537 F. Supp. 2d 14(D.D.C. 2008)

PARTIES

Plaintiff: United States – Q-P-Q charges against USDOS employee Michael O’Keefe & VISA applicant STS Jewelers

Defendants: Michael O’Keefe, STS Jewelers – Gifts in exchange for expedited visa processing

Facts1. US – 4/07 order by D/C judge to conduct document search; hard copies and ESI• VISA applications by STS - requests/decisions to expedite (6

consulate posts)• DOS policy, re: expedited visa requests• Specific cases of expedited visa application processing

2. Gov’t production:• No Bates system as requested by (Ds) • Archived SOPs for expedited appointments: 2003 -2007; ESI

produced in paper • Records of expedited appointment requests: 1/2006 – 5/2007 (4

file cabinet drawers)• Evidentiary and relevance implications• Gov’t – Info. available from documents themselves

• Inconsistent searches • Search of physical workspace – 4 individuals; search of personal

electronic files – 24 individuals• Toronto consulate only • Questionable ESI search methods• Employees not interviewed• No employee search for ESI• No software ID; search terms & preservation efforts not explained • 2 week ESI back-up – no suspension of policy• No search of O’Keefe hard drive – seized by gov’t• No metadata - ESI in PDF or TIFF

Legal Framework1. F.R.C.P. 34(b)

• Applicable to criminal cases - extensive use and amendment

• Production: Distinction between paper documents and ESI

• Paper documents: (1) Form in which ordinarily maintained or (2) organized and labeled to correspond to categories of request

• ESI: If form not specified, (1) produce in form in which ordinarily maintained or (2) in a reasonably usable form

• Goal: Equality between parties in ability to search docs.

2. Due Process Cl. – Destruction of evidence

• No violation if exculpatory value of evidence not apparent prior to destruction of evidence

• Analogous to F.R.C.P. 37(e) – No sanctions for destruction of ESI pursuant to routine, good- faith operation of electronic system

3. F.R.E. 702 – Testimony by Experts (challenge to search terms): (1) sufficient facts or data; (2) reliable principles or methods; and (3) reliable application of principles and methods to facts of case

Analysis• “Undifferentiated mass”≠ form in which

ordinarily maintained • Requires reproduction of file folders containing

responsive documents• Replicates manner in which documents are

kept• Only way gov’t could have maintained the

docs• “Inexplicable deficiencies” ≠ basis for

spoliation claim• PDF & TIFF docs – Satisfies R. 34 requirement

of “reasonably usable” unless (Ds) can show otherwise

• Search terms – • Involves interplay of computer technology,

statistics and linguistics• “beyond the ken of a layman”

Issues• What constitutes “form in which

documents ordinarily maintained?”• Whether metadata must be provided in

order for ESI to be reasonably usable?• What is the standard for challenging

keyword searches?• Whether documents can continue to be

destroyed pursuant to routine policy after reasonable anticipation of litigation?

Conclusion• Evidentiary issue: recommendation to D/C judge that

all docs. produced by gov’t be deemed authentic• Relevance issue: Joint development of Bates

index• Supplemental declarations• Why workspace of all 24 individuals not searched• Explanations from reps. of other consulates of how

search was conducted at their posts• Waiver of spoliation claim if not made by (Ds)

directly within 21 days of opinion• (Ds) to secure stipulation from gov’t to preserve ESI

in native format• Motion to Compel for challenge to keyword search• Must meet R. 702• Adequate search terms – obviates employee

interviews

Questions

1. Does R. 34 really achieve equality between the parties for searching documents or will the requesting party always be at some disadvantage if documents do not have to be organized to correspond to request?2. When is metadata necessary for ESI to be reasonably usable?