RYAN BAGWELL, Plaintiff
COURT OF COMMON PLEAS PHILADELPHIA COUNTY, PA CIVIL ACTION- MANDAMUS
v. R. SETH WILLIAMS, in his official capacity as DISTRICT ATTORNEY and, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE,
December Term 2013. No. 3553 Case ID: 131203553
Defendants
ORDER AND NOW, this - - - - - - - day of - - - - - - - - - - - - - -, 2014, upon consideration of Plaintiff Ryan Bagwell's Motion to Compel Answers to Interrogatories directed to Defendants Philadelphia District Attorney's Office and Philadelphia District Attorney R. Seth Williams, and any response thereto, it is hereby ORDERED that Plaintiff's Motion is granted. The Defendants shall, within the next twenty days: 1.
Provide any or all policies of the District Attorney's office, or any office or
agency whose policies to which the District Attorney's office must adhere, related to archiving, preserving, backing up or destruction of e-mail communications or email data files or their contents on the District Attorney's office e-mail system. 2.
As to data backups performed on all computer systems currently in use or
since December 1, 2012, identify the following: (a)
All procedures and devices used to back up the software
and the data, including but not limited to name(s) of backup
software used, the frequency of the backup process, the type of backup drives, including name and version number, type of media (i.e. DLT, 4mm, 8mm, AIT). (b)
The individual(s) who conducted the backup and the
individual who supervised the process. 3.
Identify whether Frank Fina's emails were backed up since December 1,
2012, and describe the nature of the backup.
J.
Craig J. Staudenmaier, Esquire Supreme Court ID#34996 Joshua D. Bonn, Esquire Supreme Court ID#93967 Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, P. 0. Box 840 Harrisburg, P A 17108-0840 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff
COURT OF COMMON PLEAS PHILADELPHIA COUNTY, PA
RYAN BAGWELL, Plaintiff v.
CIVIL ACTION- MANDAMUS
R. SETH WILLIAMS, in his official capacity as DISTRICT ATTORNEY and, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE,
December Term 2013. No. 3553 Case ID: 131203553
Defendants PLAINTIFF RYAN BAGWELL'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES DIRECTED TO DEFENDANTS PHILADELPHIA DISTRICT ATTORNEY'S OFFICE AND PHILADELPHIA DISTRICT ATTORNEY, R. SETH WILLIAMS
AND NOW comes Plaintiff, Ryan Bagwell, by and through his attorneys, Nauman, Smith, Shissler & Hall, LLP, and files the following Motion to Compel Answers to Interrogatories pursuant to Philadelphia Local Rule of Civil Procedure 208.3(b)(2), and Pennsylvania Rules of Civil Procedure 208.2 and 208.3 and avers in support thereof as follows: 1.
Plaintiff initiated the instant proceedings via the filing of a complaint on
December 30, 2013, seeking relief in mandamus to enforce a final determination of the Office of Open Records issued on November 4, 2013, which ordered the District Attorney to provide 1
responsive records to Mr. Bagwell's request for "copies of all e-mails that were sent or received by [Assistant District Attorney] Frank G. Fina between December 1, 2012 and July 15, 2013, and were sent from the following individuals: [Louis Freeh, Tom Cloud, Greg Paw, Barry Feudale and Randy Feathers]" and, alternatively, seeking the entry of an award of reasonable attorneys fees and costs oflitigation pursuant to 65 P.S. § 67.1304 and 42 Pa.C.S.A. § 2503. 2.
Plaintiff, Ryan Bagwell, served Interrogatories and Request for Production upon
Defendants on or about April 2, 2014. A true and correct copy of such Interrogatories and Request for Production is attached hereto as Exhibit "A." 3.
Although the Defendant's responses to the Interrogatories and Request for
Production of documents were originally due on May 2, 2014, Plaintiff, Ryan Bagwell, granted several requests for extensions by the District Attorney. 4.
Defendants served incomplete and/or non-responsive answers and responses to
Plaintiff's Interrogatories and Request for Production of Documents on June 13, 2014. A true and correct copy of the DA's Answers to the Plaintiff's Interrogatories is attached hereto as Exhibit "B." 5.
Defendants objected to the majority of the discovery propounded by referencing
and relying on General Objections then further objection to each interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. 6.
In particular, in response to Interrogatories Nos. 3, 5, 9 and 13, Defendants
objected to identifying and providing information regarding the District Attorney's email system, email retention/backup policies, and backups performed which are relevant to whether the District Attorney the possesses the emails that the Office of Open Records ordered it to disclose.
2
7.
Defendants objected to answering Interrogatory No. 17 and then provided an
incomplete and non-responsive answer to the request that they identify all computers, e-mail servers, or backups that were searched for the requested records, by merely stating that "[t]he custodian most likely to have potentially responsive documents perform a search of his e-mail system." 8.
Plaintiff prepared and delivered to the District Attorney a draft of a motion to
compel discovery addressing the above issues and asked the District Attorney to provide full and complete responses without the necessity of court intervention. 9.
The District Attorney provided Supplemental Responses to Plaintiffs
Interrogatories on July 29, 2014. A true and correct copy is attached hereto as Exhibit "C." 10.
The District Attorney's Supplemental Responses to Plaintiffs Interrogatories
provided an incomplete response to Interrogatory 13 by failing to answer whether Frank Fina's emails were backed up since December 1, 2012, and failed to provide any supplemental response to Interrogatories 5, 9 regarding the District Attorney's email retention/backup policies and backups performed. 11.
The Interrogatories identified above do not request information outside the scope
of discovery, as each Interrogatory seeks information that is relevant or that may lead to the discovery of relevant evidence as to the claims or defenses asserted in the case. 12.
Defendants' failure to provide complete answers to the above enumerated
Interrogatories inhibits Plaintiffs ability to prove his case, and frustrates the adversarial system of litigation. Wherefore, Plaintiff, Ryan Bagwell, requests the entry of an Order Granting Plaintiff,
3
Ryan Bagwell's Motion to Compel Answers to Interrogatories Directed to Defendants Philadelphia District Attorney's Office and Philadelphia District Attorney R. Seth Williams, and directing Defendants to answer the interrogatories as set forth in the proposed order. NAUMAN, SMITH, SHISSLER & HALL, LLP BY: Is/ Joshua D. Bonn Craig J. Staudenmaier, Esquire Supreme Court ID#34996 Joshua D. Bonn, Esquire Supreme Court ID#93967 200 North Third Street, P. 0. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff
Date: August 5, 2014
4
Craig J. Staudenmaier, Esquire ·
Supreme Court ID#34996 Joshua D. Bonn, Esquire
Supreme Court ID#93967 Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, P. 0. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff RYAN BAGWELL, Plaintiff
v.
COURT OF COMMON PLEAS PHILADELPHIA COUNTY, PA CnnLACTION-MANDAMUS
R SETH WILLIAMS, in his official capacity as DISTRICT ATTORNEY and, PHILADELPHIA DISTRICT ATIORNEY'S OFFICE, Defendants
December Term 2013 No. 3553 Case ID: 131203553
PLAINTIFF, RYAN BAGWELL'S INTERROGATORIES DIRECTED TO
R. SETH WILLIAMS, IN IDS CAPACITY AS DISTRICT ATTORNEY AND PIDLADELPHIA DISTRICT ATTORl"lEY'S OFFICE, DEFENDANTS
TO:
R. SETH WILLIAMS Al'lD PHILADELPHIA DISTRICT ATTORNEY'S OFFICE AND THEIR ATTORNEY, At'WE B. TAYLOR, ESQUIRE AND NOW comes NAUMAN, SMITH, SIDSSLER& HALL, LLP, counsel for Plaintiff,
Ryan Bagwell, in the above-entitled matter, who, in accordance with Pennsylvania Rules of Civil Procedure, Rule No. 4005, propounds the following interrogatories relating to the incident alleged in the complaint which you are required to answer fully, in writing, under oath, within thirty (30)
days after service hereof:
EXHIBIT
i
A
DEFINITIONS Al'ID L'TSTRUCTIONS
Definitions
(A)
"You" or "Your'' refers to Defendant(s) herein and to all other persons acting or
purporting to act on behalf ofDefendant(s), including agents and employees. (B)
"Communications" shall mean all inquiries, discussions, conversations, negotiations,
agreements, understandings, meetings, telephone conversations, letters, correspondence, notes, telegrams, telexes, advertisements, facsimiles, e-mail, or other forms ofverbal and/or communicative intercourse. (C)
"Documents" shall mean all written or graphic matter of every kind or description,
however produced or reproduced, whether draft or final, original or reproduction, signed or unsigned, and regardless of whether approved, signed, sent, received, redrafted, or executed, including but not limited to: written letters, correspondence, facsimiles, e-mail, memoranda, minutes, notes, films, recording, of any type, transcripts, contracts, agreements, purchase or sales orders, memoranda of telephone conversations of personal conversations, diaries, desk calendars, interoffice communications, reports, studies, bills, receipts, checks, checkbooks, invoices, requisitions or material similar to any of the foregoing however denominated, by whomever prepared, and to whomever addressed, which are in your possession, custody or control or to which you have had or can obtain access, means any written, printed, typewritten, graphic or recorded matter, however produced or reproduced, including photographs, microfilms, phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums and other data compilations from which information can be obtained. (D)
'Persons" m~ans an individual, corporation, partnership, trust, association, company,
organization or any form of a business or commercial entity. (E)
"Identify" means, when used in reference to an individual, means to state (1) their
name, (2) business affiliation and official title and/or position; and (3) their last known residential and business address. (F)
''Identify" when used with respect to a document means to state (1) the type of
document, (2) its date of origin or creation; (3) its author and addressee; (4) its last known custodian or locations; and (5) a brief description of its subject matter and size. In lien of identifying any document(s), you may attach a copy of it to your answer.
(G)
"Identify" when used with respect to a company or other business entity, means to
state (1) the company's legal name, any former names; (2) the address of its principal place of business; and (3) the identity of its chief executive officer. (H)
"Relate to" means consist of, refer to, reflect or be in any way logically connected
with the matter discussed. (I)
The period of time encompassed by these Interrogatories shall be from the date that
Plaintiffs Right to Know Request was received by the Philadelphia District Attorney's Office, July 22, 2013, unless otherwise stated.
Instructions
(A) Duty to answer. The interrogatories are to be answered in writing, verified and served upon the undersigned within 30 days of their service upon you. Objections must be signed by the attorney making them. In your answers, you must furnish such information as is available to you, your employees, representatives, agents, and attorneys. Your answers must be supplemented and amended as required by the Pennsylvania Rules of Civil Procedure.
1.
Identify each individual that was involved in the purported search for the e-mails requested by Mr. Bagwell's Right to Know Request (hereinafter referred to as "requested records") that was received by the Open Records Officer of the Philadelphia District Attorney's Office on July22, 2013.
2.
Identify all physical files that were searched for the requested records.
3.
Identify all e-mail systems in use by the District Attorney's office during the period of December 1, 2012, to the present, and for each, provide the following:
(a)
the name and version of the system's server software (i.e. Microsoft Exchange Server 2010)
(b)
the name and version of any software used to send or retrieve e-mail from workstations (i.e. Microsoft Outlook 2010)
(c)
the location of all email servers used by the e-mail system
(d)
the location of any backup data or archives of the e-mail system
4.
Provide any information regarding encryption used for any ofthe e-mail systems described
in Interrogatory No. 3. This listing shall include security keys, passwords and names and versions of any encryption software or other software that would prevent a user outside the District Attorney's office from clearly viewing the contents of any e-mails.
5.
Provide any and all policies of the District Attorney's office, or any office or agency whose policies to which the District Attorney's office must adhere, related to the archiving, preserving, backing up or destruction of e-mail communications or e-mail data files or their contents on the District Attorney's office e-mail system.
6.
Identify all e-mail known to you (including creation date, recipient(s) and sender) that relate to, reference or are relevant to the subject matter of this litigation, including, but not limited to, the requested records and emails regarding the processing of and response to Mr. Bagwell's request.
7.
Identify and describe each computer since December 1, 2012 that has been, or is currently, in use by Frank Fina or the individuals identified in response to futerrogatory No. 1 (including desktop computers, PDAs, portable, laptop and notebook computers, cell phones, etc.), including but not limited to the following: (a)
Computer type, brand and model number;
(b)
Computers that have been re-formatted, had the operating system reinstalled or been overwritten and identify the date of each event;
(c)
The current location of each computer identified in your response to this interrogatory;
(d)
The brand and version of all software, including operating system, private and custom-developed applications, commercial applications and shareware for each computer identified;
(e)
The communications and connectivity for each computer, including but not limited to terminal-to-mainframe emulation, data download and/or upload capability to mainframe, and computer to computer connections via network, modem and/or direct communication;
(f)
All computers that have been used to store, receive or generate data related to the subject matter of this litigation.
8.
As to each computer network, identify the following: (a)
Brand and version number of the network operating system currently or previously in use (include date of all upgrades);
(b)
Quantity and configuration of all network servers and workstations;
(c)
Person(s) responsible for the ongoing operations, maintenance, expansion, archiving and upkeep of the network;
(d)
Brand name and version number of all applications and other software residing on each network in use, including but not limited to electronic mail and applications.
9.
As to data backups performed on all computer systems currently in use or since December 1, 2012, identify the following: (a)
All procedures and devices used to back up the software and the data, including but not limited to name(s) ofbackup software used, the frequency of the backup process, and type ofbackup drives, including name and version number, type of media (i.e. DLT, 4mm, 8mm, AIT). State the capacity (bytes) and total amount of information (gigabytes) stored on each type;
(b)
Describe the tape or backup rotation and explain how backup data is maintained and state whether the backups are full or incremental (attach a copy of all rotation schedules);
(c)
State whether storage media is kept off-site or on-site. Include the location of such backup and a description of the process for archiving and retrieving on-site media;
(d)
The individual(s) who conducts the backup and the individual who supervises the process;
(e)
Provide a detailed list of all backup sets created since December 1, 2012, regardless of the magnetic media on which they reside, showing current location, custodian, date ofbackup, a description of backup content and a full inventory of all archives.
10.
Identify all extra-routine backups applicable for any servers identified in response to these interrogatories, such as quarterly archival backup, yearly backup, etc., and identify the current location of any such backups.
11.
For any server, workstation, laptop, or home PC that has been ''wiped clean" or reformatted such that you claim that the information on the hard drive is permanently destroyed, identify the following: (a)
The date on which each drive was wiped clean;
(b)
The method used (e.g. WipeDisk, Wipefile, Burnit, Data Eraser, etc.).
12.
Identify and attach any and- all versions of document/data retention policies used by your office, or any agency or office to which the District Attorney's office must adhere, since December 1, 2012, and identify documents or classes of documents that were subject to scheduled destruction. Attach copies of document destruction inventories/logs/schedules containing documents relevant to this action.
13.
Identify whether Frank Fina or any of the individuals identified in response to Interrogatory No. 1 had backup systems in their computers or whether their emails or their computer hard drives were backed up since December 1, 2012, and describe the nature of the backup.
14.
Identify the person(s) responsible for maintaining any schedule of redeployment or circulation of existing equipment and describe the system or process for redeployments.
15.
Identify any data that has been deleted, physically destroyed, discarded, damaged, overwritten, whether pursuant to a document retention policy or otherwise, since December 1, 2012, that relates to the subject matter of this litigation. Specifically identify those documents that relate to or reference the subject matter of this litigation.
16.
Identify and describe all backup tapes in your possession including: (a)
Types and number oftapes in your possession;
(b)
Capacity and total amount of information stored on each tape;
(c)
All tapes that have been re-initialized or overwritten since commencement of this litigation and state the date of said occurrence.
17.
Identify all computers, email servers, or backups that were search for the requested records.
18.
Describe the search methods used to conduct the purported search for the requested records.
19.
Describe any search methods or recovery systems used to locate and retrieve the requested records that may have been deleted.
These interrogatories shall be deemed continuing so as to require supplemental answers if the defendants obtain further information between the time the answers were served and the time of trial.
NAUMAN, SMITH, SIDSSLER & HALL, LLP
fLL 1!.9- ~ . . cifaig J. Staudenmaier, Esquire
By:
Supreme Court ID# 34996 Joshua D. Bonn, Esquire
Supreme Court ID # 93967 200 North Third Street, P.O. Box 840 Harrisburg, Pennsylvania 17108 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff Dated: April2, 2014
COURT OF COMMON PLEAS PHILADELPHIA COUNTY, PA
RYAN BAGWELL, Plaintiff
CIVIL ACTION- MANDAMUS
v.
R. SETH WILLIAMS, in his official capacity as DISTRICT ATTORNEY and, PHILADELPHIA DISTRICT AITORNEY'S OFFICE, Defendants
December Term 2013 No. 3553 Case ID: 131203553
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of PLAINTIFF, RYAN BAGWELL'S lt'IITERROGATORIES DIRECTED TO DEFENDANTS, R. SETH WILLIAMS Al'ID PHILADELPHIA DISTRICT ATTOR.t'IEY'S OFFICE, upon counsel of record in the following manner: United States
First Class Mail, Postage Prepaid.
Anne B. Taylor, Esquire Assistant District Attorney Three South Penn Square, 131h flr. Philadelphia, PA 19107
NAUMAN, SMITH, SIDSSLER & HALL, LLP
By:~~.!~ Joshua D. Bonn, Esquire
Dated: April2, 2014
Craig J. Staudenmaier, Esquire Supreme Court ID#34996 Joshua D. Bonn, Esquire Supreme Court ID#93967 Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, P. 0. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff RYAN BAGWELL, Plaintiff
v. R. SETH WILLIAMS, in his official capacity as DISTRICT ATTORNEY and, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, Defendants
COURT OF COMMON PLEAS PHILADELPHIA COUNTY, PA CIVIL ACTION- MANDAMUS December Term 2013 No. 3553 Case ID: 131203553
PLAlNTIFF, RYAN BAGWELL'S REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO R. SETH WILLIAMS, IN IDS CAPACITY AS DISTRICT ATTORNEY AND PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, DEFENDANTS TO:
R. SETH WILLIAlviS AND PHILADELPHIA DISTRICT ATTORNEY'S OFFICE AND THEIR ATTORNEY, At'TNE B. TAYLOR, ESQUIRE
You are hereby requested to produce for inspection and copying, for use in connection with the pending proceeding only, the documents described below. Production shall be at a time and place agreed upon by counsel or, in the absence of an agreement, at the offices of Nauman, Smith, Shissler & Hall, LLP within thirty (30) days after service thereof: Documents requested shall be deemed to be only those not shielded from discovery under the Pennsylvania Rules of Civil Procedure.
1.
Any and all documents that you identified, consulted, reviewed or relied upon in answering the Interrogatories served upon you by Ryan Bagwell.
The foregoing request shall be deemed to be continuing so as to require the production of documents described in the foregoing request and received by you subsequent to the date of your initial production.
NAUMAN, SMITH, SHISSLER & HALL, LLP
By:
tfraiiJ. Staudenmaier, Esquire Supreme Court ID# 34996
Joshua D. Bonn, Esquire Supreme Court ID # 93967 200 North Third Street, P.O. Box 840 Harrisburg, Pennsylvania 17108 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff Dated: April2, 2014
RYAN BAGWELL,
COURT OF COMMON PLEAS PHILADELPHIA COUNTY, PA
Plaintiff
v.
CIVIL ACTION- MANDAMUS
R. SETH WILLIAMS, in his official capacity as DISTRICT ATTORNEY and, PHILADELPHIA DISTRICT ATIORNEY'S OFFICE, Defendants
December Term 2013 No. 3553 Case ID: 131203553
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of PLAINTIFF, RYAN BAGWELL'S REQUESTFORPRODUCTIONDIRECTEDTO DEFENDANTS, R. SETHWILLIAl"\'ISAND PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, upon counsel of record in the following manner: United States First Class Mail, Postage Prepaid. Anne B. Taylor, Esquire Assistant District Attorney Three South Penn Square, 13th :flr. Philadelphia, PA 19107
NAUMAN, SMITH, SIDSSLER & HALL, LLP
By.~~ ShelTYAay;aralegat Joshua D. Bonn, Esquire
Dated: Apri12, 2014
ATTORNEY FOR DA DEFENDANTS
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE CIVIL LITIGATION UNIT BY: Anne B. Taylor, Assistant District Attorney Attorney I.D. No. 206057 Three South Penn Square, 13th Floor Philadelphia, PA 191 07 (215) 686-5775
[email protected] RYAN BAGWELL,
Plaintiff,
COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL DIVISION
vs. DECEMBER TERM 2013 R. Seth Williams and the Philadelphia District Attorney's Office, NO. 3553 Defendants. RESPONSES OF DEFENDANTS PHILADELPHIA DISTRICT ATTORNEY'S OFFICE AND PHILADELPHIA DISTRICT ATTORNEY SETH WILLIAMS TO PLAINTIFF'S INTERROGATORIES Pursuant to Pennsylvania Rule of Civil Procedure 4006, Defendants Philadelphia District Attorney's Office and District Attorney Seth Williams ("DA Defendants"), hereby respond to Plaintiffs Interrogatories.
I.
INTRODUCTION 1.
TheDA Defendants are providing these responses to the interrogatories without
waiver of all questions as to competency, relevancy, materiality, privilege and admissibility of each interrogatory;response thereto, or the subject matter thereof as evidence for any purpose in any further proceedings in this action, including trial. 2.
The DA Defendants are providing these responses to the interrogatories without
waiver of the right to object on any ground to the use of any interrogatory, response thereto or
EXHIBIT
----------·--- ---------------------------------------------------------------------------------------- -------------- ---- I
the subject matter thereof in any further proceedings in this action, including the trial of this action, and in any other action. 3.
The DA Defendants are providing these responses to the interrogatories without
waiver of the right to object on any ground at any time to a demand or a request for further response to these or any other interro~gatories. 4.
As Discovery in this matter is ongoing, the DA Defendants are providing these
responses to the interrogatories without waiver of the right at any time to revise, supplement, or clarify any of the responses contained herein.
II.
GENERAL OBJECTIONS
1.
The DA Defendants object to the interrogatories to the extent that they are vague,
overly broad, unduly burdensome, and(or oppressive. 2.
The DA Defendants object to the interrogatories to the extent that they seek
infonnation that is neither relevant to the subject matter of the underlying litigation nor reasonably calculated to lead to the discovery of admissible evidence. 3.
The DA Defendants object to the interrogatories to the extent that they impose
burdens or responsibilities beyond those required by the Pennsylvania Rules of Civil Procedure. 4.
The DA Defendants object to the interrogatories to the extent that they seek
infonnation protected from disclosure by the attorney-client privilege, the attorney work-product doctrine, or any other applicable privilege. 5.
The DA Defendants object to the interrogatories to the extent that they seek
infonnation protected from disclosure by the deliberative process privilege or the law enforcement privilege.
2
6.
The DA Defendants object to the interrogatories to the extent that they seek
information already in the possession of the plaintiff and/or information equally available to the plaintiff. 7.
TheDA Defendants incorporate these objections by reference into each and every
response below to the extent applicable.
III.
INTERROGATORIES 1. Identify each individual that was involved in the purported search for the e-mails requested by Mr. Bagwell's Right to Know Request (hereinafter referred to as "requested records") that was received by the Open Records Officer of the Philadelphia District Attorney's Office on July, 22, 2013.
Response: TheDA Defendants specifically object to the phrase "purported search" to the extent it implies a search for records did not occur. TheDA Defendants specifically object to the phrase "requested records" to the extent that Plaintiff did not seek records of the DAO in his initial request, but instead sought documents unrelated to any transaction or activity of the DAO. Incorporating the General Objections and subject to and without waiver of those specific objections, the DA Defendants respond as follows:
The individuals involved in searching for records responsive to Plaintiff's Right-to-Know Law request were Civil Litigation Chief and DAO Right-to-Know Law Officer BJ GrahamRubin, Assistant District Attorney Frank Fina, and Assistant District Attorney Brad Bender.
2.
Identify all physical files that were searched for the requested records.
Response: TheDA Defendants specifically object to the phrase "requested records" to the extent that Plaintiff did not seek records of the DAO in his initial request, but instead sought documents unrelated to any transaction or activity of the DAO. Incorporating the General Objections and subject to and without waiver of this specific objection, the DA Defendants respond as follows:
Plaintiff's Right-to-Know Law request was specifically for emails between five individuals and an employee of the DAO, consequently physical files were not searched for the requested emails.
3. Identify all e-mail systems in use by the District Attorney's office during the period of December 1, 2012, to the present, and for each, provide the following: (a) the name and version of the system's server software (i.e. Microsoft Exchange Server 2010)
(b) the name and version of any software used to send or retrieve e-mail from workstations (i.e. Microsoft Outlook 201 0) (c) the location of all email servers used by the e-mail system (d) the location of any backup data or archives of the e-mail system
Response: TheDA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The
DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and, as this litigation arises out of a Right-to-Know Law request, specifically exempt from disclosure purSuant to 65 P.S. §67.708(b)(4).
4. ·Provide any information regarding encryption used for any of the e-mail systems described in Interrogatory No.3. This listing shall include security keys, passwords and names and versions of any encryption software that would prevent a user outside the District Attorney's office from clearly viewing the contents of any e-mails.
Response: TheDA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and, as this litigation arises out of a Right-to-Know Law request, specifically exempt from disclosure pursuant to 65 P.S. §67.708(b)(4).
5. Provide any and all policies of the District Attorney's office, or any office or agency whose policies to which the District Attorneys office must adhere, related to the archiving, preserving, backing up or destruction of e-mail communications or e-mail data files or their contents on the District Attorney's office e-mail system.
Response: TheDA Defendants incorp9rate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as
overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery and not relevant to the subject matter of the pending litigation.
6. Identify all e~mail known to you (including creation date, recipient(s) and sender) that relate to, reference or are relevant to the subject matter of this litigation, including, but not limited to, the requested records and emails regarding the processing of and response to Mr. Bagwell's request. Response:
The DA Defendants specifically object to the phrase "requested records" to the extent that Plaintiff did not seek records of the DAO in his initial request, but instead sought documents unrelated to any transaction or activity of the DAO. TheDA Defendants further object to this interrogatory to the extent it seeks information protected from production by the attorney-client privilege and that constitutes protected attorney work product. Incorporating the General Objections and subject to and without waiver of these specific objections, the DA Defendants respond as follows:
The following is a summary of emails responsive to this request. • • • • • • • • • •
Nov. 7, 2013 Email from R. Bagwell to B. Bender Nov. 7, 2013 Email from B. Bender toR. Bagwell Nov. 6, 2013 Email from R. Bagwe!l to B. Bender Nov. 6, 2013 Email from B. Bender to J. Schnee and R. Bagwell Nov. 4, 2013 Email from J. Schnee toR. Bagwell and B. Bender Nov. 4, 2013 Email from R. Bagwell to J. Schnee and B. Bender Nov. 4, 2013 Email from J. Schnee toR. Bagwell and B. Bender Sept. 19,2013 Email from J. Schnee toR. Bagwell and B. Bender Sept. 12,2013 Email from R. Bagwell to J. Schnee and B. Bender Sept. 12,2013 Email from B. Bender to J. Schnee and R. Bagwell
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7. Identify and describe each computer since December 1, 2012 that has been, or is currently, in use by Frank Fina or the individuals identified in response to Interrogatory No. 1 (including desktop computers, PDAs, portable, laptop and notebook computers, cell phones, etc.), including but not limited to the following: (a) Computer type, brand and model number; (b) Computers that have been re-formatted, had the operating systems reinstalled or been overwritten and identify the date of each event; (c) The current location of each computer identified in your response to this interrogatory; (d) The brand and version of all software, including operating system, private and custom-developed applications, commercial applications and shareware for each computer identified; (e) The communications and connectivity for each computer, including but not limited to terminal-to-mainframe emulation, data download and/or upload capability to mainframe, computer to computer connections via network, modem and/or direct communication;
(f) All computers that have been used to store, receive or generate data related to the subject matter of this litigation. Response: The DA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and, as this litigation arises out of a Right-to-Know Law request, specifically exempt from disclosure pursuant to 65 P.S. §67.708(b)(4).
8.
As to each computer network, identify the following: (a) Brand and version number of the network operating system currently or previously in use (include d,ate of all upgrades); (b) Quantity and configuration of all network servers and workstations; (c) Person(s) responsible for the ongoing operations, maintenance, expansion, archiving and upkeep of the network; (d) Brand name and version number of all applications and other software residing on each network in use, including but not limited to electronic mail and applications.
Response: The DA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and, as this litigation arises out of a Right-to-Know Law request, specifically exempt from disclosure pursuant to 65 P.S. §67.708(b)(4).
9.
As to data backups performed on all computer systems currently in use or since December 1, 2012, identify the following: (a) All procedures and devices used to back up the software and the data, including but not limited to name(s) ofbackup software used, the frequency of the backup process, and type ofbackup drives, including name and version number, type of media (i.e. DLT, 4mm, 8mm, AIT). State the capacity (bytes) and total amount of information (gigabytes) stored on each type;
(b) Describe !he tape of backup rotation and explain how backup data is maintained and state whether the backups are full or incremental (attach a copy of all rotation schedules); (c) State whether storage media is kept off-site or on-site. Include the location of s1,1ch backup and a description of the process for archiving and retrieving on-site media; (d) The individual(s) who conducts the backup and the individual who supervised the process; (e) Provide a detailed list of all backup sets created since December 1, 2012, regardless of the magnetic media on which they reside, showing current location, custodian, date of backup, a description of backup content and a full inventory of all archives. Response: The DA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and, as this litigation arises out of a Right-to-Know Law request, specifically exempt from disclosure pursuant to 65 P.S. §67.708(b)(4).
10. Identify all extra-routine backups applicable for any servers identified in response to these interrogatories, such as quarterly archival backup, yearly backup, etc., and identify the current location of any such backups. Response: TheDA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and .unlikely to lead to the discovery of relevant evidence. The
DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and, as this litigation arises out of a Right-to-Know Law request, specifically exempt from disclosure pursuant to 65 P.S. §67.708(b)(4).
11. For any server, workstation, laptop, or home PC that has been ''wiped clean" or reformatted such that you claim that the information on the hard drive is permanently destroyed, identitY the foilowing: (a) The date on which each drive was wiped clean; (b) The method used (e.g. WipeDisk, Wipefile, Burnit, DateEraser, etc.)
Response: TheDA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery and not relevant to the subject matter of the pending litigation.
12. Identify and attach any and all versions of document/data retention policies used by your office, or any agency or office to which the District Attorney's office must adhere, since December 1, 2012, and identify documents or classes of documents that were subject to scheduled destruction. Attach copies of document destruction inventories/logs/schedules containing documents relevant to this action.
Response: TheDA ~Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as
overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking infonnation beyond the scope of discovery and not relevant to the subject matter of the pending litigation.
13. Identify whether Frank Fina or any of the individuals identified in response to Interrogatory No. 1·had backup systems in their computers or whether their emails or their computer hard drives were backed up since December 1, 2012, and describe the nature of the backup. Response: The DA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking infonnation beyond the scope of discovery and not relevant to the subject matter of the pending litigation.
14. Identify the person(s) responsible for maintaining any schedule of redeployment or circulation of existing equipment and describe the system or process for redeployments. Response: The DA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking infonnation beyond the scope of discovery and not relevant to the subject matter of the pending litigation.
······----·················-----··- ---·-··--------- ················-····················-······ ... ·····----·········--1-:1·--------·-··-------·························--······················-··-···· ·····--····-··················-"--·------·····--·--··············-·-------·------····----·--·-··
15. Identify any data that has been deleted, physically destroyed, discarded, damaged, overwritten, whether pursuant to a document retention policy or otherwise, since December 1, 2012, that relates to the subject matter of this litigation. Specifically identify those documents that relate to or reference the subject matter of this litigation.
Response: TheDA Defendants incorporate by reference and rely upon the qeneral_Objections. By
.
way of further response, the DA Defendants specifi'cally object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and potentially constituting attorney-client communications and/or attorney work product. Incorporating the General Objections and subject to and without waiver of these specific objections, the DA Defendants respond as follows:
The DA Defendants do not have any information responsive to this request, as no responsive documents existed at the time of Plaintiff's request and the only potentially-related documents or data were generated during the course of responding to Plaintiff's request, see Response to Interrogatory No. 6, and have been preserved.
16. Identify and describe all backup tapes in your possession including: (a) Types and number of tapes in your possession;
(b) Capacity and total amount of information stored on each tape; (c) All tapes that have been re-initialized or overwritten since commencement of this litigation and state the date of said occurrence.
Response:
TheDA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery and not relevant to the subject matter ofthe pending litigation.
17. Identify all computers, email servers, or backups that were search for the requested records.
Response: The DA Defendants specifically object to the phrase "requested records" to the extent that Plaintiff did not seek records of the DAO in his initial request, but instead sought documents unrelated to any transaction or activity of the DAO. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery and not relevant to the subject matter of the pending litigation. Incorporating the General Objections and subject to and without waiver of this specific objection, the DA Defendants respond as follows:
The custodian most likely to have any documents potentially responsive to the RTKL request performed a search of his email system for any documents or data responsive to Plaintiff's request.
18. Describe the search methods used to conduct the purported search for the requested records. Response: The DA Defendants specifically object to the phrase "purported search" to the extent it implies a search for records did not occur. The DA Defendants specifically object to the phrase "requested records" to the extent that Plaintiff did not seek records of the DAO in his initial request, but instead sought documents unrelated to any transaction or activity of the DAO. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery and not relevant to the subject matter of the pending litigation. Incorporating the General Objections and subject to and without waiver of this specific objection, the DA Defendants respond as follows:
The custodian most likely to have any documents potentially responsive to the RTKL request performed a search of his email system for any documents or data responsive to Plaintiff's request.
19. Describe any search methods or recovery systems used to locate and retrieve the requested records that may have been deleted. Response: The DA Defendants £ncorporate by reference and rely upon the General Objections. The DA Defendants specifically object to the phrase "requested records" to the extent that Plaintiff did not seek records of the DAO in his initial request, but instead sought documents unrelated to
. ··············-14-···---·--····-··············-'···-···········--·····------·--······· -·····--··---···-----····--·-··················--········ ......... --····-···········--
ATTORNEY FOR DA DEFENDANTS
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE CIVIL LITIGATION UNIT
BY: Anne B. Taylor, Assistant District Attorney Attorney I.D. No. 206057 Three South Penn Square, 13 1h Floor Philadelphia, PA 19107 (215) 686-5775
[email protected] RYAN BAGWELL, Plaintiff,
COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL DIVISION
vs. DECEMBER TERM 2013
R. Seth Williams and the Philadelphia District Attorney's Office, NO. 3553 Defendants.
SUPPLEMENTAL RESPONSES OF DEFENDANTS PHILADELPHIA DISTRICT ATTORNEY'S OFFICE AND PHILADELPHIA DISTRICT ATTORNEY R. SETH WILLIAMS TO PLAINTIFF'S INTERROGATORIES Pursuant to Pennsylvania Rule of Civil Procedure 4006, Defendants Philadelphia District Attorney's Office and District Attorney R. Seth Williams ("DA Defendants"), hereby supplement their prior responses to Plaintiff's Interrogatories.
I.
INTRODUCTION 1.
The DA Defendants are providing these responses to the interrogatories without
waiver of all questions as to competency, relevancy, materiality, privilege and admissibility of each interrogatory, response thereto, or the subject matter thereof as evidence for any purpose in any further proceedings in this action, including trial. 2.
The DA Defendants are providing these responses to the interrogatories without
waiver of the right to object on any ground to the use of any interrogatory, response thereto or
EXHIBIT
I
~
the subject matter thereof in any further proceedings in this action, including the trial of this action, and in any other action. 3.
TheDA Defendants are providing these responses to the interrogatories without
waiver of the right to object on any ground at any time to a demand or a request for further response to these or any other interrogatories. 4.
As Discovery in this matter is ongoing, the DA Defendants are providing these
responses to the interrogatories without waiver of the right at any time to revise, supplement, or clarify any of the responses contained herein.
II.
GENERAL OBJECTIONS 1.
The DA Defendants object to the interrogatories to the extent that they are vague,
overly broad, unduly burdensome, and/or oppressive. 2.
The DA Defendants object to the interrogatories to the extent that they seek
information that is neither relevant to the subject matter of the underlying litigation nor reasonably calculated to lead to the discovery of admissible evidence. 3.
TheDA Defendants object to the interrogatories to the extent that they impose
burdens or responsibilities beyond those required by the Pennsylvania Rules of Civil Procedure. 4.
The DA Defendants object to the interrogatories to the extent that they seek
information protected from disclosure by the attorney-client privilege, the attorney work-product doctrine, or any other applicable privilege. 5.
The DA Defendants object to the interrogatories to the extent that they seek
information protected from disclosure by the deliberative process privilege or the law enforcement privilege.
2
6.
The DA Defendants object to the interrogatories to the extent that they seek
information already in the possession of the plaintiff and/or information equally available to the plaintiff. 7.
TheDA Defendants incorporate these objections by reference into each and every
response below to the extent applicable.
lli.
INTERROGATORIES
3. Identify all e-mail systems in use by the District Attorney's office during the period of December 1, 2012, to the present, and for each, provide the following: (a) the name and version of the system's server software (i.e. Microsoft Exchange Server 2010)
(b) the name and version of any software used to send or retrieve e-mail from workstations (i.e. Microsoft Outlook 201 0) (c) the location of all email servers used by the e-mail system (d) the location of any backup data or archives of the e-mail system
.Response: TheDA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and, as this litigation arises out of a Right-to-Know Law request, specifically exempt from disclosure pursuant to 65 P.S. §67.708(b)(4). Incorporating the General Objections and subject to and without waiver of these specific objections, by way of further response, until August 2013 DAO
3
employees retrieved email messages from Lotus Notes using the Lotus Notes client release 6.5.5.
In August 2013, the DAO migrated to a Microsoft Exchange email system, and employees retrieve email messages from Microsoft Exchange using Outlook Web Access.
13. Identify whether Frank Fina had backup systems in his computer(s) or whether his emails or his computer(s) hard drive(s) were backed up since December I, 2012, and describe the nature of the backup.
Response: TheDA Defendants incorporate by reference and rely upon the General Objections. By way of further response, the DA Defendants specifically object to this interrogatory as ambiguous, overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery and not relevant to the subject matter of the pending litigation. Incorporating the General Objections and subject to and without waiver of these specific objections, by way of further response, no backup as contemplated by this Interrogatory was performed on Frank Fina's computer.
17. Identify all computers, email servers, or backups that were search for the requested records.
Response: TheDA Defendants specifically object to the phrase ''requested records" to the extent that Plaintiff did not seek records of the DAO in his initial request, but instead sought documents unrelated to any transaction or activity of the DAO. By way of further response, the DA Defendants specifically object to this interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. The DA Defendants further specifically object to this interrogatory as seeking information beyond the scope of discovery and not 4
relevant to the subject matter of the pending litigation. Incorporating the General Objections and subject to and without waiver of this specific objection, the DA Defendants respond as follows:
The custodian most likely to have any documents potentially responsive to the RTKL request performed a search of his email system for any documents or data responsive to Plaintiff's request. By way of further response, Frank Fina, upon request from the Open Records Officer, searched for emails with the identified individuals in his Lotus Notes folders, including in the inbox, sent mail, and deleted items folders. He did not locate any emails with the identified individuals. After the migration to Outlook, he also searched for emails with the identified individuals in that system, and did not locate any. No "backups" were searched for the emails with the identified individuals.
BY:
Anne B. Taylor ; Assistant District A < omey PHILADELPHIA DISTRICT ATTORNEY'S OFFICE
Three South Penn Square, 13th Floor Philadelphia, PA 19107-3499 Counsel for DA Defendants Date: July 29, 2014
5
ATTORNEY FOR DA DEFENDANTS
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE CIVIL LITIGATION UNIT BY: Anne B. Taylor, Assistant District Attorney Attorney I.D. No. 206057 Three South Penn Square, 13th Floor Philadelphia, PA 19107 (215) 686-5775
[email protected]
COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL DIVISION
RYAN BAGWELL, Plaintiff, vs.
DECEMBER TERM 2013 R. Seth Williams and the Philadelphia District Attorney's Office, NO. 3553 Defendants. VERIFICATION I, Anne B. Taylor, Assistant District Attorney, state that I am the attorney for the DA Defendants. I have conducted the investigation in this matter and the facts set forth in the foregoing Responses are true and correct to the best of my knowledge, information and belief. I am authorized to sign this verification on behalf of the DA Defendants. I understand that my statements are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities.
BY:
Date: July 29, 2014
~:=:::::::::::!::::::::.-.i...L..;J...I_/' Anne B. Taylor/ Assistant Dis 'ct Attorney
6
Craig J. Staudenmaier, Esquire Supreme Court ID#34996 Joshua D. Bonn, Esquire Supreme Court ID#93967 Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, P. 0. Box 840 Harrisburg, P A 17108-0840 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff RYAN BAGWELL,
COURT OF COMMON PLEAS PHILADELPHIA COUNTY, PA
Plaintiff v.
CIVIL ACTION- MANDAMUS
R. SETH WILLIAMS, in his official capacity as DISTRICT ATTORNEY and, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE,
December Term 2013. No. 3553 Case ID: 131203553
Defendants
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF RYAN BAGWELL'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES DIRECTED TO DEFENDANTS PHILADELPHIA DISTRICT ATTORNEY'S OFFICE AND PHILADELPHIA DISTRICT ATTORNEY, R. SETH WILLIAMS I.
MATTER BEFORE THE COURT PlaintiffRyan Bagwell files the instant memorandum of law in support ofhis motion to
compel answers to interrogatories directed to Defendants Philadelphia District Attorney's Office and Philadelphia District Attorney R. Seth Williams.
II.
STATEMENT OF QUESTION INVOLVED A.
Should the court grant the Plaintiff's Motion to Compel Answers to Interrogatories where the Defendant has refused to answer interrogatories regarding the District Attorney's email retention/backup policies and backups performed which are relevant 1
to whether the District Attorney possesses the emails that the Office of Open Records ordered it to disclose? Suggested Answer in the AFFIRMATIVE. III.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiff initiated the instant proceedings via the filing of a complaint on December 30,
2013, seeking relief in mandamus to enforce a final determination of the Office of Open Records issued on November 4, 2013, which ordered the District Attorney to provide responsive records to Mr. Bagwell's request for "copies of all e-mails that were sent or received by [Assistant District Attorney] Frank G. Fina between December 1, 2012 and July 15, 2013, and were sent from the following individuals: [Louis Freeh, Tom Cloud, Greg Paw, Barry Feudale and Randy Feathers]" and, alternatively, seeking the entry of an award of reasonable attorneys fees and costs oflitigation pursuant to 65 P.S. § 67.1304 and 42 Pa.C.S.A. § 2503. A.
There are factual disputes over whether the District Attorney possesses the emails that the Office of Open Records ordered it to disclose and whether the District Attorney complied with its duty under the RTKL to make a good faith effort to determine whether it had possession custody or control of the responsive records both at the time the request was f'Iled and at present.
The Plaintiff has averred, upon information and belief, that the District Attorney possessed responsive emails at the time the request was made, and, even if the District Attorney disposed of the responsive emails, that the District Attorney can recover the emails from its server/backup system and/or from its employee Mr. Fina.
Complaint,~~
18-19.
The Plaintiff believes that the District Attorney possessed at least one email that was responsive to the request at the time the request was made because the Philadelphia Inquirer reported that the Honorable Barry Feudale sent an email to Frank Fina during the time period
2
identified in the request. A true and correct copy of the Philadelphia Inquirer's article is attached hereto as Exhibit "A." Furthermore, the District Attorney did not deny the existence of responsive records in its initial or final responses to the request, or in numerous filings in the Office of Open Records.
Complaint,~~ 29-30
(admitted in Defendant's Answer).
The District Attorney did not assert that it did not possess responsive records until the Office of Open Records directed the District Attorney to provide "an index of all responsive emails that, for each email, details whether that email 'documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency."
Complaint,~
31 (admitted in Defendant's
Answer). The District Attorney did not submit any evidence to substantiate its assertion that it did not possess any responsive documents until after the record was closed. Complaint, ~ 32 (admitted in Defendants' Answer). The District Attorney denies that it possessed responsive records at the time the request was made, Answer, ~~ 18-19, citing an affidavit by Assistant District Attorney Brad Bender averring that "[a]fter conducting a reasonable search, the Philadelphia District Attorney's Office does not possess any documents that would be responsive to the Right-to-Know Law request submitted by Ryan Bagwell." See Complaint, Exhibit "F." The Plaintiffhas asserted that the Bender affidavit is not competent evidence as it does not explain the extent or timing of the District Attorney's purported search to determine whether the District Attorney possessed responsive records, nor does it explain how Mr. Bender has actual knowledge of the purported search. Complaint, ~34 (denied in Defendants' Answer).
3
B.
The Plaintiff's Interrogatories attempt to discover whether the District Attorney possesses emails that the Office of Open Records ordered the District Attorney to disclose.
Plaintiff served Interrogatories and Request for Production upon Defendants on or about April2, 2014. The requests that are relevant to the instant motion are: 5. Provide any or all policies of the District Attorney's office, or any office or agency whose policies to which the District Attorney's office must adhere, related to archiving, preserving, backing up or destruction of e-mail communications or email data files or their contents of the District Attorney's office e-mail system. 9. As to data backups performed on all computer systems currently in use or since December 1, 2012, identity the following: (a) All procedures and devices used to back up the software and the data, including but not limited to name(s) of backup software used, the frequency of the backup process, the type of backup drives, including name and version number, type of media (i.e. DLT, 4mm, 8mm, AIT). *** (d) The individual(s) who conduct the backup and the individual who supervised the process;
*** 13. Identity whether Frank Fina or any of the individuals identified in response to Interrogatory No. 1 had backup systems in their computers or whether their emails or their computer hard drives were backed up since December 1, 2012, and describe the nature of the backup. A true and correct copy of such Interrogatories and Request for Production is attached to the motion to compel as Exhibit "A."
C.
The Defendants have objected to Plaintiff's interrogatories regarding the District Attorney's email retention/backup policies and backups performed.
Although the Defendant's responses to the Interrogatories and Request for Production of documents were originally due on May 2, 2014, Plaintiff granted several requests for extensions from the District Attorney. Defendants served incomplete and/or non-responsive answers and
4
responses to Plaintiff's Interrogatories and Request for Production of Documents on June 13, 2014. A true and correct copy of the DA's Answers to the Plaintiff's Interrogatories is attached to the Plaintiff's motion to compel as Exhibit "B." Defendants objected to the majority of the discovery propounded by referencing and relying on General Objections then further objection to each interrogatory as overbroad, unduly burdensome, and unlikely to lead to the discovery of relevant evidence. Defendants objected to answering Interrogatory No. 5 requesting information regarding the District Attorney's email retention/backup policies as overbroad, unduly burdensome, unlikely to lead to discovery of relevant evidence, beyond the scope of discovery, not relevant to the subject matter of the pending litigation. Defendants objected to answering Interrogatories Nos. 9 and 13 regarding backups performed as overbroad, unduly burdensome, unlikely to lead to discovery of relevant evidence, beyond the scope of discovery, not relevant to the subject matter of the pending litigation, and exempt from disclosure under Section 708(b)(4) of the RTKL, 65 P.S. § 67.708(b)(4). Plaintiff prepared and delivered to the District Attorney a draft of a Motion to Compel discovery addressing the above issues. The District Attorney provided Supplemental Responses to Plaintiff's Interrogatories on July 29, 2014. The District Attorney's Supplemental Responses to Plaintiff's Interrogatories provided an incomplete response to Interrogatory 13 by failing to answer whether Frank Fina's emails were backed up since December 1, 2012, and failed to provide any supplemental response to Interrogatories 5, 9 regarding the District Attorney's email retention/backup policies and backups performed.
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IV.
ARGUMENT A.
Standard of Review
The trial court is responsible for overseeing discovery between the parties and therefore it is within that court's discretion to determine the appropriate measures necessary to insure adequate and prompt discovery of matters allowed by the Rules of Civil Procedure. Rohm & Haas Co. v. Lin, 2010 PA Super 26,992 A.2d 132, 143 (Pa. Super. 2010). A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Pa.R.C.P. No. 4003.1(a). Generally, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried. PECO Energy Co. v. Ins. Co. ofN. Am., 2004 PA Super 221, 852 A.2d 1230, 1233 (Pa. Super. 2004); George v. Schirra, 814 A.2d 202, 204 (Pa. Super. 2002). Furthermore, "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Pa.R.C.P. NO. 4003.1(b).
B.
The requested information regarding the District Attorney's email retention/backup policies and backups performed are relevant to whether the District Attorney possesses emails that the Office of Open Records ordered it to disclose.
The information sought by Plaintiff is both relevant and likely to lead to the discovery of
6
relevant information. The Plaintiff seeks a writ of mandamus to compel the District Attorney to comply with a Final Determination of the Office of Open Records that ordered the District Attorney to disclose certain emails. Whether the District Attorney possesses those emails is a relevant consideration to the mandamus claim. The District Attorney has not denied that the emails in question existed at some time. In fact, the District Attorney has stated, "[t]he custodian most likely to have any documents potentially responsive to the RTKL request performed a search of his email system for any documents or data responsive to the request." Answer to Interrogatory No. 17. Later, the District Attorney clarified that Frank Fina search certain email folders, but that no backups were searched. Supplemental Answer to Interrogatory No. 17. It makes no sense that Mr. Fina would have conducted a search of his email server unless he actually received such emails and needed to confirm whether or not such emails had been deleted. The fact that the emails in question may have been deleted does not mean that the emails do not exist in the custody, possession, or control of the District Attorney. As one federal court has described: The term 'deleted' is sticky in the context of electronic data. "'Deleting' a file does not actually erase that data from the computer's storage devices. Rather, it simply finds the data's entry in the disk directory and changes it to 'non used' status-thus permitting the computer to write over the 'deleted' data. Until the computer writes over the 'deleted' data, however, it may be recovered by searching the disk itself rather than the disk's directory. Accordingly, many files are recoverable long after they have been deleted-even if neither the computer user nor the computer itself is aware of their existence. Such data is referred to as 'residual data."' Deleted date may also exist because it was back[ ed] up before it was deleted. Thus it may reside on backup tapes or similar media. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309,313 n. 19 (S.D.Ny.Y. 2003)(quoting Shira A.
7
Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C.L.Rev. 327, 337 (2000)). Where a party did not deny that relevant emails may have existed at one point, a federal district court has allowed the other party to have its own e-discovery expert perform a forensic examination to determine if any responsive information is still contained on the hard drives or servers. Adhi Parasakthi Charitable, Med., Educ., & Cultural Soc'y ofN. Am. v. Twp. ofW. Pikeland, CIV.A.09-CV-1626, 2010 WL 1047894 (E.D. Pa. Mar. 16, 2010). In order to determine whether a forensic examination is feasible in this case, the Plaintiff needs to discover information about the Defendant's email backup/retention polices and the backups that were actually performed. A federal district court has ordered a party to disclose such information in a case with similar facts to the instant matter. In Young v. Pleasant Valley School District, No. 3:07cv854 (M.D. Pa, June 26, 2008)(attached hereto as exhibit "B"), the plaintiff alleged that the school district had received complaints about a teacher via emails from parents that had subsequently been deleted. Id., pp. 10-11. However, the emails possibly continued to exist on the school district's backup tapes. Id., p. 14. The plaintiff sought an order compelling a forensic examination to discover whether the emails could be recovered from the back up tapes. Id., p. 8. Before deciding whether to allow the forensic examination to occur, the court ordered the school district to disclose: (a) the technology required to gain access to the materials preserved on backup tapes; (b) the cost of restoring the emails preserved on the backup tapes; (c) the time it would take to access such material; (d) the number of e-mails potentially preserved on those backup tapes; and (e) whether the stored e-mails can be searched by date, recipient, sender, subject or keywords. Id., p. 19.
8
Here, the Plaintiff is asking the District Attorney to provide similar information about its email retention/backup policies and backups performed so that the Plaintiff can determine whether the emails can be recovered. See Interrogatories Nos. 5, 9, and 13 as set forth in full above. This evidence is likely to lead to the discovery of relevant evidence (i.e. whether the District Attorney possesses the emails that the Office of Open Records ordered it to disclose). The District Attorney argues that some of the discovery sought by the Plaintiff is exempt from public disclosure under Section 708(b)(4) of the RTKL, 65 P.S. § 67.708(b)(4). The RTKL has no application to whether information is discoverable pursuant to the Rules of Civil Procedure. Wherefore, Plaintiff, Ryan Bagwell, requests the entry of an Order Granting Plaintiff, Ryan Bagwell's Motion to Compel Answers to Interrogatories Directed to Defendants Philadelphia District Attorney's Office and Philadelphia District Attorney R. Seth Williams, and directing Defendants to answer the interrogatories as set forth in the proposed order. NAUMAN, SMITH, SHISSLER & HALL, LLP
BY: Is/ Joshua D. Bonn Craig J. Staudenmaier, Esquire Supreme Court ID#34996
Joshua D. Bonn, Esquire Supreme Court ID#93967
200 North Third Street, P. 0. Box 840 Harrisburg, PA 171 08-0840 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff Date: August 5, 2014
9
Kane behind ouster of judge from corruption role - Philly .com
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Prosecutor Frank G. Fina (left) lett /he state Attorney General's Office after Kane's election. (Getty Images)
Get This Deal By Angela Couloumbls and Craig R. McCoy, Inquirer Staff Writers POSTED: July 16, 2013
HARRISBURG- In a bitter and secret legal fight, state Attorney General Kathleen Kane has succeeded in ousting the judge who has long overseen corruption investigations in Pennsylvania, The Inquirer has learned. After a conflict that had been roiling since she took office in January, Kane took the unusual step of asking the state Supreme Court to remove Judge Barry F. Feu dale as the supervising grand jury judge in Harrisburg. Kane told the high court in April in sealed papers that the judge was no longer fit to run a grand jury. Among other concerns, she cited an episode in which Feudale, stopping at her offices, showed a secretary a 10-inch knife. Feudale, 67, has overseen grand juries in some of the Attorney General's Office's biggest cases, including the Bonusgate scandal in the legislature and the Pennsylvania State University child sex-abuse case. Asked about Kane's allegations, he called them "a sneak attack" that twisted facts. "Kane is a politician first, second, and third, and perhaps an AG ... fourth and fifth," he said.
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Kane's communications director, Joe Peters, rejected Feudale's criticism. "She's attorney general, first and only," he said.
loading ... The dispute is part of a larger struggle, between the new attorney general and her office's old guard of career prosecutors, that has spilled over into how several high-stakes cases are being handled including a probe into political corruption in several counties, Philadelphia among them, according to peop situation.
The scope and specifics of that investigation could not be learned.
EXHIBIT
A
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Kane behind ouster of judge from corruption role - Philly .com
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The battle between Kane and Feudale could also have repercussions for the recent charges against eight people in a pay-to-play scandal at the Pennsylvania Turnpike. A lawyer in the case said the defendants had heard rumors about Feudale's removal and had been wondering why - and if the reasons might somehow undermine the prosecutions and help the defense. The dispute features strong personalities. The judge is a hiker, climber, and kayaker, fond of piloting his Cessna to county courthouses across the state, and blunt-spoken on and off the bench. Kane, a former Lackawanna County prosecutor, came out of nowhere to beat her party's choice in the 2012 primary and become the first woman and first Democrat elected Pennsylvania attorney general. She has been a thorn in Republican Gov. Corbett's side and garnered national headlines Thursday by declaring she would not defend the state ban on gay marriage. In documents submitted to the high court, Kane argued that Feudale should be removed because of behavior that included demeaning her and her predecessor, Linda Kelly, in an e-mail to a prosecutor who had left Kane's staff. "A cheap shot" The e-mail went to Frank G. Fina, a onetime top prosecutor in that office who built many of its most explosive cases. The judge e-mailed: "The Last General aka 'Private' Kelly, could not lead and was indecisive to the point that she was almost ineffective." Asked about the remark, Feudale said recently: "It was a cheap shot. I shouldn't have said that." In the e-mail, the judge also disparaged a review Kane has launched into how the office pursued Penn State child molester Jerry Sandusky. Feudale wrote that the review was "PATENT in its POLITICAL intent," but that Fina, who led the Sandusky investigation, should cooperate with it. In May, the Supreme Court ruled in Kane's favor. The court's order did not bar him from serving as a judge, but removed him from the grand-jury position. The order was sealed and has not been made public. In an interview, Feudale said he would not talk about any grand-jury investigations. But he did discuss the circumstances of his removal. He acknowledged that his e-mail ripping Kelly was a mistake, but said he stood by the criticism of Kane's Sandusky-related probe. Feu dale shared a copy of the e-mail with reporters. He also said the knife incident had been distorted. The knife was a Gurkha dagger that Feudale said he had picked up in Nepal years ago and kept in his office as a conversation-starter. Feudale said he had been tarred as "some wingnut with a Gurkha knife." He added: "They made it seem like I had this knife and I was running around with it, crazy. "I did not brandish it." A Democrat, Feudale was a Northumberland County judge from 1987 until1997. He then worked as a "floating" senior judge, assigned by the Supreme Court to hear cases in 63 of the state's 67 counties. Over the last 12 years, chief justices have appointed him to preside over a series of investigating grand juries. Judges in that role are crucial players, refereeing fights over subpoenas or evidence and even putting a personal stamp on the outcome. In 2010, when the Bonusgate grand jury filed a scathing report on the legislature, Feudale wrote that the evidence left the jurors "mad as hell." A collision course? Though it is rare for an attorney general to seek the ouster of a grand-jury judge, a collision between Kane and Feudale seemed almost inevitable. Kane campaigned hard on the promise that she would review how her predecessors had handled the Sandusky probe. She questioned why it took as long as Hdid, raising the specter that then-Attorney General Tom Corbett might have dragged his feet in the case at a time when he was running for governor. As a career prosecutor, Fina led that probe and a string of others that helped make Corbett's reputation - notably, the Bonusgate and Computergate investigations of Democrats and Republicans in the legislature. But Kane's pledge to review the Sandusky case meant Fina and other longtime prosecutors would come under scrutiny. Kane's election meant a Democrat was taking over an office run in recent years by Republicans. Fin a left, as did most of the office's corruption team. Kane named onetime Philadelphia federal prosecutor H. Geoffrey Moulton Jr. to head the internal review. Feu dale said he met with Moulton soon thereafter- and, as part of the review, gave him a copy of the e-mail sent to Fin a. That is when Feudale's problems began to intensify. He was already clashing with Kane by then, questioning her charging decisions and even her hiring choices, as well as her handling of the case against Penn State administrators charged with covering up Sandusky's abuse. In a May opinion- one of his last before he was removed- he chided Kane's office in the Penn State case, saying it needed to accelerate. "Continued delay in this case," he wrote, "is not in the interest of justice." Feudale said in an interview that Kane's office ended his once-unfettered access to grand-jury files. He said a guard told him: ''You can't go anywhere without an escort; it would be a security breach." Kane, in her petition to remove Feudale, asserted among other things that his friendship with Fin a clouded his objectivity on investigations. Fina, who now works for the Philadelphia District Attorney's Office in Philadelphia, declined to comment for this article. The knife incident As Feudale explains it, he was leaving his chambers one Friday afternoon this spring and decided to take the knife home. On the way to his car, he stopped at Kane's office to inquire about a new filing in the Penn State cases.
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While there, he said, he did something he probably shouldn't have. He showed a secretary the knife, and began teasing her: If the A. G.'s Office was so worried about security, then "how did I get this in?" He said he can't recall whether he removed the knife from tts sheath - as Kane's office asserted. By the following Monday, the situation was turning toxic. Feudale said he had to wrtte an opinion in the case against onetime Penn State officials. To do so, he had to review grand-jury records in the Attorney General's Office, put there under lock and key as part of Moulton's inquiry. When he went to review the documents, Feudale said, he was met by two armed guards. He said the guards took umbrage at the fact that he had a bagel with him. "You will not eat that bagel when you are under my supervision," the judge said a guard warned- to which he responded: "Are you nuts? Get this man away from me." Feudale was in Texas for his son's military graduation when he received word that Kane's office had filed a "writ of prohibition" to remove him as the supervising judge. Among the things Kane cited: the knife incident- plus another several years ago in which, by his account, he carried a penknife in his backpack when visiting a fellow judge in Lancaster County. In an interview last week, Lancaster County Judge Louis J. Farina said he was surprised that Kane's office had cited that incident. Farina said the event was at least four years ago. He said Feudale, "a big hiker'' who often has a backpack, took a knife from his pack- perhaps "a penknife, something small"- to show guards they had missed it. "We sort of had
a little laugh about security," Farina said. "II was not an event of any consequence whatsoever."
Contact Angela couloumbis at 717-787-5934 or at
[email protected].
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Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PATRICIA YOUNG, WILLIAM YOUNG, and PATRICIA YOUNG, on behalf of her minor daughter, Plaintiffs
No. 3:07cv854 (Judge Munley)
v. PLEASANT VALLEY SCHOOL DISTRICT, JOHN J. GRESS, Principal, in his individual capacity, and DR. FRANK A. PULLO, Superintendent, in his individual capacity, Defendants
...................................................................................................... ...................................................................................................... MEMORANDUM Before the court is plaintiffs' motion for production of electronic data (Doc. 46).
Having been fully briefed, the matter is ripe for disposition. I. Background This case arises from plaintiffs' conflicts with the defendant Pleasant Valley School District over events in the United States history classroom of Bruce H. Smith. According to plaintiffs' complaint, their daughter was a student in Smith's high school class. During her time in that classroom, Smith exposed their daughter and other sixteen and seventeen year olds to "sexually explicit and offensive material" in violation of school district rules. (Amended Complaint (hereinafter
EXHIBIT
i
B
Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 2 of 23
"Amended Complt.") (Doc. 17)
at~
9). Smith allegedly showed the students
photographs of naked and dismembered women who had been murdered.
(~at~
10). He also asked female students about how they were dressed during a pillow light, aisctTsse·crwifnlhefm posh-up bras
anCJ,averrelJ th~ann:rh~ael"sl
college to "'bang the cheerleader.'" (!.Q.J. Students were also exposed by Smith to an unpublished, autobiographical tract entitled "Memoirs of a Class President."
(~at~
11). This document featured a great deal of sexually explicit material, including graphic depictions of sexual encounters related in first-person by the author.
(~).
Plaintiffs complained about this material to Defendants Gress and Pullo, the principal and superintendent of the school district.
(~at~
11-12). They allege that raising
concerns about the presence of this "graphic, disturbing" material in a classroom populated by minors addressed "a matter of social, educational and safety concerns" in the Pleasant Valley school community.
(~at~
12).
On May 9, 2005, plaintiffs filed a complaint in this court alleging violations of their First Amendment rights in the school district's reaction to their complaints. (See Doc. 1). Plaintiffs filed this complaint anonymously. Defendants responded with a motion to dismiss that complaint because plaintiffs had not provided their real names and had not sought the court's permission to file the complaint anonymously. (See Doc. 5). Plaintiffs then filed a motion for permission to proceed anonymously due to safety concerns (See Doc. 9). In addition to responding to that motion, defendants filed a motion to stay discovery pending the outcome of our decision on those
2
Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 3 of 23
motions. (See Docs. 11-12). On August 1, 2007, the court issued a memorandum and order denying plaintiff's motion to proceed anonymously and the defendants' motion to stay discovery. (See Doc. 16). We also ordered the plaintiff to file an amended complaint that provided the plaintiffs' real names. The plaintiffs filed their amended complaint on August 10, 2007.
Defendants
filed a motion to dismiss the amended complaint. (See Doc. 18). After briefing and oral argument, we granted the motion in part and denied it in part. (See Doc. 33). Discovery, which had begun even before the court rendered a decision on this motion, continued. Disputes over this discovery eventually arose. The instant matter rises because plaintiffs contend that defendants have not produced certain electronic materials requested during the discovery period. After a telephonic conference on the issue, the court ordered the parties to file briefs. They did so, bringing the case to its present posture. II. Jurisdiction As this case is brought pursuant to 42 U .S.C. § 1983, we have jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28
u.s.c. §
1367.
Ill. Discussion A. Defendants' Motion 3
Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 4 of 23
Defendants' motion for discovery covers several areas. We will address each in turn.
i. Documents Related to Plaintiffs' Mental Condition Defendants requested~ plaintiffs' rrfeidical"fecofd's,'iiofes-anaaocl.frfferfts related to their claims of emotional distress. This request sought information from counselors, hospitals, doctors, psychologists, psychiatrists, social workers or other health care providers. The request was addressed to all plaintiffs. 1 Plaintiffs objected to these requests as unreasonable, irrelevant and an invasion of privacy. Defendants argue that plaintiffs have alleged mental and emotional distress damages and have thus put their mental and physical condition in question, and therefore must provide this information or abandon the claims. Federal Rule of Civil Procedure 26(b )(1) provides that parties may obtain
1
The interrogatories sought, in part: 6. State in detail what injuries and damages minor Plaintiff allegedly sustained due to the allegations in the Complaint upon which this suit is based, including what treatment she has received for the above injuries; names and addresses of any doctors who have treated her for the above injuries, any prognosis which was given to her by any doctor relating to the above injuries and the approximate dates on which she recovered from each; 7. Any and all medical records or documents relating to the alleged emotional distress as set forth in Plaintiffs' Complaint, including records and documents of any "counselors" or any other health care provider relating to any treatment of minor Plaintiff's mental, physical or emotional well-being. 8. Had minor Plaintiff and/or Plaintiff's parents ever received counseling of any nature prior to the incidents referred to in Plaintiffs' Complaint? If so, please identify the date(s) thereof and the provider of the counseling services. (Exh 1 to Defendants' Motion to Compel Discovery (Doc. 47)) (emphasis in original). The requests also sought information on any counseling any of the plaintiffs had received as well as any in-patient mental-health or addiction treatment. Plaintiffs objected to all of these requests.
4
Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 5 of 23
discovery regarding "any matter, not privileged, which is relevant to the subject matter involved in the pending action." FED. R. CIV. P. 26(b)(1 ). In this context, courts define relevancy widely, and material'"relevant to the subject matter involved in the pending action' ... has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Still, not all material is discoverable, and "it is proper to deny discovery of matter that is relevant only to claims or defenses that have been stricken, or to events that occurred before an applicable limitations period, unless the information sought is otherwise relevant to issues in the case." !.9..:. at 352. Courts have found that "[a] defendant is entitled to explore whether causes unrelated to the alleged wrong contributed to a plaintiff's claimed emotional distress, and a defendant may propound discovery of any relevant medical records of plaintiff in an effort to do so." Roberson v. Bair, 242 F.R.D. 130, 136 (D. D.C. 2007). They have therefore concluded that claims of privilege between doctors and patients are unavailing when a plaintiff puts her medical condition at issue. See, e.g., Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (finding that no psychotherapistpatient privilege exists because "by placing her medical condition at issue, [plaintiff] waived the ... privilege."); Sarka v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997); Vann v. Lone Star Steakhouse & Saloon of Springfield, Inc., 967 F. Supp. 346, 349 (C.D. Ill. 1997). Still, such discovery is not limitless. As with all
5
Case 3:07 -cv-00854-MWB Document 52 Filed 06/26/08 Page 6 of 23
discovery, it is limited to material which has the potential to produce relevant evidence. A party who opposes discovery of such records "bears the burden of 'demonstrating that the requested discovery either does not come within the broad
relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure." Roberson, 242 F .R.D. at 136 (quoting Moore v. Chertoff, No. 00-953,2006 WL 1442447, at *2 (D. D.C. May 22, 2006)). The court will order the plaintiffs to respond to these interrogatories and requests for the production of documents. Plaintiffs have alleged that they suffered mental, emotional and physical distress as a result of defendants' actions. Plaintiffs' mental and emotional states at the time of the incidents in questions are therefore relevant. While plaintiffs claim that they sought no medical treatment for those alleged maladies, their emotional and physical states before the actions in question are potentially relevant to the central issue in this litigation: whether defendants caused plaintiffs' injuries. Plaintiffs are hereby ordered to provide the defendants with all medical records that reference any medical, emotional or physical distress, or to sign authorizations for release of such medical information from relevant medical providers. 2
2
These records are for the eyes of the attorneys only and may not be disseminated to anyone else.
6
Case 3:07 -cv-00854-MWB Document 52 Filed 06/26/08 Page 7 of 23
ii. Documents Related to Expert Reports Plaintiffs have objected to defendants' request that plaintiffs provide them with any documents given to or reviewed by any expert they intend to call as a witness. The request also seeks reports and curricula vitae from any expert witnesses plaintiffs expect to call. Plaintiffs objected to this request, claiming that the information was "attorney work product, unduly burdensome and unreasonable." Defendants argue that the federal rules of discovery and the case law that interprets them has established their right to this information. Federal Rule of Civil Procedure 26(a)(2)(A) requires that "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence" as an expert witness. FED. R. CIV. P. 26(a)(2)(A). In addition to the identity of this witness, the party must provide "a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." FED. R. CIV. P. 26(a)(2)(B). This report must include, inter alia: "(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; ... (iv) the witnesses's qualifications, including a list of all publications authored in the previous ten years." FED. R. CIV. P. 26(a)(2)(B )(i, ii, iv). In short, a party seeking to have an expert testify must provide to the other side precisely the information sought in defendants' discovery request. Indeed, our discovery order
7
Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 8 of 23
contemplates that plaintiff will furnish this information by a date certain. (See Doc. 44) (establishing that "plaintiff's expert report" is due 1/1/09). Accordingly, we will grant defendants' request. Plaintiff must supply the items requested in defendants'
discovery request by the" date specified
ih the
court's s"cheduling order.
iii. Address of the Minor Plaintiff Defendants have requested the plaintiffs identify all residences of the minor plaintiff from June 1996 to the present. Plaintiffs have provided defendants with all of the minor plaintiff's addresses until June 2007, but object to providing an address after that date. Defendants contend that the minor plaintiff's present address is potentially relevant because she seeks injunctive relief against the school district. If she now resides outside the boundaries of the district, the relief she seeks may be moot. Defendant therefore requests that the court order plaintiffs to provide the addresses where the minor plaintiff has resided from June 2007 to the present. Plaintiffs contend that they have suffered harassment as a result of filing this action, and that being forced to provide their current address could subject them to future harassment. They further contend that injunctive relief remains available even though they admittedly live outside the school district at the present time. While the information requested by the plaintiffs may in the end prove immaterial to the issues in the lawsuit, the court finds at this stage that the material could lead to relevant evidence. The parties disagree about whether the location of the plaintiffs' residence will determine whether injunctive relief is available in this
8
Case 3:07 -cv-00854-MWB Document 52 Filed 06/26/08 Page 9 of 23
case, and the court finds that the answer to that question is best deferred until additional evidence and argument can be supplied. In any case, to the extent that plaintiffs claim that the district's conduct has disrupted their lives and forced them to seek a new place to live, the location of that residence, its value, the date of the move to it and other features of the home could all be relevant to the credibility of those claims. As far as plaintiffs' concerns about the potential results of releasing their home address in the lawsuit, other measures for addressing those concerns are available beyond preventing product of the address. If plaintiffs are concerned that release of this address to the public would cause them harm, they may petition the court for an order that limits access to such information. Defendants would be required to obey such an order. In that way, defendants would have access to the information they need and plaintiffs could avoid a troublesome disclosure. At this point, however, the court is persuaded that defendants have a right to the requested information. We
win grant the defendants' motion on this point. B. Plaintiffs' Motion In attempt to determine what materials Bruce Smith showed his class and whether any parents complained to the school about them, plaintiffs requested from defendants pictures, film, tapes, sound and video recordings and any other mechanically reproduced items. Plaintiffs sought "all documents which reflect or in any way relate to any conversations or complaints made by anyone concerning
9
Case 3:07 -cv-00854-MWB Document 52 Filed 06/26/08 Page 10 of 23
Bruce H. Smith, Jr., including [but] not limited to all emails sent or received in connection with the teaching of Mr. Smith," as well as "[a] copy of videotapes shown in class, including but not limited to YouTube clips that could be accessed by ···
~[Sniith'srweb
·page:" -(Pranitiffs f5rierin -snprJcrrt crr·eiE:fctroniC'data'(Doc. ~45yat 1-2).
Plaintiffs note that they are aware of complaints made by parents about Smith through e-mail, and that Smith showed YouTube clips during his lectures. They therefore request that defendants supply them with any of this electronic material stored on their database, including material deleted and still recoverable. If defendants cannot provide this material, plaintiffs request that the court order the hiring of a forensic expert to access the school's database and recover the files. Defendants reply that they have supplied plaintiffs with paper copies of all emails received regarding Smith's teaching, as well as a DVD containing a copy of all his video lessons, including YouTube clips, for the 2007-2008 school year. They also supplied plaintiffs with a printed copy of the YouTube web site made available to students. Defendants apparently contend that they have thus complied with plaintiffs' requests in relation to the YouTube material. In reply to plaintiffs' arguments, however, defendants argue that they should not be compelled to allow plaintiff to inspect the district's computer database or to pay for plaintiffs' expert to inspect that database. i. EaMails Plaintiffs contend that they have not received copies of all of the e-m ails sent to
10
Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 11 of 23
the defendants containing concerns about Smith's teaching. While the district insists that it has produced paper copies of all relevant materials, plaintiffs respond that other parents have reported that they sent e-mails complaining about Smith. These e-mails, according to the plaintiffs, were not included in the material the district provided. Because of this discrepancy, plaintiffs contend that the court should allow a search of back-up tapes of the defendants' e-mail system. 3 Such a search, plaintiffs contend, should be conducted by an expert selected by the plaintiffs and paid for by defendants. As a preliminary matter, we note that defendants could satisfy plaintiffs' requests for production of e-mails by providing paper copies of any e-mails that met their discovery request. Plaintiffs requested "[a]ll documents which reflect or in any
way relate to any conversations or complaints made by anyone concerning Bruce H.
3
Back-up tapes are computer files created to preserve information deleted by computer users. One federal court has described this situation: The term 'deleted' is sticky in the context of electronic data. "'Deleting' a file does not actually erase that data from the computer's storage devices. Rather, it simply finds the data's entry in the disk directory and changes it to a 'not used' status-thus permitting the computer to write over the 'deleted' data. Until the computer writes over the 'deleted' data, however, it may be recovered by searching the disk itself rather than the disk's directory. Accordingly, many files are recoverable long after they have been deleted-even if neither the computer user nor the computer itself is aware of their existence. Such data is referred to as 'residual data."' Deleted data may also exist because it was back up before it was deleted. Thus it may reside on backup tapes or similar media. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309,313 n.19 (S.D.N.Y. 2003) (quoting Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L. REv. 327, 337 (2000)). The court will assume that plaintiffs' motion addresses primarily data preserved on back-up tapes, though we assume that searching computers for "deleted" data not yet written over would also involve time and expense for the defendant.
11
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Smith, Jr., including [but] not limited to all emails sent or received in connection with the teaching of Mr. Smith." (Brief in Support of Production of Electronic Data (Doc. 46) at 1). This request does not specify the form in which such electronically created " ·ana·sto1'eH:I"C!dcuments··-are·to·b"Erprovided: Fe·deral· Rule'of Civii'Procedure·-34 specifies that "[i]f a request does not specify a form for producing electronically stored information, a party may produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms." FED R. CIV. P. 34(b)(1)(E)(ii). A printed copy of e-mails sent or received by the defendants' computers represents a reasonably usable form of the material in question. Plaintiffs have offered no argument as to why the paper copies of e-m ails they have received are insufficient. See D'Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43,47 (D.D.C. 2008) (finding that "a document need not be produced as an electronic file if the alternate production 'preserve[s the] identi[ty ot] the file from which' it was taken."). The dispute therefore centers on the production of electronic documents that have allegedly been deleted from the districts' computers and which are not easily recoverable. Plaintiff seeks an order compelling a forensic examination of the district's computers to discover whether e-m ails and other materials related to Smith's teaching can be recovered. Such a request for production is covered by Federal Rule of Civil Procedure 34, which provides that "[a] party may serve on any other party a request within the scope fo Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the follwing
12
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items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations-stored in any medium from which information can be obtained either directly, or if necessary, after translation by the responding party into a reasonably usable form." FED. R. CIV. P. 34(a)(1 ). Though this rule provides a right of testing of electronic material, the Committee notes for the amended rules indicate that this portion of the rules was "not meant to create a routine right of direct access to a party's electronic information system, although such access may be justified in some circumstances." Committee Note to 2006 amendment to Rule 34(a). The Committee warned that "Courts should guard against undue intrusiveness resulting from inspecting or testing such systems."
.!.9.:. Courts have found that requests to examine electronic data systems can be denied when they are '"overly broad in scope, duplicative of prior requests and unduly burdensome."' Cummings v. General Motors Corp., 365 F.3d 944, 954 (10th Cir. 2004). They have applied the rules of discovery to limit searches of backed-up email to insure that searches of those potentially voluminous documents use terms which are '"reasonably calculated to lead to the discovery of admissible evidence."' Alexander v. F.B.I., 194 F.R.D. 316, 328 (D.D.C. 2000) (quoting FED. R. CIV. P. 26(b)(1 )). A party may not simply assert a belief that not all discovery material has been provided, but must produce some evidence that the other side has withheld
13
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information subject to discovery. See, e.g., Bethea v. Comcast, 218 F.R.D. 328, 330 (D.D.C. 2003). Even when a court finds access to the opposing party's electronic database justified, that access should be limited to avoid providing the party "access ~·
to information tHat woUicfhot.:..::-and-·shoulcr nar.::atnerwiserben:liscoveraolerwith'tiDt first" providing the opposing party the chance to object. In re Ford Motor Company, 345 F.3d 1315,1317 (11th Cir. 2003). As a preliminary matter, the court finds that e-m ails complaining about Smith's teaching methods are relevant to the case or would be likely to produce relevant material. As such, they are subject to discovery. To the extent that defendants have preserved in back-up tapes such material, they are required to produce it. The real question here, however, is whether plaintiffs are entitled to search the defendants' computer system in an attempt to determine whether any e-mails containing complaints about Smith exist that defendants did not provide in discovery. Plaintiffs contend that they have evidence that parents sent the school district e-m ails about Mr. Smith which the school district did not provide in discovery. While plaintiffs do not allege that defendants have refused to turn over information readily in their possession, they do contend that backup copies of e-mail deleted from the school district's system may exist, and that a search of the back-up tapes should occur. All material subject to discovery must generally be produced, and each party is usually responsible for their own costs of production. See Oppenheimer, 437 U.S. at 358 (finding a presumption that "the responding party must bear the expense of
14
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complying with discovery requests, but he may invoke the district court's discretion under Rule 26(c) to grant orders protecting him from 'undue burden or expense' in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery.").The court may limit discovery in certain circumstances. Federal Rule of Civil Procedure 26(b)(2) provides that: The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. FED. R. CIV. P. 26(b){2). The defendants contend that plaintiffs have not offered sufficient evidence for the court to conclude that the backed-up e-mail file stored by the district contains potentially relevant evidence. They argue that defendants have pointed to only one potentially missing e-mail. Plaintiffs' request is therefore burdensome, inconvenient and unlikely to yield evidence that would justify the expense of recovering it. At this stage, the court disagrees with this assessment. We read the plaintiffs' request to contend that at least one parent has informed plaintiffs that she sent the district an email' complaining about Smith, and that the defendants have not provided this e-mail. This e-mail is potentially relevant evidence. It also may have generated other e-mail exchanges that could be relevant to the case. The fact that this e-mail was not
15
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provided to the plaintiff also indicates that other e-m ails regarding Mr. Smith's teaching may have been produced during the same period, and plaintiffs have not had access to them. Accordingly, the plaintiffs' discovery request has the potential to
- Teadlo eviden"ce fele\l~WIIT51necase""anci"TSnofmerely''1HfuiifoUfiaecrfisnihg c· expedition that would serve mainly to harass the defendants. Since the defendants' response(s) to these e-mails may also be relevant to the case, the court finds that searching the defendants' backup tapes would be a more efficient approach to the discovery problem than other alternatives, such as having the plaintiffs depose the family of every student who took classes with Smith to determine whether they had copies of e-mail complaints sent to the district about him. As another factor for why producing the e-m ails would be unduly burdensome, defendants contend that the Federal Educational Rights and Privacy Act (FERPA) would require the school district to notify every parent of all orders and subpoenas in advance of complying with them. We note that such notice would be required only if the e-m ails subpoenaed by the defendant could be construed as "any personally identifiable information in education records other than directory information" under the act. See 20 U.S.C. § 1232g(b)(2)(B) (establishing that educational funds will be deprived a district that provides "any personally identifiable information in education records other than directory information" "in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance
16
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therewith by the educational institution or agency."). The statute defines "education records" as "those records, files, documents, and other materials which-(1) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." 20 U .S.C. § 1232g(a)(4 )(A)(i-ii). The act specifically excludes from "education records" "records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." 20 U.S.C. § 1232g( a)(4 )(B )(I). The records in question here-e-mails containing complaints about a teacher's performance-do not appear to be the types of records covered by FERPA. Those complaints do not necessarily contain any information directly related to a student. Instead, they are directly related to a teacher and only tangentially related to the student. They were produced by the parents, who are not within the class of those protected by FERPA. See Klein Independent Sch. Dist. v. Mattox, 830 F .2d 576, 579 (5th Cir. 1987). The emails are not the type of record maintained by the institution, but one produced by an outside party and supplied to the institution at the choice of that outside party. As such, we could probably conclude after examining the e-mails that they are not an educational record and not subject to the act's requirements. See Ellis v. Cleveland Mun. Sch. Dist., 309 F.Supp. 2d 1019, 1022 (N.D. OH 2004)(finding that "FERPA applies to the disclosure of student records, not teacher
17
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records [citations omitted]. While it is clear that 'Congress made no content-based judgments with regard to its 'education records definition,' it is equally clear that Congress did not intend FERPA to cover records not directly related to teachers and
797, 812 (6th Cir. 2002)). Since the part of the record potentially relevant to the case is its description of the teacher's conduct, any private information about a student contained in the e-mails could be redacted. 4 Even if we were to conclude that the production of the e-m ails triggered the requirements under FERPA, the court finds that notifying the parents involved as required by the act would not be unduly burdensome. In any case, given these concerns, ordering the school district to conduct the search of the e-mil files rather than leaving it to the supervision of the plaintiff will allay concerns that inappropriate and private material will be turned over. Assuming there are actually electronic records to be had, they are probably very few, and the senders of those few records would not be difficult to notify, given the records of student and parent addresses maintained by the school. The school district would not be required to notify a parent unless required to turn over the record. Defendants also contend that the e-mail materials sought by the plaintiffs were
4
We note, as well, that defendants have already provided plaintiffs with copies of emails, precisely the material plaintiffs seek here. Defendants did not rely on FERPA as a reason for withholding those documents, and thus appear to have conceded that e-mails from parents are to some extend discoverable.
18
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produced by a system the district no longer uses. As a result, the only way the district could recover the material would be to search back-up tapes of the district's computer system. Examining that system for relevant materials, the district's information technology employee claims, would require substantial time, expertise and money and therefore impose an undue burden. The defendants do not present any affidavits to support these claims, nor do they provide an concrete estimate of the time and expense required to perform the search of backup tapes. Searching the back-up tapes in the district's possession could thus be quite burdensome, but the court is thus left unaware of the procedures required to access those tapes. Though we conclude that the defendant is entitled to any relevant material stored on the tapes, we cannot without more information balance the equities as described in Rule 26(b)(2) and develop a plan for discovery fair to both sides.
To craft that plan, we need information on a) the technology required to gain
access to the materials preserved on backup tapes; b) the cost of restoring the emails preserved on backup tapes; c) the time it would take to access such material; d) the number of e-m ails potentially preserved on those backup tapes; and e) whether the stored e-mails can be searched by date, recipient, sender, subject or keywords. 5 The court will order the defendants to provide that information.
5
The court notes that in Alexander, a case decided in 2000, the recovered e-mail in question could be searched by various keywords. The court in that case crafted a remedy based on the likelihood of certain keywords to produce potentially relevant information. See Alexander, 194 F.R.D. at 328. Given the fast pace of technological change, the court anticipates that the district court apply similar search technologies to its backup tapes. 19
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After receiving this information from the defendants, the court will determine how to proceed in procuring the district's stored information. If the court determines that a search of the defendants' backup tapes is likely to produce relevant evidence ,, ..
fffafc5i11(f'Ffof'l5emdfeec·onomicallTo'otainecrfrortf-ctnottfef~saorce;·~men~ol1rtWill
craft
a remedy for the discovery of that material that accounts for the costs and burdens to each party, as well as the potential value of the evidence. In any case, because we recognize that the school district's computers undoubtedly contain information of a private and privileged nature unrelated to this lawsuit, the court will not allow plaintiffs unsupervised access to unfiltered material from the files. The court at this point cannot know how the stored material will be processed or searched, however, and we thus cannot describe the procedure we will order for provision of the material to the plaintiffs. ii. YouTube Materials
Plaintiffs also seek from the defendants any YouTube clips stored in their files that Smith showed the class during his lectures. YouTube is "a popular Web video sharing site that lets anyone store short videos for private or public viewing." Definition of: YouTube at PC MAG .COM Encyclopedia, available at http://www .pcmag .com/encyclopedia_term/0,2542, t=YouTube&i=57119 ,OO.asp. The site "provides a venue for sharing videos among friends and family as well as a showcase for new and experienced videographers." M.:_ Users watch the videos on the YouTube (www.youtube.com) website or at other websites. M.:_ YouTube
20
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provides a means of embedding the video on third-party websites . .!.9..:. Defendants respond that they provided plaintiff with a DVD of all of Smith's video lessons, which included clips from YouTube, as well as a printed copy of the YouTube website made available to students. Defendants have thus most likely complied with the plaintiffs' request. To the extent that particular video clips sought by the defendants was not provided directly, but instead given as the internet address of a YouTube clip, the court concludes that defendants have complied with their discovery obligations. Given the nature of YouTube technology, plaintiff can obtain any of the videos Smith provided to students simply by obtaining the name of the video and/or its YouTube address. Indeed, Smith's website would not really have stored the videos plaintiffs seek anyway. Those videos are on the YouTube website. The plaintiffs do not contend that the videos in question have been removed from that site. As long as defendants have provided plaintiffs with the web address of any videos not provided otherwise in discovery, plaintiffs will have all the access to the YouTube clips that they need. No intervention from the court is required. Requiring additional computer searches and printouts would be neither efficient nor economical. We will deny the motion on this point. 6
6
lf, however, a back-up tape contains a version of Smith's website that would be relevant to the case, that material will be dealt with in the same fashion as the allegedly missing e-mails. At the same time, however, the defendants do not have to provide any YouTube clips stored on the back-up tapes if those clips are still available on YouTube itself. 21
Case 3:07-cv-00854-MWB Document 52 Filed 06/26/08 Page 22 of 23
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA No. 3:07cv854
PATRICIA YOUNG, WILLIAM YOUNG, and ·· ·PAlRICIA·¥0UNGr"on -behalf of her minor daughter, Plaintiffs
•.... .(Judge.Munley)- ....
v. PLEASANT VALLEY SCHOOL DISTRICT, JOHN J. GRESS, Principal, in his individual capacity, and DR. FRANK A. PULLO, Superintendent, in his individual capacity, Defendants
...................................................................................................... Ill Ill 111111 • • I l l . Ill Ill Ill. Ill. Ill Ill Ill Ill Ill Ill. Ill Ill Ill Ill. Ill Ill. Ill Ill Ill. Ill Ill Ill Ill Ill Ill Ill Ill I l l . Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill II Ill Ill
ORDER AND NOW, to wit, this 26th day of June 2008, the defendants' motion to compel discovery (Doc. 47) is hereby GRANTED. Plaintiffs' motion for production of electronic data (Doc. 46) is hereby GRANTED in part and DENIED in part, as follows: 1) Defendants are directed to provide the court with the following information: a) the technology required to gain access to the materials preserved on the district's back-up tapes; b) the cost of restoring thee-mails preserved on backup tapes; c) the time it would take to access such material;
22
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d) the number of e-mails potentially preserved on those backup tapes; and e) whether the stored e-mails can be searched by date, recipient, sender, subject or keywords f) defendants shall provide the court with this information within fifteen (15) days of the date of this order. 2) The plaintiffs' motion is DENIED with respect to the production of YouTube clips.
BY THE COURT:
sf James M. Munley JUDGE JAMES M. MUNLEY UNITED STATES DISTRICT COURT
23
CERTIFICATE OF SERVICE I, Joshua D. Bonn, Esquire, hereby certify that, on August 5, 2014, I caused to be served a true and correct copy of Plaintiff, Ryan Bagwell's Motion to Compel Discovery and Supporting Brief via email to counsel of records for the Defendants.
Is/ Joshua D. Bonn Joshua D. Bonn, Esquire Supreme Court ID#93967 200 North Third Street, P. 0. Box 840 Harrisburg, P A 17108-0840 Telephone: (717) 236-3010 Counsel for Ryan Bagwell, Plaintiff Date: August 5, 2014
10
