JIT Packing. Inc v. Google, Inc.

Filing 50

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JIT Packing. Inc v. Google, Inc. Doc. 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL F. HERTZ Deputy Assistant Attorney General JOSEPH H. HUNT ANTHONY J. COPPOLINO PAUL E. AHERN U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Tel: (202) 514-4782/Fax: (202) 616-8460 Attorneys for Government Defendants ANN M. RAVEL Deputy Assistant Attorney General TIMOTHY P. GARREN ANDREA W. MCCARTHY JAMES R. WHITMAN U.S. Department of Justice Civil Division, Torts Branch P.O. Box 7146, Ben Franklin Station Washington, DC 20044-7146 Tel: (202) 616-4169/Fax: (202) 616-4314 Attorneys for Individual Capacity Defendants ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) LEE TIEN (148216) KURT OPSAHL (191303) KEVIN S. BANKSTON (217026) JAMES S. TYRE (083117) 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 Fax: (415) 436-9993 RICHARD R. WIEBE (121156) LAW OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: (415) 433-3200 Fax: (415) 433-6382 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) Plaintiffs, ) ) v. ) ) NATIONAL SECURITY AGENCY et al., ) ) ) Defendants ) ) _______________________________________) CAROLYN JEWEL et al., Case No. C:08-cv-4373-VRW EXHIBIT 1 TO JOINT MOTION FOR ENTRY OF ORDER REGARDING PRESERVATION OF EVIDENCE DKT. 393 IN 06-CV-1791-VRW Chief Judge Vaughn R. Walker E x h ib it 1 to Joint M o t io n for Entry of Order Regarding Preservation of Evidence J e w e l et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs have moved for an order prohibiting the alteration or destruction of evidence during the pendency of this action. MDL Doc # 384. The United States has filed papers opposing the motion, Doc # 386, and has prepared and lodged with the court a confidential submission designed for ex parte, in camera review. Doc # 387. Telephone company defendants AT&T, Doc # 365, 388, 390. Cingular, Bellsouth, Sprint and Verizon have joined in the United States's opposition to plaintiffs' motion. Upon careful review of the non-confidential papers submitted in support of and in opposition to the motion, the court IN RE: NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION This Document Relates To: ALL CASES / MDL Docket No 06-1791 VRW ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has determined that (1) no hearing on the motion is necessary; (2) an order requiring the preservation of evidence is appropriate; and (3) an interim order shall forthwith enter requiring the parties to take steps to prevent the alteration or destruction of evidence as follows: A. Until the issues in these proceedings can be further refined in light of the guidance and directives anticipated to be received upon appellate review of the court's decision in Hepting v AT&T Corporation, 439 F Supp 974 (N D Cal 2006) and of the Oregon district court's decision in Al-Haramain Islamic Foundation, Inc v Bush, 451 F Supp 2d 1215 (D Or 2006), the court reminds all parties of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. Counsel are under an obligation to exercise efforts to identify and notify such nonparties, including employees of corporate or institutional parties. B. "Documents, data and tangible things" is to be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voicemail, e-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, disks and cards, printouts, document image files, web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements, worksheets, summaries, 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compilations, computations, charts, diagrams, graphic presentations, drawings, films, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices and metadata, is also included in this definition. C. "Preservation" is to be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible things reasonably anticipated to be subject to discovery under FRCP 26, 45 and 56(e) in this action. destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible. D. Counsel are directed to inquire of their respective clients if the business practices of any party involve the routine destruction, recycling, relocation, or mutation os such materials and, if so, direct the party, to the extent practicable for the pendency of this order, either to (1) halt such business processes; (2) sequester or remove such material from the business process; or (3) arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested. \\ 3 Preservation includes taking reasonable steps to prevent the partial or full 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The most senior lawyer or lead trial counsel representing each party shall, not later than December 14, 2007, submit to the court under seal and pursuant to FRCP 11, a statement that the directive in paragraph D, above, has been carried out. The clerk is directed to vacate the hearing now scheduled for November 15, 2007 in this matter. IT IS SO ORDERED. VAUGHN R WALKER United States District Chief Judge 4

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