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
:
o
T
"Cindy
Cohn"
.
"Bruce
A.
Ericson"
.
"Axelbaum.
Marc
H."
. .
d r o f d a r B " Berenson" .
"John "Samir
Rogovin" Jain"
"McNicholas.
~
Edward R."
Cc:
: t c e j b u S
"Coppolino.
RE: NSA
Tony
MDL-1791
\(CIV\)"
-
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
(202) 514-4782
From:
Original
Cindy
Message
Cohn
[mailto:cindy@eff.org]
:
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 (202) 514-4782 > >
****.**.**.***************************..
y d n i C Cohn Cindy@eff.org
Legal Director --- www.eff.org Electronic Frontier Foundation 454 Shotwell Street
n a S Francisco, CA 94110
(415) 436-9333
xl08
(415) 436-9993(fax)
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