poor software design) but at the database level—it is a far, far different story.
I am being foreclosed upon by Onewest Bank. My original lender was Indymac.
In Feb, the FDIC assigned my mortgage and promissory note to Onewest so that they could begin foreclosure. I emailed the FDIC and asked them, if they SOLD all the assets of Indymac to Onewest in 2009, how they had any interest in my loan to be able to assign it in Feb 2010. A lady at the FDIC called me and said “oh no, we were only doing that assignment to show that we DIDN’T have an interest in the mortgage”. I cried BULLSHIT. I did escrow in WA. Assignments are not used this way.
Now I understand this: My mortgage i s a “toxic asset”. Toxic asset = worthless stock. Under TARP, lenders are prohibited from owning toxic assets. So my mortgage, after being originated by Indymac and sold into a REMIC as worthless stock, has been sitting in limbo land while the servicer was continuing to collect payments and Indymac went bankrupt. (all a preplanned ponzi game?) But, before Onewest can foreclose, they must gain title to the mortgage to foreclose, thus the “assignment” from FDIC to Onewest. Challenge the assignments. Who actually held the title to the promissory note and mortgage prior to the assignment. If it was a lender, and lenders are not allowed to hold toxic assets, then they are in violation of TARP. They purposefully avoid claiming ownership after the original lender goes BK, in order to attempt to comply with the laws. Yet, when they want to gain title to your home, questionable assignments are recorded to put the the servicer in a position to be able to foreclose. But these assignments are not legal.
OK. **Free** searchable database on e-discovery cases and lots
of RELEVANT information.
and MORE:
Case Summaries
E-Discovery Case Database
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here:
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Group delivers creative, efficient and cost-effective, records management, e-discovery and litigation readiness solutions. We provide our clients with a unique set of experience, knowledge, advanced technology, tested business processes, and a dedicated team of lawyers and para-professionals.
FROM Anthony Martinez BLOG, who seems to be VERSED on this subject.
Live links to cases at his website:
x_http://discoverytactics.wordpress.com/2010/08/24/latest-electronically-stored-information-esi-cases/
==============================================
LATEST ELECTRONICALLY STORED INFORMATION (ESI) CASES
Anthony Martinez | August 24, 2010 at 10:26 am |
I’ve been harping on the importance of demanding and acessing ESI from foreclosing parties for quite some time now. A properly made ESI discovery request will provide numerous “smoking gun” documents that are sure to place the opposing party in a uncomfortable position. Below I’ve identifed some of the most recent and more important cases that involve ESI.
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Court Grants Defendant’s Motion for Entry of Clawback Provision
Rajala v. McGuire Woods LLP, 2010 WL 2649582 (D. Kan. July 22, 2010) Plaintiff, as Bankruptcy Trustee, brought suit against defendant, alleging several claims. The parties could not agree on the entry of a clawback provision. Accordingly, defendant moved the…
Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve
Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010) Finding “willful” spoliation of 43 hard drives “in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary…
Judge Scheindlin Amends Recent Pension Opinion
On May 28th, Judge Shira Scheindlin entered an order amending her recent opinion in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC. The order provides important clarification regarding the scope of a party’s obligation…
Court Rules Failure to Copy Files on Flash Drive Prior to Failure of the Drive Violated Duty to Preserve
Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010) In this case, the court ordered sanctions for defendants’ failure to preserve relevant data where defendants failed to back up a flash drive containing all relevant financial records…
Court Orders Monetary Sanctions for Production Delay Resulting from Counsel’s Failure to Become Familiar with Plaintiff’s Retention Policies and Systems
GFI Acquisition, LLC v. Am. Federated Title Corp. (In re A & M Fla. Props. II, LLC), 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010) Where plaintiff’s counsel “failed in his obligation to locate and produce all relevant documents in…
Court Rules Communications with Attorney Using Work Computer are Protected as Privileged
Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010) In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received…
Despite Malaysian Blocking Statute, Court Compels Third Party’s Production of Foreign Banking Information Pursuant to Subpoena
Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010) Plaintiff sought to compel the production of documents and information regarding defendants’ Malaysian bank accounts pursuant to a subpoena served on United Overseas Bank’s New York Agency…
Court Provides Detailed Analysis of Law of Spoliation, Orders Adverse Inference Instruction, Monetary Sanctions for Intentional Spoliation of ESI
Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010) For intentional spoliation, the court declined to order terminating sanctions but ordered an adverse inference instruction and for defendants to pay plaintiff’s attorneys fees and costs….
Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel
Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 265 F.R.D. 40 (D.P.R. 2010) In this employment discrimination case, the court found the electronically stored information (“ESI”) requested by the plaintiffs “not reasonably accessible because of the undue burden and cost”…
“Zubulake Revisited: Six Years Later”: Judge Shira Scheindlin Issues her Latest e-Discovery Opinion
Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order) Issued earlier this month, Judge Shira Scheindlin’s opinion in Pension Comm. of Univer. of Montreal Pension Plan…
Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure
In re Global Power Equip. Group, Inc., 418 B.R. 833 (Bankr. D. Del. 2009) Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of…
Swiss Government Says It Would Seize UBS Data Sought by U.S.
Bloomberg.com, July 8, 2009 By David Voreacos and Mort Lucoff July 8 (Bloomberg) — Switzerland said it would seize UBS AG data to prevent the U.S. Justice Department from pursuing a U.S. court order seeking the identities of 52,000 American…
Finding Defendants’ Behavior “a Textbook Case of Discovery Abuse,” Court Orders $1,022,700 in Monetary Sanctions
Kipperman v. Onex Corp., 2009 WL 1473708 (N.D. Ga. May 27, 2009) In this constructive transfer and fraud case arising out of the 2003 bankruptcy of Magnatrax Corporation, plaintiff alleged numerous discovery abuses on the part of defendants and sought…
Court Declines to Compel Production of Documents from Foreign Jurisdiction upon Finding a Lack of Personal Jurisdiction and where Certain Documents are Protected from Production by Israeli Law
Linde v. Arab Bank, PLC, 2009 WL 1456573 (E.D.N.Y. May 22, 2009) In this case, defendant Arab Bank moved to compel production of documents, pursuant to subpoena, by non-parties Israel Discount Bank, Ltd. (“IDB”), its indirect, wholly –owned subsidiary, Israel…
Granting Motion to Compel, Court Orders Appointment of Independent Expert “to Retrieve any Deleted Responsive Files from Defendants’ Computers”
Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009) In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely…
Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs
Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests. One motion sought the production of source code…
Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues
At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created…
Finding “No Reason to Treat Websites Differently than Other Electronic Files,” Court Grants Adverse Inference for Failure to Preserve Website
Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication) In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions…
Court Denies Protective Order, Orders Allegedly Proprietary Data Produced Directly to Competitor
In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008) In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner. In July of…
No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations
In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008) In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for…
Magistrate Judge “Clearly Erred” by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test
Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008) In this wage and hour employment case, plaintiff sought documents about class members’ employment and salary history, terminations, performance evaluations, discipline, certain communications, and personnel files. Rite…
Inadequate Preservation Efforts Necessitate Restoration and Production of Email from Backup Tapes, and Forensic Search of CEO’s Laptop
Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008) In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a “smear campaign” that destroyed plaintiff’s career as a securities analyst. He asserted…
Magistrate Judge Sets Protocol for Plaintiff’s Forensic Examination of Former Employee’s Computer and Requests Affidavit from Expert Explaining Certain Issues
Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008) In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired. Defendant explained that another Equity employee had…
Recent Amendments to Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure Require Redaction of Personal Identification Information from Documents Filed with the Court
On December 1, 2007, the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that implement the E-Government Act of 2002 became effective. The amendment to Appellate Rule 25, and new Bankruptcy Rule 9037, Civil Rule 5.2,…
The Biggest Data Disaster Ever
From The Red Tape Chronicles, Posted: Friday, November 30 at 05:15 am CT by Bob Sullivan: “It’s being called the worst data leak of the information age. Earlier this month, U.K. officials had to admit they’d lost hard drives containing…
Email Communications Between Physician and His Attorney Exchanged Over Hospital’s Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine
Scott v. Beth Israel Med. Center Inc., 2007 WL 3053351 (N.Y. Sup. Ct. Oct. 17, 2007) Plaintiff is a physician who sued for breach of contract based upon his termination from defendant hospital (“BI”). Under the contract at issue, BI…
Inadequate Legal Hold Measures, and Resulting Spoliation, Warrant Sanctions
In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007) In this opinion, Magistrate Judge Andrew J. Peck granted plaintiffs’ motion for sanctions in the form of an adverse inference instruction and awarded plaintiffs their costs and…
Court Allows Plaintiffs to Conduct Expedited Discovery Regarding Possible Spoliation
Roberts v. Canadian Pac. R.R. Ltd., 2007 WL 118901 (D. Minn. Jan. 11, 2007) In this decision, Chief District Judge James M. Rosenbaum granted plaintiff’s motion for leave to conduct limited discovery concerning spoliation of evidence on an expedited basis….
Condemning Defendant’s Gamesmanship, Court Orders Production of Database
JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2006 WL 3803152 (S.D. Ohio Nov. 14, 2006) In this case involving UCC claims stemming from defendant’s internet-based check service, defendant disputed that it did sufficient business with Ohio residents to subject it…
Court Grants Plaintiff Access to Defendant’s Database
Bianchi v. The Bureaus, Inc., 2006 WL 3802758 (N.D. Ill. Nov. 1, 2006) In this brief order, the court granted plaintiff’s motion to allow her computer expert access a database maintained by defendant, for the purpose of determining whether the…
Citing Conference of Chief Justices’ Guidelines to State Courts, North Carolina Court Refuses to Compel Nonparty to Produce Deleted Emails from Backup Tapes
Bank of America Corp. v. SR Int’l Bus. Ins. Co., Ltd., 2006 WL 3093174, 2006 NCBC 15 (N.C. Super. Nov. 1, 2006) In its introductory remarks, the court advised: This opinion should be read in conjunction with the opinion in…
North Carolina Court Orders Production of Email from Backup Tapes; Parties to Share Restoration Costs Equally
Analog Devices, Inc. v. Michalski, 2006 WL 3287382 (N.C. Super. Nov. 1, 2006) (Unpublished) In this misappropriation of trade secrets case, defendants moved to compel the production of emails of the originators of the trade secrets at issue relating to…
North Carolina Court Relies on Conference of Chief Justices’ Guidelines in Two Decisions Involving the Production of Email from Backup Tapes
These two opinions, both filed on November 1, 2006, discuss for the first time the extent to which inaccessible electronic data is discoverable and who should pay for its production under the North Carolina Rules of Civil Procedure. Bank of…
$1.888 Million Judgment Entered in Favor of Bankruptcy Trustee Based on Adverse Party’s Spoliation of Financial Records
In re Quintus Corp., 353 B.R. 77 (Bankr. D. Del. 2006) Avaya, Inc. purchased the assets of the debtors in bankruptcy, and agreed to assume certain of the debtors’ liabilities. Thereafter, the trustee filed an adversary complaint against Avaya asserting…
Failure to Conduct Reasonable Investigation for Responsive Documents and Other Discovery Abuses Warrant Adverse Inference Instruction
3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006) In this patent infringement litigation, the district court judge affirmed the magistrate’s report and recommendation that plaintiff’s motion for sanctions against the defendant be granted…
Party Not Entitled to Shift Costs of Restoring Emails that were Converted to Inaccessible Format After Duty to Preserve was Triggered
Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006) Like the plaintiff in the Zubulake v. UBS Warburg LLC, the plaintiff in this case was a highly-paid investment banker who accused her employer of gender discrimination and illegal…
Crime-Fraud Exception to Attorney-Client Privilege Invoked to Allow Testimony and Production of Notes by Attorney, Where Executive’s Deletion of Email Sought by Grand Jury Could Constitute Obstruction of Justice
In re Grand Jury Investigation, 445 F.3d 266 (3rd Cir. 2006) This opinion relates to an ongoing grand jury investigation of suspected federal criminal activity; because of the secrecy of the proceeding, the court’s opinion lacks specific details. The grand…
Second Circuit Reverses Frank Quattrone Conviction for Obstruction of Justice and Witness Tampering
In 2000, Credit Suisse First Boston Corporation (“CSFB”) employed Frank Quattrone as head of its Global Technology Group (the “Tech Group”). In that capacity, Quattrone managed approximately 400 technology investment bankers from the firm’s Palo Alto, California office. The Tech…
Florida Court Affirms $75,000 Coercive Civil Contempt Sanction Against Defendants For Prolonged Discovery Abuse
Channel Components, Inc. v. Am. II Electronics, Inc., 915 So. 2d 1278 (Fla. Dist. Ct. App. 2005) In this case alleging tortious interference and related claims against two former employees, the plaintiff sought intervention by the court several times in…
Defendant Sanctioned for Negligent Failure to Institute and Communicate Legal Hold
In re Old Banc One Shareholders Sec. Litig., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005) In this opinion, the District Court adopted in full the Magistrate’s Report and Recommendation regarding plaintiffs’ motion for sanctions based upon the defendant’s failure…
Bank of America Corporation Ordered to Provide Discovery on Behalf of Non-Party Wholly-Owned Subsidiaries
In re ATM Fee Antitrust Litig., 2005 WL 3299763 (N.D. Cal. Dec. 5, 2005) In this class action, plaintiffs propounded requests for production of documents and a request for admissions to all named defendants, including Bank of America Corporation (“BAC”)….
Despite Evidence of Intentional and Negligent Concealment, Bankruptcy Court Dismisses Trustee’s Spoliation of Evidence Counterclaims Because No Injury Was Shown
In re Tri-State Armored Services, Inc., 332 B.R. 690 (Bankr. D.N.J. 2005) Insurance company brought adversary proceeding against Chapter 7 trustee, seeking either equitable rescission of employee dishonesty, crime, and disappearance insurance policies issued to debtor armored car company, or…
Court Orders Production of Home Office Backup Tape Created in Connection with CFTC Receivership
Commodity Futures Trading Commission v. Equity Financial Group, LLC, et al., 2005 WL 2205789 (D.N.J. Sept. 9, 2005) In April 2004, the U.S. Commodity Futures Trading Commission (“CFTC”) filed an enforcement action against Equity Financial Group, LLC (“Equity”) and others…
UBS Securities to Pay $2.1 Million in Penalties and Fines for Failure to Preserve Email
On July 13, 2005 the Securities and Exchange Commission (“Commission”) issued an Order in connection with the alleged failure of UBS Securities LLC (“UBS”) to preserve email. The Commission accepted an Offer of Settlement and UBS consented to entry of…
Spoliation Instruction Appropriate where Defendants Failed to Preserve Email
Arndt v. First Union Nat’l Bank, 613 S.E.2d 274 (N.C. Ct.App. 2005) Donald Arndt (“Arndt”) was hired by First Union National Bank (“First Union”) in June 1996 with an initial salary of $90,000 per year and a guaranteed minimum incentive…
Seventh Circuit Reverses Sanction Requiring Production of Documents Listed on Privilege Log
American National Bank and Trust Co. of Chicago v. Equitable Life Assurance Society of the United States, 406 F.3d 867 (7th Cir. 2005) American National Bank and Trust Co. of Chicago, as Trustee f/b/o Emerald Investments LP, and Emerald Investments…
Privilege Not Necessarily Waived Where Email Between Employee and Personal Attorney Maintained on Corporate Email System
In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005) Asia Global Crossing, Ltd. and Asia Global Crossing Development Co. (collectively “Asia Global”) were pan-Asian telecommunication carriers which filed for bankruptcy under Chapter 11 on November 17, 2002. Asia…
Magistrate Recommends Adverse Inference Instruction and Monetary Sanctions for Failure to Preserve Hard Drives, Audio Recordings and Email
E*Trade Securities LLC v. Deutsche Bank AG, et al., Civil No. 02-3711 RHK/AJB and Civil No. 02-3682 RHK/AJB (D. Minn. Feb. 17, 2005) United States Magistrate Judge Arthur J. Boylan filed a Report and Recommendation regarding several electronic discovery disputes…
Court Denies Motion to Compel Review of CD-ROMs for Responsive Documents
Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL 764895 (S.D.N.Y. Apr. 9, 2004) Plaintiff requested an order compelling defendant to review for responsive documents two compact discs containing some 204,000 emails. Defendant had conducted a review of the emails for privileged…
Court Precludes Offering of Evidence as Sanction for Discovery Evasion
In re LTV Steel Co., Inc., 307 B.R. 37 (N.D. Ohio 2004) In bankruptcy proceeding, a creditor (“C&K”) submitted a claim for $1.9 million against the estate, a portion of which the debtor agreed was due. When the debtor sought…
I agree with RB and Gwen, you must be careful using E-discovery. We once consulted on a case where we had our motion to shift costs granted and the requester would have had to pay $45,000.00 to get what they wanted.
Would like to add this – Original Mortgage Schedules were not the final closing schedule – seller and Depositor then had to “agree” to loans purchased. All subsequent “distribution” reports usually only provided data on loan foreclosures, REO properties, and loan modifications. The data is entered to the system by the servicer. The servicer could “update” the distribution report at any time. Thus, if an original mortgage schedule contained your loan, and your loan was subsequently removed, a servicer can (illegally) re-enter your loan at any time. The system does not allow a “backward” search. Thus, you cannot tell if your loan was removed – and subsequently (illegally) re-entered by the servicer. The system was set-up to be manipulated by the servicer.
You know this is not rocket science. Every Request for Production of Documents that I have written since 1994 includes the following language in the first paragraph:
Defendants are requested to produce the following documents within the time provided by law. The word “documents” is definited to include the original and any copies kept in any “system of records” whether in an electronic format of any kind or “paper” copy in any form. Communications is definted to include any and all written communications of any kind kept in any system of records whether in paper or any electronic format. If you claim any of the following “documents” were destroyed during the “relevant time period defined in this request”, please produce any and all document destruction policies in effect during that time and state whether you maintained that document destruction policy at all times.
An interrogatory asks identification of the person(s) who maintain and enforce the document destruction policies and the person(s) who maintain any and all relevant documents in the case.
I rarely IF EVER have documents I think I need not produced under this document request. The bigger problem is asking for the right thing–that’s what is really important.
Document requests have to be limited in time and scope to “itsy bitzy parts”. You better be able to defend the “relevance” of each part so know what you are asking for and if need be take the right deposition of the person who can define what you need and follow up with second third etc doc requets. I’ve had as many as twelve doc requests in a case but rarely had those successfully opposed.
In some states, like in Texas, the opposing side can request the cost to harvest all this data be split or even “charged” to the Plaintiff if there is reason to believe the discovery request is a “fishing expedition”. E-discovery is a whole other subject most attorneys still don’t fully understand.
I worked for a e-discovery consulting firm for 8 years in Texas and the evidence that can be extracted from an electronic file, such as date created, date modified, last saved, author, etc can all be very helpful. If you can get to the emails, it’s even more in depth.
I’ll write later ,, gotta run off to work .. but you’re missing a boatload by just concentrating on “server”/pc based data … big boys use big toys ,, mainframes are the norm, and yes they can access optical storage.