Hepting et al v. AT&T Corp. et al

Filing 356

Declaration of Cindy A. Cohn in Support of Plaintiffs' 355 Motion for Order to Preserve Evidence filed byTash Hepting. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Cohn, Cindy) (Filed on 9/20/2007) Modified on 9/26/2007 (gsa, COURT STAFF).

EXHIBIT C

From:
: e t a D June

"Coppolino.
29. 20072:41:46

Tony

\(CIV\)"
PM PDT

<[e-mail]>

:

o

T

"Cindy

Cohn"

<[e-mail]>.

"Bruce

A.

Ericson"

<[e-mail]>.

"Axelbaum.

Marc

H."

<[e-mail]>. <[e-mail]>.
d r o f d a r B " Berenson" <[e-mail]>.

"John "Samir

Rogovin" Jain"
"McNicholas.

<[e-mail]>~
Edward R."

<emcnicholas@sidley

.com>

Cc:
: t c e j b u S

"Coppolino.
RE: NSA

Tony
MDL-1791

\(CIV\)"
-

<[e-mail]>
Spoliation Order Issue

Cindy y r r o S for the delay in responding to your email on this topic( as you know we've had

y

n

a

m

other

matters

to

address

in

the

MDL).

We

don't

agree

with

your

description

of

c

i

f

i

c

e

p

s

document

preservation

obligations

and,

as

indicated

in

my

February

8

email

(below), remain concerned at attempting to reach an understanding on this matter in a
m u u c a v since we cannot discuss with plaintiffs the existence, nature, or scope of any

n

o

i

t

a

m

r

o

f

n

i

that

might

be

at

issue

and

preservation

steps

that

might

be

applicable.

We

do

understand partiesto litigation haveobligationsto take stepsto preserve that their relevantevidence. But I reiteratethat any specificunderstanding betweenthe partieson the matter doesnot seempossiblein the uniquecircumstances this case.I am willing of to talk with you aboutthe issuefurther if you would like.
y n o T Coppolino

Special
d e t i n U States

Litigation
Department

Counsel
of Justice

l

i

v

i

C

Division,

Federal

Programs

Branch

[phone]

From:

Original
Cindy

Message

Cohn

[mailto:[e-mail]]

:

t

n

e

S

Monday,

April

30,

2007

8:45

PM

:

o

T

Coppolino,

Tony

(CIV);

Bruce

A.

Ericson;

Axelbaum,

Marc

H.;

Nichols,

Carl

(CIV);

n

h

o

J

Rogovin;

Samir

Jain;

Bradford

Berenson;

McNicholas,

Edward

R.

:

c

C

Lee

Tien;

Harvey

Grossman;

Kurt

Opsahl

:

t

c

e

j

b

u

S

NSA

MDL-1791

-

Spoliation

Order

Issue

Dear Counsel,

I write to ensurethat Plaintiffs' understanding the Government's of position concerning evidencepreservation correct,and alsoto ensurethat the Carrierssharethis position is

concerningtheir own, separate dutiesto preserveevidencein this case. I hopeI have includedall of the necessary partiesfor both the governmentandthe carriersasrecipients
f o this email, but please let me know if there are others I should include.

s

i

h

T

email

is

prompted,

in

part,

by

the

recent

statements

that

the

FBI

planned

to

destroy

e

n

o

h

p

e

l

e

t

records

and

other

infonnation

improperly

collected

pursuant

to

NSL

letters,

as

l

l

e

w

as

the

statement

in

the

White

House

Privacy

and

Civil

Liberties

Board

Report

to

s

s

e

r

g

n

o

C

that

any

NSA

surveillance

must

be

conducted

with

a

"reviewable

audit

trail."

n

I

his

February

8,

2007,

email

Mr.

Coppolino

stated:

"In

sum,

we

are

not

suggesting

that

t

n

a

v

e

l

e

r

evidence

in

this

case,

if

any,

need

not

be

preserved."

We

underStand

this

t

n

e

m

e

t

a

t

s

as

an

acknowledgment

of

the

government's

duty

to

preserve

what

you

know

or

y

l

b

a

n

o

s

a

e

r

should

know

will

be

relevant

evidence

in

these

pending

lawsuits,

including

y

n

a

evidence

the

destruction

of

which

would

prejudice

plaintiffs.

We

expect

that

you

underStand this duty includesthe institution of a "litigation hold" on any document that retention/destruction policies in effect. In re Napster,Inc. Copyright Litigation 462 F.Supp.2d1060(N.D. Cal. 2006).The information that must be preserved any that is would tend to support(or disprove)plaintiffs claims. Zublakev.
S B U Warburg LLC, 220 FRD 212, 217-8 (S.D.N.Y. 2003).

e

W

understand

that

the

Government

and

the

Carriers
may have any waiver or

arguments

that

some

or

even all of this information is not properly discoverable, including due to the application
f o the state secrets privilege. We do not seek other limitation of those s t n e m u g r a or privileges now.

e

W

also

recognize

the

government's

stated

concerns

that

the

sort

of

detailed,

technical

n

o

i

t

a

t

l

u

s

n

o

c

concerning

evidence

preservation

envisioned

by

FRCP

26

may

not

be

e

t

a

i

r

p

o

r

p

p

a

for

this

case,

or

at

least

at

this

time.

In

light

of

this,

we

do

not

seek

a

detailed

l

a

c

i

n

h

c

e

t

presentation

about

how

such

information

is

stored

and

the

precise

methods

by

h

c

i

h

w

it

will

be

retained

now.

e

W

simply

seek

to

confinn

that

both

the

Government

and

the

Carriers

will

abide

by

their

dutiesto ensurethat infonnation that is likely to leadto the discoveryof admissible evidencein this caseis preserved, that thosearguments discussions not so and are rendered moot dueto spoliation. Accordingly, if it is not the understanding either the Government the Carriersthat of or
u o y remain under the litigation obligation to preserve potentially discoverable evidence, e s a e l p contact me immediately so that we can continue our discussions and, if necessary ,

t

n

e

s

e

r

p

any

disputes

to

the

Court.

Otherwise,

we

will

trust

that

both

the

Government

and

e

h

t

Carriers

intend

to

abide

by

their

evidence

preservation

obligations

and

we

will

not

raise the issue with the Court at this time.
Cindy

On

Feb

8,

2007,

at

9:30

AM,

Coppolino,

Tony

«CIV))

wrote:

>

First,

my

apologies

for

the

delay

in

responding

on

this

topic

but,

as

> you may gather, Government counsel have been involved in numerous > filings in recent weeks not only in this case (on the stay motion and > order to show cause), but also in connection with the Sixth Circuit
> appeal heard Jan. 31 and, unexpectedly, a TRO motion being heard today

> in Maine. But I wanted to get back to you on this topic before > tomorrow's hearing. > The Government has reviewed the draft preservation order that
> plaintiffs proposed and have given it careful consideration. As I

> have indicated previously, the central problem with discussing such an
> order is that the claims raised in the MDL cases concern alleged

> classified activities that cannot be confIrmed or denied, including > whether relationships exist between telecommunication carriers and the
> Government, and whether the activities alleged are in fact occurring.

> Under these circumstances, the Government believes that agreement on

> an appropriatespoliationorder is not possible. >
> The Manual for

Complex Litigation makes clear that the specific facts

> underlying a spoliationorder shouldbe discussed before an order is > entered,including the identification of the typesof materialsto be > preserved. Complex Litigation, Fourth § 40.25 (2). The > Manual notesthat "a preservation order will likely be ineffective if
See Manual for > it is formulated without reliable information from the responding

> party regarding

what data- management

systems are already

in place,

> the volume of dataaffected,andthe costsand technicalfeasability > of implementation."Seeid., § 11.442.Among the points to considerin > formulating an effective preservation order arewhetherthe order > might disrupt the operationof computers and computernetworksin the > routine courseof business. states further that > "[s]uch an order requiresthe partiesto define the scopeof the > contemplated discoveryasnarrowly aspossible,identify the > particular computers network serversaffected,and agreeon a or
See id. The Manual > method for data preservation. . . ." Id. The Manual also observes

> that"

[a] blanketpreservation ordermay be prohibitively expensive

> and unduly burdensome for parties dependent on computer systems for

> their day-to-dayoperations." Id. >
> Because the allegations in the MDL cases implicate alleged classified

> activities and the needfor a statesecrets privilege assertion, the > Government believesthat the specific discussions necessary craft to > an appropriate preservation order are not possible.Plaintiffs' draft > order doesnot describethe type of recordsthey believethe order > shouldcover, exceptfor a generalreference "information relevant to > to electronicsurveillance."It is not clear,nor could it be

> conflrIned, whether that term would cover the claims raised in the
> various MDL cases. Likewise, plaintiffs' draft order does not address

> the potential disruptionof computernetworks,andthat issuecould > not be resolvedwithout conflrInation or denial of the allegations
> raised in the MDL cases and the identification of any systems that may

> be at issue.
> Because we are unable to discuss the implications of a preservation

> order in specificterms,the partieswould be left to speculate > whetherrelevantinformation existsthat shouldbe coveredby the
> order and whether any such information could be preserved as

> plaintiffs proposewithout unduedisruption. The Governmentis > unwilling to agreeto a hypotheticalorder,coveringan unidentified > scopeof hypotheticalrecords,wherethe potentialimpact of that > order is not clear and cannotbe addressed prior to its entry. >
> In sum, we are not suggesting that relevant evidence in this case, if > any, need not be preserved. However, we are unable to discuss with

>

plaintiffs

whether

and

to

what

extent

information

that

may

be

relevant

>

exists,

where

any

such

information

may

reside,

how

it

may

be

>

preserved,

and

whether

there

are

any

practical

burdens

arising

from

>

plaintiffs'

proposed

preservation

steps---all

of

which

should

be

> undertaken before a preservation order is entered. >
> If plaintiffs continue to seek a preservation order (and we do not > believe you have or could make the showing necessary for one), the

>

prudent

course

would

be

for

the

Government

to

address

the

matter

with

> the Court throughan ex parte,in camerasubmission.If plaintiffs > wish, the partiescan discussthis issuewith the Court at the hearing
> tomorrow.

> > Tony Coppolino, Department of Justice [phone] > >

****.**.**.***************************..
y d n i C Cohn [e-mail]

Legal Director --- www.eff.org Electronic Frontier Foundation 454 Shotwell Street
n a S Francisco, CA 94110

[phone]

xl08

[phone](fax)