Electronic Discovery & Computer Forensics : RenewData : Austin, Texas

Floeter v. City of Orlando, 2007 WL 486633 (M.D.Fla. Feb 09, 2007)

The following summary refers to a Sexual Harassment case filed by a male undercover agent against his female supervisor.

On April 20, 2004, Floeter filed an Internal Affairs complaint against Jones for sexual harassment. On February 14, 2005, Floeter filed a three-count complaint against the City in Florida State court. In Floeter's complaint, he alleged that he and other male detectives had to “endure a sexually charged work environment, which included the dissemination of sexually provocative and pornographic materials to their computers (emails) from supervisors and around the work place....” The case was removed to U.S. District Court M.D. Florida on March 16, 2005. There is no evidence that in-house or outside counsel for the City ever issued a directive requiring that information which might be relevant to the issues in the case be preserved.

Floeter was deposed on December 15, 2005 and described the pornographic emails and alleged harassment.  The next day he served his first request to produce documents, including copies of all “sexually explicit or pornographic materials” emailed by one of his supervisors on police department computers.  Four months later the Court ordered the City to produce these materials. The City of Orlando’s Internet Security Administrator then completed a search of the Electronically Stored Information (ESI) of the key players to the litigation in the Orlando police department. His search included the officer’s computers, the email server, and the backup tapes.  The type or accessibility of the backup tapes involved is not described, but they were not identified as disaster recovery type backup tapes, and it is inferred that they were readily searchable.

The search by the Administrator even included a “remote search” of the computers of some of the key players.  The Administrator reported, however, that key hard drives could not be searched for various reasons, one of which was that on July 19, 2005, the City computer that had been issued to one of Floeter’s superiors, Uvalle, in 2000 was replaced. As was the City's general policy, data from the hard drive in Uvalle's original computer was copied to the hard drive of the replacement computer. The Administrator testified that only data existing as of the copy date would have been transferred and anything that had been deleted before the data was copied, would not have been transferred and would not be retrievable by forensic examination from the replacement computer.

The original computer was maintained for approximately two weeks after the data was moved to the replacement computer to ensure that Uvalle was not missing any information needed from the original computer. Thereafter, the hard drive was removed from the original computer and re-imaged, effectively erasing all of the data. The Magistrate who heard the testimony concerning these facts found the timing of the request for a new computer, resulting as it did in the complete destruction of all deleted data on the old computer, to be “certainly suspicious.”  The backup tapes the Administrator searched were also porn-free as to the target users.  However, by the time of the search these tapes only went back to October 2005, which was 7 months after the Federal Suit and 9 months after the State Suit was filed.  This was because the City recycled its backup tapes every four months.

Next, mediation took place on August 15, 2006, and Floeter said at mediation that he told the City he had possession of more emails that were clearly sent from the police computers.  The City then made its own request for emails within Floeter’s custody supporting his claim of a hostile work environment.  Floater objected arguing that since the emails requested were disclosed at mediation they were confidential and privileged as work product. 

The City then moved to compel, and Floeter responded that the emails were already in the City’s possession.  The City replied that it had looked and had not been able to find them.  Based on this representation, the Court on October 6, 2006, ordered Floeter to produce the emails and the sexually explicit materials attached thereto, and even, taxed Floeter with part of the City’s costs to make the motion.  Next, the parties filed cross motions for summary judgment, and motions in limine related to the pornographic materials, and motions to seal these x-rated documents and other final pretrial related motions then due under the scheduling order.  After these motions were completed, the plaintiff filed the mentioned “emergency motion” related to spoliation, which led to an evidentiary hearing on January 11^th and 18^th, 2007.

The Magistrate agreed the pornographic emails were relevant but not “crucial” and that there was no bad faith because the erasure of the post-litigation backup tapes was done according to policy.  The court denied Floeters request for sanctions and even denied a refund of his payment for the City’s costs to bring its previous motion to compel.  The court did say that Floeter may be able to argue spoliation and an adverse inference to the jury at trial. 

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Best Buy Stores, L.P. v. Developers Diversified Realty Corp. 2007 WL 333987 (D. Minn. Feb. 1, 2007).

Best Buy was involved in a lease dispute for alleged overcharges for insurance and maintenance. When Best Buy filed a motion seeking to compel the production of responsive archived emails and electronic documents, the defendants offered no proof, by affidavit or otherwise, to support their argument that the information was contained on backup tapes that weren't reasonably accessible. They argued that the cost of processing the tapes would be over $125,000. They also argued that the issue of whether the backup tapes should be restored was not ripe for determination because the parties had not yet sorted through all the issues.

Magistrate Judge Jeanne J. Graham held that the defendants failed to show that the electronic data on the backup tapes was “not reasonably accessible”. Graham cited amended Rule 26(b)(2) and stated, "the Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here."  The defendants were ordered to produce the responsive electronic documents in 28 days.

The defendants then filed an objection with U.S. District Court Judge David S. Doty, seeking an extension of the deadline because it was technologically impossible to comply. The defendants wanted permission to produce data on a rolling basis. To support this assertion they submitted an un-sworn email from Kroll Ontrack saying it would take 102-122 days to restore all the backup tapes, cull and process the data.  They also submitted an affidavit from their director of IT stating the backup tapes were only for disaster recovery and that an outside vendor was needed to restore and cull data.  Additionally, they submitted letters, exchanged between counsel, one of which included cost estimates from Kroll for the restoration, filtering and processing of the data from the backup tapes. The estimates in that letter doubled the prior cost estimates in the motion paper and now indicated that it would cost between $288,300 and $468,100 to restore the backup tapes, cull and process the data.   

Judge Doty was not persuaded by the untimely evidence. He did acknowledge that a modification of the deadline might be warranted if compliance with the deadline was in fact technologically impossible.  However, he upheld Judge Graham's order requiring production within 28 days.

The defendants then filed a motion for reconsideration of the order requiring production within 28 days. Judge Graham denied the motion. Judge Graham rejected the defendants' arguments that they did not know of costs or delays earlier and thus could not have presented evidence in support of their objections to electronic discovery until they filed their objection with Judge Doty. Six days later, the defendants filed another motion seeking to extend the time to produce data from backup tapes. This motion has not yet been ruled upon.

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