John B. v. M.D. Goetz, Jr., Case No. 07-6373 (6th Cir. December 7, 2007)

The Sixth Circuit has issued a stay of the Order issued by District Court Judge William J. Haynes, Jr. permitting the plaintiff’s expert to make forensic images of the State of Tennessee’s computers under the oversight of a court-appointed monitor.

The district court decision arose out of a class action lawsuit brought on behalf of 550,000 children in the State of Tennessee, seeking to enforce federal law requiring Tennessee State agencies to provide various medical services to the plaintiffs. A consent decree was entered certifying the class and providing the remedies sought. To assure compliance with the consent decree, plaintiffs were entitled to periodic review of agency records. Post-decree discovery disputes arose, followed by show cause and contempt hearings. The district court decision is discussed here.

The district court issued a clarifying Order on November 19, 2007, explaining that the U.S. Marshall will assume custody of all forensic images as soon as they are completed, and they will be delivered to the court, where they will remain under seal. The court limited the Order to “only those computers (including detachable media) that key custodians have used for receiving, sending or storing work-related ESI.” The court made it clear that the Order included privately owned computers on which the key custodians conducted state work

In response to an emergency motion for a stay, the Sixth Circuit held that “the orders in question do not lend themselves to a simple citation for contempt from which appeal may be taken.” Many individuals – most of them non-parties – are subject to the actual requirements of production, which gives the orders some of the markings of immediate appealability that the Supreme Court articulated in Pearlman v. U.S., 247 U.S. 7, 13 (1918). The court also noted that its authority in mandamus “permits the correction of certain discovery orders that are clearly erroneous as a matter of law, particularly when information is “claimed to be protected from disclosure by privileges or other interests in confidentiality.”

The court was particularly troubled by the fact that the information that may be discoverable will be commingled with private, personal information. Indeed, this would appear to be a significant problem in the District Court Order. The court noted that the emerging case law in this area cannot be read as establishing a routine right of access to such material, citing the Eleventh Circuit case, In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003). But given the history of this case, one must pause and consider whether the District Court is really permitting plaintiffs to have access to any information whatsoever. The data is to be delivered to the court and held under seal. The purpose is clearly to preserve data in the face of the defendants’ repeated refusals to do so. And even a rudimentary analysis of the Ford Motor case leaves one with a substantially different impression than does the Goetz case before the Sixth Circuit.

In Ford Motor, the district court granted a motion to compel access to a number of Ford databases a mere fourteen days after the case – sounding in product liability – had been filed. There was no hearing on the motion, and Ford was not even given an opportunity to respond to the motion. The court noted, in a comment, part of which has been oft-quoted:

But Rule 34(a) does not grant unrestricted, direct access to a respondent's database compilations. Instead, Rule 34(a) allows a requesting party to inspect and to copy the product -- whether it be a document, disk, or other device -- resulting from the respondent's translation of the data into a reasonably usable form.

The Advisory Committee Notes to Rule 34(a) support this interpretation. Commenting on data compilations, the Committee stated, "[W]hen the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data." Fed. R. Civ. P. 34(a) advisory committee's note (1970 amend.). Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data. Rule 34(a) does not give the requesting party the right to conduct the actual search. While at times -- perhaps due to improper conduct on the part of the responding party -- the requesting party itself may need to check the data compilation, the district court must "protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs." Id

In re Ford Motor, 345 F.3d at 1316-17 (Emphasis added).

The Goetz case is a whole different matter. The defendants repeatedly ignored court orders regarding the preservation and production of electronic information. No litigation hold was in place for years after the consent decree, despite the fact that plaintiffs were given a right to review data as part of the decree. The defendants repeatedly made agreements and then violated them. Defense counsel provided essentially no guidance to State personnel on what to preserve, and as a result, little was preserved. The district court provided a detailed analysis of defendants’ conduct spanning a 187 page Order. Thus, an argument could certainly be made that the District Court was justified in demanding that mirror images be made of computer hard drives likely to contain relevant information. The problem may lie in the lack of a protocol, either agreed upon or dictated by the court, that protects privilege and privacy. But since all the District Judge has done thus far is order that images be made, a necessary first step in any protocol, it’s questionable whether that’s really a problem.

It will be interesting indeed to see how the case is argued and how the Sixth Circuit handles it.

Read the Stay Order